1
EXHIBIT 4.3
EXECUTION COPY
HAWK CORPORATION,
THE GUARANTORS NAMED HEREIN
and
BANK ONE TRUST COMPANY, NA
as Trustee
________________________
INDENTURE
Dated as of November 27, 1996
________________________
$100,000,000
10 1/4% Senior Notes due 2003
Series B 10 1/4% Senior Notes due 2003
2
CROSS-REFERENCE TABLE
TIA Section Indenture Section
----------- -----------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10; 11.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 11.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6; 4.9; 11.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 11.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ____
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
-----------------
N.A. means Not Applicable
NOTE: This Cross-Reference table shall not, for any purpose, be deemed to be
a part of this Indenture.
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Incorporation by Reference of TIA . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.3 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE II
THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.1 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.2 Execution and Authentication; Aggregate Principal Amount . . . . . . . . . . 17
SECTION 2.3 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.4 Paying Agent To Hold Assets in Trust . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.5 Noteholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.6 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.7 Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.8 Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.9 Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.10 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.13 CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.14 Deposit of Monies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.15 Restrictive Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.16 Book-Entry Provisions for Global Security . . . . . . . . . . . . . . . . . . 25
SECTION 2.17 Special Transfer Provisions . . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Transfers to Non-U.S. Persons . . . . . . . . . . . . . . . . . . . . . 26
(b) Transfers to Accredited Investors . . . . . . . . . . . . . . . . . . . 26
(c) Transfers to QIBS . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(d) Private Placement Legend . . . . . . . . . . . . . . . . . . . . . . . 27
(e) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(f) Transfers of Notes Held by Affiliates . . . . . . . . . . . . . . . . . 28
SECTION 2.18 Liquidated Damages Under Registration Rights Agreement . . . . . . . . . . . 28
ARTICLE III
REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.1 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.2 Selection of Notes To Be Redeemed . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.3 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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SECTION 3.4 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . 30
SECTION 3.5 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.6 Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.1 Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . 31
SECTION 4.3 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 4.4 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . 32
SECTION 4.5 Maintenance of Properties and Insurance . . . . . . . . . . . . . . . 32
SECTION 4.6 Compliance Certificate; Notice of Default . . . . . . . . . . . . . . 32
SECTION 4.7 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.8 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . 33
SECTION 4.9 Provision of Financial Statements and Information . . . . . . . . . . 33
SECTION 4.10 Limitation on Incurrence of Indebtedness . . . . . . . . . . . . . . 34
SECTION 4.11 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . 37
SECTION 4.12 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.13 Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries . . . . . . . 40
SECTION 4.14 Limitation on Transactions with Affiliates . . . . . . . . . . . . . 41
SECTION 4.15 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.16 Limitation on Asset Sales . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.17 Limitation on Designation of Unrestricted Subsidiaries . . . . . . . 46
ARTICLE V
SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.1 Merger, Consolidation and Sale of Assets . . . . . . . . . . . . . . 47
SECTION 5.2 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . 48
ARTICLE VI
DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.2 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.3 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.4 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.5 Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.6 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.7 Rights of Holders To Receive Payment . . . . . . . . . . . . . . . . 52
SECTION 6.8 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.9 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . 53
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SECTION 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VII
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.1 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.2 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.3 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . 56
SECTION 7.4 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.6 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . 57
SECTION 7.7 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . 57
SECTION 7.8 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.9 Successor Trustee by Merger, Etc . . . . . . . . . . . . . . . . 59
SECTION 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . 59
SECTION 7.11 Preferential Collection of Claims Against Company . . . . . . . 60
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . 60
SECTION 8.2 Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . 61
SECTION 8.3 Application of Trust Money . . . . . . . . . . . . . . . . . . . 63
SECTION 8.4 Repayment to the Company . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.5 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.6 Acknowledgment of Discharge by Trustee . . . . . . . . . . . . . 64
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 9.1 Without Consent of Holders . . . . . . . . . . . . . . . . . . . 65
SECTION 9.2 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.3 Compliance with TIA . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 9.4 Revocation and Effect of Consents . . . . . . . . . . . . . . . . 67
SECTION 9.5 Notation on or Exchange of Notes . . . . . . . . . . . . . . . . 68
SECTION 9.6 Trustee To Sign Amendments, Etc . . . . . . . . . . . . . . . . . 68
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ARTICLE X
GUARANTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.1 Unconditional Guarantee . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.2 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.3 Successors and Assigns; Release of a Guarantor . . . . . . . . . . 69
SECTION 10.4 Limitation of Guarantor's Liability . . . . . . . . . . . . . . . 70
SECTION 10.5 Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.6 Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.7 Execution of Guarantee . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.8 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . 71
SECTION 10.9 Additional Guarantors . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 10.10 Modification . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE XI
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.1 TIA Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.3 Communications by Holders with Other Holders . . . . . . . . . . . 73
SECTION 11.4 Certificate and Opinion as to Conditions Precedent . . . . . . . . 73
SECTION 11.5 Statements Required in Certificate or Opinion . . . . . . . . . . 74
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar . . . . . . . . . . . . 74
SECTION 11.7 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.9 No Adverse Interpretation of Other Agreements . . . . . . . . . . 75
SECTION 11.10 No Recourse Against Others . . . . . . . . . . . . . . . . . . . 75
SECTION 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.12 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.14 Independence of Covenants . . . . . . . . . . . . . . . . . . . . 76
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
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INDENTURE, dated as of November 27, 1996, between Hawk
Corporation, a Delaware corporation (the "COMPANY"), the Guarantors (as defined
herein), and Bank One Trust Company, NA a national banking corporation, as
Trustee (the "TRUSTEE").
The Company has duly authorized the creation of an issue of
10 1/4% Senior Notes due 2003 (the "INITIAL NOTES") and Series B 10 1/4% Senior
Notes due 2003 to be issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement (the "EXCHANGE NOTES" and, together with the
Initial Notes, the "NOTES") and, to provide therefor, the Company has duly
authorized the execution and delivery of this Indenture. All things necessary
to make the Notes, when duly issued and executed by the Company, and
authenticated and delivered hereunder, the valid obligations of the Company,
and to make this Indenture a valid and binding agreement of the Company, have
been done.
Each party hereto agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
------------------------------------------
SECTION 1.1 Definitions.
------------
"ACCREDITED INVESTOR" means an "accredited investor" as that
term is defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"ACQUIRED DEBT" means, with respect to any specified Person,
Indebtedness of any other Person (the "ACQUIRED PERSON") existing at the time
the Acquired Person merges with or into, or becomes a Restricted Subsidiary of,
such specified Person, including Indebtedness incurred in connection with, or
in contemplation of, the Acquired Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person; provided, however, that
Indebtedness of such Acquired Person which is redeemed, defeased, retired or
otherwise repaid at the time of or immediately upon consummation of the
transactions by which such Acquired Person merges with or into or becomes a
Restricted Subsidiary of such specified Person shall not be Acquired Debt.
"AFFILIATE" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For purposes of
this definition, "CONTROL" (including, with correlative meanings, the terms
"CONTROLLING", "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") of any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by agreement or otherwise.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"AGENT MEMBERS" has the meaning provided in Section 2.16(a).
8
2
"ASSET SALE" means (i) any sale, lease, conveyance or other
disposition by the Company or any Restricted Subsidiary of any assets
(including by way of a sale-and-leaseback) other than in the ordinary course of
business, or (ii) the issuance or sale of Capital Stock of any Restricted
Subsidiary, in the case of each of (i) and (ii), whether in a single
transaction or a series of related transactions, to any Person (other than to
the Company or a Restricted Subsidiary and other than directors' qualifying
shares) for Net Proceeds in excess of $100,000.
"ASSET SALE OFFER" has the meaning provided in Section
4.16(c).
"ASSET SALE OFFER PURCHASE DATE" has the meaning provided in
Section 4.16(d).
"ASSET SALE OFFER TRIGGER DATE" has the meaning provided in
Section 4.16(c).
"AUTHENTICATING AGENT" has the meaning provided in Section
2.2.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"BOARD OF DIRECTORS" means, as to (a) any corporate Person,
the board of directors of such Person or any duly authorized committee thereof,
(b) any partnership, limited liability company or comparably organized Person
which is ultimately controlled by a corporate general partner, managing member
or other corporation, the "Board of Directors" of such corporation as specified
in clause (a) of this definition and (c) any partnership, limited liability
company or comparably organized Person which is ultimately controlled by
individuals, such controlling individuals.
"BOARD RESOLUTION" means, with respect to any Person, a duly
adopted resolution of the Board of Directors.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CAPITAL LEASE OBLIGATION" of any Person means, at the time
any determination thereof is to be made, the amount of the liability in respect
of a capital lease for property leased by such Person that would at such time
be required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
"CAPITAL STOCK" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including partnership interests, whether general or
limited, of such Person, including any Preferred Stock.
"CASH EQUIVALENTS" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public
9
3
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Rating Services or Xxxxx'x Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Rating Services or at least P-1 from Xxxxx'x
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
(or, with respect to foreign banks, similar instruments) maturing within one
year from the date of acquisition thereof issued by any bank organized under
the laws of the United States of America or any state thereof or the District
of Columbia or any U.S. branch of a foreign bank having at the date of
acquisition thereof combined capital and surplus of not less than $200 million;
(v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (iv) above; and
(vi) investments in money market funds that invest substantially all their
assets in securities of the types described in clauses (i) through (v) above.
"CASH FLOW" means, with respect to any period, Consolidated
Net Income for such period, plus, to the extent deducted in computing such
Consolidated Net Income: (i) extraordinary net losses, plus (ii) provision for
taxes based on income or profits and any provision for taxes utilized in
computing the extraordinary net losses under clause (i) hereof, plus (iii)
Consolidated Interest Expense, plus (iv) depreciation, amortization and all
other non-cash charges (including amortization of goodwill and other
intangibles).
"CHANGE OF CONTROL" means the occurrence of any of the
following events after the Issue Date: (i) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act) (other than one
or more Permitted Holders) is or becomes (including by merger, consolidation or
otherwise) 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, of 50% or more of the voting power of the total 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 new directors whose election to
such Board of Directors, or whose nomination for election by the stockholders
of the Company, was approved by a vote of 66 2/3% of the directors then still
in office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of such Board of Directors of the Company then
in office; (iii) the approval by the holders of Capital Stock of the Company of
any plan or proposal for the liquidation or dissolution of the Company (whether
or not otherwise in compliance with the terms of this Indenture); or (iv) the
sale or other disposition (including by merger, consolidation or otherwise) of
all or substantially all of the Capital Stock or assets of the Company to any
Person or group (as defined in Rule 13d-5 of the Exchange Act) (other than to
one or more of the Permitted Holders) as an entirety or substantially as an
entirety in one transaction or a series of related transactions.
"CHANGE OF CONTROL OFFER" has the meaning provided in Section
4.15(a).
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"CHANGE OF CONTROL PURCHASE DATE" has the meaning provided in
Section 4.15(b).
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the TIA, then the body performing such duties at such
time.
"COMMON STOCK" of any Person means any and all shares,
interests, participations, or other equivalents (however designated) of such
Person's common stock whether now outstanding or issued after the Issue Date.
"COMPANY" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to this Indenture and
thereafter means such successor.
"CONSOLIDATED CASH FLOW COVERAGE RATIO" means, for any period,
the ratio of (i) the aggregate amount of Cash-Flow for such period, to (ii)
Consolidated Interest Expense for such period, determined on a pro forma basis
after giving pro forma effect to (a) the incurrence of the Indebtedness giving
rise to the calculation of the Consolidated Cash Flow Coverage Ratio 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, at the beginning of such period; (b) the
incurrence, repayment or retirement of any other Indebtedness by the Company
and its Restricted Subsidiaries since the first day of such period as if such
Indebtedness was incurred, repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average balance of
such Indebtedness at the end of each month during such period); (c) in the case
of Acquired Debt, the related acquisition as if such acquisition had occurred
at the beginning of such period; and (d) any acquisition or disposition by the
Company and its Restricted Subsidiaries of any company or any business or any
assets out of the ordinary course of business, or any related repayment of
Indebtedness, in each case since the first day of such period, assuming such
acquisition or disposition had been consummated on the first day of such
period.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any
period, the sum of (i) the interest expense of the Company and its Restricted
Subsidiaries for such period, including, without limitation, (a) amortization
of debt discount, (b) the net payments, if any, under interest rate contracts
(including amortization of discounts), (c) the interest portion of any deferred
payment obligation and (d) accrued interest, plus (ii) the interest component
of the Capital Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by the Company and its Restricted Subsidiaries during such period, and
all capitalized interest of the Company and its Restricted Subsidiaries, plus
(iii) all dividends paid during such period by the Company and its Restricted
Subsidiaries with respect to any Disqualified Stock (other than by any
Restricted Subsidiary to the Company or any other Restricted Subsidiary and
other than any dividend paid in Capital Stock (other than Disqualified Stock)),
and all dividends paid
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during such period by any Restricted Subsidiary with respect to any Preferred
Stock, in each case, as determined on a consolidated basis in accordance with
GAAP consistently applied.
"CONSOLIDATED NET INCOME" means, with respect to any period,
the net income (or loss) of the Company and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP
consistently applied, adjusted to the extent included in calculating such net
income (or loss), by excluding, without duplication, (i) all extraordinary
gains and losses (less all fees and expenses relating thereto), (ii) the
portion of net income (or loss) of the Company and its Restricted Subsidiaries
allocable to interests in unconsolidated Persons or Unrestricted Subsidiaries,
except to the extent of the amount of dividends or distributions actually paid
to the Company or its Restricted Subsidiaries by such other Person during such
period, (iii) for purposes of Section 4.11, net income (or loss) of any Person
combined with the Company or any of its Restricted Subsidiaries on a "pooling
of interests" basis attributable to any period prior to the date of
combination, (iv) net gains and losses (less all fees and expenses relating
thereto) in respect of disposition of assets (including, without limitation,
pursuant to sale and leaseback transactions) other than in the ordinary course
of business, or (v) the net income of any Restricted Subsidiary to the extent
that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income to the Company 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 Restricted Subsidiary or its stockholders.
"CONSOLIDATED NET WORTH" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Stock of such person.
"COVENANT DEFEASANCE" has the meaning provided in Section
8.2(b).
"CURRENCY AGREEMENT OBLIGATIONS" means the obligations of any
person under a foreign exchange contract, currency swap agreement or other
similar agreement or arrangement to protect such person against fluctuations in
currency values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event that is, or after the giving of
notice or passage of time or both would be, an Event of Default.
"DEFAULT INTEREST PAYMENT DATE" has the meaning provided in
Section 2.12.
"DEFEASANCE" has the meaning provided in Section 8.2(a).
"DESIGNATION" has the meaning provided in Section 4.17(a).
"DESIGNATION AMOUNT" has the meaning provided in Section
4.17(a).
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"DISPOSITION" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"DISQUALIFIED STOCK" means (i) any Preferred Stock of any
Restricted Subsidiary and (ii) that portion of any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof (other than upon a change of
control of the Company in circumstances where the holders of the Notes would
have similar rights), in whole or in part on or prior to the stated maturity of
the Notes.
"DOLLARS" and "$" means lawful money of the United States of
America.
"DTC" means The Depository Trust Company, its nominees and
successors.
"EVENT OF DEFAULT" has the meaning provided in Section 6.1.
"EXCESS PROCEEDS" has the meaning provided in Section 4.16(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE NOTES" has the meaning provided in the preamble to
this Indenture.
"EXISTING INDEBTEDNESS" has the meaning provided in Section
4.10(b)(iii).
"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.
"FOREIGN SUBSIDIARY" means a Restricted Subsidiary not
organized under the laws of the United States or any political subdivision
thereof and the operations of which are located entirely outside the United
States.
"GAAP" means generally accepted accounting principles in the
United States set forth in the Statements of Financial Accounting Standards and
the Interpretations, Accounting Principles Board Opinions and American
Institute of Certified Public Accountants Accounting Research Bulletins, which
are applicable as of the Issue Date and consistently applied.
"GLOBAL NOTE" has the meaning provided in Section 2.1.
"GUARANTEE" means, as applied to any obligation, (1) a
guarantee (other than endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any
part or all of such obligation and (2) an agreement, direct or
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7
indirect, contingent or otherwise, the practical effect of which is to assure
in any way the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of credit.
"GUARANTEE" means the guarantee of the Notes by a Guarantor as
described in Section 10.1.
"GUARANTOR" means (1) each Subsidiary of the Company in
existence on the Issue Date which are each of Friction Products Co., Xxxxx
Metal Stampings, Inc., Hawk Brake, Inc., X.X. Xxxxxxx Holdings, Inc., X.X.
Xxxxxxx Corp., Xxxxxxx Friction Products U.K. Corp., Xxxxxxxxxx Products
Corporation and Xxxxxx, Inc. and (2) each Subsidiary (other than Foreign
Subsidiaries and Unrestricted Subsidiaries) created or acquired by the Company
after the Issue Date that guarantees the Notes.
"HAWK CONTROLLING STOCKHOLDER MERGER" means the merger, in a
tax-free reorganization, of Hawk Holding Corp., a Delaware corporation and a
principal stockholder of the Company, with and into the Company.
"HOLDER" means the Person in whose name a Note is registered
on the Registrar's books.
"INCUR" has the meaning provided in Section 4.10(a).
"INDEBTEDNESS" means, with respect to any Person, without
duplication, and whether or not contingent, (i) all indebtedness of such Person
for borrowed money or which is evidenced by a note, bond, debenture or similar
instrument, (ii) all obligations of such Person to pay the deferred or unpaid
purchase price of property or services, which purchase price is due more than
six months after the date of placing such property in service or taking
delivery and title thereto or the completion of such service, (iii) all Capital
Lease Obligations of such Person, (iv) all obligations of such Person in
respect of letters of credit or bankers' acceptances issued or created for the
account of such Person, (v) to the extent not otherwise included in this
definition, all net obligations of such Person under Interest Rate Agreement
Obligations or Currency Agreement Obligations of such Person, (vi) all
liabilities of others of the kind described in the preceding clause (i), (ii)
or (iii) secured by any Lien on any property owned by such Person; PROVIDED,
HOWEVER, if the obligations secured by a Lien (other than a Permitted Lien not
securing any liability that would itself constitute Indebtedness) on any assets
or property have not been assumed by such Person in full or are not such
Person's legal liability in full, the amount of such Indebtedness for purposes
of this definition shall be limited to the lesser of the amount of Indebtedness
secured by such Lien and the Fair Market Value of the property subject to such
Lien, (vii) all Disqualified Stock issued by such Person and all Preferred
Stock issued by a Subsidiary of such Person, and (viii) to the extent not
otherwise included, any guarantee by such Person of any other Person's
indebtedness or other obligations described in clauses (i) through (vii) above.
"Indebtedness" of the Company and the Restricted Subsidiaries shall not include
current trade payables incurred in the ordinary course of business and payable
in accordance with customary practices, and non-interest
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8
bearing installment obligations and accrued liabilities incurred in the
ordinary course of business that are not more than 90 days past due. The
principal amount outstanding of any Indebtedness issued with original issue
discount is the accreted value of such Indebtedness. Notwithstanding the
foregoing, Indebtedness shall not include Indebtedness arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument inadvertently drawn against insufficient funds in the ordinary
course of business; PROVIDED that such Indebtedness is extinguished within 3
Business Days of the incurrence thereof.
"INDENTURE" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"INDEPENDENT DIRECTOR" means a director of the Company other
than a director (i) who (apart from being a director of the Company or any
Subsidiary of the Company) is an employee, associate or Affiliate of the
Company or a Subsidiary of the Company, or (ii) who is a director, employee,
associate or Affiliate of another party (other than the Company or any of its
Subsidiaries) to the transaction in question.
"INITIAL NOTES" has the meaning provided in the preamble to
this Indenture.
"INITIAL PURCHASERS" means Xxxxxxxx Xxxxxxxx & Co.
Incorporated, BT Securities Corporation and XxXxxxxx & Company Securities, Inc.
"INTEREST" on the Notes means interest (including Liquidated
Damages) on the Notes.
"INTEREST PAYMENT DATE" means the stated maturity of a payment
of interest on the Notes.
"INTEREST RATE AGREEMENT OBLIGATIONS" means, with respect to
any Person, the Obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended, to the date hereof and from time to time hereafter.
"INVESTMENT" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by, any other Person. "Investment" shall exclude travel
and similar advances to officers and employees of the Company in the ordinary
course of business and extensions of trade credit by the Company and its
Restricted Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of the Company or such Restricted Subsidiary, as the
case may be. For the purposes of Section 4.11, (i) "Investment" shall include
and be
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valued at the Fair Market Value of the net assets of any Restricted Subsidiary
(to the extent of the Company's equity interest in such Restricted Subsidiary)
at the time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary and shall exclude the Fair Market Value of the net assets of any
Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is
designated a Restricted Subsidiary and (ii) the amount of any Investment shall
be the original cost of such Investment plus the cost of all additional
Investments by the Company or any of its Restricted Subsidiaries, without any
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment, reduced by the payment of dividends
or distributions in connection with such Investment or any other amounts
received in respect of such Investment; PROVIDED, HOWEVER, that no such payment
of dividends or distributions or receipt of any such other amounts shall reduce
the amount of any Investment if such payment of dividends or distributions or
receipt of any such amounts would be included in Consolidated Net Income. If
the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Common Stock of any direct or indirect Restricted Subsidiary of
the Company such that, after giving effect to any such sale or disposition, the
Company no longer owns, directly or indirectly, greater than 50% of the
outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the Fair Market Value of the Common Stock of such Restricted
Subsidiary not sold or disposed of.
"ISSUE DATE" means November 27, 1996, the date the Notes are
originally issued under this Indenture.
"LEGAL HOLIDAY" has the meaning provided in Section 11.7.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in any asset and any filing of, or agreement to give, any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction).
"LIQUIDATED DAMAGES" means all liquidated damages owing under
the Registration Rights Agreement.
"MATURITY DATE" means December 1, 2003.
"NET PROCEEDS" means, with respect to any Asset Sale by any
Person, the aggregate cash or Cash Equivalent proceeds received by such Person
and/or its Affiliates in respect of such Asset Sale, which amount is equal to
the excess, if any, of (i) the cash or Cash Equivalent received by such Person
and/or its Affiliates (including any cash payments received by way of deferred
payment pursuant to, or monetization of, a note or installment receivable or
otherwise, but only as and when received) in connection with such Asset Sale,
over (ii) the sum of (a) the amount of any Indebtedness that is secured by such
asset and which is required to be repaid by such Person in connection with such
Asset Sale, plus (b) all fees, commissions and other expenses incurred by such
Person in connection with such Asset Sale, plus (c)
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provision for taxes, including income taxes, directly attributable to the Asset
Sale or to required prepayments or repayments of Indebtedness with the proceeds
of such Asset Sale., plus (d) if such Person is a Restricted Subsidiary, any
dividends or distributions payable to holders of minority interests in such
Restricted Subsidiary from the proceeds of such Asset Sale.
"NEW REVOLVING CREDIT FACILITY" means the New Revolving Credit
Facility between the Company and the lenders named therein as the same may be
amended, modified, renewed, refunded, replaced or refinanced from time to time,
including (1) any related notes, letters of credit, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or refinanced from
time to time, and (2) any notes, guarantees, collateral documents, instruments
and agreements executed in connection with any such amendment, modification,
renewal, refunding, replacement or refinancing.
"NON-U.S. PERSON" means a person who is not a U.S. person, as
defined in Regulation S.
"NOTES" mean the Initial Notes and the Exchange Notes treated
as a single class of securities, as amended or supplemented from time to time
in accordance with the terms hereof, that are issued pursuant to this
Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities
payable under the documentation governing any Indebtedness including all
obligations of the Company and the Guarantors under this Indenture, the Notes
and the Guarantees.
"OFFERING MEMORANDUM" means the Offering Memorandum dated
, 1996 of the Company relating to the offering of the Initial Notes;
PROVIDED that after the issuance of Exchange Notes, all references herein to
"Offering Memorandum" shall be deemed references to the prospectus relating to
the Exchange Notes.
"OFFICER" means, with respect to any Person, the Chairman of
the Board of Directors, the Vice-Chairman of the Board of Directors, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Controller, or the Secretary of such Person, or any
other officer designated by the Board of Directors serving in a similar
capacity.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 11.4 and 11.5, as they relate to the making of an
Officers' Certificate.
"OFFSHORE PHYSICAL NOTES" has the meaning provided in Section
2.1.
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"OPINION OF COUNSEL" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee complying with the
requirements of Sections 11.4 and 11.5, as they relate to the giving of an
Opinion of Counsel.
"PAYING AGENT" has the meaning provided in Section 2.3.
"PERMITTED HOLDERS" means any of Xxxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxxxx, Xxxxx X. Xxxxxx, Clanco Partners I or any "group" (as defined in Rule
13d-5 of the Exchange Act) consisting of any or all of the foregoing.
"PERMITTED INDEBTEDNESS" has the meaning provided in Section
4.10(b).
"PERMITTED INVESTMENTS" means (i) any Investment in the
Company or any Restricted Subsidiary that is a Guarantor of the Notes; (ii) any
investment in cash or Cash Equivalents; (iii) any Investment in a Person (an
"ACQUIRED PERSON") if, as a result of such Investment, (a) the Acquired Person
becomes a Restricted Subsidiary and becomes a Guarantor of the Notes or (b) the
Acquired Person either (1) is merged, consolidated or amalgamated with or into
the Company or one of its Restricted Subsidiaries that is a Guarantor of the
Notes and the Company or such Restricted Subsidiary is the Surviving Person, or
(2) transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or one of its Restricted Subsidiaries that is a Guarantor of
the Notes; PROVIDED that any Investment pursuant to this clause (iii) in a
Person that is or becomes a Foreign Subsidiary shall not constitute the
transfer of property (other than cash); (iv) Investments in accounts and notes
receivable acquired in the ordinary course of business; (v) any notes,
obligations or other securities received in connection with an Asset Sale that
complies with Section 4.16; (vi) Interest Rate Obligations and Currency
Agreement Obligations permitted pursuant to Section 4.10(b)(v); and (vii)
investments in or acquisitions of Capital Stock or similar interests in Persons
(other than Affiliates of the Company) received in the bankruptcy or
reorganization of or by such Person or any exchange of such investment with the
issuer thereof or taken in settlement of or other resolution of claims or
disputes.
"PERMITTED LIENS" means (i) Liens securing Indebtedness under
the New Revolving Credit Facility; (ii) Liens securing Indebtedness of a Person
existing at the time that such Person is merged into or consolidated with the
Company or a Restricted Subsidiary; PROVIDED, HOWEVER, that such Liens were in
existence prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of such Person; (iii) Liens on property
acquired by the Company or a Restricted Subsidiary; PROVIDED, HOWEVER, that
such Liens were in existence prior to the contemplation of such acquisition and
do not extend to any other property; (iv) Liens in respect of Interest Rate
Obligations and Currency Agreement Obligations permitted under this Indenture;
(v) Liens in favor of the Company, any Restricted Subsidiary or any Guarantor;
(vi) Liens existing or created on the Issue Date; and (vii) Liens securing the
Notes.
"PERMITTED PAYMENTS" has the meaning provided in Section
4.11(b).
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"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"PHYSICAL NOTES" has the meaning provided in Section 2.1.
"PREFERRED STOCK" as applied to the Capital Stock of any
Person, means 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 Capital Stock of any other class of such
Person.
"PRINCIPAL" of any Indebtedness (including the Notes) means
the principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"PRIVATE PLACEMENT LEGEND" means the legend initially set
forth on the Notes in the form set forth in Section 2.15.
"PUBLIC EQUITY OFFERING" means an underwritten public offering
of Capital Stock (other than Disqualified Capital Stock) of the Company
pursuant to an effective registration statement filed under the Securities Act.
"PURCHASE MONEY OBLIGATION" means any Indebtedness secured by
a Lien on assets related to the business of the Company or the Restricted
Subsidiaries, and any additions and accessions thereto, which are purchased,
constructed or improved by the Company or any Restricted Subsidiary at any time
after the Issue Date; PROVIDED, HOWEVER, that (i) any security agreement or
conditional sales or other title retention contract pursuant to which the Lien
on such assets is created (collectively, a "SECURITY AGREEMENT") shall be
entered into within 90 days after the purchase or substantial completion of the
construction or improvement of such assets and shall at all times be confined
solely to the assets so purchased, constructed or improved, 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 Security Agreement is
entered into exceed 100% of the purchase price or cost of construction or
improvement to the Company or any Restricted Subsidiary of the assets subject
thereto or (b) the Indebtedness secured thereby shall be with recourse solely
to the assets so purchased, constructed or improved, any additions and
accessions thereto and any proceeds therefrom.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"RECORD DATE" means the Record Dates specified in the Notes;
PROVIDED, HOWEVER, that if any such date is a Legal Holiday, the Record Date
shall be the first day immediately preceding such specified day that is not a
Legal Holiday.
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"REDEMPTION DATE," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Notes.
"REDEMPTION PRICE," when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Notes.
"REDESIGNATION" has the meaning provided in Section 4.17(b).
"REFINANCING" has the meaning provided in Section
4.10(b)(vii).
"REFINANCING INDEBTEDNESS" has the meaning provided in Section
4.10(b)(vii).
"REGISTRAR" has the meaning provided in Section 2.3.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated on or about the Issue Date between the Company, the Guarantors
and the Initial Purchasers for the benefit of themselves and the Holders as the
same may be amended from time to time in accordance with the terms thereof.
"REGULATION S" means Regulation S under the Securities Act.
"REQUIRED FILING DATES" has the meaning provided in Section
4.9(a).
"RESTRICTED INVESTMENT" means an Investment other than a
Permitted Investment.
"RESTRICTED PAYMENT" means (i) any dividend or other
distribution declared or paid on any Capital Stock of the Company (other than
(a) dividends or distributions payable solely in Capital Stock (other than
Disqualified Stock) of the Company or (b) dividends or distributions payable to
the Company or any Restricted Subsidiary); (ii) any payment to purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company;
(iii) any payment to purchase, redeem, defease or otherwise acquire or retire
for value, prior to any scheduled maturity, repayment or sinking fund payment,
any Subordinated Indebtedness other than a purchase, redemption, defeasance or
other acquisition or retirement for value that is paid for with the proceeds of
Refinancing Indebtedness that is permitted under Section 4.10(b)(vii); or (iv)
any Restricted Investment.
"RESTRICTED SECURITY" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; PROVIDED, HOWEVER, that the Trustee
shall be entitled to request and conclusively rely on an Opinion of Counsel
with respect to whether any Note constitutes a Restricted Security.
"RESTRICTED SUBSIDIARY" means each direct or indirect
Subsidiary of the Company other than an Unrestricted Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
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"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SENIOR DEBT" means the principal of and interest (including
post-petition interest) on, and all other amounts owing in respect of, (x) the
New Revolving Credit Facility, (y) Indebtedness evidenced by the Notes and (z)
any other Indebtedness incurred by the Company (including, but not limited to,
reasonable fees and expenses of counsel and all other charges, fees and
expenses incurred in connection with such Indebtedness), unless the instrument
creating or evidencing such Indebtedness or pursuant to which such Indebtedness
is outstanding expressly provides that such Indebtedness is subordinated in
right of payment to the Notes. Notwithstanding the foregoing, Senior Debt
shall not include (i) any Indebtedness for federal, state, local or other
taxes, (ii) any Indebtedness of the Company to any of its Subsidiaries or any
of its Affiliates, (iii) any Indebtedness incurred for the purchase of goods or
materials, or for services obtained, in the ordinary course of business or any
obligations in respect of any such Indebtedness, (iv) any Indebtedness that is
incurred in violation of this Indenture or (v) Indebtedness of the Company that
is expressly subordinate or junior in right of payment (other than as a result
of the indebtedness being unsecured) to any other Indebtedness of the Company.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X
promulgated pursuant to the Securities Act, as such Regulation S-X is in effect
on the Issue Date.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company
subordinated in right of payment to the Notes.
"SUBSIDIARY" of a Person means (i) any corporation more than
50% of the outstanding voting power of the Voting Stock of which is owned or
controlled, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person, or by such Person and one or more other
Subsidiaries thereof, or (ii) any limited partnership of which such Person or
any Subsidiary of such Person is a general partner, or (iii) any other Person
(other than a corporation or limited partnership) in which such Person or one
or more other Subsidiaries of such Person, or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has more than 50% of the
outstanding partnership or similar interests or has the power, by contract or
otherwise, to direct or cause the direction of the policies, management and
affairs thereof.
"SURVIVING PERSON" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
Section 77aaa-77bbbb), as amended, as in effect on the date of this Indenture,
except as otherwise provided in Section 9.3.
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"TRUST OFFICER" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer this Indenture, or in the case of
a successor trustee, an officer assigned to the department, division or group
performing the corporation trust work of such successor and assigned to
administer this Indenture.
"TRUSTEE" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company
designated as such pursuant to and in compliance with Section 4.17 and not
redesignated a Restricted Subsidiary in compliance with such covenant.
"U.S. GOVERNMENT OBLIGATIONS" mean direct obligations of, and
obligations guaranteed by, the United States of America for the payment of
which the full faith and credit of the United States of America is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. PHYSICAL NOTES" has the meaning provided in Section 2.1.
"VOTING STOCK" of a Person means Capital Stock of such Person
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 such Person (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, with (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
SECTION 1.2 Incorporation by Reference of TIA.
----------------------------------
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this indenture have the following meanings:
"INDENTURE SECURITIES" means the Notes.
"INDENTURE SECURITY HOLDER" means a Holder or a Noteholder.
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"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee.
"OBLIGOR" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.3 Rules of Construction.
----------------------
Unless the context otherwise requires:
1. a term has the meaning assigned to it;
2. an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the date
hereof;
3. "OR" is not exclusive;
4. words in the singular include the plural, and words in the
plural include the singular;
5. a reference to a Section or Article shall be to a Section
or Article of this Indenture;
6. "HEREIN", "HEREOF" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
7. any reference to a statute, law or regulation means that
statute, law or regulation as amended and in effect from time to time
and includes any successor statute, law or regulation; PROVIDED,
HOWEVER, that any reference to the Bankruptcy Law shall mean the
Bankruptcy Law as applicable to the relevant case.
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ARTICLE II
THE NOTES
---------
SECTION 2.1 Form and Dating.
----------------
The Initial Notes and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of EXHIBIT A
hereto. The Exchange Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form of EXHIBIT B hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or depository rule or usage. The Company and the Trustee shall
approve the form of the Notes and any notation, legend or endorsement on them.
Each Note shall be dated the date of its issuance and shall show the date of
its authentication.
The terms and provisions contained in the Notes, annexed
hereto as EXHIBITS A AND B, shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent global Notes in
registered form, substantially in the form set forth in EXHIBIT A (the "GLOBAL
NOTE"), deposited with the Trustee, as custodian for DTC, duly executed by the
Company and authenticated by the Trustee as hereinafter provided and shall bear
the legend set forth in Section 2.15(a) and (b). The aggregate principal
amount of the Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC, as
hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in EXHIBIT A (the "OFFSHORE
PHYSICAL NOTES") duly executed by the Company and authenticated by the Trustee
as hereinafter provided and shall bear the legend set forth in Section 2.15(a).
Notes offered and sold to Accredited Investors shall be issued, and Notes
offered and sold in reliance on Rule 144A may be issued, in the form of
permanent certificated Notes in registered form, in substantially the form set
forth in EXHIBIT A (the "U.S. PHYSICAL NOTES"), duly executed by the Company
and authenticated by the Trustee as hereinafter provided and shall bear the
legend set forth in Section 2.15(a). The Offshore Physical Notes and the U.S.
Physical Notes are sometimes collectively herein referred to as the "PHYSICAL
NOTES."
SECTION 2.2 Execution and Authentication; Aggregate Principal
-------------------------------------------------
Amount.
-------
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign and one Officer or an Assistant Secretary (each
of whom shall, in each case,
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have been duly authorized by all requisite corporate actions) shall attest to,
the Notes for the Company by manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a
Note was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office or position at the time the Trustee authenticates the
Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue in the aggregate principal amount not to exceed $100,000,000 and (ii)
Exchange Notes from time to time for issue only in exchange for a like
principal amount of Initial Notes, in each case upon a written order of the
Company. Such order shall specify the amount of Notes to be authenticated and
the date on which the Notes are to be authenticated, whether the Notes are to
be Initial Notes or Exchange Notes and whether the Notes are to be issued as
Physical Notes or a Global Note or such other information as the Trustee may
reasonably request. The aggregate principal amount of Notes outstanding at any
time may not exceed $100,000,000, except as provided in Section 2.7.
The Trustee may appoint an authenticating agent (the
"AUTHENTICATING AGENT") reasonably acceptable to the Company to authenticate
Notes. Unless otherwise provided in the appointment, an Authenticating Agent
may authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
Authenticating Agent. An Authenticating Agent has the same rights as an Agent
to deal with the Company or with any Affiliate of the Company.
The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent.
---------------------------
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where (a) Notes may be presented or surrendered for registration of transfer or
for exchange ("REGISTRAR"), (b) Notes may be presented or surrendered for
payment ("PAYING AGENT") and (c) notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Registrar shall
keep a register of the Notes and of their transfer and exchange. The Company,
upon prior written notice to the Trustee, may have one or more co-Registrars
and one or more additional Paying Agents reasonably acceptable to the Trustee.
The term "PAYING AGENT" includes any additional Paying Agent. The Company may
act as its own Paying Agent, except that for the purposes of payments on the
Notes pursuant to Sections 4.15 and 4.16, neither the Company nor any Affiliate
of the Company may act as Paying Agent.
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The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which agreement shall incorporate
the provisions of the TIA and implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee, in advance, of the
name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of demands and notices in connection with
the Notes, until such time as the Trustee has resigned or a successor has been
appointed. Any of the Registrar, the Paying Agent or any other agent may
resign upon 30 days' notice to the Company.
SECTION 2.4 Paying Agent To Hold Assets in Trust.
-------------------------------------
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all assets held by the Paying Agent for
the payment of principal of, or interest on, the Notes (whether such assets
have been distributed to it by the Company or any other obligor on the Notes),
and the Company and the Paying Agent shall notify the Trustee of any Default by
the Company (or any other obligor on the Notes) in making any such payment.
The Company at any time may require a Paying Agent to distribute all assets
held by it to the Trustee and account for any assets disbursed and the Trustee
may at any time during the continuance of any payment Default, upon written
request to a Paying Agent, require such Paying Agent to distribute all assets
held by it to the Trustee and to account for any assets distributed. Upon
distribution to the Trustee of all assets that shall have been delivered by the
Company to the Paying Agent, the Paying Agent shall have no further liability
for such assets.
SECTION 2.5 Noteholder Lists.
-----------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders. If the Trustee is not the Registrar, the Company
shall furnish or cause the Registrar to furnish to the Trustee before each
Record Date and at such other times as the Trustee may request in writing a
list as of such date and in such form as the Trustee may reasonably require of
the names and addresses of the Holders, which list may be conclusively relied
upon by the Trustee.
SECTION 2.6 Transfer and Exchange.
----------------------
When Notes are presented to the Registrar or a co-Registrar
with a request to register the transfer of such Notes or to exchange such Notes
for an equal principal amount of Notes of other authorized denominations, the
Registrar or co-Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; PROVIDED, HOWEVER,
that the Notes presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company or the Registrar or co-Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
To permit registrations of transfer and
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exchanges, the Company shall execute and the Trustee shall authenticate Notes
at the Registrar's or co-Registrar's request. No service charge shall be made
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchanges or transfers pursuant to
Sections 2.10, 3.6, 4.15, 4.16 or 9.5, in which event the Company shall be
responsible for the payment of such taxes).
The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of any Note (i) during a period beginning
at the opening of business 15 days before the mailing of a notice of redemption
of Notes and ending at the close of business on the day of such mailing, (ii)
selected for redemption in whole or in part pursuant to Article III, except the
unredeemed portion of any Note being redeemed in part and (iii) during a Change
of Control Offer or an Asset Sale Offer if such Note is tendered pursuant to
such Change of Control Offer or Asset Sale Offer and not withdrawn.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interests in such Global Notes
may be effected only through a book-entry system maintained by the Holder of
such Global Note (or its agent), and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book-entry system.
SECTION 2.7 Replacement Notes.
------------------
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Note if the Trustee's requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or other indemnity of
reasonable tenor, sufficient in the reasonable judgment of both the Company and
the Trustee, to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Note is replaced. Every replacement Note
shall constitute an additional obligation of the Company.
SECTION 2.8 Outstanding Notes.
------------------
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
Subject to the provisions of Section 2.9, a Note does not cease to be
outstanding because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.7 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a BONA FIDE purchaser. A mutilated Note ceases to be outstanding upon
surrender of such Note and replacement thereof pursuant to Section 2.7.
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If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company) holds U.S. Legal Tender or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the
Notes payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after that
date such Notes cease to be outstanding and interest on them ceases to accrue.
SECTION 2.9 Treasury Notes.
---------------
In determining (x) whether the Holders of the required
principal amount of Notes have concurred in any director, waiver, consent or
notice or (y) how much principal amount of Notes remains outstanding after a
redemption under Paragraph 6(b) of the Notes, Notes owned by the Company or an
Affiliate shall be considered as though they are not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent under clause (x) above, only
Notes which a Trust Officer of the Trustee actually knows are so owned shall be
so considered. The Company shall notify the Trustee, in writing, when it or,
to the Company's knowledge, any of its Affiliates repurchases or otherwise
acquires Notes, of the aggregate principal amount of such Notes so repurchased
or otherwise acquired.
SECTION 2.10 Temporary Notes.
----------------
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon receipt, or a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be
authenticated. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers appropriate
for temporary Notes and so indicates in the Officers' Certificate. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate upon receipt of a written order of the Company pursuant to Section
2.2 definitive Notes in exchange for temporary Notes.
SECTION 2.11 Cancellation.
-------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee,
or at the direction of the Trustee, the Registrar or the Paying Agent, and no
one else, shall cancel and, at the written direction of the Company, shall
dispose, in its customary manner, of all Notes surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.7, the Company may not
issue new Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
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SECTION 2.12 Defaulted Interest.
-------------------
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a
subsequent special record date, which special record date shall be the
fifteenth day next preceding the date fixed by the Company for the payment of
defaulted interest or the next succeeding Business Day if such date is not a
Business Day. The Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the date of the
proposed payment (a "DEFAULT INTEREST 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 date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such defaulted interest as provided
in this Section; PROVIDED, HOWEVER, that in no event shall the Company deposit
monies proposed to be paid in respect of defaulted interest later than 11:00
a.m. of the proposed Default Interest Payment Date. At least 15 days before
the subsequent special record date, the Company shall mail (or cause to be
mailed) to each Holder, as of a recent date selected by the Company, with a
copy to the Trustee, a notice that states the subsequent special record date,
the payment date and the amount of defaulted interest, and interest payable on
such defaulted interest, if any, to be paid. Notwithstanding the foregoing,
any interest which is paid prior to the expiration of the 30-day period set
forth in Section 6.1(i) shall be paid to Holders as of the regular record date
for the Interest Payment Date for which interest has not been paid.
Notwithstanding the foregoing, the Company may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange.
SECTION 2.13 CUSIP Number.
-------------
The Company in issuing the Notes may use "CUSIP" number, and,
if so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; PROVIDED, HOWEVER, that no representation
is hereby deemed to be made by the Trustee as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Notes, and that reliance may
be placed only on the other identification number printed on the Notes. The
Company shall promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14 Deposit of Monies.
------------------
Prior to 11:00 a.m. New York City time on each Interest
Payment Date, Maturity Date, Redemption Date, Change of Control, Purchase Date
and Asset Sale Offer Purchase Date, the Company shall have deposited with the
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date, Maturity Date, Redemption
Date, Change of Control Purchase Date and Asset Sale Control Purchase Date, as
the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such Interest Payment Date, Maturity Date,
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Redemption Date, Change of Control Purchase Date and Asset Sale Offer Purchase
Date, as the case may be.
SECTION 2.15 Restrictive Legends.
--------------------
(a) Each Global Note and Physical Note that constitutes a
Restricted Security shall bear the following legend (the "PRIVATE PLACEMENT
LEGEND") on the face thereof until after the third anniversary of the Issue
Date, unless otherwise agreed by the Company and the Holder 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 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 INSTITUTIONAL "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, (2) AGREES THAT IT
WILL NOT WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY, EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
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 COMPLIANCE WITH REGULATION S 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 WITHIN THREE
YEARS AFTER THE ORIGINAL ISSUANCE OF THE 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
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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 MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
EACH PURCHASER BY ITS PURCHASE OF THIS SECURITY SHALL BE DEEMED TO
HAVE REPRESENTED AND COVENANTED THAT EITHER (I) IT IS NOT ACQUIRING
THE SECURITY FOR OR ON BEHALF OF ANY PENSION OR WELFARE PLAN (AS
DEFINED IN SECTION 3 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974 ("ERISA")) OR (II) IF IT IS ACQUIRING THE SECURITY FOR OR ON
BEHALF OF A PENSION OR WELFARE PLAN, THE APPLICABLE CONDITIONS OF
PROHIBITED TRANSACTION EXEMPTION 91-38, 90-L, 84-14 OR 95-60 ISSUED BY
THE DEPARTMENT OF LABOR HAVE BEEN SATISFIED OR THE PLAN IS A
GOVERNMENTAL PLAN THAT IS NOT SUBJECT TO TITLE I OF ERISA OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 AS AMENDED.
(b) Each Global Note shall also bear the following
legend on the face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH
SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE &
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CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.17 OF THE INDENTURE.
SECTION 2.16 Book-Entry Provisions for Global Security.
------------------------------------------
(a) The Global Note initially shall (i) be registered in
the name of DTC or the nominee of such DTC, (ii) be delivered to the Trustee as
custodian for such DTC and (iii) bear legends as set forth in Section 2.15.
Members of, or participants in, DTC ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by DTC, or the Trustee as its custodian, or under the Global Note,
and DTC may be treated by the Company, the Trustee and any Agent as the
absolute owner of the Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
Agent from giving effect to any written certification, proxy or other
authorization furnished by DTC or impair, as between DTC and its Agent Members,
the operation of customary practices governing the exercise of the rights of a
holder of any Note.
(b) Transfers of the Global Note shall be limited to
transfers in whole, but not in part, to DTC, its successors or their respective
nominees. Interests of beneficial owners in the Global Note may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
DTC and the provisions of Section 2.17. In addition, Physical Notes shall be
transferred to all beneficial owners in exchange for their beneficial interest
in the Global Note if (i) DTC notifies the Company that it is unwilling or
unable to continue as DTC for the Global Note and a successor depositary is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has received a written
request from DTC to issue Physical Notes.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in the Global Note to beneficial owners
pursuant to paragraph (b), the Registrar shall (if one or more Physical Notes
are to be issued) reflect on its books and records the date and a decrease in
the principal amount of the Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global
Note to beneficial owners pursuant to paragraph (b), the Global Note shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by DTC in exchange for its beneficial interest in the Global
Note, an equal aggregate principal amount of Physical Notes of authorized
denominations.
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(e) Any Physical Note constituting a Restricted Security
delivered in exchange for an interest in the Global Note pursuant to paragraph
(b) or (c) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c)
of Section 2.17, bear the legend regarding transfer restrictions applicable to
the Physical Notes set forth in Section 2.15.
(f) The Holder of the Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.17 Special Transfer Provisions.
----------------------------
(a) TRANSFERS TO NON-U.S. PERSONS. The following
provisions shall apply with respect to the registration of any proposed
transfer of a Note constituting a Restricted Security to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any
Note constituting a Restricted Security, whether or not such Note
bears the Private Placement Legend, if (x) the requested transfer is
after the third anniversary of the Issue Date (PROVIDED, HOWEVER, that
neither the Company nor any Affiliate of the Company has held any
beneficial interest in such Note, or portion thereof, at any time on
or prior to the third anniversary of the Issue Date) or (y) the
proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member
holding a beneficial interest in the Global Note, upon receipt by the
Registrar of the certificate, if any, required by paragraph (i) above
and written instructions given in accordance with the procedures of
DTC and the Registrar, then (x) the Registrar shall reflect on its
books and records the date and (if the transfer does not involve a
transfer of outstanding Physical Notes) a decrease in the principal
amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and
(y) the Company shall execute and the Trustee shall authenticate and
deliver one or more Physical Notes of like tenor and amount.
(b) TRANSFERS TO ACCREDITED INVESTORS. The following
provisions shall apply with respect to the registration of any proposed
transfer of a Note constituting a Restricted Security to any Accredited
Investor that is not a QIB:
(i) the Registrar shall register the transfer of any
Note constituting a Restricted Security, whether or not such Note
bears the Private Placement Legend, if (x) the requested transfer is
after the third anniversary of the Issue Date (PROVIDED, HOWEVER, that
neither the Company nor any Affiliate of the Company has held any
beneficial interest in such Note, or portion thereof, at any time on
or prior to the third anniversary of the Issue Date) or (y) the
proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto; and
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(ii) if the proposed transferee is an Agent Member and
the Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the Global Note, upon
receipt by the Registrar of written instructions given in accordance
with DTC's and the Registrar's procedures, the Registrar shall reflect
on its books and records the date and an increase in the principal
amount of the Global Note in an amount equal to the principal amount
of the Physical Notes to be transferred, and the Trustee shall cancel
the Physical Notes so transferred.
(c) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of a Note
constituting a Restricted Security to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Note stating, or has otherwise advised
the Company and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Note stating, or
has otherwise advised the Company and the Registrar in writing, that
it is purchasing the Note for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and
the Notes to be transferred consist of Physical Notes which after
transfer are to be evidenced by an interest in the Global Note, upon
receipt by the Registrar of written instructions given in accordance
with DTC's and the Registrar's procedures, the Registrar shall reflect
on its books and records the date and an increase in the principal
amount of the Global Note in an amount equal to the principal amount
of the Physical Notes to be transferred, and the Trustee shall cancel
the Physical Notes so transferred.
(d) PRIVATE PLACEMENT LEGEND. Upon the transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar shall deliver only Notes that bear the Private
Placement Legend unless (i) the request transfer is after the third anniversary
of the Issue Date (PROVIDED, HOWEVER, that neither the Company nor any
Affiliate of the Company has held any beneficial interest in such Note, or
portion thereof, at any time prior to or on the third anniversary of the Issue
Date), or (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
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(e) GENERAL. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.16 or this Section
2.17. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time during
the Registrar's normal business hours upon the giving of reasonable written
notice to the Registrar.
(f) TRANSFERS OF NOTES HELD BY AFFILIATES. Any
certificate (i) evidencing a Note that has been transferred to an Affiliate of
the Company within three years after the Issue Date, as evidenced by a notation
on the Assignment Form for such transfer or in the representation letter
delivered in respect thereof, for so long as such Note is held by such
Affiliate, or (ii) evidencing a Note that has been acquired from an Affiliate
(other than by an Affiliate) in a transaction or a chain of transactions not
involving any public offering, shall, until three years after the last date on
which the Company or any Affiliate of the Company was an owner of such Note, in
each case, bear the legend in substantially the form set forth in Section
2.15(a), unless otherwise agreed by the Company (with written notice thereof to
the Trustee).
SECTION 2.18 Liquidated Damages Under Registration Rights
--------------------------------------------
Agreement.
----------
Under certain circumstances, the Company shall be obligated to
pay certain liquidated damages to the Holders, all as set forth in Section 4 of
the Registration Rights Agreement. The terms thereof are hereby incorporated
herein by reference.
ARTICLE III
REDEMPTION
----------
SECTION 3.1 Notices to Trustee.
-------------------
If the Company elects to redeem Notes pursuant to Paragraph 6
of the Notes, it shall notify the Trustee and the Paying Agent in writing of
the Redemption Date and the principal amount of the Notes to be redeemed.
The Company shall give each notice provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter
notice period shall be satisfactory to the Trustee, as evidenced in a writing
signed on behalf of the Trustee), together with an Officers' Certificate
stating that such redemption shall comply with the conditions contained herein
and in the Notes.
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SECTION 3.2 Selection of Notes To Be Redeemed.
----------------------------------
If fewer than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which
the Notes are listed or, if the Notes are not listed on a national securities
exchange, by lot or by such method as the Trustee shall deem fair and
appropriate; PROVIDED, HOWEVER, that if the Notes are redeemed pursuant to
Paragraph 6(b) of the Notes, the Notes shall be redeemed solely on a PRO RATA
basis or on as nearly a PRO RATA basis as practicable (subject to the
procedures of DTC or any other depositary), unless such method is otherwise
prohibited. If the Notes are listed on any national securities exchange, the
Company shall notify the Trustee of the requirements of such exchange in
respect of any redemption. The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes in denominations of $1,000 may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000. Provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
SECTION 3.3 Notice of Redemption.
---------------------
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption by
first class mail to each Holder whose Notes are to be redeemed, with a copy to
the Trustee and any Paying Agent. At the Company's request, the Trustee shall
give the notice of redemption in the Company's name and at the Company's
expense. The Company shall provide such notices of redemption to the Trustee
at least five days before the intended mailing date.
Each notice for redemption shall identify (including the CUSIP
number) the Notes to be redeemed and shall state:
1. the Redemption Date;
2. the Redemption Price and the amount of accrued
interest, if any, to be paid;
3. the name and address of the Paying Agent;
4. the subparagraph of the Notes pursuant to which such
redemption is being made;
5. that Notes called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price plus accrued
interest, if any;
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6. that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date, and the only remaining right
of the Holders of such Notes is to receive payment of the Redemption
Price plus accrued interest, if any, upon surrender to the Paying
Agent of the Notes redeemed;
7. if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes
in the aggregate principal amount equal to the unredeemed portion
thereof will be issued; and
8. if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
SECTION 3.4 Effect of Notice of Redemption.
-------------------------------
Once notice of redemption is mailed in accordance with Section
3.3, Notes called for redemption become due and payable on the Redemption Date
and at the Redemption Price plus accrued interest, if any. Upon surrender to
the Trustee or Paying Agent, such Notes called for redemption shall be paid at
the Redemption Price plus accrued interest thereon to the Redemption Date, but
installments of interest, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business
on the relevant record dates referred to in the Notes.
SECTION 3.5 Deposit of Redemption Price.
----------------------------
On or before the Redemption Date and in accordance with
Section 2.14 hereof, the Company shall deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the Redemption Price plus accrued interest, if any, of
all Notes to be redeemed on that date. The Paying Agent shall promptly return
to the Company any U.S. Legal Tender so deposited which is not required for
that purpose, except with respect to monies owed as obligations to the Trustee
pursuant to Article Seven.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price plus
accrued interest, if any, interest on the Notes to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such Notes
are presented for payment.
SECTION 3.6 Notes Redeemed in Part.
-----------------------
Upon surrender of a Note that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Note or Notes equal in
principal amount to the unredeemed portion of the Note surrendered.
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ARTICLE IV
COVENANTS
---------
SECTION 4.1 Payment of Notes.
-----------------
(a) The Company shall pay the principal of and interest on
the Notes on the dates and in the manner provided in the Notes and in this
Indenture.
(b) An installment of principal of or interest on the
Notes shall be considered paid on the date it is due if the Trustee or Paying
Agent (other than the Company or any of its Affiliates) holds, prior to 11:00
a.m. New York City time on that date, U.S. Legal Tender designated for and
sufficient to pay the installment in full and is not prohibited from paying
such money to the Holders pursuant to the terms of this Indenture or the Notes.
(c) The Company shall pay, to the extent such payments
are lawful, interest on overdue principal and on overdue installments of
interest (without regard to any applicable grace periods) from time to time on
demand at the rate borne by the Notes. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
(d) Notwithstanding anything to the contrary contained in
this Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United States
of America from principal or interest payments hereunder.
SECTION 4.2 Maintenance of Office or Agency.
--------------------------------
The Company shall maintain the office or agency required under
Section 2.3. The Company shall give prior written notice to the Trustee of the
location, and any change in the location of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address, of the
Trustee set forth in Section 12.2.
SECTION 4.3 Corporate Existence.
--------------------
Except as otherwise permitted by Article V or by Section 4.16,
the Company shall do or cause to be done, at its own cost and expense, all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate existence of each of the Restricted Subsidiaries in
accordance with the respective organizational documents of each such Restricted
Subsidiary and the material rights (charter and statutory) and franchises of
the Company and each such Restricted Subsidiary; PROVIDED, HOWEVER, that the
Company shall not be required to preserve, with respect to itself, any material
right or franchise and, with respect to any Restricted Subsidiary, any such
existence, material right or franchise, if the Board of Directors of the
Company shall determine in good faith that the preservation thereof is no
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longer desirable in the conduct of the business of the Company and the
Restricted Subsidiaries, taken as a whole.
SECTION 4.4 Payment of Taxes and Other Claims.
----------------------------------
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any
Restricted Subsidiary or properties of it or any Subsidiary and (ii) all
material lawful claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of it or any Restricted Subsidiary;
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 negotiations or proceedings properly instituted and diligently
conducted for which adequate reserves, to the extent required under GAAP, have
been taken.
SECTION 4.5 Maintenance of Properties and Insurance.
----------------------------------------
(a) The Company shall, and shall cause each Restricted
Subsidiary to, maintain all properties used or useful in the conduct of its
business in good working order and condition (subject to ordinary wear and
tear) and make all necessary repairs, renewals, replacements, additions,
betterments and improvements thereto and actively conduct and carry on its
business; PROVIDED, HOWEVER, that nothing in this Section 4.5 shall prevent the
Company or any Restricted Subsidiary from discontinuing the operation and
maintenance of any of its properties, if such discontinuance is (i) in the
ordinary course of business pursuant to customary business terms or (ii) in the
good faith judgment of the Board of Directors or other governing body of the
Company or the Restricted Subsidiary, as the case may be, desirable in the
conduct of their respective businesses and is not disadvantageous in any
material respect to the Holders.
(b) The Company shall provide or cause to be provided,
for itself and each Restricted Subsidiary, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the good faith
judgment of the Company, are adequate and appropriate for the conduct of the
business of the Company and such Restricted Subsidiary in a prudent manner,
with reputable insurers or with the government of the United States of America
or an agency or instrumentality thereof, in such amounts, with such
deductibles, and by such methods as shall be customary, in the good faith
judgment of the Company, for companies similarly situated in the industry.
SECTION 4.6 Compliance Certificate; Notice of Default.
------------------------------------------
(a) The Company shall deliver to the Trustee, within 105
days after the end of the Company's fiscal year, a certificate signed by the
Chairman of the Board of Directors, the Vice-Chairman of the Board of
Directors, the Chief Executive Officer, the President or any Vice President and
by the Chief Financial Officer, Treasurer or any Assistant Treasurer or the
Secretary or any Assistant Secretary of the Company (PROVIDED, HOWEVER, that
one of such
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signatories shall be the Company's principal executive officer, principal
financial officer or principal accounting officer), as to such Officers'
knowledge of the Company's compliance with all conditions and covenants under
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and in the event any Default exists, such Officers shall
specify the nature of such Default. The Officers' Certificate shall also
notify the Trustee should the Company elect to change the manner in which it
fixes its fiscal year end or change its independent certified public
accountants.
(b) (i) If any Default or Event of Default has occurred
and is continuing or (ii) if any Holder seeks to exercise any remedy hereunder
with respect to a claimed Default under this Indenture or the Notes, the
Company shall deliver to the Trustee, at its address set forth in Section 12.2
hereof, by registered or certified mail or by facsimile transmission followed
by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five Business Days of its
becoming aware of such occurrence.
SECTION 4.7 Compliance with Laws.
---------------------
The Company shall comply, and shall cause each Restricted
Subsidiary to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States of America, all states and municipalities
hereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their
respective properties, except for such noncompliances as would not singly or in
the aggregate have a material adverse effect on the financial condition,
business or results of operations of the Company and the Restricted
Subsidiaries, taken as a whole.
SECTION 4.8 Waiver of Stay, Extension or Usury Laws.
----------------------------------------
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.9 Provision of Financial Statements and
-------------------------------------
Information.
------------
(a) Following effectiveness of the Exchange Offer (as
defined in the Registration Rights Agreement), whether or not the Company is
then subject to Section 13(a) or 15(d) of the Exchange Act, the Company will
file with the Commission, so long as any Notes are outstanding, the annual
reports, quarterly reports and other periodic reports which
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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, and such documents
shall be filed with the Commission on or prior to the respective dates (the
"REQUIRED FILING DATES") by which the Company would have been required so to
file such documents if the Company were so subject; PROVIDED the Commission
will accept such filings. Upon qualification of this Indenture under the TIA,
the Company shall also comply with the provisions of TIA Section 314(a).
(b) The Company will also in any event (i) within 15
days of each Required Filing Date, file with the Trustee, and supply the
Trustee with copies for delivery to the holders of the Notes, the annual
reports, quarterly reports and other periodic reports 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 such Sections and (ii)
if the Commission will not accept the filing of such documents promptly upon
written request and payment of the reasonable cost of duplication and delivery,
supply copies of such documents to any prospective holder of the Notes.
(c) The Company shall provide to any Holder or any
beneficial owner of Notes any information reasonably requested by such Holder
or such beneficial owner concerning the Company and the Subsidiaries (including
financial statements) necessary in order to permit such Holder or such
beneficial owner to sell or transfer Notes in compliance with Rule 144A under
the Securities Act.
SECTION 4.10 Limitation on Incurrence of Indebtedness.
-----------------------------------------
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, create, incur, issue, assume or directly or
indirectly guarantee or in any other manner become directly or indirectly
liable for ("INCUR") any Indebtedness (including Acquired Debt), except that
the Company may incur Indebtedness (including Acquired Debt) if, at the time
of, and immediately after giving pro forma effect to, such incurrence of
Indebtedness, the Consolidated Cash Flow Coverage Ratio of the Company for the
most recently ended four fiscal quarters would be at least 2.0 to 1.0 if
incurred during the period from the Issue Date through December 1, 1998, and
2.25 to 1.0 if incurred thereafter.
(b) The foregoing limitations will not apply to the
incurrence of any of the following (collectively, "PERMITTED INDEBTEDNESS"),
each of which shall be given independent effect:
(i) Indebtedness of the Company arising under the New
Revolving Credit Facility in an aggregate principal amount not to
exceed at any time outstanding the greater of (x) $25.0 million, less
any permanent reduction in commitments thereunder, and (y) the sum, at
such time, of (I) 85% of the consolidated book value of net accounts
receivable of the Company and the Restricted Subsidiaries and (II) 60%
of the consolidated book value of inventory of the Company and the
Restricted Subsidiaries;
(ii) Indebtedness of the Company represented by the
Initial Notes and the Exchange Notes and Indebtedness of the
Guarantors represented by the Guarantees;
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(iii) Indebtedness of the Company or any Restricted
Subsidiary not covered by any other clause of this paragraph which is
outstanding on the Issue Date ("EXISTING INDEBTEDNESS");
(iv) Indebtedness owed by any Restricted Subsidiary to
the Company or to another Restricted Subsidiary, or owed by the
Company to any Restricted Subsidiary that, if owed to a Restricted
Subsidiary that is not a Guarantor, is unsecured and subordinated in
right of payment to the payment and performance of the Company's
obligations under the Indenture and the Notes; PROVIDED, HOWEVER, that
any such Indebtedness shall at all times be held by a Person which is
either the Company or a Restricted Subsidiary; PROVIDED, FURTHER,
HOWEVER, that upon either (a) the transfer or other disposition of any
such Indebtedness to a Person other than the Company or another
Restricted Subsidiary or (b) the sale, lease, transfer or other
disposition of shares of Capital Stock (including by consolidation or
merger) of any such Restricted Subsidiary to a Person other than the
Company or another Restricted Subsidiary, the incurrence of such
Indebtedness shall be deemed to be an incurrence that is not permitted
by this clause (iv);
(v) Indebtedness of the Company or any Restricted
Subsidiary arising with respect to Interest Rate Agreement Obligations
and Currency Agreement Obligations incurred for the purpose of fixing
or hedging interest rate risk or currency risk with respect to any
fixed or floating rate Indebtedness that is permitted by the terms of
this Indenture to be outstanding or with respect to any receivable or
liability the payment of which is determined by reference to a foreign
currency;
(vi) Indebtedness represented by performance,
completion, guarantee, surety and similar bonds provided by the
Company or any Restricted Subsidiary in the ordinary course of
business consistent with past practice;
(vii) Any Indebtedness incurred in connection with or
given in exchange for the renewal, extension, substitution, refunding,
defeasance, refinancing or replacement, in whole or in part, (a
"REFINANCING") of any Indebtedness incurred as permitted under Section
4.10(a) or any Indebtedness described in clauses (i), (ii) or (iii)
above and this clause (vii) ("REFINANCING INDEBTEDNESS"); PROVIDED,
HOWEVER, that (a) the principal amount of such Refinancing
Indebtedness shall not exceed the principal amount (or accreted
amount, if less) of the Indebtedness so refinanced (plus the premiums
and reasonable expenses to be paid in connection therewith, which,
with respect to such premiums, shall not exceed 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); (b) if the Weighted Average Life to Maturity of the
Indebtedness being refinanced is equal to or greater than the Weighted
Average Life to Maturity of the Notes, the Refinancing Indebtedness
shall have a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of the Indebtedness being
refinanced; (c) with respect to Refinancing Indebtedness other than
Senior Debt incurred by the Company, such Refinancing Indebtedness
shall rank no more senior than, and, if applicable, shall be at least
as subordinated in right of
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payment to the Notes as, the Indebtedness being refinanced; and (d)
the obligor on such Refinancing Indebtedness shall be the obligor on
the Indebtedness being refinanced or the Company;
(viii) Indebtedness of the Company or any Restricted
Subsidiary (a) representing Capitalized Lease Obligations and any
refinancings thereof and/or (b) in respect of Purchase Money
Obligations for property acquired, constructed or improved in the
ordinary course of business and any refinancings thereof, which taken
together in the aggregate do not exceed $5.0 million at any time
outstanding;
(ix) Indebtedness of the Company or any Restricted
Subsidiary relating to the acquisition of Xxxxxxxxxx Foundry Products
Company in an aggregate amount not to exceed $2.0 million (the
"Xxxxxxxxxx Notes");
(x) commodity agreements entered into in the ordinary
course of business to protect against fluctuations in the prices of
raw materials and not for speculative purposes;
(xi) Indebtedness incurred by the Company or any
Restricted Subsidiary constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of
business, including, without limitation, letters of credit in respect
of workers' compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement type obligations regarding
workers' compensation claims or self-insurance;
(xii) (a) Guarantees by the Company of Indebtedness of a
Restricted Subsidiary permitted to be incurred under this Indenture
and (b) Guarantees of the Notes by the Guarantors;
(xiii) Indebtedness of the Company or any Restricted
Subsidiary arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, in each case
incurred or assumed in connection with the disposition of any
business, assets or a Subsidiary, other guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business,
assets or a Subsidiary for the purpose of financing such acquisition;
provided that the maximum liability in respect of such Indebtedness
shall not exceed the gross proceeds actually received by the Company
and its Restricted Subsidiaries in connection with such disposition;
and
(xiv) Indebtedness of the Company or any Restricted
Subsidiary in addition to that described in clauses (i) through (xiii)
above, and any renewals, extensions, substitutions, refinancings or
replacements of such Indebtedness, so long as the aggregate principal
amount of all such Indebtedness incurred pursuant to this clause (xiv)
does not exceed $5.0 million at any one time outstanding.
(c) For purposes of determining any particular amount of
Indebtedness under this Section 4.10, guarantees, Liens or obligations with
respect to letters of credit
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supporting Indebtedness otherwise included in the determination of such
particular amount shall not be included.
(d) Indebtedness of any Person which is outstanding at
the time such Person becomes a Restricted Subsidiary or is merged with or into
or consolidated with the Company or a Restricted Subsidiary shall be deemed to
have been incurred at the time such Person becomes a Restricted Subsidiary or
is merged with or into or consolidated with the Company or a Restricted
Subsidiary, and Indebtedness which is assumed at the time of the acquisition of
any asset shall be deemed to have been incurred at the time of such
acquisition.
SECTION 4.11 Limitation on Restricted Payments.
----------------------------------
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, make any Restricted Payment,
unless at the time of and immediately after giving effect to the proposed
Restricted Payment (with the value of any such Restricted Payment, if other
than cash, to be determined reasonably and in good faith by the Board of
Directors of the Company):
(i) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
(ii) the Company could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant
to Section 4.10(a); and
(iii) the aggregate amount of all Restricted Payments
made after the Issue Date shall not exceed the sum of:
(A) an amount equal to 50% of the Company's
aggregate cumulative Consolidated Net Income accrued on a
cumulative basis during the period (treated as one accounting
period) beginning on the Issue Date and ending on the date of
such proposed Restricted Payment (or, if such aggregate
cumulative Consolidated Net Income for such period shall be a
deficit, minus 100% of such deficit); plus
(B) the aggregate amount of all net cash proceeds
received since the Issue Date by the Company from the issuance
and sale (other than to a Restricted Subsidiary) of, or equity
contribution with respect to, Capital Stock (other than
Disqualified Stock) and the principal amount of Indebtedness
of the Company or any Restricted Subsidiary that has been
converted into or exchanged for Capital Stock (other than
Disqualified Stock), in any such case to the extent that such
proceeds are not used (x) to redeem, repurchase, retire or
otherwise acquire Capital Stock or any Indebtedness of the
Company or any Restricted Subsidiary pursuant to clause (ii)
of the next paragraph or (y) to make any Restricted Investment
pursuant to clause (iv) of the next paragraph; plus
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(C) the amount of the net reduction in Investments
in Unrestricted Subsidiaries resulting from (x) the payment of
dividends or the repayment in cash of the principal of loans
or the cash return on any Investment, in each case to the
extent received by the Company or any Restricted Subsidiary
from Unrestricted Subsidiaries, (y) the release or
extinguishment of any guarantee of Indebtedness of any
Unrestricted Subsidiary, and (z) the redesignation of
Unrestricted Subsidiaries as Restricted Subsidiaries (valued
as provided in the definition of "Investment"), such aggregate
amount of the net reduction in Investments not to exceed in
the case of any Unrestricted Subsidiary the amount of
Restricted Investments previously made by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary, which
amount was included in the calculation of the amount of
Restricted Payments; plus
(D) to the extent that any Restricted Investment
that was made after the Issue Date is sold for cash or
otherwise liquidated or repaid for cash, the amount of cash
proceeds received with respect to such Restricted Investment,
net of taxes and the cost of disposition, not to exceed the
amount of Restricted Investments made after the Issue Date.
(b) Section 4.11(a) shall not prohibit the following actions
(collectively, "PERMITTED PAYMENTS"):
(i) the payment of any dividend within 60 days after
the date of declaration thereof, if at such declaration date such
payment would have been permitted under this Indenture (which payment
shall be deemed to have been paid on such date of declaration for
purposes of Section 4.11(a)(iii));
(ii) the redemption, repurchase, retirement or other
acquisition of any Capital Stock or any Indebtedness of the Company or
any Restricted Subsidiary in exchange for, or out of the proceeds of,
the substantially concurrent sale (other than to a Restricted
Subsidiary) of, or equity contribution with respect to, Capital Stock
of the Company (other than any Disqualified Stock), including without
limitation the Hawk Controlling Stockholder Merger that will occur
concurrently with the Offering;
(iii) any purchase or defeasance of Subordinated
Indebtedness to the extent required upon a Change of Control or Asset
Sale (as defined therein) by the indenture or other agreement or
instrument pursuant to which such Subordinated Indebtedness was
issued, but only if the Company (x) in the case of a Change of
Control, has complied with its obligations under Section 4.15 or (y)
in the case of an Asset Sale, has applied the Net Proceeds from such
Asset Sale in accordance with Section 4.16;
(iv) any Restricted Investment the sole consideration
for which consists of, or is made with the proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary)
of, or equity contribution with respect to, Capital Stock of the
Company (other than any Disqualified Stock);
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(v) loans or advances to employees of the Company or
any of its Subsidiaries which loans or advances exist on the Issue
Date, and other loans or advances to employees of the Company or any
Subsidiary to pay reasonable relocation expenses;
(vi) Restricted Investments in an amount such that the
sum of the aggregate amount of Restricted Investments made pursuant to
this clause (vi) after the Issue Date does not exceed $2.0 million at
any one time outstanding; and
(vii) the payment of any dividend on, or redemption of
any or all of, the Company's redeemable 10% cumulative preferred
stock, par value, $0.01 per share, Series A; redeemable 9% cumulative
preferred stock, par value, $0.01 per share, Series B; and redeemable
10% cumulative preferred stock, par value, $0.01 per share, Series C,
in each case, outstanding on the Issue Date.
PROVIDED, HOWEVER, that in the case of clauses (iii) and (vi) of this Section
4.11(b), no Default or Event of Default shall have occurred and be continuing.
(c) For purposes of Section 4.11(a)(iii), the Permitted
Payments referred to in clauses (i) and (vi) of Section 4.11(b) shall be
included in the aggregate amount of Restricted Payments made since the Issue
Date, and any other Permitted Payments described above shall be excluded.
(d) Not later than thirty (30) days after the end of any
fiscal quarter of the Company during which any Restricted Payment or Restricted
Investment has been made, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment or Restricted Investment
complies with this Indenture and setting forth in reasonable detail the basis
upon which the required calculations were computed, which calculations may be
based upon the Company's latest available internal quarterly financial
statements.
SECTION 4.12 Limitation on Liens.
--------------------
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien securing Indebtedness (other than Permitted Liens) on any asset now
owned or hereafter acquired, or any income or profits therefrom, or assign or
convey any right to receive income therefrom to secure any such Indebtedness,
unless (i) if such Lien secures Indebtedness that is pari passu with the Notes,
then the Notes are secured on an equal and ratable basis with the obligations
so secured until such time as such obligation is no longer secured by a Lien or
(ii) if such Lien secures Indebtedness that is subordinated to the Notes, any
such Lien shall be subordinated to a Lien granted to the Holders of the Notes
in the same collateral as that securing such Lien to the same extent as such
subordinated Indebtedness is subordinated to the Notes.
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SECTION 4.13 Limitation on Dividends and Other Payment
-----------------------------------------
Restrictions Affecting Restricted Subsidiaries.
-----------------------------------------------
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause to become
effective any consensual encumbrance or consensual restriction on the ability
of any Restricted Subsidiary to (i) pay dividends or make any other
distributions to the Company or any other Restricted Subsidiary on its Capital
Stock or with respect to any other interest or participation in, or measured
by, its profits, or pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (ii) make loans or advances to, or issue guarantees for
the benefit of, the Company or any other Restricted Subsidiary or (iii)
transfer any of its properties or assets to the Company or any other Restricted
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of:
(a) the New Revolving Credit Facility;
(b) applicable law;
(c) any instrument governing Indebtedness or Capital Stock of
an Acquired Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in
contemplation of such acquisition); PROVIDED, HOWEVER, that no such
encumbrance or restriction is applicable to any Person, or the
properties or assets of any Person, other than the Acquired Person;
(d) by reason of customary non-assignment, subletting or net
worth provisions in leases or other agreements entered into the
ordinary course of business and consistent with past practices;
(e) Purchase Money Indebtedness for property acquired in the
ordinary course of business that impose restrictions only on the
property so acquired;
(f) an agreement for the sale or disposition of assets or the
Capital Stock of a Restricted Subsidiary; PROVIDED, HOWEVER, that such
restriction or encumbrance is only applicable to such Restricted
Subsidiary or assets, as applicable, and such sale or disposition
otherwise is permitted by Section 4.16; PROVIDED, FURTHER, HOWEVER,
that such restriction or encumbrance shall be effective only for a
period from the execution and delivery of such agreement through a
termination date not later than 180 days after such execution and
delivery;
(g) this Indenture, the Notes and the Guarantees;
(h) Indebtedness (including Refinancing Indebtedness)
permitted to be incurred subsequent to the Issue Date pursuant to
Section 4.10; PROVIDED, HOWEVER, that any such restrictions are
ordinary and customary with respect to the type of Indebtedness being
incurred;
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(i) encumbrances and restrictions imposed by Liens incurred in
accordance with Section 4.12;
(j) customary provisions in joint venture agreements and other
similar agreements; and
(k) encumbrances and restrictions imposed by amendments,
restatements, renewals, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (a) through (j)
above; PROVIDED that such encumbrances and restrictions are, in the
good faith judgment of the Company's Board of Directors, no more
restrictive, in any material respect, than those contained in such
contracts, instruments or obligations immediately prior to such
amendment, restatement, renewal, replacement or refinancing.
SECTION 4.14 Limitation on Transactions with Affiliates.
-------------------------------------------
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, enter into or suffer to exist
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 unless (1) such transaction or
series of transactions is on terms that are no less favorable to the Company or
such Restricted Subsidiary, as the case may be, than those that could
reasonably be obtainable at such time in a comparable transaction in
arm's-length dealings with an unrelated third party, and (2) the Company
delivers to the Trustee (a) with respect to any transaction or series of
transactions involving aggregate payments in excess of $500,000, an Officers'
Certificate certifying that such transaction or series of related transactions
complies with clause (1) above and (b) with respect to any transaction or
series of transactions involving aggregate payments in excess of $2.0 million,
an Officers' Certificate certifying that such transaction or series of related
transactions has been approved by a majority of the members of the Board of
Directors of the Company (and approved by a majority of the Independent
Directors or, in the event there is only one Independent Director, by such
Independent Director), and (c) with respect to any transaction or series of
transactions involving aggregate payments in excess of $5.0 million, an opinion
as to the fairness to the Company from a financial point of view issued by an
investment banking firm of national standing.
(b) Section 4.14(a) will not apply to (i) employment
agreements or compensation or employee benefit arrangements with any officer,
director or employee of the Company or any of its Restricted Subsidiaries
entered into in the ordinary course of business (including customary benefits
thereunder and including reimbursement or advancement of out-of-pocket
expenses, and director's and officer's liability insurance); (ii) the expense
sharing arrangement between the Company and Xxxxxxxx Capital Corporation
regarding the expenses incurred with respect to the Company's Cleveland, Ohio
headquarters; (iii) the Hawk Controlling Stockholder Merger that will occur
concurrently with the Offering; (iv) the secured promissory note in the
original principal amount of $500,000 issued to Helco, Inc.; (v) the Xxxxxxxxxx
Notes; (vi) any transaction entered into by or among the Company or one of its
Restricted Subsidiaries with one or more Restricted Subsidiaries of the
Company; (vii)
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any transaction permitted by Section 4.11(b); (viii) transactions permitted by,
and complying with, Article Five; and (ix) transactions with suppliers or other
purchases or sales of goods or services, in each case in the ordinary course of
business (including, without limitation, pursuant to joint venture agreements)
and otherwise in compliance with the terms of this Indenture which, in the
reasonable determination of the Board of Directors of the Company, are on terms
no less favorable to the Company or its Restricted Subsidiaries than those that
could reasonably have been obtained at such time from an unaffiliated party.
SECTION 4.15 Change of Control.
------------------
(a) In the event of a Change of Control, each Holder
shall have the right, unless the Company has given a notice of redemption,
subject to the terms and conditions of this Indenture, to require the Company
to offer to purchase all or any portion (equal to $1,000 or an integral
multiple thereof) of such Holder's Notes at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase, in accordance with the terms set
forth below (a "CHANGE OF CONTROL OFFER").
In the event of any Change of Control, the Company shall not,
and shall not cause or permit any of the Restricted Subsidiaries to, purchase,
redeem or otherwise acquire or retire any Indebtedness of the Company ranking
junior or subordinate to the Notes pursuant to any analogous provisions
relating to such Indebtedness until after the 91st day after the Change of
Control Payment Date (as such date may be extended).
(b) On or before the 30th day following the occurrence
of any Change of Control, the Company shall mail, by first-class mail (with a
copy to the Trustee), to each Holder at such Holder's registered address a
notice stating: (i) that a Change of Control has occurred and that such holder
has the right to require the Company to purchase all or a portion (equal to
$1,000 or an integral multiple thereof) of such holder's Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest, if any, to the date of purchase (the "CHANGE OF
CONTROL PURCHASE DATE"), which shall be a Business Day, specified in such
notice, that is not earlier than 30 days or later than 60 days from the date
such notice is mailed; (ii) the amount of accrued and unpaid interest, if any,
as of the Change of Control Purchase Date; (iii) that any Note not tendered
will continue to accrue interest; (iv) that, unless the Company defaults in the
payment of the purchase price for the Notes payable pursuant to the Change of
Control Offer, any Notes accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest on the Change of Control Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to a Change of
Control Offer will be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, to
the Paying Agent at the address specified in the notice prior to the close of
business on the second Business Day prior to the Change of Control Purchase
Date; (vi) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Change of Control Purchase Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Notes purchased; (vii) that Holders whose Notes are
purchased only in part will be issued new Notes in a principal
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amount equal to the unpurchased portion of the Notes surrendered; PROVIDED,
HOWEVER, that each Note purchased and each new Note issued shall be in an
original principal amount of $1,000 or integral multiples thereof; (viii) the
circumstances and relevant facts regarding such Change of Control; and (ix)
such other information as may be required by applicable laws and regulations.
(c) On the Change of Control Purchase Date, the Company
will (i) accept for payment all Notes or portions thereof tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal
Tender Sufficient to pay the aggregate purchase price of all Notes or portions
thereof accepted for payment, and (iii) deliver or cause to be delivered to the
Trustee all Notes tendered pursuant to the Change of Control Offer. The Paying
Agent shall promptly mail to each holder of Notes or portions thereof accepted
for payment an amount equal to the purchase price for such Notes plus accrued
and unpaid interest, if any, thereon, and the Trustee shall promptly
authenticate and mail to each holder of Notes accepted for payment in part a
new Note equal in principal amount to any unpurchased portion of the Notes, and
any Note not accepted for payment in whole or in part shall be promptly
returned to the holder of such Note. On and after a Change of Control Purchase
Date, interest will cease to accrue on the Notes or portions thereof accepted
for payment, unless the Company defaults in the payment of the purchase price
therefor. The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Purchase
Date.
(d) The Company will comply with the applicable tender
offer rules, including the requirements of Section 14(e) and Rule 14e-1 under
the Exchange Act, and all other applicable securities laws and regulations in
connection with any Change of Control Offer and will be deemed not to be in
violation of any of the covenants under this Indenture to the extent such
compliance is in conflict with such covenants.
SECTION 4.16 Limitation on Asset Sales.
--------------------------
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, make any Asset Sale unless (i) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time
of such Asset Sale at least equal to the Fair Market Value (as evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets or other property sold or disposed of
in the Asset Sale and (ii) at least 75% of such consideration consists of
either cash or Cash Equivalents; PROVIDED, HOWEVER, that for purposes of this
Section 4.16, "cash" shall include (x) the amount of any Indebtedness (other
than any Indebtedness that is by its terms subordinated to the Notes) of the
Company or such Restricted Subsidiary as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet or in the notes thereto that
is assumed by the transferee of any such assets or other property in such Asset
Sale (and excluding any liabilities that are incurred in connection with or in
anticipation of such Asset Sale), but only to the extent that such assumption
is effected on a basis such that there is no further recourse to the Company or
any of the Restricted Subsidiaries with respect to such liabilities and (y) any
notes, obligations or securities received by the Company or such Restricted
Subsidiary from
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such transferee that are converted within 60 days by the Company or such
Restricted Subsidiary into cash (to the extent of the cash received).
(b) Within 180 days after any Asset Sale, the Company may
elect to apply the Net Proceeds from such Asset Sale to (a) permanently reduce
any Senior Debt of the Company and/or (b) make an investment in, or acquire
assets and properties that will be used in, the business of the Company and the
Restricted Subsidiaries existing on the Issue Date or in businesses reasonably
related thereto. Pending the final application of any such Net Proceeds, the
Company or any Restricted Subsidiary may temporarily reduce Indebtedness of the
Company under the New Revolving Credit Facility or temporarily invest such Net
Proceeds in any Investments described under clauses (i) through (iii) of the
definition of Permitted Investments. Any Net Proceeds from an Asset Sale not
applied or invested as provided in the first sentence of this Section 4.16(b)
within 180 days of such Asset Sale will be deemed to constitute "EXCESS
PROCEEDS."
(c) Each date that the aggregate amount of Excess
Proceeds in respect of which an Asset Sale Offer (as defined below) has not
been made exceeds $5.0 million shall be deemed an "ASSET SALE OFFER TRIGGER
DATE." As soon as practicable, but in no event later than 20 business days
after each Asset Sale Offer Trigger Date, the Company shall commence an offer
(an "ASSET SALE OFFER") to purchase the maximum principal amount of Notes that
may be purchased out of the Excess Proceeds. Any Notes to be purchased
pursuant to an Asset Sale Offer shall be purchased pro rata based on the
aggregate principal amount of Notes outstanding, and all Notes shall be
purchased at an offer price in cash in an amount equal to 100% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the date of
purchase. To the extent that any Excess Proceeds remain after completion of an
Asset Sale Offer, the Company may use the remaining amount for general
corporate purposes otherwise permitted by this Indenture. In the event that
the Company is prohibited under the terms of any agreement governing
outstanding Senior Debt of the Company from repurchasing Notes with Excess
Proceeds pursuant to an Asset Sale Offer as set forth in the first sentence of
this Section 4.16(c), the Company shall promptly use all Excess Proceeds to
permanently reduce such outstanding Senior Debt of the Company. Upon the
consummation of any Asset Sale Offer, the amount of Excess Proceeds shall be
deemed to be reset to zero.
(d) Notice of an Asset Sale Offer shall be mailed, by
first-class mail (with a copy to the Trustee), by the Company not later than
the 20th business day after the related Asset Sale Offer Trigger Date to each
holder of Notes at such holder's registered address, stating: (i) that an Asset
Sale Offer Trigger Date has occurred and that the Company is offering to
purchase the maximum principal amount of Notes that may be purchased out of the
Excess Proceeds (to the extent provided in the immediately preceding
paragraph), at an offer price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of the purchase (the "ASSET SALE OFFER PURCHASE DATE"), which shall be a
business day, specified in such notice, that is not earlier than 30 days or
later than 60 days from the date such notice is mailed, (ii) the amount of
accrued and unpaid interest, if any, as of the Asset Sale Offer Purchase Date,
(iii) that any Note not tendered will continue to accrue interest, (iv) that,
unless the Company defaults in the payment of the purchase price for the Notes
payable pursuant to the Asset Sale Offer, any Notes accepted for
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payment pursuant to the Asset Sale Offer shall cease to accrue interest after
the Asset Sale Offer Purchase Date, (v) that Holders electing to have a Note
purchased pursuant to a Asset Sale Offer will be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day prior to
the Asset Sale Offer Purchase Date, (vi) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the second
Business Day prior to the Asset Sale Offer Purchase Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased, (vii) that
Holders whose Notes are purchased only in part will be issued new Notes in a
principal amount equal to the unpurchased portion of the Notes surrendered;
PROVIDED, HOWEVER, that each Note purchased and each new Note issued shall be
in an original principal amount of $1,000 or integral multiples thereof, and
(viii) such other information as may be required by applicable laws and
regulations.
(e) On the Asset Sale Offer Purchase Date, the Company
will (i) accept for payment the maximum principal amount of Notes or portions
thereof tendered pursuant to the Asset Sale Offer that can be purchased out of
Excess Proceeds from such Asset Sale that are to be applied to an Asset Sale
Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the aggregate purchase price of all Notes or portions thereof accepted for
payment, and (iii) deliver or cause to be delivered to the Trustee all Notes
tendered pursuant to the Asset Sale Offer. If less than all Notes tendered
pursuant to the Asset Sale Offer are accepted for payment by the Company for
any reason consistent with this Indenture, selection of the Notes to be
purchased by the Company shall be in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes are listed
or, if the Notes are not so listed, on a pro rata basis or by lot; PROVIDED,
HOWEVER, that Notes accepted for payment in part shall only be purchased in
integral multiples of $1,000. The Paying Agent shall promptly mail to each
holder of Notes or portions thereof accepted for payment an amount equal to the
purchase price for such Notes plus accrued and unpaid interest, if any,
thereon, and the Trustee shall promptly authenticate and mail to such holder of
Notes accepted for payment in part a new Note equal in principal amount to any
unpurchased portion of the Notes, and any Note not accepted for payment in
whole or in part shall be promptly returned to the holder of such Note. On and
after an Asset Sale Offer Purchase Date, interest will cease to accrue on the
Notes or portions thereof accepted for payment, unless the Company defaults in
the payment of the purchase price therefor. The Company will publicly announce
the results of the Asset Sale Offer on or as soon as practicable after the
Asset Sale Offer Purchase Date.
(f) This Section 4.16 will not apply to a transaction
consummated in compliance with Article Five.
(g) The Company will comply with the applicable tender
offer rules, including the requirements of Section 14(e) and Rule 14e-1 under
the Exchange Act, and all other applicable securities laws and regulations in
connection with any Asset Sale Offer and
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will be deemed not to be in violation of any of the covenants under this
Indenture to the extent such compliance is in conflict with such covenants.
SECTION 4.17 Limitation on Designation of Unrestricted
-----------------------------------------
Subsidiaries.
-------------
(a) The Company shall not designate any Subsidiary of the
Company (other than a newly created Subsidiary in which no Investment has
previously been made) as an "Unrestricted Subsidiary" under this Indenture (a
"DESIGNATION") unless:
(i) no Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(ii) immediately after giving effect to such
Designation, the Company would be able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section
4.10(a); and
(iii) the Company would not be prohibited under this
Indenture from making an Investment at the time of Designation in an
amount (the "DESIGNATION AMOUNT") equal to the greater of (x) the book
value of such Restricted Subsidiary on such date and (y) the Fair
Market Value of such Restricted Subsidiary on such date.
In the event of any such Designation, the Company shall be deemed to have made
an Investment constituting a Restricted Payment pursuant to for all purposes of
this Indenture in an amount equal to the Designation Amount.
(b) The Company shall not designate an Unrestricted
Subsidiary as a Restricted Subsidiary (a "REDESIGNATION"), unless:
(i) no Default shall have occurred and be continuing at
the time of and after giving effect to such Redesignation; and
(ii) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Redesignation shall
be deemed to have been incurred at such time and shall have been
permitted to be incurred for all purposes of this Indenture.
An Unrestricted Subsidiary shall be deemed to be redesignated as a
Restricted Subsidiary at any time if (a) the Company or any other Restricted
Subsidiary (i) provides credit support for, or a guarantee of, any Indebtedness
of such Unrestricted Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness) or (ii) is directly or indirectly
liable for any Indebtedness of such Unrestricted Subsidiary, (b) a default with
respect to any Indebtedness of such Unrestricted Subsidiary (including any right
which the holders thereof may have to take enforcement action against it) would
permit (upon notice, lapse of time or both) any holder of any other Indebtedness
of the Company or any Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its final scheduled maturity, or (c) such Unrestricted Subsidiary
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incurs indebtedness pursuant to which the lender has recourse to any of the
assets of the Company or any Restricted Subsidiary, except in the case of
clause (i) to the extent permitted under Section 4.11.
(c) All Designations and Redesignations shall be evidenced by
Board Resolutions delivered to the Trustee certifying compliance with the
foregoing provisions. Subsidiaries that are not designated by the Board of
Directors as Restricted or Unrestricted Subsidiaries will be deemed to be
Restricted Subsidiaries. The Designation of a Restricted Subsidiary as an
Unrestricted Subsidiary shall be deemed a Designation of all of the
Subsidiaries of such Unrestricted Subsidiary as Unrestricted Subsidiaries.
ARTICLE V
SUCCESSOR CORPORATION
---------------------
SECTION 5.1 Merger, Consolidation and Sale of Assets.
-----------------------------------------
(a) The Company shall not, in any single transaction or
series of related transactions, consolidate or merge with or into (whether or
not the Company is the Surviving Person), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets (determined on a consolidated basis for the Company and its Restricted
Subsidiaries) in one or more related transactions to, another Person, and the
Company will not permit any Restricted Subsidiary 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,
transfer, lease, conveyance or other disposition of all or substantially all of
the properties and assets of the Company and the Restricted Subsidiaries, taken
as a whole, to another Person, unless (i) the Surviving Person is a corporation
organized or existing under the laws of the United States, any state thereof or
the District of Columbia; (ii) the Surviving Person (if other than the Company
or a Guarantor) assumes all the obligations of the Company under the Notes,
this Indenture and, if then in effect, the Registration Rights Agreement
pursuant to a supplemental indenture or other written agreement, as the case
may be, in a form reasonably satisfactory to the Trustee; (iii) immediately
after such transaction, no Default or Event of Default shall have occurred and
be continuing; (iv) immediately after giving effect to such transaction or
series of related transactions, (a) in the case of a transaction involving the
Company, the Surviving Person shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company immediately prior to
such transaction or series of related transactions or (b) in the case of a
transaction involving a Restricted Subsidiary of the Company, the Surviving
Person shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of such Restricted Subsidiary immediately prior to such
transaction or series of related transactions; and (v) after giving pro forma
effect to such transaction, the Surviving Person would be permitted to incur at
least $1.00 of additional indebtedness (other than Permitted Indebtedness)
pursuant to Section 4.10(a). Notwithstanding clauses (iii), (iv) and (v)
above, any Restricted Subsidiary that is a Guarantor may consolidate with,
merge into or transfer all
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or part of its properties and assets to the Company or another Restricted
Subsidiary that is a Guarantor.
In the event of any transaction (other than a lease) described
in and complying with the conditions listed in the immediately preceding
paragraph in which the Company or a Guarantor is not the Surviving Person, such
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, the Company, and the Company shall be discharged from
its obligations under, this Indenture, the Notes and the Registration Rights
Agreement.
(b) In connection with any such consolidation, merger,
amalgamation, transfer, lease or disposition, the Company or such Person shall
have delivered to the Trustee (i) an Officers' Certificate and an Opinion of
Counsel, each in form and substance reasonably satisfactory to the Trustee,
stating that such consolidation, amalgamation, merger, sale, assignment,
conveyance, transfer, lease or disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Indenture and that all conditions precedent therein provided
for relating to such transaction have been complied with, and (ii) if a
supplemental indenture is required in connection with such transaction, an
Opinion of Counsel, in form and substance reasonably satisfactory to the
Trustee, that such supplemental indenture constitutes the legal, valid, binding
and enforceable obligation of the Surviving Entity.
(c) For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Subsidiaries, the Capital Stock of which constitutes all or substantially
all of the properties and assets of the Company, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
SECTION 5.2 Successor Corporation Substituted.
----------------------------------
Upon any consolidation, amalgamation 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
5.01, the Surviving Entity or the Transaction Survivor, as the case may be,
shall succeed to, and be substituted for, and may exercise every rich and power
of the Company under this Indenture, with the same effect as if such successor
had been named as the Company in this Indenture; and thereafter, except in the
case of a lease, the Company shall be discharged from all obligations and
covenants under this Indenture and the Notes.
ARTICLE VI
DEFAULT AND REMEDIES
--------------------
SECTION 6.1 Events of Default.
------------------
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"EVENTS OF DEFAULT", wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) the Company defaults for 30 days in the payment
when due of interest on, or Liquidated Damages (if any) with respect
to, any Note;
(ii) the Company defaults in the payment when due of
principal on any Note, whether upon maturity, acceleration, optional
or mandatory redemption, required repurchase or otherwise;
(iii) the Company's or any Guarantor's failure to perform
or comply with any covenant, agreement or warranty in this Indenture
(other than the defaults specified in clauses (i) and (ii) above)
which failure continues for 60 days after written notice thereof has
been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes;
(iv) the occurrence of one or more defaults under any
agreements, indentures or instruments under which the Company or any
Restricted Subsidiary then has outstanding Indebtedness in excess of
$5.0 million in the aggregate and, if not already matured at its final
maturity in accordance with its terms, such Indebtedness shall have
been accelerated and such acceleration is not rescinded, annulled or
cured within 10 days thereafter;
(v) one or more judgments, orders or decrees for the
payment of money in excess of $5.0 million, either individually or in
the aggregate, shall be entered against the Company or any Restricted
Subsidiary or any of their respective properties and which judgments,
orders or decrees are not paid, discharged, bonded or stayed or stayed
pending appeal for a period of 60 days after their entry; or
(vi) the Company or any Significant Subsidiary shall (A)
commence a voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (B) consent to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under
any Bankruptcy Law, (C) consent to the appointment of a Custodian of
it or for substantially all of its property, (D) consent to or
acquiesce in the institution of a bankruptcy or an insolvency
proceeding against it, (E) make a general assignment for the benefit
of its creditors, (F) admit in writing its inability to pay its debts
as they become due, or (G) take any corporate action to authorize or
effect any of the foregoing; or
(vii) a court of competent jurisdiction shall enter a
judgment, decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any
Bankruptcy Law which shall (A) approve as properly filed a petition
seeking reorganization, arrangement, adjustment or
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composition in respect of the Company or any Significant Subsidiary,
(B) appoint a Custodian of the Company or any Significant Subsidiary
or for substantially all of its property or (C) order the winding-up
or liquidation of its affairs; and such judgment, decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(viii) any Guarantee ceases to be in full force and effect
(except as contemplated by the terms of this Indenture) or any
Guarantor denies or disaffirms its obligations under this Indenture or
its Guarantee.
The Company shall provide an Officers' Certificate to the
Trustee within five days of the occurrence of any Default or Event of Default
(PROVIDED, HOWEVER, that pursuant to Section 4.6 hereof the Company shall
provide such certification at least annually whether or not they know of any
Default or Event of Default) that has occurred and, if applicable, describe
such Default or Event of Default and the status thereof.
SECTION 6.2 Acceleration.
-------------
(a) If any Event of Default (other than as specified in
clause (vi) or (vii) of Section 6.1 with respect to the Company) occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes may, and the Trustee at the request of
such Holders shall, declare all the Notes to be due and payable immediately by
notice in writing to the Company, and to the Company and the Trustee if by the
Holders, specifying the respective Event of Default and that such notice is a
"notice of acceleration," and the Notes shall become immediately due and
payable. Notwithstanding the foregoing, in the case of an Event of Default
arising from the events specified in clause (vi) or (vii) of Section 6.1 with
respect to the Company, the principal of, premium, if any, and any accrued
interest on all outstanding Notes shall ipso facto become immediately due and
payable without further action or notice.
(b) Any time after a declaration of acceleration, but
before a judgment or decree for payment of the money due has been obtained by
the Trustee, the Holders of a majority in principal amount of the Notes
outstanding, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay (A) all sums paid or
advanced by the Trustee and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (B) all
overdue interest (including any interest accrued subsequent to an Event of
Default specified in clause (vi) or (vii) of Section 6.1 hereof) on all Notes,
(C) the principal of and premium, if any, on any Notes which have become due
otherwise than by such declaration or occurrence of acceleration and interest
thereon at the rate borne by the Notes, and (D) to the extent that payment of
such interest is lawful, interest upon overdue interest at the rate borne by
the Notes; and (ii) all Events of Default, other than the non-payment of
principal of Notes which have become due solely by such declaration or
occurrence of acceleration, have been cured or waived; and (iii) the rescission
would not conflict with any judgment, order or decree of any court of competent
jurisdiction.
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(c) The Holders of a majority in aggregate principal
amount of the Notes then outstanding by notice to the Trustee may, on behalf of
the Holders of all of the Notes, waive any existing Default or Event of Default
and its consequences under this Indenture except (i) a continuing Default or
Event of Default in the payment of the principal of, or premium, if any, or
interest on, the Notes (which may be waived only with the consent of each
Holder of Notes affected), or (ii) in respect of a covenant or provision which
under this Indenture cannot be modified or amended without the consent of the
Holder of each Note outstanding.
SECTION 6.3 Other Remedies.
---------------
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of the principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.4 Waiver of Past Defaults.
------------------------
Subject to Sections 2.9, 6.7 and 9.2, prior to the declaration
of acceleration of the Notes, the Holders of not less than a majority in
principal amount of the outstanding Notes by written notice to the Trustee may
on behalf of all of the Holders waive any past Default or Event of Default and
its consequences, except a Default in the payment of principal of or interest
on any Note as specified in clauses (i) and (ii) of Section 6.1 or a Default in
respect of any term or provision of this Indenture that may not be modified or
amended without the consent of each Holder affected as provided in Section 9.2.
In case of any such waiver, the Company, the Trustee and the Holders shall be
restored to their former positions and rights hereunder and under the Notes,
respectively. This paragraph of this Section 6.4 shall be in lieu of Section
316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Notes, but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
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SECTION 6.5 Control by Majority.
--------------------
Subject to Section 2.9, the Holders of a majority in principal
amount of the outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it, including, without limitation, any remedies
provided for in Section 6.3; PROVIDED, HOWEVER, that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction. Subject to Section 7.1, however, the Trustee may refuse to follow
any direction that the Trustee reasonably believes conflicts with any law or
this Indenture, that the Trustee determines may be unduly prejudicial to the
rights of another Holder or that exposes the Trustee to personal liability.
This Section 6.5 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such
Section 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
SECTION 6.6 Limitation on Suits.
--------------------
No Holder shall have any right to institute any proceeding,
judicial or otherwise with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(a) 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 Notes shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its
own name as Trustee;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the outstanding Notes.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7 Rights of Holders To Receive Payment.
-------------------------------------
Notwithstanding any other provision of this Indenture or of
the Notes, the right of any Holder to receive payment of the principal of and
interest on a Note, on or after the respective due dates expressed in such
Note, or to bring suit for the enforcement of any such
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payment on or after such respective dates, shall not be impaired or affected
without the express prior written consent of such Holder.
SECTION 6.8 Collection Suit by Trustee.
---------------------------
If an Event of Default in payment of principal or interest
specified in clause (i) or (ii) of Section 6.1 of this Indenture occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor on the Notes for the
whole amount of the principal and accrued interest remaining unpaid, together
with interest on overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest as set forth
in Section 4.1 and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim.
---------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company or any
other obligor upon the Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.7. The Company's payment obligations under this Section 6.9 shall be
secured in accordance with the provisions of Section 7.7 hereunder. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
-----------
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their collection
costs;
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Third: subject to Article Ten, to Holders for amounts due and
unpaid on the Notes for principal and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal and interest, respectively; and
Fourth: to the Company or any other obligor on the Notes, as
their interests may appear, or as a court of competent jurisdiction
may direct.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this
Section 6.10.
SECTION 6.11 Undertaking for Costs.
----------------------
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.6, or a suit by a Holder or
group of Holders of more than 10% in principal amount of the outstanding Notes.
ARTICLE VII
TRUSTEE
-------
SECTION 7.1 Duties of Trustee.
------------------
(a) If a Default or an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in 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 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 that by any provision hereof are specifically required to be
furnished to the
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Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) Notwithstanding anything to the contrary herein
contained, the Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of
paragraph(b) of this Section 7.1;
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.2, 6.4 or 6.5.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this
Section 7.1 and Section 7.2.
(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 of the Trustee except to the extent required by law.
SECTION 7.2 Rights of Trustee.
------------------
Subject to Section 7.1:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon any document believed by it to
be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel of its selection and may require an Officers'
Certificate or an Opinion of Counsel, which shall conform to Sections
12.4 and 12.5. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel.
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(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith which it reasonably believes to
be authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction, consent,
order, bond, debenture, or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled, upon reasonable notice to the Company, to examine the books,
records, and premises of the Company, personally or by agent or
attorney and to consult with the officers and representatives of the
Company, including the Company's accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities which may be incurred by it in
compliance with such request, order or direction.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder.
(h) Delivery of reports, information and documents to the
Trustee under Section 4.9 hereof is for informational purposes only
and the Trustee's receipt of the foregoing 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).
SECTION 7.3 Individual Rights of Trustee.
-----------------------------
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, any
Subsidiary, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11 hereof.
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SECTION 7.4 Trustee's Disclaimer.
---------------------
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, and it shall not be accountable for
the Company's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Company in this Indenture or the Notes
other than the Trustee's certificate of authentication.
SECTION 7.5 Notice of Default.
------------------
If a Default or an Event of Default occurs and is continuing
and if it is known to a Trust Officer, the Trustee shall mail to each Holder
notice of the uncured Default or Event of Default within 90 days after such
Default or Event of Default occurs. Except in the case of a Default or an
Event of Default in payment of principal of, or interest on, any Note,
including an accelerated payment, a Default in payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Proceeds Purchase
Date pursuant to an Asset Sale Offer or a Default in compliance with Article
Five hereof, the Trustee may withhold the notice if and so long as its Board of
Directors, the executive committee of its Board of Directors or a committee of
its directors and/or Trust Officers in good faith determines that withholding
the notice is in the interest of the Holders. The foregoing sentence of this
Section 7.5 shall be in lieu of the proviso to Section 315(b) of the TIA and
such proviso to Section 315(b) of the TIA is hereby expressly excluded from
this Indenture and the Notes, as permitted by the TIA.
SECTION 7.6 Reports by Trustee to Holders.
------------------------------
Within 60 days after each May 15 of each year beginning with
1996, the Trustee shall, to the extent that any of the events described in TIA
Section 313(a) occurred within the previous twelve months, but not otherwise,
mail to each Holder a brief report dated as of such date that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Section Section
313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders
shall be mailed to the Company and filed with the Commission and each stock
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes
become listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.7 Compensation and Indemnity.
---------------------------
The Company shall pay to the Trustee from time to time such
compensation for its services as has been agreed to in writing signed by the
Company and Trustee. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it in connection with the performance of its duties
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under this Indenture. Such expenses shall include the reasonable fees and
expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee (or any
predecessor Trustee) and its agents, employees, stockholders, Affiliates and
directors and officers for, and hold them harmless against, any and all loss,
liability, damage, claim or expense (including reasonable fees and expenses of
counsel), including taxes (other than taxes based on the income of the Trustee)
incurred by them except for such actions to the extent caused by any
negligence, bad faith or willful misconduct on their part, arising out of or in
connection with the acceptance or administration of this trust including the
reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their
rights, powers or duties hereunder. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. At the Trustee's sole discretion, the Company shall defend the
claim and the Trustee shall cooperate and may participate in the defense;
PROVIDED, HOWEVER, that any settlement of a claim shall be approved in writing
by the Trustee. Alternatively, the Trustee may at its option have separate
counsel of its own choosing and the Company shall pay the reasonable fees and
expenses of such counsel.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Notes on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except assets or
money held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(vi) or (vii) occurs, such expenses
and the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.7 shall survive the
termination of this Indenture.
SECTION 7.8 Replacement of Trustee.
-----------------------
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Company and the Trustee and may appoint a
successor Trustee. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a majority in
principal amount of the Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Holder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding any resignation or replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under Section 7.7 shall
continue for the benefit of the retiring Trustee.
SECTION 7.9 Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; PROVIDED, HOWEVER, that
such corporation shall be otherwise qualified and eligible under this Article
Seven.
SECTION 7.10 Eligibility; Disqualification.
------------------------------
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Section Section 310(a)(1), (2) and (5). The Trustee (or,
in the case of a corporation included in a bank holding company system, the
related bank holding company) shall have a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding
company, shall meet the capital requirements of TIA Section 310(a)(2). The
Trustee shall comply with TIA Section 310(b); PROVIDED, HOWEVER, that there
shall be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other
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securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. The provisions of TIA
Section 310 shall apply to the Company, as obligor of the Notes.
SECTION 7.11 Preferential Collection of Claims Against
-----------------------------------------
Company.
--------
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein. The provisions of TIA Section 311 shall apply to the
Company, as obligor on the Notes.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
--------------------------------------
SECTION 8.1 Satisfaction and Discharge of Indenture.
----------------------------------------
(a) This Indenture shall be discharged and shall cease to be
of further effect (except as to surviving rights of registration of transfer or
exchange of Notes herein expressly provided for) as to all outstanding Notes
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when:
(i) either
(1) All Notes theretofore authenticated and
delivered (other than (x) Notes which have been lost, stolen
or destroyed and which have been replaced or paid as provided
in Section 2.7 hereof and (y) Notes for whose payment money
has theretofore been deposited in trust by the Company and
thereafter repaid to the Company or discharged from such
trust) have been delivered to the Trustee for cancellation; or
(2) all Notes not theretofore delivered to the
Trustee for cancellation (other than (x) Notes which have been
lost, stolen or destroyed and which have been replaced or paid
as provided in Section 2.7 hereof and (y) Notes for whose
payment money has 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) have been
called for redemption pursuant to the terms of this Indenture
or have otherwise become due and payable, and the Company, in
each case, has irrevocably deposited or caused to be deposited
with the Trustee in trust for the purpose U.S. Legal Tender
sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for
cancellation, for the principal of, premium, if any, and
interest to the date of such deposit;
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(ii) the Company and the Guarantors have paid or caused
to be paid all other sums payable hereunder by the Company and the
Guarantors; and
(iii) the Company has delivered to the Trustee an
Officers' Certificate and an opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
(b) Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 7.7
hereof shall survive and, if money shall have been deposited with the Trustee
pursuant to clause (a)(i)(2) of this Section 8.1, the obligations of the
Trustee under Sections 8.3 and 8.4 shall survive.
SECTION 8.2 Defeasance or Covenant Defeasance.
----------------------------------
(a) Subject to the satisfaction of the conditions in
Section 8.2(c) hereof, the Company may, at its option by Board Resolution, at
any time, with respect to the Notes, elect to have the obligations of the
Company and the Guarantors discharged with respect to the outstanding Notes
("DEFEASANCE"). Upon such defeasance, the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the outstanding Notes and
the Guarantees, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.4 hereof and the other Sections of and matters under
this Indenture referred to in (i) and (ii) below, and to have satisfied all its
other obligations under such Notes and this Indenture, except for the
following, which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of Notes to receive solely from the trust
fund described in Section 8.2(c) and as more fully set forth in such Section,
payments in respect of the principal of and interest on such Notes when such
payments are due, (ii) the Company's obligations under Sections 2.3, 2.5, 2.6,
2.7 and 4.2, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, including, without limitation, the Trustee's rights under
Section 7.7, and (iv) this Article Eight. Subject to compliance with this
Article Eight, the Company may exercise its option under this Section 8.2(a)
notwithstanding the prior exercise of its option under Section 8.2(b) with
respect to the Notes.
(b) Subject to the satisfaction of the conditions in
Section 8.2(c) hereof, the Company may, at its option by Board Resolution, at
any time, elect to effect covenant defeasance ("COVENANT DEFEASANCE"). On and
after the date such conditions are satisfied, (i) the Company shall be released
from its obligations under any covenant or provision contained in Sections 4.4,
4.5, 4.6(a), 4.7 and 4.9 through 4.19, (ii) clauses (iii) through (vi) of
Section 6.1 hereof shall not apply, and (iii) the provisions of Articles Five,
Ten and Eleven shall not apply, and the Notes 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 Articles Five, Ten and
Eleven, but shall continue to be deemed "outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the Notes, the Company 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 to any such Section or Article or by reason of any reference
in
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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 clauses (iii) through (vi) of Section 6.1 hereof, but, except
as specified above, the remainder of this Indenture shall be unaffected
thereby.
(c) In order to effect defeasance or covenant defeasance,
the following conditions must be satisfied:
(i) the Company shall have irrevocably deposited with
the Trustee (or another trustee satisfying the requirements of Section
7.10 hereof who agrees to comply with the provisions of this Article
Eight applicable to it), as trust funds in trust, for the benefit of
the Holders of such Notes, U.S. Legal Tender, U.S. Government
Obligations or a combination thereof, in such amounts as will be
sufficient (in the opinion of a nationally recognized firm of
independent public accountants or a nationally recognized investment
banking firm, as evidenced by a written report), without consideration
of reinvestment of interest of such U.S. Government Obligations, to
pay the principal of, premium, if any, and interest on the outstanding
Notes (except lost, stolen or destroyed Notes which have been replaced
or paid) to maturity or redemption, as the case may be, and the
Company shall have irrevocably instructed the Trustee (or such other
trustee) to apply such U.S. Legal Tender or U.S. Government
Obligations to said payments in respect of the Notes;
(ii) the Company shall have delivered to the Trustee one
or more Opinions of Counsel in the United States (which counsel or
counsels shall be independent of the Company) to the effect that:
(A) the holders of the outstanding Notes will
not recognize income gain or loss for Federal income tax
purposes as a result of such defeasance or covenant
defeasance, as the case may be, and will be subject to Federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or
covenant defeasance, as the case may be, had not occurred
(which opinion, in the case of defeasance, shall be based upon
a ruling of the Internal Revenue Service or a change in
applicable Federal income tax law occurring after the Issue
Date);
(B) the trust funds will not be subject to any
rights of holders of Indebtedness of the Company (other than
holders of the Notes); and
(C) assuming no bankruptcy of the Company occurs
between the date of deposit and the 91st day following the
deposit, 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;
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(iii) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or, in the case of
Section 6.1(vi) or (vii), at any time during the period ending on the
91st day after the date of such deposit;
(iv) such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
other material agreement or instrument to which the Company is a party
or by which it is bound;
(v) 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 defeating, hindering, delaying or
defrauding any other creditors of the Company or others;
(vi) no event or condition shall exist that would
prevent the Company from making payments of the principal of and
interest on the Notes on the date of such deposit or at any time
during the period ending on the 91st day after the date of such
deposit; and
(vii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent (other than conditions requiring the passage of
time) to either defeasance or covenant defeasance, as the case may be,
have been complied with and that no violations under agreements
governing any other outstanding Indebtedness of the Company would
result therefrom.
Opinions required to be delivered under this Section may have
qualifications customary for opinions of the type required.
SECTION 8.3 Application of Trust Money.
---------------------------
The Trustee or Paying Agent shall hold in trust U.S. Legal
Tender or U.S. Government Obligations deposited with it pursuant to Section 8.1
or 8.2, and shall apply the deposited U.S. Legal Tender and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of the
principal of and interest on the Notes. The Trustee shall be under no
obligation to invest said U.S. Legal Tender or U.S. Government Obligations
except as it may agree in writing with the Company.
The Company shall pay, and indemnify the Trustee against, any
tax, fee or other charge imposed on or assessed against the Legal Tender or
U.S. Government Obligations deposited pursuant to Section 8.1 or 8.2 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of outstanding
Notes.
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SECTION 8.4 Repayment to the Company.
-------------------------
Subject to Sections 8.1 and 8.2, the Trustee and the Paying
Agent shall promptly pay to the Company upon request any excess U.S. Legal
Tender or U.S. Government Obligations held by them at any time and thereupon
shall be relieved from all liability with respect to such money. The Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for one
year; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any payment, may at the expense of the Company cause to be
published once in a newspaper of general circulation in the City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein which shall be at least 30
days from the date of such publication or mailing any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Holders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another Person.
SECTION 8.5 Reinstatement.
--------------
If the Trustee or Paying Agent is unable to apply any U.S.
Legal Tender or U.S. Government Obligations in accordance with Section 8.1 or
8.2 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's and the Guarantors' obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.1 or 8.2, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such U.S.
Legal Tender or U.S. Government Obligations in accordance with Section 8.1 or
8.2, as the case may be; PROVIDED, HOWEVER, that if the Company has made any
payment of interest on or principal of any Notes because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the U.S. Legal Tender or
U.S. Government Obligations held by the Trustee or Paying Agent.
SECTION 8.6 Acknowledgment of Discharge by Trustee.
---------------------------------------
After (i) the conditions of Section 8.1 or 8.2(a) have been
satisfied, (ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent referred to in clause (i), above, relating to the
satisfaction and discharge or defeasance of this Indenture have been complied
with, the Trustee upon request shall acknowledge in writing the discharge of
the Company's and the Guarantors' obligations under this Indenture except for
those surviving obligations specified in Section 8.1 or 8.2, as the case may
be.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-----------------------------------
SECTION 9.1 Without Consent of Holders.
---------------------------
The Company and the Guarantors, when authorized by a Board
Resolution, and the Trustee, together, may amend or supplement this Indenture,
the Notes or the Guarantees without notice to or consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency;
PROVIDED, HOWEVER, that such amendment or supplement does not
adversely affect the rights of any Holder;
(ii) to effect the assumption by a successor Person of
all obligations of the Company under the Notes, this Indenture and the
Registration Rights Agreement in the event of any Disposition
involving the Company in which the Company is not the Surviving
Person;
(iii) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
(iv) to comply with any requirements of the Commission
in order to effect or maintain the qualification of this Indenture
under the TIA;
(v) to make any change that would provide any
additional benefit or rights to the Holders;
(vi) to provide for issuance of the Exchange Notes
(which will have terms substantially identical in all material
respects to the Initial Notes except that the transfer restrictions
contained in the Initial Notes will be modified or eliminated, as
appropriate), and which will be treated together with any outstanding
Initial Notes, as a single issue of securities;
(vii) to make any other change that does not adversely
affect the rights of any Holder under this Indenture; or
(viii) to add Guarantees with respect to the Notes or to
secure the Notes, or to release any Guarantee that is permitted to be
released under this Indenture;
PROVIDED, HOWEVER, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such amendment or supplement complies with the provisions
of this Section 9.1.
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SECTION 9.2 With Consent of Holders.
------------------------
(a) Subject to Section 6.7, the Company and the Guarantors,
when authorized by a Board Resolution, and the Trustee, together, with the
written consent of the Holder or Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for the Notes),
may amend or supplement this Indenture, the Notes and the Guarantees without
notice to any other Holder. Subject to Section 6.2 and 6.7, the Holder or
Holders of not less than a majority in aggregate principal amount of the then
outstanding Notes may waive compliance by the Company with any provision of
this Indenture or the Notes without notice to any other Holder.
(b) Notwithstanding Section 9.2(a) hereof, no amendment,
supplement or waiver, including a waiver pursuant to Section 6.4, shall,
without the prior written consent of each Holder of each Note affected thereby:
(i) reduce the principal amount of the Notes whose
holders must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed
maturity of any Note, or alter or waive the provisions with respect to
the redemption of the Notes in a manner adverse to the holders of the
Notes other than with respect to a Change of Control Offer or an Asset
Sale Offer;
(iii) reduce the rate of or change the time for payment
of interest on any Notes;
(iv) waive a Default or Event of Default in the payment
of principal of, premium, if any, or interest on the Notes (except
that holders of at least a majority in aggregate principal amount of
the then outstanding Notes may (a) rescind an acceleration of the
Notes that resulted from a non-payment default and (b) waive the
payment default that resulted from such acceleration);
(v) make any Note payable in money other than that
stated in the Notes;
(vi) make any change in the provisions of this Indenture
relating to waivers of past Defaults or Events of Default or the
rights of holders of Notes to receive payments of principal of, or
premium, if any, or interest on, the Notes; or
(vii) following the occurrence of a Change of Control,
amend, change or modify the Company's obligation to make and
consummate a Change of Control Offer in the event of a Change of
Control or modify any of the provisions or definitions with respect
thereto in a manner adverse to the holders of the Notes, or following
the occurrence of an Asset Sale, amend, change or modify the Company's
obligation to make and consummate an Asset Sale Offer or modify any of
the provisions or definitions with respect thereto in a manner adverse
to the holders of the Notes.
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(c) It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment, supplement or waiver under this
Section 9.2 becomes effective, the Company shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3 Compliance with TIA.
--------------------
Every amendment, waiver or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect; PROVIDED, HOWEVER, that this
Section 9.3 shall not of itself require that this Indenture or the Trustee be
qualified under the TIA or constitute any admission or acknowledgment by any
party hereto that any such qualification is required prior to the time this
Indenture and the Trustee are required by the TIA to be so qualified.
SECTION 9.4 Revocation and Effect of Consents.
----------------------------------
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder's Note, even if notation of the consent is not made on
any Note. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Note or portion of such Note
by notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver. An amendment, supplement
or waiver becomes effective upon receipt by the Trustee of such Officers'
Certificate and evidence of consent by the Holders of the requisite percentage
in principal amount of outstanding Notes.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at least 30 days
prior to the first solicitation of such consent. If a record date is fixed,
then notwithstanding the second sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes any change described in Section
9.2(b), in which case, the amendment, supplement or waiver shall bind only each
Holder of a Note who has consented to it and every subsequent Holder of a Note
or portion of a Note that evidences the same debt as the consenting Holder's
Note; PROVIDED, HOWEVER, that any such waiver shall not impair or
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affect the right of any Holder to receive payment of principal of and interest
on a Note, on or after the respective due dates expressed in such Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates without the consent of such Holder.
SECTION 9.5 Notation on or Exchange of Notes.
---------------------------------
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder of such Note to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Note shall issue and
the Trustee shall authenticate a new Note that reflects the changed terms.
SECTION 9.6 Trustee To Sign Amendments, Etc.
--------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; PROVIDED, HOWEVER, that the Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture. Such Opinion of Counsel shall not be an expense of the Trustee or
the Holders.
ARTICLE X
GUARANTEES
----------
SECTION 10.1 Unconditional Guarantee.
------------------------
Each Guarantor hereby unconditionally, jointly and severally,
guarantees of a senior unsecured basis (such guarantee to be referred to herein
as a "Guarantee") to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns that: (i) the
principal of, premium, if any, and interest on the Notes will be promptly paid
in full when due, subject to any applicable grace period, whether at maturity,
by acceleration or otherwise and interest on the overdue principal and interest
on any overdue interest, to the extent lawful, of the Notes and all other
Obligations of the Company to the Holders of the Notes or the Trustee hereunder
or thereunder will be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and (ii) in case of any extension of time of
payment or renewal of any Notes or of any such other Obligations, the same will
be promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, subject to any applicable grace period, whether at
stated maturity, by acceleration or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 10.4. Each
Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
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by any Holder of the Notes with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, and action to enforce the
same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that this Guarantee will not be discharged except by
complete performance of the Obligations contained in the Notes, this Indenture
and in this Guarantee. If any Holder of the Notes or the Trustee is required
by any court or otherwise to return to the Company or any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Guarantor, any amount paid by the Company or any Guarantor
to the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor
further agrees that, as between each Guarantor, on the one hand, and the
Holders of the Notes and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article VI
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any acceleration of such Obligations
as provided in Article VI, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Guarantor for the purpose of
this Guarantee.
SECTION 10.2 Severability.
-------------
In case any provision of this Article X or any Guarantee shall
be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions hereof or thereof shall not in any
way be affected or impaired thereby.
SECTION 10.3 Successors and Assigns; Release of a Guarantor.
-----------------------------------------------
This Article X shall be binding upon the Guarantors and their
successors and assigns and shall enure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
If no Default exists or would exist under this Indenture, if
all of the assets of any Guarantor or all of the Capital Stock of any Guarantor
is sold or disposed of (including by merger, consolidation, issuance or
otherwise) by the Company or any of the Restricted Subsidiaries to any person
that is not an Affiliate of the Company or any of the Restricted Subsidiaries
if a transaction constituting an Asset Sale (other than pursuant to a
transaction subject to the provisions of clause (a) or (b) of Section 5.1), and
if the Net Proceeds from such Asset Sale are used in accordance with Section
4.16, then (a) such Guarantor and each wholly-owned Restricted Subsidiary of
such Guarantor that is also a Guarantor (in the event of a sale or other
disposition of all of the Capital Stock of such Guarantor) or (b) the
corporation or other entity acquiring such assets (in the event of a sale or
other disposition of all or
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substantially all of the assets of such Guarantor) shall be released and
discharged of its Guarantee obligations.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Company accompanied by an
Officers' Certificate of the Company and Opinion of Counsel certifying as to
the compliance with this Section 10.3. Any Guarantor not so released remains
liable for the full amount of principal of, premium and interest on the
Securities and other Obligations as provided in this Article X.
SECTION 10.4 Limitation of Guarantor's Liability.
------------------------------------
Each Guarantor and by its acceptance hereof each Holder of
Notes hereby confirms that it is the intention of all such parties that the
guarantee by such Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the
Holders of Notes and such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under its Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from
or payments made by or on behalf of any other Guarantor in respect of the
Obligations of such other Guarantor under its Guarantee or pursuant to Section
10.5, result in the obligations of such Guarantor under its Guarantee not
constituting such fraudulent transfer or conveyance.
SECTION 10.5 Contribution.
-------------
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, INTER SE, that in the event any payment
or distribution is made by any Guarantor (a "FUNDING GUARANTOR") under its
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a PRO RATA amount based on the Adjusted Net Assets (as
defined below) of each Guarantor (including the Funding Guarantor) for all
payments, damages and expenses incurred by that Funding Guarantor in
discharging the Company's obligations with respect to the Notes or any other
Guarantor's obligations with respect to its Guarantee. "Adjusted Net Assets"
of such Guarantor at any date shall mean the lesser of (x) the amount by which
the fair value of the property of such Guarantor exceeds the total amount of
liabilities, including, without limitation, contingent liabilities (after
giving effect to all other fixed and contingent liabilities incurred or assumed
on such date (other than liabilities of such Guarantor under Indebtedness
subordinated to such Guarantor's Guarantee)), but excluding liabilities under
the Guarantee, of such Guarantor at such date and (y) the amount by which the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of the obligations
of such Subsidiary under its Guarantee, if any), excluding debt in respect of
the Guarantee of such Guarantor, as they become absolute and matured.
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SECTION 10.6 Waiver of Subrogation.
----------------------
Until all Guarantee Obligations are paid in full, each
Guarantor hereby irrevocably waives any claims or other rights which it may now
or hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of such Guarantor's obligations under its
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any holder of Notes against the Company,
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Company, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account of such claim
or other rights. If any amount shall be paid to any Guarantor in violation of
the preceding sentence and the Notes shall not have been paid in full, such
amount shall have been deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the Notes, and
shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Notes, whether matured or unmatured, in
accordance with the terms of this Indenture. Each Guarantor acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
10.6 is knowingly made in contemplation of such benefits.
SECTION 10.7 Execution of Guarantee.
-----------------------
To evidence its guarantee to the Holders of Notes set forth in
this Article X, each Guarantor hereby agrees to execute its Guarantee in
substantially the form included in the Notes, which shall be endorsed on each
Note ordered to be authenticated and delivered by the Trustee. Each Guarantor
hereby agrees that its Guarantee set forth in this Article X shall remain in
full force and effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee. Each such Guarantee shall be signed on behalf of
each Guarantor by two Officers, or an Officer and an Assistant Secretary or one
Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to such Guarantee prior to the authentication of the
Notes on which it is endorsed, and the delivery of such Notes by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of
such Guarantee on behalf of such Guarantor. Such signatures upon the Guarantee
may be by manual or facsimile signature of such officers and may be imprinted
or otherwise reproduced on the Guarantee, and in case any such officer who
shall have signed the Guarantee shall cease to be such officer before the Notes
on which such Guarantee is endorsed shall have been authenticated and delivered
by the Trustee or disposed of by the Company, such Notes nevertheless may be
authenticated and delivered or disposed of as though the person who signed the
Guarantee had not ceased to be such officer of the Guarantor.
SECTION 10.8 Waiver of Stay, Extension or Usury Laws.
----------------------------------------
Each Guarantor covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or
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advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive each such Guarantor from performing its Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) such Guarantor 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 10.9 Additional Guarantors.
----------------------
Concurrently with the creation or acquisition by the Company
of any Subsidiary (other than a Foreign Subsidiary and other than an
Unrestricted Subsidiary), the Company, such Subsidiary and the Trustee shall
execute and deliver a supplement to this Indenture providing that such
Subsidiary will be a Guarantor hereunder. Each such supplement shall be in a
form reasonably satisfactory to the Trustee.
SECTION 10.10 Modification.
-------------
No modification, amendment or waiver of any provision of this
Article X, nor the consent to any departure by the Guarantors therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Trustee, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand
on the Guarantors in any case shall entitle the Guarantors to any other or
further notice or demand in the same, similar or other circumstances.
ARTICLE XI
MISCELLANEOUS
-------------
SECTION 11.1 TIA Controls.
-------------
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control; PROVIDED, HOWEVER,
that this Section 12.1 shall not of itself require that this Indenture or the
Trustee be qualified under the TIA or constitute any admission or
acknowledgment by any party hereto that any such qualification is required
prior to the time this Indenture and the Trustee are required by the TIA to be
so qualified.
SECTION 11.2 Notices.
--------
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
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if to the Company or any Guarantor:
Hawk Corporation
000 Xxxxxx Xxxxxx,
Xxxxx 00-0000
Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attn: Chief Executive Officer
if to the Trustee:
Bank One Trust Company, NA
000 X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Corporate Trust Trustee
Administration
Telecopier Number: 000-000-0000
Each of the Company, the Guarantors the Trustee by written
notice to the other may designate additional or different addresses for notices
to such Person. Any notice or communication to the Company or the Trustee
shall be deemed to have been given or made as of the date so delivered if
personally delivered; when answered back, if telexed; when receipt is
acknowledged, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that a notice of change
of address shall not be deemed to have been given until actually received by
the addressee).
Any notice or communication mailed to a Holder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.3 Communications by Holders with Other Holders.
---------------------------------------------
Holders may communicate pursuant to TIA Section 312(b) with
their Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA Section 312(c).
SECTION 11.4 Certificate and Opinion as to Conditions
----------------------------------------
Precedent.
----------
Upon any request or application by the Company to the trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
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(a) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the
signers, all conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action
have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent to be performed by the
Company, if any, provided for in this Indenture relating to the
proposed action have been complied with.
SECTION 11.5 Statements Required in Certificate or Opinion.
----------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.6 shall include:
(a) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person,
he has made such examination or investigation as is reasonably
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether or not, in the opinion
of each such Person, such condition or covenant has been
complied with.
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar.
------------------------------------------
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.7 LEGAL HOLIDAYS. A "LEGAL HOLIDAY" used with
respect to a particular place of payment is a Saturday, a Sunday or a day on
which banking institutions in New York, New York or at such place of payment
are not required to be open. If a payment date is a Legal Holiday at such
place, payment may be made at such place on the next succeeding day that is not
a Legal Holiday, and no interest shall accrue for the intervening period.
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SECTION 11.8 Governing Law.
--------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF OHIO WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICT OF LAWS. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of Ohio in any action or proceeding
arising out of or relating to this Indenture.
SECTION 11.9 No Adverse Interpretation of Other Agreements.
----------------------------------------------
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of the subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10 No Recourse Against Others.
---------------------------
A director, officer, employee, stockholder or incorporator, as
such, of the Company or of the Trustee shall not have any liability for any
obligations of the Company under the Notes, the Guarantees or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creations. Each Holder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration for the
issuance of the Notes and the Guarantees.
SECTION 11.11 Successors.
-----------
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee in this Indenture shall bind its successors.
SECTION 11.12 Duplicate Originals.
--------------------
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall represent
the same agreement.
SECTION 11.13 Severability.
-------------
In case any one or more of the provisions in this Indenture or
in the Notes shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
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SECTION 11.14 Independence of Covenants.
--------------------------
All covenants and agreements in this Indenture and the Notes
shall be given independent effect so that if any particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or otherwise be 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.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
HAWK CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
FRICTION PRODUCTS CO.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
HAWK BRAKE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXX METAL STAMPINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
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X.X. XXXXXXX HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXXXX FRICTION PRODUCTS U.K. CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
X.X. XXXXXXX CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXXXXXXX PRODUCTS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
BANK ONE TRUST COMPANY, NA, as Trustee
By: /s/ Xxx X. Xxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Assistant Vice President
85
EXHIBIT A
HAWK CORPORATION
10 1/4% SENIOR NOTE DUE 2003
CUSIP No.: 420089 AB 0
No. $
HAWK CORPORATION, a Delaware corporation (the "Company", which
term includes any successor entity), for value received promises to pay to
or registered assigns, the principal sum of on December 1,
2003.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
HAWK CORPORATION
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
Certificate of Authentication
This is one of the 10 1/4% Senior Notes due 2003 referred to in the
within-mentioned Indenture.
BANK ONE TRUST COMPANY, NA, as Trustee
By:
--------------------------------------
Authorized Signatory
Date of Authentication:
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(REVERSE OF SECURITY)
10 1/4% Senior Note due 2003
1. INTEREST. HAWK CORPORATION, a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate PER ANNUM shown above. Interest on the Notes will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from November 27, 1996. The Company will pay interest semi-annually in
arrears on each Interest Payment Date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months and, in the case of a partial month,
the actual number of days elapsed.
The Company shall pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful, from time to time on demand at the rate borne by
the Notes.
2. METHOD OF PAYMENT. The Company shall pay interest on
the Notes (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Notes are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in money of the United States that at the time
of payment is legal tender for payment of public and private debts ("U.S. Legal
Tender"). However, the Company may pay principal and interest by its check
payable in such U.S. Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder at the Holder's registered address.
3. PAYING AGENT AND REGISTRAR. Initially, Bank One
Trust Company, NA (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without notice
to the Holders.
4. INDENTURE. The Company issued the Notes under an
indenture, dated as of November 27, 1996 (the "Indenture"), between the
Company, the Guarantors named therein (the "GUARANTORS") and the Trustee. This
Note is one of a duly authorized issue of Initial Notes of the Company
designated as its 10 1/4% Senior Notes due 2003 (the "Initial Notes"). The
Notes are limited in aggregate principal amount to $100,000,000. The Notes
include the Initial Notes and the Exchange Notes, as defined below, issued in
exchange for the Initial Notes pursuant to the Indenture. The Initial Notes
and the Exchange Notes are treated as a single class of securities under the
Indenture. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Section Sections 77aaa-77bbbb) (the "TIA"),
as in effect on the date of the Indenture. Notwithstanding anything to the
contrary herein, the Notes are subject to all such terms, and Holders of Notes
are referred to the Indenture and the TIA for a statement of them. The Notes
are general unsecured senior obligations of the Company. Each Holder, by
accepting a
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Note, agrees to be bound by all of the terms and provisions of the Indenture,
as the same may be amended from time to time in accordance with its terms.
5. GUARANTEES. To guarantee the due and punctual payment of
the principal and interest, if any, on the Notes and all other amounts payable
by the Company under the Indenture and the Notes when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according
to the terms of the Notes and the Indenture, the Guarantors have, jointly and
severally, unconditionally guaranteed such obligations on a senior unsecured
basis pursuant to the terms of the Indenture. The Guarantees are general
unsecured senior obligations of the Company.
6. REDEMPTION. (a) OPTIONAL REDEMPTION. The Notes are
redeemable, at the Company's option, in whole or in part, at any time on and
after December 1, 2000 at the redemption prices (expressed as percentages of
the principal amount of the Notes) if redeemed during the twelve-month period
commencing on December 1 of the year set forth below, plus, in each case,
accrued and unpaid interest thereon, if any, to the Redemption Date:
Year Percentage
---- ----------
2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . 105.125%
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.563%
2002 and thereafter . . . . . . . . . . . . . . . . . . . . 100.000%
(b) OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERINGS. At any
time or from time to time on or prior to December 1, 1999, the Company may, at
its option, redeem up to $35.0 million aggregate principal amount of the Notes
with the net proceeds of one or more Public Equity Offerings, at a redemption
price equal to 110.25% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of redemption; provided, however, that (x) not
less than $65.0 million aggregate principal amount of the Notes is outstanding
immediately after giving effect to any such redemption (other than any Notes
owned by the Company or any of its Affiliates) and (y) such redemption is
effected within 60 days after the consummation of any such Public Equity
Offering.
The Notes are not entitled to the benefit of any sinking fund.
7. NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Notes to be redeemed at such Holder's registered address. Notes
in denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for the
redemption of the Notes called for redemption shall have been deposited with
the Paying Agent for redemption on such Redemption Date, then, unless the
Company defaults in the payment of such Redemption Price plus accrued interest,
if any, the Notes called for redemption will cease to bear interest from
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88
and after such Redemption Date and the only right of the Holders of such Notes
will be to receive payment of the Redemption Price plus accrued interest, if
any.
8. OFFERS TO PURCHASE. Sections 4.15 and 4.16 of the
Indenture provide that, after certain Asset Sales (as defined in the Indenture)
and upon the occurrence of a Change of Control (as defined in the Indenture),
and subject to further limitations contained therein., the Company will make an
offer to purchase certain amounts of the Notes in accordance with the
procedures set forth in the Indenture.
9. REGISTRATION RIGHTS. Pursuant to the Registration
Rights Agreement dated as of the date of the Indenture, among the Company and
Xxxxxxxx Xxxxxxxx & Co. Incorporated, BT Securities Corporation and XxXxxxxx &
Company Securities, Inc., as initial purchasers of the Initial Notes, the
Company is obligated to consummate an exchange offer pursuant to which the
Holder of this Note shall have the right to exchange this Note for the
Company's Series B 10 1/4% Senior Notes due 2003 (the "Exchange Notes"), which
shall have been registered under the Securities Act, in like principal amount
and having terms identical in all material respects as the Initial Notes. The
Holders of the Initial Notes shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
10. DENOMINATIONS; TRANSFER; EXCHANGE. The Notes are in
registered form, without coupons, and in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange Notes
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange of any Notes or portions thereof selected
for redemption.
11. PERSONS DEEMED OWNERS. The registered Holder of a
Note shall be treated as the owner of it for all purposes.
12. UNCLAIMED MONEY. If money for the payment of
principal or interest remains unclaimed for one year, the Trustee and the
Paying Agent will pay the money back to the Company. After that, all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
13. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the
Company at any time deposits with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and complies with the other provisions of the
Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
X-0
00
00. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain
exceptions set forth in the Indenture, the Indenture or the Notes may be
amended or supplemented with the written consent of the Holders of not less
than a majority in aggregate principal amount of the Notes then outstanding,
and any past Default or Event of Default or noncompliance with any provision
may be waived with the written consent of the Holders of not less than a
majority in aggregate principal amount of the Notes then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Notes to, among other things, cure any ambiguity, defect
or inconsistency, provide for uncertificated Notes in addition to or in place
of certificated Notes, or comply with Article Five of the Indenture or make any
other change that does not adversely affect the rights of any Holder of a Note.
15. RESTRICTIVE COVENANTS. The Indenture imposes
certain limitations on the ability of the Company and the Restricted
Subsidiaries to, among other things, incur additional Indebtedness, make
Restricted Payments or Restricted Investments, create or incur Liens, enter
into transactions with Affiliates, create dividend or other payment
restrictions affecting Restricted Subsidiaries and issue Preferred Stock of
Restricted Subsidiaries, and on the ability of the Company and the Restricted
Subsidiaries to merge or consolidate with any other Person or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of the
assets of the Company and the Restricted Subsidiaries. Such limitations are
subject to a number of important qualifications and exceptions. Pursuant to
Section 4.6 of the Indenture, the Company must annually report to the Trustee
on compliance with such limitations.
16. SUCCESSORS. When a successor assumes, in accordance
with the Indenture, all the obligations of its predecessor under the Notes and
the Indenture, the predecessor, subject to certain exceptions, will be released
from those obligations.
17. DEFAULTS AND REMEDIES. If an Event of Default
occurs and is continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of Notes then outstanding may declare all the Notes
to be due and payable in the manner, at the time and with the effect provided
in the Indenture. Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee is not obligated to enforce
the Indenture or the Notes unless it has received indemnity reasonably
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal or
interest when due, for any reason or a Default in compliance with Article V of
the Indenture) if it determines that withholding notice is in their interest.
18. TRUSTEE DEALINGS WITH COMPANY. The Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, the Subsidiaries or
their respective Affiliates as if it were not the Trustee.
X-0
00
00. NO RECOURSE AGAINST OTHERS. No stockholder,
director, officer, employee or incorporator, as such, of the Company or any
Guarantor shall have any liability for any obligation of the Company or any
Guarantor under the Notes, the Guarantees or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of a Note by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes and the Guarantees.
20. AUTHENTICATION. This Note shall not be valid until
the Trustee or Authenticating Agent manually signs the certificate of
authentication on this Note.
21. GOVERNING LAW. This Note and the Indenture shall be
governed by and construed in accordance with the laws of the State of Ohio, as
applied to contracts made and performed within the State of Ohio without regard
to principles of conflict of laws.
22. ABBREVIATIONS AND DEFINED TERMS. Customary
abbreviations may be used in the name of a Holder of a Note or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes as a convenience to
the Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture, which has the text of this
Note in larger type. Requests may be made to: Hawk Corporation, 000 Xxxxxx
Xxxxxx, Xxxxx 00-0000, Xxxxxxxxx, XX 00000, Attn: Vice President - Finance.
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GUARANTEE
The Guarantors (as defined in the Indenture referred to in the
Note upon which this notation is endorsed and each hereinafter referred to as a
"Guarantor," which term includes any successor person under the Indenture) have
unconditionally guaranteed on a senior unsecured basis (such guarantee by each
Guarantor being referred to herein as the "Guarantee") (i) the due and punctual
payment of the principal of, premium and interest on the Notes, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the Notes, to the
extent lawful, and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee all in accordance with the terms set
forth in Article X of the Indenture and (ii) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.
No stockholder, officer, director, employee or incorporator,
as such, past, present or future, of any Guarantor shall have any liability
under the Guarantee by reason of his or its status as such stockholder,
officer, director, employee or incorporator.
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which the Guarantee
is noted shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers.
GUARANTORS:
FRICTION PRODUCTS CO.
By:_________________________________
Name:
Title:
HAWK BRAKE, INC.
By:_________________________________
Name:
Title:
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XXXXX METAL STAMPINGS, INC.
By:_________________________________
Name:
Title:
XXXXXX, INC.
By:_________________________________
Name:
Title:
X.X. XXXXXXX HOLDINGS, INC.
By:_________________________________
Name:
Title:
XXXXXXX FRICTION PRODUCTS U.K. CORP.
By:_________________________________
Name:
Title:
X.X. XXXXXXX CORP.
By:_________________________________
Name:
Title:
XXXXXXXXXX PRODUCTS CORPORATION
By:_________________________________
Name:
Title:
A-8
93
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________________________, agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
Dated: Signed:
------------------------- ------------------------------------
(sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:
----------------------------------------------------------
(Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Exchange Act.)
In connection with any transfer of this Note occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act of 1933, as amended, covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer:
[Check One]
---------
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A"); or
A-9
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(3) ___ to an "accredited investor" (as defined in Rule 501(a)(1), (2),
(3), or (7) under the Securities Act of 1933, as amended) that
has furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter is
attached to the Indenture as Exhibit C and can be obtained from
the Trustee); or
(4) ___ outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(5) ___ pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended, if available;
or
(6) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(7) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
/ / The transferee is an Affiliate of the Company.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than
the registered Holder thereof; PROVIDED, HOWEVER, that if box (3), (4), (5) or
(7) is checked, the Company or the Trustee may require, prior to registering
any such transfer of the Notes, in its sole discretion, such written legal
opinions, certifications (including an investment letter in the case of box (3)
or (4)) and other information as the Trustee or the Company has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Dated: Signed:
---------------------- -------------------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
----------------------------------------------------------
A-10
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TO BE COMPLETED BY PURCHASER IF BOX (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A and is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
---------------------------------------------
------------------------------------------------------------------------
NOTICE: To be executed by an executive
officer
A-11
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount you elect to have purchased:
$
-----------------
Dated:
------------------------- --------------------------------------------
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or
enlargement or any change whatsoever and be
guaranteed.
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Exchange Act.)
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EXHIBIT B
---------
HAWK CORPORATION
SERIES B 10 1/4 % SENIOR NOTE DUE 2003
CUSIP No.:
No. $
HAWK CORPORATION, a Delaware corporation (the "Company", which
term includes any successor entity), for value received promises to pay to
or registered assigns, the principal sum of Dollars, on
December 1, 2003.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
HAWK CORPORATION
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Certificate of Authentication
This is one of the Series B 10 1/4 % Senior Notes due 2003
referred to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NA,
as Trustee
By:_________________________________
Authorized Signatory
Date of Authentication:
B-1
98
(REVERSE OF SECURITY)
Series B 10 1/4% Senior Note due 2003
[TO CONFORM]
B-2
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount you elect to have purchased:
$
------------------
Dated:
----------------------- ------------------------------------------
NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or
enlargement or any change whatsoever and be
guaranteed.
Signature Guarantee:
-----------------------------------
(Signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Exchange Act.)
B-3
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EXHIBIT C
---------
[Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors]
------------------------------------------
________________, _____
Bank One Trust Company, NA
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Hawk Corporation (the "Company")
10 1/4% Senior Notes due 2003 (the "Notes")
-------------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of $
aggregate principal amount of the Notes, we confirm that:
1. We have received a copy of the Offering Memorandum
(the "Offering Memorandum"), dated November 22, 1996, relating to the
Notes and such other information as we deem necessary in order to make
our investment decision. We acknowledge that we have read and agreed
to the matters stated in the section entitled "Transfer Restrictions"
of the Offering Memorandum.
2. We understand that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set forth in
the Indenture dated as of November 27, 1996 relating to the Notes (the
"Indenture") and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes except in compliance
with, such restrictions and conditions and the Securities Act of 1933,
as amended (the "Securities Act").
3. We understand that the Notes have not been registered
under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Notes within three
years after the original issuance of the Notes, we will do so only (A)
to the Company or any subsidiary thereof, (B) inside the United States
in accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (C) inside the United
States to an "accredited investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) that, prior to
such transfer,
C-1
101
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you a signed letter substantially in the form of this letter, (D)
outside the United States in accordance with Regulation S 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 we further agree to provide to any person purchasing any of
the Notes from us a notice advising such purchaser that resales of the
Notes are restricted as stated herein.
4. We understand that, on any proposed resale of any
Notes, we will be required to furnish to you and the Company such
certification, written legal opinions and other information as you and
the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that
the Notes purchased by us will bear a legend to the foregoing effect.
5. We are an "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its
investment, as the case may be.
6. We are acquiring the Notes purchased by us for our
own account or for one or more accounts (each of which is an
"accredited investor") as to each of which we exercise sole investment
discretion.
You, the Company and counsel for the Company are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
----------------------------------
Authorized Signature
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EXHIBIT D
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------------------------
________________, _______
Bank One Trust Company, NA
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Corporate Trust Trustee Administration
Re: Hawk Corporation (the "Company")
10 1/4% Senior Notes due 2003 (the "Notes")
-------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $
aggregate principal amount of the Notes, we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we represent that:
(1) the offer of the Notes was not made to a person in
the United States;
(2) either (a) at the time the buy offer was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
D-1
103
You, the Company and counsel for the Company are
entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect
to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------------------
Authorized Signature
D-2
