EXHIBIT 17
Execution Copy
===========================================================================
XXXX XX Corp.
Issuer
CBRE Holding, Inc.
Parent
11 1/4% Senior Subordinated Notes Due June 15, 2011
____________________
INDENTURE
Dated as of June 7, 2001
_____________________
State Street Bank and Trust Company
of California, N.A.
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) .............................. 7.10
(a)(2) .............................. 7.10
(a)(3) .............................. N.A.
(a)(4) .............................. N.A.
(b) .............................. 7.08; 7.10
(c) .............................. N.A.
311(a) .............................. 7.11
(b) .............................. 7.11
(c) .............................. N.A.
312(a) .............................. 2.05
(b) .............................. 13.03
(c) .............................. 13.03
313(a) .............................. 7.06
(b)(1) .............................. N.A.
(b)(2) .............................. 7.06
(c) .............................. 11.02
(d) .............................. 7.06
314(a) .............................. 4.02;13.02
(b) .............................. N.A.
(c)(1) .............................. 13.04
(c)(2) .............................. 13.04
(c)(3) .............................. N.A.
(d) .............................. N.A.
(e) .............................. 13.05
(f) .............................. N.A.
315(a) .............................. 7.01
(b) .............................. 7.05; 13.02
(c) .............................. 7.01
(d) .............................. 7.01
(e) .............................. 6.11
316(a)(last sentence) ...................... 13.06
(a)(1)(A) .............................. 6.05
(a)(1)(B) .............................. 6.04
(a)(2) .............................. N.A.
(b) .............................. 6.07
317(a)(1) .............................. 6.08
(a)(2) .............................. 6.09
(b) .............................. 2.04
318(a) .............................. 13.01
N.A. means Not Applicable.
_____________________
Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.01. Definitions............................................. 1
SECTION 1.02. Other Definitions....................................... 36
SECTION 1.03. Incorporation by Reference of Trust Indenture Act....... 36
SECTION 1.04. Rules of Construction................................... 37
ARTICLE 2
The Securities
SECTION 2.01. Form and Dating......................................... 37
SECTION 2.02. Execution and Authentication............................ 38
SECTION 2.03. Registrar and Paying Agent.............................. 38
SECTION 2.04. Paying Agent To Hold Money in Trust..................... 39
SECTION 2.05. Securityholder Lists.................................... 39
SECTION 2.06. Transfer and Exchange................................... 39
SECTION 2.07. Replacement Securities.................................. 39
SECTION 2.08. Outstanding Securities.................................. 40
SECTION 2.09. Temporary Securities.................................... 40
SECTION 2.10. Cancellation............................................ 41
SECTION 2.11. Defaulted Interest...................................... 41
SECTION 2.12. CUSIP Numbers........................................... 41
SECTION 2.13. Issuance of Additional Securities....................... 41
ARTICLE 3
Redemption
SECTION 3.01. Notices to Trustee..........................................
SECTION 3.02. Selection of Securities To Be Redeemed.................. 43
SECTION 3.03. Notice of Redemption.................................... 43
SECTION 3.04. Effect of Notice of Redemption.......................... 44
SECTION 3.05. Deposit of Redemption Price............................. 44
SECTION 3.06. Securities Redeemed in Part............................. 45
ARTICLE 4
Covenants
SECTION 4.01. Payment of Securities................................... 45
SECTION 4.02. SEC Reports............................................. 45
SECTION 4.03. Limitation on Indebtedness.............................. 46
SECTION 4.04. Limitation on Restricted Payments....................... 51
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SECTION 4.05. Limitation on Restrictions on Distributions from
Restricted Subsidiaries................................. 54
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock...... 56
SECTION 4.07. Limitation on Affiliate Transactions.................... 60
SECTION 4.08. Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries.............................. 62
SECTION 4.10. Future Guarantors....................................... 64
SECTION 4.11. Compliance Certificate.................................. 65
SECTION 4.12. Payment of Additional Interest.......................... 65
SECTION 4.13. Further Instruments and Acts............................ 65
ARTICLE 5
Merger and Consolidation
SECTION 5.01. When Company, Subsidiary Guarantors and Parent May
Merge or Transfer Assets................................ 65
ARTICLE 6
Defaults and Remedies
SECTION 6.01. Events of Default....................................... 68
SECTION 6.02. Acceleration............................................ 70
SECTION 6.03. Other Remedies.......................................... 71
SECTION 6.04. Waiver of Past Defaults................................. 71
SECTION 6.05. Control by Majority..................................... 72
SECTION 6.06. Limitation on Suits..................................... 72
SECTION 6.07. Rights of Holders to Receive Payment.................... 73
SECTION 6.08. Collection Suit by Trustee.............................. 73
SECTION 6.09. Trustee May File Proofs of Claim........................ 73
SECTION 6.10. Priorities.............................................. 73
SECTION 6.11. Undertaking for Costs................................... 74
SECTION 6.12. Waiver of Stay or Extension Laws........................ 74
ARTICLE 7
Trustee
SECTION 7.01. Duties of Trustee....................................... 74
SECTION 7.02. Rights of Trustee....................................... 76
SECTION 7.03. Individual Rights of Trustee............................ 76
SECTION 7.04. Trustee's Disclaimer.................................... 76
SECTION 7.05. Notice of Defaults...................................... 77
SECTION 7.06. Reports by Trustee to Holders........................... 77
SECTION 7.07. Compensation and Indemnity.............................. 77
SECTION 7.08. Replacement of Trustee.................................. 78
SECTION 7.09. Successor Trustee by Merger............................. 79
SECTION 7.10. Eligibility; Disqualification........................... 79
SECTION 7.11. Preferential Collection of Claims Against Company....... 80
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ARTICLE 8
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance........ 80
SECTION 8.02. Conditions to Defeasance................................ 81
SECTION 8.03. Application of Trust Money.............................. 82
SECTION 8.04. Repayment to Company.................................... 83
SECTION 8.05. Indemnity for Government Obligations.................... 83
SECTION 8.06. Reinstatement........................................... 83
ARTICLE 9
Amendments
SECTION 9.01. Without Consent of Holders.............................. 84
SECTION 9.02. With Consent of Holders................................. 85
SECTION 9.03. Compliance with Trust Indenture Act..................... 86
SECTION 9.04. Revocation and Effect of Consents and Waivers........... 86
SECTION 9.05. Notation on or Exchange of Securities................... 86
SECTION 9.06. Trustee To Sign Amendments.............................. 87
SECTION 9.07. Payment for Consent..................................... 87
ARTICLE 10
Subordination
SECTION 10.01. Agreement To Subordinate. .............................. 87
SECTION 10.02. Liquidation, Dissolution, Bankruptcy.................... 87
SECTION 10.03. Default on Senior Indebtedness of the Company........... 88
SECTION 10.04. Acceleration of Payment of Securities................... 89
SECTION 10.05. When Distribution Must Be Paid Over..................... 90
SECTION 10.06. Subrogation............................................. 90
SECTION 10.07. Relative Rights......................................... 90
SECTION 10.08. Subordination May Not Be Impaired by Company............ 90
SECTION 10.09. Rights of Trustee and Paying Agent...................... 91
SECTION 10.10. Distribution or Notice to Representative................ 91
SECTION 10.11. Article 10 Not To Prevent Events of Default or Limit
Right To Accelerate..................................... 91
SECTION 10.12. Trust Moneys Not Subordinated........................... 91
SECTION 10.13. Trustee Entitled To Rely................................ 92
SECTION 10.14. Trustee To Effectuate Subordination..................... 92
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Company............................. 93
SECTION 10.16. Reliance by Holders of Senior Indebtedness of the
Company on Subordination Provisions..................... 93
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ARTICLE 11
Guaranties
SECTION 11.01. Guaranties................................................. 93
SECTION 11.02. Limitation on Liability.................................... 96
SECTION 11.03. Successors and Assigns..................................... 96
SECTION 11.04. No Waiver.................................................. 96
SECTION 11.05. Modification............................................... 96
SECTION 11.06. Release of Subsidiary Guarantor............................ 96
ARTICLE 12
Subordination of Guaranties
SECTION 12.01. Agreement To Subordinate................................... 97
SECTION 12.02. Liquidation, Dissolution, Bankruptcy....................... 97
SECTION 12.03. Default on Senior Indebtedness of Guarantor................ 98
SECTION 12.04. Demand for Payment......................................... 99
SECTION 12.05. When Distribution Must Be Paid Over........................ 100
SECTION 12.06. Subrogation................................................ 100
SECTION 12.07. Relative Rights............................................ 100
SECTION 12.08. Subordination May Not Be Impaired by Company............... 100
SECTION 12.09. Rights of Trustee and Paying Agent......................... 101
SECTION 12.10. Distribution or Notice to Representative................... 101
SECTION 12.11. Article 12 Not To Prevent Events of Default or Limit
Right To Demand Payment.................................... 101
SECTION 12.12. Trustee Entitled To Rely................................... 101
SECTION 12.13. Trustee To Effectuate Subordination........................ 102
SECTION 12.14. Trustee Not Fiduciary for Holders of Senior
Indebtedness of Guarantor.................................. 102
SECTION 12.15. Reliance by Holders of Senior Indebtedness of
Guarantors on Subordination Provisions..................... 102
ARTICLE 13
Miscellaneous
SECTION 13.01. Trust Indenture Act Controls............................... 103
SECTION 13.02. Notices.................................................... 103
SECTION 13.03. Communication by Holders with Other Holders................ 104
SECTION 13.04. Certificate and Opinion as to Conditions Precedent......... 104
SECTION 13.05. Statements Required in Certificate or Opinion.............. 104
SECTION 13.06. When Securities Disregarded................................ 105
SECTION 13.07. Rules by Trustee, Paying Agent and Registrar............... 105
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SECTION 13.08. Legal Holidays............................................. 105
SECTION 13.09. Governing Law.............................................. 105
SECTION 13.10. No Recourse Against Others................................. 105
SECTION 13.11. Successors................................................. 106
SECTION 13.12. Multiple Originals......................................... 106
SECTION 13.13. Table of Contents; Headings................................ 106
6
Rule 144A/Regulation S Appendix
Exhibit 1 - Form of Initial Security
Exhibit A - Form of Exchange Security or Private Exchange Security
INDENTURE dated as of June 7, 2001, between XXXX XX CORP., a
Delaware corporation (the "Company"), CBRE HOLDING, INC.
("Parent") and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA,
N.A. (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's Initial
Securities, Exchange Securities and Private Exchange Securities (collectively,
the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Additional Assets" means (1) any property or other assets (other
than Indebtedness and Capital Stock) used in a Related Business; (2) the
Capital Stock of a Person that becomes a Restricted Subsidiary as a result
of the acquisition of such Capital Stock by the Company or another Restricted
Subsidiary; or (3) Capital Stock constituting a minority interest in any
Person that at such time is a Restricted Subsidiary; provided, however, that
any such Restricted Subsidiary described in clause (2) or (3) above is
primarily engaged in a Related Business.
"Additional Securities" means, subject to the Company's compliance
with Section 4.03, 11 1/4% Senior Subordinated Notes Due June 15, 2011 issued
from time to time after the Issue Date under the terms of this Indenture
(other then pursuant to Section 2.06, 2.07, 2.09 or 3.06 of this Indenture
and other than Exchange Securities or Private Exchange Securities issued
pursuant to an exchange offer for other Securities outstanding under this
Indenture).
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.04, 4.06 and 4.07 only, "Affiliate" shall also
2
mean any beneficial owner of Capital Stock representing 10% or more of the
total voting power of the Voting Stock (on a fully diluted basis) of the
Company or of rights or warrants to purchase such Capital Stock (whether or
not currently exercisable) and any Person who would be an Affiliate of any
such beneficial owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions)
by the Company or any Restricted Subsidiary, including any disposition by
means of a merger, consolidation or similar transaction (each referred to
for the purposes of this definition as a "disposition"), of
(1) any shares of Capital Stock of a Restricted Subsidiary (other
than directors' qualifying shares or shares required by applicable law to
be held by a Person other than the Company or a Restricted Subsidiary),
(2) all or substantially all the assets of any division or line of
business of the Company or any Restricted Subsidiary or
(3) any other assets of the Company or any Restricted Subsidiary
outside of the ordinary course of business of the Company or such
Restricted Subsidiary
(other than, in the case of (1), (2) and (3) above, (A) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Restricted Subsidiary, (B) for purposes of Section 4.06 only,
a disposition that constitutes a Restricted Payment permitted by Section 4.04
or a Permitted Investment, (C) the sale by Melody of assets purchased and/or
funded pursuant to the Melody Mortgage Warehousing Facility or the Melody Loan
Arbitrage Facility, (D) any sale of Capital Stock in, or Indebtedness or other
securities of, an Unrestricted Subsidiary, (E) a disposition of Temporary Cash
Investments in the ordinary course of business, (F) the disposition of property
or assets that are obsolete, damaged or worn out, (G) the lease or sublease of
office space in the ordinary course of business, (H) sales by Melody of debt
servicing rights not in excess of $5.0 million in the aggregate and (I) a
disposition of assets with a fair market value of less than $750,000 (a "de
minimis disposition"), so long as the sum of such de minimis disposition plus
all other de minimis dispositions previously made in the same calendar year does
not exceed $3.0 million in the aggregate);
3
provided, however, that a disposition of all or substantially all the assets of
the Company and its Restricted Subsidiaries taken as a whole will be governed
by Section 4.09 and/or Section 5.01 and not by Section 4.06.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the Securities, compounded annually) of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease
has been extended); provided, however, that if such Sale/Leaseback Transaction
results in a Capital Lease Obligation, the amount of Indebtedness represented
thereby will be determined in accordance with the definition of "Capital Lease
Obligation".
"Average Life" means, as of the date of determination, with respect
to any Indebtedness the quotient obtained by dividing (1) the sum of the
products of the number of years from the date of determination to the dates of
each successive scheduled principal payment of or redemption or similar payment
with respect to such Indebtedness multiplied by the amount of such payment by
(2) the sum of all such payments.
"Bank Indebtedness" means all Obligations pursuant to the Credit
Agreement.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligation" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participation or other equivalents of or
interests in
4
(however designated) equity of such Person, including any Preferred Stock,
but excluding any debt securities convertible into such equity.
"Cash Equity Contributions" shall mean (a) the contribution to
Parent of not less than $98,800,000 in cash in the form of equity (it being
understood that (i) any contribution to Parent by RCBA of shares of common
equity of CB Xxxxxxx Xxxxx Services in excess of 2,345,900 shares will be
considered a cash contribution by RCBA in an amount equal to $16.00
multiplied by the number of shares constituting such excess and a
contribution of such amount from Parent to the Company and (ii) the transfer
by designated managers of an aggregate of up to $2.6 million of deferred
compensation plan account balances (currently reflected as cash surrender
value of insurance policies, deferred compensation plan in the financial
statements of the Company) to stock fund units shall be deemed to be a cash
contribution to Parent of the amount of such transfer and a contribution of
such amount from Parent to the Company to the extent (x) accounted for as
equity of the Company and (y) such transfer of an account balance results in
a transfer to the Company of cash from the trust relating to such deferred
compensation plan) and (b) the contribution by Parent of the amount so
received, together with the net proceeds from its sale of the Parent Senior
Notes, to the Company as equity in exchange for Capital Stock (other than
Disqualified Stock) of the Company.
"CB Xxxxxxx Xxxxx Services" means CB Xxxxxxx Xxxxx Services, Inc.,
a Delaware corporation.
"Change of Control" means the occurrence of any of the following
events:
(1) prior to the earlier to occur of (A) the first underwritten
public offering of common stock of Parent or (B) the first public offering
of common stock of the Company, (x) the Permitted Holders cease to be the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of a majority in the aggregate of the total
voting power of the Voting Stock of the Company, whether as a result of
issuance of securities of Parent or the Company, any merger, consolidation,
liquidation or dissolution of Parent or the Company, or any direct or
indirect transfer of securities by Parent or otherwise and (y) RCBA ceases
to (i) be the beneficial owner, directly or indirectly, of at least 35% of
the total voting power of the Voting Stock of the Company or (ii) have the
right or ability by voting power,
5
contract or otherwise to elect or designate for election a majority of the
Board of Directors (for purposes of this clause (1) and clause (2) below,
the Permitted Holders shall be deemed to beneficially own any Voting Stock
of a Person (the "specified Person") held by any other Person (the "parent
entity") so long as the Permitted Holders beneficially own (as so defined),
directly or indirectly, (1) in the case of a parent entity that is Parent,
in the aggregate at least 35% of the voting power of the Voting Stock of
Parent and have the right or ability by voting power, contract or otherwise
to elect or designate for election a majority of the Board of Directors or
(2) in the case of any other parent entity, in the aggregate a majority of
the voting power of the Voting Stock of the parent entity);
(2) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in clause (1) above, except that
for purposes of this clause (2) such person shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time and except that any Person that is deemed to have
beneficial ownership of shares solely as the result of being part of a
group pursuant to Rule 13d-5(b)(1) shall be deemed not to have beneficial
ownership of any shares held by a Permitted Holder forming a part of such
group), directly or indirectly, of more than 35% of the total voting power
of the Voting Stock of the Company; provided, however, that the Permitted
Holders beneficially own (as defined in clause (1) above , except that in
the event the Permitted Holders are part of a group pursuant to Rule 13d-
5(b)(1), the Permitted Holders shall be deemed not to have beneficial
ownership of any shares held by persons other than Permitted Holders
forming a part of such group), directly or indirectly, in the aggregate a
lesser percentage of the total voting power of the Voting Stock of the
Company than such other person and do not have the right or ability by
voting power, contract or otherwise to elect or designate for election a
majority of the Board of Directors (for the purposes of this clause (2),
such other person shall be deemed to beneficially own any Voting Stock of a
specified Person held by a parent entity, if such other person is the
beneficial owner (as defined in this clause (2)), directly or indirectly,
of more than 35% of the voting power of the Voting Stock of such parent
6
entity and the Permitted Holders beneficially own (as defined in clause (1)
above), directly or indirectly, in the aggregate a lesser percentage of the
voting power of the Voting Stock of such parent entity and do not have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of such parent
entity);
(3) individuals who on the Merger Date constituted the Board of
Directors (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Company was approved by a vote of a majority of the directors of the
Company then still in office who were either directors on the Issue Date or
whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors then in
office;
(4) the adoption of a plan relating to the liquidation or dissolution
of the Company; or
(5) the merger or consolidation of the Company with or into another
Person or the merger of another Person with or into the Company, or the
sale of all or substantially all the assets of the Company (determined on a
consolidated basis) to another Person (other than, in all such cases, a
Person that is controlled by the Permitted Holders), other than a
transaction following which (A) in the case of a merger or consolidation
transaction, holders of securities that represented 100% of the Voting
Stock of the Company immediately prior to such transaction (or other
securities into which such securities are converted as part of such merger
or consolidation transaction) own directly or indirectly at least a
majority of the voting power of the Voting Stock of the surviving Person in
such merger or consolidation transaction immediately after such transaction
and in substantially the same proportion as before the transaction and (B)
in the case of a sale of assets transaction, the transferee Person becomes
the obligor in respect of the Securities and a Subsidiary of the transferor
of such assets.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes
of any provision
7
contained herein and required by the TIA, each other obligor on the indenture
securities.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of
(x) the aggregate amount of EBITDA for the period of the most recent
four consecutive fiscal quarters for which internal financial statements
are available ending prior to the date of such determination to
(y) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that
(1) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains outstanding or
if the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, or both, EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving effect on a pro forma basis to such Indebtedness as if such
Indebtedness had been Incurred on the first day of such period,
(2) if the Company or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness since the
beginning of such period or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged (in each case other than
Indebtedness Incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been replaced) on the
date of the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio, EBITDA and Consolidated Interest Expense for
such period shall be calculated on a pro forma basis as if such discharge
had occurred on the first day of such period and as if the Company or such
Restricted Subsidiary has not earned the interest income actually earned
during such period in respect of cash or Temporary Cash Investments used to
repay, repurchase, defease or otherwise discharge such Indebtedness,
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition, EBITDA for
such period shall be reduced by an amount equal to EBITDA (if positive)
directly attributable to the assets which are the
8
subject of such Asset Disposition for such period, or increased by an
amount equal to EBITDA (if negative), directly attributable thereto for
such period and Consolidated Interest Expense for such period shall be
reduced by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in
connection with such Asset Disposition for such period (or, if the Capital
Stock of any Restricted Subsidiary is sold, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness of such
Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness after
such sale),
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any person which becomes a
Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction requiring
a calculation to be made hereunder, which constitutes all or substantially
all of an operating unit of a business, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving pro forma effect
thereto (including the Incurrence of any Indebtedness) as if such
Investment or acquisition occurred on the first day of such period and
(5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period)
shall have made any Asset Disposition, any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (3) or (4)
above if made by the Company or a Restricted Subsidiary during such period,
EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition occurred on the first day of such
period.
For purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto and the
amount of Consolidated Interest Expense associated with any
9
Indebtedness Incurred in connection therewith, the pro forma calculations
shall be determined in good faith by a responsible financial or accounting
Officer of the Company (and shall include any applicable Pro Forma Cost
Savings). If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated
as if the rate in effect on the date of determination had been the applicable
rate for the entire period (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term in excess of 12 months).
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent incurred by the Company or its Restricted Subsidiaries, without
duplication,
(1) interest expense attributable to Capital Lease Obligations and
the interest expense attributable to leases constituting part of a
Sale/Leaseback Transaction,
(2) amortization of debt discount and debt issuance cost,
(3) capitalized interest,
(4) non-cash interest expense,
(5) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing,
(6) net payments pursuant to Hedging Obligations in respect of
Indebtedness,
(7) Preferred Stock dividends in respect of all Preferred Stock held
by Persons other than the Company or a Restricted Subsidiary (other than
dividends payable solely in Capital Stock (other than Disqualified Stock)
of the issuer of such Preferred Stock),
(8) interest incurred in connection with Investments in discontinued
operations,
(9) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is
10
Guaranteed by (or secured by the assets of) the Company or any Restricted
Subsidiary and
(10) the cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by such plan or
trust to pay interest or fees to any Person (other than the Company) in
connection with Indebtedness Incurred by such plan or trust,
and less, to the extent included in such total interest expense, (A) the
amortization during such period of capitalized financing costs associated with
the Transactions and (B) the amortization during such period of other
capitalized financing costs; provided, however, that the aggregate amount of
amortization relating to any such other capitalized financing costs deducted in
calculating Consolidated Interest Expense shall not exceed 3.5% of the aggregate
amount of the financing giving rise to such capitalized financing costs.
"Consolidated Net Income" means, for any period, the sum of (1) the
net income of the Company and its consolidated Subsidiaries and (2) to the
extent deducted in calculating net income of the Company and its consolidated
Subsidiaries, (A) any non-recurring fees, expenses or charges related to the
Transactions and (B) any non- recurring charges related to one-time severance
or lease termination costs incurred in connection with the Transactions;
provided, however, that there shall not be included in such Consolidated Net
Income:
(1) any net income of any Person (other than the Company) if such
Person is not a Restricted Subsidiary, except that
(A) subject to the exclusion contained in clause (4) below, the
Company's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such period
to the Company or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
paid to a Restricted Subsidiary, to the limitations contained in
clause (3) below) and
(B) the Company's equity in a net loss of any such Person to the
extent accounted for pursuant to the equity method of accounting for
such period
11
shall be included in determining such Consolidated Net Income;
(2) any net income (or loss) of any Person acquired by the Company or
a Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition;
(3) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that
(A) subject to the exclusion contained in clause (4) below, the
Company's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution paid to another
Restricted Subsidiary, to the limitation contained in this clause) and
(B) the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income;
(4) any gain (or loss) realized upon the sale or other disposition of
any assets of the Company, its consolidated Subsidiaries or any other
Person (including pursuant to any sale-and-leaseback arrangement) which is
not sold or otherwise disposed of in the ordinary course of business and
any gain (or loss) realized upon the s ale or other disposition of any
Capital Stock of any Person;
(5) extraordinary gains or losses;
(6) the cumulative effect of a change in accounting principles;
(7) any income or losses attributable to discontinued operations
(including operations disposed of during such periods whether or not such
operations were classified as discontinued);
12
(8) any restoration to income of any contingency reserve, except to
the extent that provision for such reserve was made out of Consolidated Net
Income accrued at any time following the Issue Date; and
(9) if the Successor Company is not the Company, the aggregate net
income (or loss)of such Successor Company prior to the consolidation,
merger or transfer resulting in such Successor Company.
Notwithstanding the foregoing, for the purpose of Section 4.04 only, there
shall be excluded from Consolidated Net Income any repurchases, repayments
or redemptions of Investments, proceeds realized on the sale of Investments
or return of capital to the Company or a Restricted Subsidiary to the extent
such repurchases, repayments, redemptions, proceeds or returns increase the
amount of Restricted Payments permitted under such Section pursuant to Section
4.04(a)(3)(D).
"Credit Agreement" means the Credit Agreement to be entered into
among CB Xxxxxxx Xxxxx Services, Parent, as guarantor, the lenders referred
to therein, Credit Suisse First Boston, as Administrative Agent Sole Lead
Arranger and Sole Book Manager, and the Syndication Agent and Documentation
Agent named therein, together with the related documents thereto (including
the term loans and revolving loans thereunder, any guarantees and security
documents), as amended, extended, renewed, restated, supplemented or
otherwise modified (in whole or in part, and without limitation as to amount,
terms, conditions, covenants and other provisions) from time to time, and any
agreement (and related document) governing Indebtedness incurred to Refinance,
in whole or in part, the borrowings and commitments then outstanding or
permitted to be outstanding under such Credit Agreement or a successor Credit
Agreement, whether by the same or any other lender or group of lenders.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement
designed to protect such Person against fluctuations in currency values.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Senior Indebtedness", with respect to a Person, means
(1) the Bank Indebtedness and (2) any other Senior Indebtedness of such
Person which, at the date of determination, has an aggregate principal amount
outstanding
13
of, or under which, at the date of determination, the holders thereof are
committed to lend up to, at least $25.0 million and is specifically
designated by such Person in the instrument evidencing or governing such
Senior Indebtedness as "Designated Senior Indebtedness" for purposes of this
Indenture.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or
upon the happening of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder for
Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the
occurrence of certain events or otherwise, in whole or in part,
in each case on or prior to the first anniversary of the Stated Maturity
of the Securities; provided, however, that if such Capital Stock is issued
to any employee or to any plan for the benefit of employees of the Company
or its Subsidiaries or by any such plan to such employees, such Capital
Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Company in order to satisfy obligations
as a result of such employee's death or disability; and provided further,
however, that any Capital Stock that would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to
require such Person to purchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to
the first anniversary of the Stated Maturity of the Securities shall not
constitute Disqualified Stock if (1) the "asset sale" or "change of
control" provisions applicable to such Capital Stock are not more
favorable to the holders of such Capital Stock than the terms applicable
to the Securities in Sections 4.06 and 4.09 of this Indenture and (2) any
such requirement only becomes operative after compliance with such terms
applicable to the Securities, including the purchase of any Securities
tendered pursuant thereto.
The amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price will be calculated in accordance with the terms
of such Disqualified
14
Stock as if such Disqualified Stock were redeemed, repaid or repurchased on
any date on which the amount of such Disqualified Stock is to be determined
pursuant to the Indenture; provided, however, that if such Disqualified
Stock could not be required to be redeemed, repaid or repurchased at the time
of such determination, the redemption, repayment or repurchase price will be
the book value of such Disqualified Stock as reflected in the most recent
financial statements of such Person.
"EBITDA" for any period means the sum of Consolidated Net Income,
plus the following to the extent deducted in calculating such Consolidated Net
Income:
(1) all income tax expense of the Company and its consolidated
Restricted Subsidiaries,
(2) Consolidated Interest Expense,
(3) any non-recurring fees, expenses or charges related to any Equity
Offering, Permitted Investment, acquisition or Incurrence of Indebtedness
permitted to be Incurred by the Indenture (in each case, whether or not
successful), including any such fees, expenses or charges related to the
Transactions, in each case not exceeding $5.0 million in the aggregate for
all such non-recurring fees, expenses and charges attributable to the same
transaction or event (or group of related transactions or events),
(4) depreciation and amortization expense of the Company and its
consolidated Restricted Subsidiaries (excluding amortization expense
attributable to a prepaid operating activity item that was paid in cash in
a prior period),
(5) all other non-cash losses, expenses and charges of the Company
and its consolidated Restricted Subsidiaries (excluding any such non-cash
loss, expense or charge to the extent that it represents an accrual of or
reserve for cash expenditures in any future period), and
(6) any non-recurring charges that are incurred and associated with
the restructuring of the operations of the Company and its consolidated
Subsidiaries announced prior to the Issue Date and implemented within 90
days after the Merger Date,
in each case for such period. Notwithstanding the foregoing, the provision for
taxes based on the income or
15
profits of, and the depreciation and amortization and non-cash charges of, a
Restricted Subsidiary shall be added to Consolidated Net Income to compute
EBITDA only to the extent (and in the same proportion) that the net income of
such Restricted Subsidiary was included in calculating Consolidated Net Income
and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its stockholders.
"Equity Offering" means any primary offering of Capital Stock of
Parent or the Company (other than Disqualified Stock)to Persons who are not
Affiliates of the Company other than (1) public offerings with respect to the
Company's Common Stock registered on Form S-8 and (2) issuances upon exercise
of options by employees of the Company or any of its Restricted Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exempt Subsidiary" means any Restricted Subsidiary that shall have
had aggregate EBITDA of less than $250,000 for the period of the most recent
four consecutive fiscal quarters for which internal financial statements are
available ending prior to the date of the issuance or sale of its Capital Stock
giving rise to such determination; provided, however, that such sale or issuance
is pursuant to a plan or program for the sale or issuance of Capital Stock a
majority of which is sold to local management or to local strategic investors.
"Facilities" means the Term Loan Facilities and the Revolving Credit
Facilities.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary not
incorporated or organized under the laws of the United States of America, any
State thereof or the District of Columbia.
"Xxxxxxx Xxxxxx" means collectively, (1) FS Equity Partners III, L.P.,
(2) FS Equity Partners International L.P., (3) any investment fund that is
affiliated with Xxxxxxx Xxxxxx & Co. Incorporated and (4) Xxxxxxx Xxxxxx & Co.
Incorporated and any successor entity thereof controlled by the principals of
Xxxxxxx Xxxxxx & Co. Incorporated or
16
any entity controlled by, or under common control with, Xxxxxxx Xxxxxx & Co.
Incorporated.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date, including those set forth
in
(1) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants,
(2) statements and pronouncements of the Financial Accounting
Standards Board,
(3) such other statements by such other entity as approved by a
significant segment of the accounting profession and
(4) the rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in periodic
reports required to be filed pursuant to Section 13 of the Exchange Act,
including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC. Except as
otherwise provided herein, all ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person
(1) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness of such Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise) or
(2) entered into for the purpose of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
17
"Guarantor" means Parent and/or a Subsidiary Guarantor.
"Guaranty" means the Parent Guaranty and/or a Subsidiary Guaranty.
"Guaranty Agreement" means a supplemental indenture, in a form
satisfactory to the Trustee, pursuant to which a Guarantor guarantees the
Company's obligations with respect to the Securities on the terms provided
for in this Indenture.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement or
similar agreement.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed
to be Incurred by such Person at the time it becomes a Restricted Subsidiary.
The term "Incurrence" when used as a noun shall have a correlative meaning.
Solely for purposes of determining compliance with Section 4.03, (1)
amortization of debt discount or the accretion of principal with respect to
a noninterest bearing or other discount security and (2) the payment of
regularly scheduled interest in the form of additional Indebtedness of the
same instrument or the payment of regularly scheduled dividends on Capital
Stock in the form of additional Capital Stock of the same class and with
the same terms will not be deemed to be the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal in respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable;
18
(2) all Capital Lease Obligations of such Person and all Attributable
Debt in respect of Sale/Leaseback Transactions entered into by such Person;
(3) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person
and all obligations of such Person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of
business);
(4) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (1)
through (3) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and
to the extent drawn upon, such drawing is reimbursed no later than the
twentieth Business Day following payment on the letter of credit);
(5) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock of such
Person or, with respect to any Preferred Stock of any Subsidiary of such
Person, the principal amount of such Preferred Stock to be determined in
accordance with Section 1.04(7) (but excluding, in each case, any accrued
dividends);
(6) all obligations of the type referred to in clauses (1) through
(5) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee;
(7) all obligations of the type referred to in clauses (1) through
(6) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of
such property or assets and the amount of the obligation so secured; and
(8) to the extent not otherwise included in this definition, Hedging
Obligations of such Person.
19
Notwithstanding the foregoing, in connection with the purchase by the Company
or any Restricted Subsidiary of any business, the term "Indebtedness" will
exclude post-closing payment adjustments to which the seller may become
entitled to the extent such payment is determined by a final closing balance
sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any
such payment is not determinable and, to the extent such payment thereafter
becomes fixed and determined, the amount is paid within 30 days thereafter.
Indebtedness of any Person shall include all Indebtedness of any partnership
or other entity in which such Person is a general partner or other equity
holder with unlimited liability other than Indebtedness which by its terms
is non-recourse to such Person and its assets.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as
described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at
such date provided, however, that the principal amount of any noninterest
bearing or other discount security at any date will be the principal amount
thereof that would be shown on a balance sheet of such Person dated such date
prepared in accordance with GAAP.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Independent Qualified Party" means an investment banking firm,
accounting firm or appraisal firm of national standing; provided, however,
that such firm is not an Affiliate of the Company.
"Interest Rate Agreement" means in respect of a Person any interest
rate swap agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect such Person against fluctuations in interest
rates.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable on the balance sheet of the lender) or
other extensions of credit (including by way of Guarantee or similar
arrangement) 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 of Capital Stock,
20
Indebtedness or other similar instruments issued by such Person. Except as
otherwise provided for herein, the amount of an Investment shall be its fair
market value at the time the Investment is made and without giving effect to
subsequent changes in value.
For purposes of the definition of "Unrestricted Subsidiary", the
definition of "Restricted Payment" and Section 4.04,
(1) "Investment" shall include the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of
the net assets of any Subsidiary of the Company at the time that such
Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Company shall be deemed to continue to have a permanent "Investment" in
an Unrestricted Subsidiary equal to an amount (if positive) equal to (x)
the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of
such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its fair market value at the time of such transfer, in
each case as determined in good faith by the Board of Directors.
"Investment Grade Rating" means a rating equal to or higher than
Baa3 (or the equivalent) and BBB- (or the equivalent) by Xxxxx'x Investors
Service, Inc. (or any successor to the rating agency business thereof) and
Standard & Poor's Ratings Group (or any successor to the rating agency
business thereof), respectively.
"Issue Date" means June 7, 2001.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Melody" means X.X. Xxxxxx & Company, a Texas corporation.
"Melody Loan Arbitrage Facility" means a credit facility provided
to Melody by any depository bank in which Melody deposits payments relating
to mortgage loans for
21
which Melody is servicer prior to distribution of such payments to or for the
benefit of the holders of such loans, so long as (1) Melody applies all
proceeds of loans made under such credit facility to purchase Temporary
Cash Investments and (2) all such Temporary Cash Investments purchased by
Melody with the proceeds of loans thereunder (and proceeds thereof and
distributions thereon)are pledged to the depository bank providing such
credit facility, and such bank has a first priority perfected security
interest therein, to secure loans made under such credit facility.
"Melody Mortgage Warehousing Facility" means the credit facility
provided by Residential Funding Corporation ("RFC") or any substantially
similar facility extended to any Mortgage Banking Subsidiary in connection
with any Mortgage Banking Activities, pursuant to which RFC or another lender
makes loans to Melody, the proceeds of which loans are applied by Melody (or
any Mortgage Banking Subsidiary) to fund commercial mortgage loans originated
and owned by Melody (or any Mortgage Banking Subsidiary) subject to an
unconditional, irrevocable (subject to customary exceptions) commitment
to purchase such mortgage loans by the Federal Home Loan Mortgage Corporation,
the Federal National Mortgage Association or any other quasi-federal
governmental entity so long as loans made by RFC or such other lender to
Melody (or any Mortgage Banking Subsidiary) thereunder are secured by a pledge
of commercial mortgage loans made by Melody (or any Mortgage Banking Subsidiary)
with the proceeds of such loans and RFC or such other lender has a perfected
first priority security interest therein, to secure loans made under such credit
facility.
"Melody Permitted Indebtedness" means Indebtedness of Melody under the
Melody Loan Arbitrage Facility, the Melody Mortgage Warehousing Facility and the
Melody Working Capital Facility and Indebtedness of any Mortgage Banking
Subsidiary under the Melody Mortgage Warehousing Facility that is, in all cases,
non-recourse to the Company or any of its other Subsidiaries.
"Melody Working Capital Facility" means a credit facility provided by
a financial institution to Melody, so long as (1) the proceeds of loans
thereunder are applied only to provide working capital to Melody, (2) loans
under such credit facility are unsecured, and (3) the aggregate principal amount
of loans outstanding under such credit facility at no time exceeds $1.0 million.
"Merger" means the merger of XXXX XX Corp. with and into CB Xxxxxxx
Xxxxx Services pursuant to the Merger Agreement.
22
"Merger Agreement" means the amended and restated agreement and plan
of merger dated as of May 31, 2001, among CB Xxxxxxx Xxxxx Services, Parent and
Merger Sub, as such agreement may be further amended so long as such amendments
are not adverse to Holders, and all other documents entered into or delivered
in connection with the Merger Agreement.
"Merger Date" means the date the Merger is consummated.
"Mortgage Banking Activities" means the origination by a Mortgage
Banking Subsidiary of mortgage loans in respect of commercial and multi-family
residential real property, and the sale or assignment of such mortgage loans
and the related mortgages to another person (other than the Company or any of
its Subsidiaries) within sixty days after the origination thereof; provided,
however, that in each case prior to origination of any mortgage loan, the
Company or a Mortgage Banking Subsidiary, as the case may be, shall have
entered into a legally binding and enforceable purchase and sale agreement
with respect to such mortgage loan with a person that purchases such loans
in the ordinary course of business.
"Mortgage Banking Subsidiary" means Melody and its subsidiaries
that are engaged in Mortgage Banking Activities.
"Net Available Cash" from an Asset Disposition means cash
payments received therefrom (including any cash payments received by way
of deferred payment of principal pursuant to a note or installment receivable
or otherwise and proceeds from the sale or other disposition of any securities
received as consideration, but only as and when received, but excluding any
other consideration received in the form of assumption by the acquiring Person
of Indebtedness or other obligations relating to such properties or assets or
received in any other noncash form), in each case net of
(1) all legal, accounting, investment banking and brokerage fees,
title and recording tax expenses, commissions and other fees and expenses
incurred, and all Federal, state, provincial, foreign and local taxes
required to be accrued as a liability under GAAP, as a consequence of such
Asset Disposition,
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition, in accordance with the terms of
any Lien upon or other security agreement of any kind with
23
respect to such assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law, be
repaid out of the proceeds from such Asset Disposition,
(3) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of
such Asset Disposition and
(4) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the property or other assets disposed in such Asset Disposition and
retained by the Company or any Restricted Subsidiary after such Asset
Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees, discounts
or commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Obligations" means with respect to any Indebtedness all obligations
for principal, premium, interest, penalties, fees, indemnifications,
reimbursements, and other amounts payable pursuant to the documentation
governing such Indebtedness.
"Offering Circular" means the Confidential Offering Circular dated
May 31, 2001, as supplemented by the Supplement dated June 6, 2001, relating
to the Securities.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chairman of the Americas, any Vice President,
the Chief Financial Officer, the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of or counsel to
the Company or the Trustee.
"Parent" means CBRE Holding, Inc.
24
"Parent Senior Notes" means Parent's 16% Senior Notes Due 2011.
"Parent Guaranty" means the Guarantee by Parent of the Company's
obligations with respect to the Securities contained in this Indenture.
"Permitted Co-investment" means any Investment by any Restricted
Subsidiary which is formed solely to acquire up to 5% of the Capital Stock of
any Person (a "Co- investment Entity") managed by such Restricted Subsidiary
whose principal purpose is to invest, directly or indirectly, in commercial
real estate; provided, however, that such Restricted Subsidiary is acting in
such capacity pursuant to an arrangement substantially similar to arrangements
entered into by Restricted Subsidiaries involved in such activities prior to
the Issue Date.
"Permitted Holders" means (1) RCBA and Xxxxxxx Xxxxxx, (2) any
member of senior management of the Company on the Merger Date and (3) DLJ
Investment Partners II, L.P. and its affiliates.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in
(1) the Company, a Restricted Subsidiary or a Person that will, upon
the making of such Investment, become a Restricted Subsidiary; provided,
however, that (A) the primary business of such Restricted Subsidiary is a
Related Business and (B) such Restricted Subsidiary is not restricted from
making dividends or similar distributions by contract, operation of law or
otherwise;
(2) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Related
Business;
(3) cash and Temporary Cash Investments;
(4) receivables owing to the Company or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however,
that such trade terms may include such concessionary trade terms as the
Company or any
25
such Restricted Subsidiary deems reasonable under the circumstances;
(5) payroll, travel, moving and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary course
of business;
(6) loans or advances to employees or independent contractors made in
the ordinary course of business consistent with past practices of the
Company or such Restricted Subsidiary;
(7) loans or advances to clients and vendors made in the ordinary
course of business consistent with past practices of the Company or such
Restricted Subsidiary in an aggregate amount outstanding at any time not
exceeding $1.5 million;
(8) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments;
(9) any Person to the extent such Investment represents the non-cash
portion of the consideration received for an Asset Disposition as permitted
pursuant to Section 4.06;
(10) any Person where such Investment was acquired by the Company or
any of its Restricted Subsidiaries (a) in exchange for any other Investment
or accounts receivable held by the Company or any such Restricted
Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other Investment
or accounts receivable or (b) as a result of a foreclosure by the Company
or any of its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured
Investment in default;
(11) Hedging Obligations entered into in the ordinary course of the
Company's or any Restricted Subsidiary's business and not for the purpose
of speculation;
(12) any Person to the extent such Investment replaces or refinances
an Investment in such Person existing on the Issue Date or on the Merger
Date in an
26
amount not exceeding the amount of the Investment being replaced or
refinanced; provided, however, the new Investment is on terms and
conditions no less favorable than the Investment being renewed or replaced;
(13) Investments in insurance on the life of any participant in any
deferred compensation plan of the Company made in the ordinary course of
business consistent with past practices of the Company;
(14) Permitted Co-investments in an aggregate amount not exceeding (a)
for the period from the day after the Merger Date to December 31, 2001, the
excess of $20.0 million over the aggregate amount of all such Investments
made in the period from January 1, 2001 to the Merger Date, and (b) $20.0
million in each calendar year thereafter; provided, however, that such
Investments made in Co-investment Entities investing in countries that are
not members of the Organization for Economic Co-operation and Development
shall not exceed $5.0 million in any calendar year; provided further,
however, that (x) at the time of such Investment, no Default shall have
occurred and be continuing (or result therefrom)and (y) immediately after
giving pro forma effect to such Investment, the Company would be able to
Incur an additional $1.00 of Indebtedness pursuant to Section 4.03(a); and
(15) so long as no Default shall have occurred and be continuing (or
result therefrom), any Person in an aggregate amount which, when added
together with the amount of all the Investments made pursuant to this
clause (15) which at such time have not been repaid through repayments of
loans or advances or other transfers of assets, does not exceed $15.0
million (with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in value).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"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
27
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security which is due or overdue or is to become
due at the relevant time.
"Pro Forma Cost Savings" means, with respect to any period, the
reduction in costs that were
(1) directly attributable to an asset acquisition and calculated on a
basis that is consistent with Regulation S-X under the Securities Act in
effect and applied as of the Issue Date, or
(2) implemented by the business that was the subject of any such
asset acquisition within six months of the date of the asset acquisition
and that are supportable and quantifiable by the underlying accounting
records of such business,
as if, in the case of each of clause (1) and (2), all such reductions in costs
had been effected as of the beginning of such period.
"Public Equity Offering" means an underwritten primary public offering
of common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Purchase Money Indebtedness" means Indebtedness (including Capital
Lease Obligations) (1) consisting of the deferred purchase price of property,
conditional sale obligations, obligations under any title retention agreement,
other purchase money obligations and obligations in respect of industrial
revenue bonds or similar Indebtedness, in each case where the maturity of such
Indebtedness does not exceed the anticipated useful life of the asset being
financed, and (2) Incurred to finance the acquisition by the Company or a
Restricted Subsidiary of such asset, including additions and improvements;
provided, however, that any Lien arising in connection with any such
Indebtedness shall be limited to the specified asset being financed or, in
the case of real property or fixtures, including additions and improvements,
the real property on which such asset is attached; provided further, however,
that such Indebtedness is Incurred within 180 days after such acquisition of
such assets by the Company or any Restricted Subsidiary.
28
"Rating Agencies" means Standard and Poor's Ratings Group and
Xxxxx'x Investors Service, Inc. or any successor to the respective rating
agency business thereof.
"RCBA" means (1) RCBA Strategic Partners, L.P., (2) XXXX Capital
Partners, L.P. and its successors and (3) any investment fund that is
affiliated with XXXX Capital Partners, L.P. or its successors.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such indebtedness.
"Refinance d" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the
Merger Date or Incurred in compliance with this Indenture, including
Indebtedness that Refinances Refinancing Indebtedness; provided, however,
that:
(1) such Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
(2) such Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than
the Average Life of the Indebtedness being Refinanced, and
(3) such Refinancing Indebtedness has an aggregate principal amount
(or if Incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include
(A) Indebtedness of a Restricted Subsidiary that Refinances Indebtedness of
the Company or (B) Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.
"Related Business" means any business in which the Company was engaged
on the Merger Date and any business related, ancillary or complementary to any
business of the Company in which the Company was engaged on the Merger Date.
29
"Representative" means, with respect to a Person, any trustee, agent
or representative (if any) for an issue of Senior Indebtedness of such Person.
"Restricted Payment" with respect to any Person means
(1) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its Capital
Stock (other than dividends or distributions payable solely in its Capital
Stock (other than Disqualified Stock) and dividends or distributions
payable solely to the Company or a Restricted Subsidiary, and other than
pro rata dividends or other distributions made by a Subsidiary that is not
a Wholly Owned Subsidiary to minority stockholders (or owners of an
equivalent interest in the case of a Subsidiary that is an entity other
than a corporation)),
(2) the purchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company held by any Person or of any
Capital Stock of a Restricted Subsidiary held by any Affiliate of the
Company (other than a Restricted Subsidiary), including the exercise of any
option to exchange any Capital Stock (other than into Capital Stock of the
Company that is not Disqualified Stock),
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment of any Subordinated Obligations
of such Person (other than the purchase, repurchase, or other acquisition
of Subordinated Obligations purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each
case due within one year of the date of such purchase, repurchase or other
acquisition) or
(4) the making of any Investment (other than a Permitted Investment)
in any Person.
"Restricted Subsidiary" means any Subsidiary of the Company that is
not an Unrestricted Subsidiary.
"Revolving Credit Facility" means the revolving credit facility
contained in the Credit Agreement and any
30
other facility or financing arrangement that Refinances, in whole or in part,
and such revolving credit facility.
"Sale/Leaseback Transaction" means an arrangement relating to property
owned by the Company or a Restricted Subsidiary on the Issue Date or thereafter
acquired by the Company or a Restricted Subsidiary whereby the Company or a
Restricted Subsidiary transfers such property to a Person and the Company or
a Restricted Subsidiary leases it from such Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien.
"Securities" means the Securities issued under this Indenture.
"Senior Indebtedness" means, with respect to a Person,
(1) Indebtedness of such Person, whether outstanding on the Issue
Date or thereafter Incurred, and
(2) accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization
relating to such Person whether or not post-filing interest is allowed in
such proceeding) in respect of (A) indebtedness of such Person for money
borrowed and (B) indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person is
responsible or liable
unless, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding it is provided
that such obligations are subordinate or pari passu in right of payment to the
Securities or the Subsidiary Guaranty of such Person, as the case may be;
provided, however, that Senior Indebtedness shall not include:
(1) any obligation of such Person to any Subsidiary;
31
(2) any liability for Federal, state, local or other taxes owed or
owing by such Person,
(3) any accounts payable or other liability to trade creditors
arising in the ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities),
(4) any Indebtedness of such Person (and any accrued and unpaid
interest in respect thereof) which is subordinate or junior in any respect
to any other Indebtedness or other obligation of such Person or
(5) that portion of any Indebtedness which at the time of Incurrence
is Incurred in violation of this Indenture provided, however, that such
Indebtedness shall be deemed not to have been Incurred in violation of the
Indenture for purposes of this clause (5) if (x) the holders of such
Indebtedness or their representative or the Company shall have furnished to
the Trustee an opinion of recognized independent legal counsel, unqualified
in all material respects, addressed to the Trustee (which legal counsel
may, as to matters of fact, rely upon an Officers' Certificate) to the
effect that the Incurrence of such Indebtedness does not violate the
provisions of the Indenture or (y) such Indebtedness consists of Bank
Indebtedness, and the holders of such Indebtedness or their agent or
representative (1) had no actual knowledge at the time of the Incurrence
that the Incurrence of such Indebtedness violated the Indenture and (2)
shall have received an Officers' Certificate to the effect that the
Incurrence of such Indebtedness does not violate the provisions of the
Indenture.
"Senior Subordinated Indebtedness" means, with respect to a Person,
the Securities (in the case of the Company, a Guaranty (in the case of a
Guarantor) and any other Indebtedness of such Person that specifically provides
that such Indebtedness is to rank pari passu with the Securities or such
Guaranty, as the case may be; in right of payment and is not subordinated by
its terms in right of payment to any Indebtedness or other obligation of such
Person which is not Senior Indebtedness of such Person.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
32
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for
the repurchase of such security at the option of the holder thereof upon
the happening of any contingency unless such contingency has occurred).
"Subordinated Obligation" means, with respect to a Person, any
Indebtedness of such Person (whether outstanding on the Issue Date or
thereafter Incurred) which is subordinate or junior in right of payment to
the Securities or a Guaranty of such Person, as the case may be, pursuant to
a written agreement to that effect.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of
the total voting power of shares of Voting Stock is at the time owned or
controlled, directly or indirectly, by (1) such Person, (2) such Person and
one or more Subsidiaries of such Person or (3) one or more Subsidiaries of
such Person.
"Subsidiary Guarantor" means each Subsidiary of the Company that
executes the Indenture as a guarantor or a Guaranty Agreement on the Merger
Date and each other Subsidiary of the Company that thereafter guarantees the
Securities pursuant to the terms of the Indenture.
"Subsidiary Guaranty" means a Guarantee by a Subsidiary Guarantor
of the Company's obligations with respect to the Securities.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof,
(2) investments in time deposit accounts, bankers' acceptances,
certificates of deposit and money market deposits maturing within one year
of the date of acquisition thereof issued by a bank or trust company which
is organized under the laws of the United States of America, any State
thereof or any foreign country recognized by the United States of America,
and which bank or trust company has capital, surplus and undivided profits
aggregating in excess of $50,000,000
33
(or the foreign currency equivalent thereof) and has outstanding debt that
is rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule
436 under the Securities Act) or any money- market fund sponsored by a
registered broker-dealer or mutual fund distributor,
(3) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (1) above and
clauses (4) and (5) below entered into with a bank meeting the
qualifications described in clause (2) above,
(4) investments in commercial paper, maturing not more than one year
from the date of creation thereof, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United
States of America with a rating at the time as of which any investment
therein is made of "P-1" (or higher) according to Xxxxx'x Investors
Service, Inc. or "A-1" (or higher) according to Standard and Poor's Ratings
Group,
(5) investments in securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A"
by Standard & Poor's Ratings Group or "A" by Xxxxx'x Investors Service,
Inc., and
(6) other short-term investments utilized by Foreign Restricted
Subsidiaries in accordance with normal investment practices for cash
management in investments of a type analogous to the foregoing.
"Term Loan Facility" means the term loan facilities contained in
the Credit Agreement and any other facilities or financing arrangements that
Refinances in whole or in part any such term loan facility.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.(S).(S).
77aaa-77bbbb) as in effect on the date of this Indenture.
"Transactions" shall mean, collectively, the following transactions
to occur on or prior to the Merger Date: (a) the consummation of the Merger,
(b) the execution and delivery of the Credit Agreement and the initial
34
borrowings thereunder, (c) the execution and delivery of the Indenture
relating to the Parent Senior Notes and the issuance of the Parent Senior
Notes, (d) the closing of the tender offer for and the receipt of the
requisite consents in connection with the consent solicitation in respect
of CB Xxxxxxx Xxxxx Services' existing 8 7/8% Senior Subordinated Notes Due
2006, (e) the Cash Equity Contribution and (f) the payment of all fees and
expenses then due and owing that are required to be paid on or prior to the
Merger Date in connection with the offering of the Securities.
"Trustee" means the party named as such in this Indenture until
a successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or
any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial
Code as in effect from time to time.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors in
the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Company (including
any newly acquired or newly formed Subsidiary of the Company) to be an
Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns
any Capital Stock or Indebtedness of, or owns or holds any Lien on any property
of, the Company or any other Subsidiary of the Company that is not a Subsidiary
of the Subsidiary to be so designated; provided, however, that either (A) the
Subsidiary to be so designated has total assets of $1,000 or less or (B) if such
Subsidiary has assets greater than $1,000, such designation would be permitted
under Section 4.04. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that immediately
after giving effect to such designation (A) the Company could Incur $1.00 of
additional Indebtedness under Section 4.03(a) and (B) no Default shall have
occurred and be continuing. Any such designation by the Board of Directors shall
be evidenced to
35
the Trustee by promptly filing with the Trustee a copy of the resolution of
the Board of Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions.
"U.S. Dollar Equivalent" means with respect to any monetary amount
in a currency other than U.S. dollars, at any time for determination thereof,
the amount of U.S. dollars obtained by converting such foreign currency
involved in such computation into U.S. dollars at the spot rate for the
purchase of U.S. dollars with the applicable foreign currency as published
in The Wall Street Journal in the "Exchange Rates" column under the heading
"Currency Trading" on the date two Business Days prior to such determination.
Except as described in Section 4.03, whenever it is necessary to
determine whether the Company has complied with any covenant in this
Indenture or a Default has occurred and an amount is expressed in a currency
other than U.S. dollars, such amount will be treated as the U.S. Dollar
Equivalent determined as of the date such amount is initially determined in
such currency.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the
Capital Stock of which (other than directors' qualifying shares) is owned by
the Company or one or more Wholly Owned Subsidiaries.
36
SECTION 1.02. Other Definitions.
------------------
Defined in
Term Section
---- ----------
"Affiliate Transaction"................. 4.08
"Bankruptcy Law"........................ 6.01
"Blockage Notice"....................... 10.03
"Change of Control Offer"............... 4.09(b)
"covenant defeasance option"............ 8.01(b)
"Custodian"............................. 6.01
"Event of Default"...................... 6.01
"legal defeasance option"............... 8.01(b)
"Legal Holiday"......................... 13.08
"Offer"................................ 4.07(b)
"Offer Amount"......................... 4.07(c)(2)
"Offer Period"......................... 4.07(c)(2)
"pay the Securities".................... 10.03
"Paying Agent".......................... 2.03
"Payment Blockage Period"............... 10.03
"Purchase Date"........................ 4.07(c)(1)
"Registrar"............................. 2.03
"Successor Company"..................... 5.01
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities and each Guaranty;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture and each Guaranty;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company, Parent and
each Subsidiary Guarantor and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another
37
statute or defined by SEC rule have the meanings assigned to them by such
definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater; and
(8) all references to the date the Securities were originally issued
shall refer to the Issue Date.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. The Exchange Securities, the Private
Exchange Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A, which is hereby incorporated in and
expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Company). Each Security
shall be dated the date of its authentication. The terms of the Securities set
forth in the Appendix and Exhibit A are part of the terms of this Indenture.
38
SECTION 2.02. EXECUTION AND AUTHENTICATION. One Officer shall sign
the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Company shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange.
The Company may have one or more co-registrars and one or more additional
paying agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement
the provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to Section
7.07. The Company or any Wholly Owned Subsidiary incorporated or organized
within The United States of America may act as Paying Agent, Registrar, co-
registrar or transfer agent.
39
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to each due
date of the principal and interest on any Security, the Company shall deposit
with the Paying Agent a sum sufficient to pay such principal and interest when
so becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent
for the payment of principal of or interest on the Securities and shall notify
the Trustee of any default by the Company in making any such payment. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
SECTION 2.05. SECURITYHOLDER 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 Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. TRANSFER AND EXCHANGE. The Securities shall be issued
in registered form and shall be transferable only upon the surrender of a
Security for registration of transfer. When a Security is presented to the
Registrar or a co-registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if the requirements of this
Indenture and Section 8-401(a) of the Uniform Commercial Code are met. When
Securities are presented to the Registrar or a co- registrar with a request
to exchange them for an equal principal amount of Securities of other
denominations, the Registrar shall make the exchange as requested if the
same requirements are met.
SECTION 2.07. REPLACEMENT SECURITIES. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost,
40
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the requirements of Section 8-405 of
the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee,
the Paying Agent, the Registrar and any co-registrar from any loss which any
of them may suffer if a Security is replaced. The Company and the Trustee may
charge the Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. OUTSTANDING SECURITIES. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient
to pay all principal and interest payable on that date with respect to the
Securities (or portions thereof) to be redeemed or maturing, as the case may
be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then
on and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. TEMPORARY SECURITIES. Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities and deliver them in exchange for
temporary Securities.
41
SECTION 2.10. CANCELLATION. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else
shall cancel and destroy (subject to the record retention requirements of
the Exchange Act) all Securities surrendered for registration of transfer,
exchange, payment or cancellation and deliver a certificate of such
destruction to the Company unless the Company directs the Trustee to
deliver canceled Securities to the Company. The Company may not issue
new Securities to replace Securities it has redeemed, paid or delivered to
the Trustee for cancellation.
SECTION 2.11. DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted
interest (plus interest on such defaulted interest to the extent lawful)
in any lawful manner. The Company may pay the defaulted interest to the
persons who are Securityholders on a subsequent special record date. The
Company shall fix or cause to be fixed any such special record date and
payment date to the reasonable satisfaction of the Trustee and shall
promptly mail to each Securityholder a notice that states the special
record date, the payment date and the amount of defaulted interest to be
paid.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so,
the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers.
SECTION 2.13. ISSUANCE OF ADDITIONAL SECURITIES. The Company shall
be entitled, subject to its compliance with Section 4.03, to issue Additional
Securities under this Indenture which shall have identical terms as the Initial
Securities issued on the Issue Date, other than with respect to the date of
issuance and issue price. The Initial Securities issued on the Issue Date,
any Additional Securities and all Exchange Securities or Private Exchange
Securities issued in exchange therefor shall be treated as a single class
for all purposes under this Indenture.
42
With respect to any Additional Securities, the Company shall set
forth in a resolution of the Board of Directors and an Officers' Certificate,
a copy of each which shall be delivered to the Trustee, the following
information:
(1) the aggregate principal amount of such Additional Securities
to be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP number of such
Additional Securities; provided, however, that no Additional Securities may
be issued at a price that would cause such Additional Securities to have
"original issue discount" within the meaning of Section 1273 of the Code
(unless then applicable regulations under the Code would treat the
outstanding Securities and the Additional Securities as part of the same
issue); and
(3) whether such Additional Securities shall be Transfer Restricted
Securities and issued in the form of Initial Securities as set forth in the
Appendix to this Indenture or shall be issued in the form of Exchange
Securities as set forth in Exhibit A.
ARTICLE 3
Redemption
SECTION 3.01. NOTICES TO TRUSTEE. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities or is required to redeem
Securities pursuant to paragraph 6 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities
to be redeemed and the paragraph of the Securities pursuant to which the
redemption will occur.
If the Company is required to redeem Securities pursuant to paragraph
6 of the Securities, it may reduce the accreted value of Securities required to
be redeemed to the extent it is permitted a credit by the terms of the
Securities and it notifies the Trustee of the amount of the credit and the
basis for it. If the reduction is based on a credit for redeemed or canceled
Securities that the Company has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with the notice.
43
The Company shall give each notice to the Trustee provided for in
this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If fewer than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method that complies with applicable
legal and securities exchange requirements, if any, and that the Trustee in its
sole discretion shall deem to be fair and appropriate and in accordance with
methods generally used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities that have denominations
larger than $1,000. Securities and portions of them the Trustee selects shall
be in principal amounts of $1,000 or a whole multiple of $1,000. Provisions
of this Indenture that apply to Securities called for redemption also apply
to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more
than 60 days before a date for redemption of Securities (except in the case of
a redemption pursuant to paragraph 6 of the Securities, in which case, the
notice shall be mailed within the time period specified in such paragraph),
the Company shall mail a notice of redemption by first-class mail to each
Holder of Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
44
(5) if fewer than all the outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities to
be redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Securities (or portion
thereof) called for redemption ceases to accrue on and after the redemption
date;
(7) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed, Securities called for redemption become due and payable
on the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the related interest payment date). Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder. Once notice of a redemption pursuant to
paragraph 6 of the Securities is mailed, the Company shall be entitled to redeem
the Securities pursuant to such paragraph at the redemption price provided for
therein notwithstanding the occurrence of an Event of Default after the mailing
date of such notice.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to the redemption
date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to
the Trustee for cancellation.
45
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
COVENANTS
Following the first day that (a) the ratings assigned to the
Securities by both of the Rating Agencies are Investment Grade Ratings and
(b) no Default has occurred and is continuing under the Indenture (and
notwithstanding that the Company may later cease to have an Investment Grade
Rating from either or both Rating Agencies or default under this Indenture),
the Company and its Restricted Subsidiaries shall not be subject to Sections
4.03, 4.04, 4.05, 4.06, 4.07 and 4.08.
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall promptly pay
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the
case may be, is not prohibited from paying such money to the Securityholders
on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC REPORTS. Notwithstanding that the Company may not
be subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall file with the SEC and provide the Trustee and
Securityholders within 15 days after it files them with the SEC with such
annual reports and such information, documents and other reports as are
specified in Sections 13 and 15(d) of the Exchange Act and applicable to a
U.S. corporation subject to such Sections, such information, documents and
other reports to be so filed with the SEC at the times specified for the
filings of such information, documents and reports under such Sections
provided, however, that the
46
Company shall not be so obligated to file such reports with the SEC if the
SEC does not permit such filing, in which event the Company will make
available such information to the Trustee and Securityholders within 15
days after the time the Company would be required to file such information
with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act;
provided further, however, that (a) so long as Parent is the Guarantor of
the Securities, the reports, information and other documents required to be
filed and provided as described hereunder may, at the Company's option, be
filed by and be those of Parent rather than the Company and (b) in the event
that Parent conducts any business or holds any significant assets other than
the capital stock of the Company at the time of filing and providing any such
report, information or other document containing financial statements of
Parent, Parent shall include in such report, information or other document
summarized financial information (as defined in Rule 1-02(bb)of Regulation
S-X promulgated by the SEC) with respect to the Company.
In addition, the Company shall furnish to the Holder of the
Securities and to prospective investors, upon the requests of such Holders,
any information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act so long any Securities are not freely transferable under
the Securities Act. The Company also shall comply with the other provisions
of TIA (S). 314(a).
SECTION 4.03. LIMITATION ON INDEBTEDNESS. (a) The Company shall not,
--------------------------
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Company and its
Restricted Subsidiaries shall be entitled to Incur Indebtedness if, on the
date of such Incurrence and after giving effect thereto, no Default has
occurred and is continuing and the Consolidated Coverage Ratio exceeds 2.25
to 1 if such Indebtedness is Incurred prior to June 1, 2003 or 2.5 to 1 if
such Indebtedness is Incurred thereafter.
(b) Notwithstanding the foregoing paragraph (a), the Company and
the Restricted Subsidiaries shall be entitled to Incur any or all of the
following Indebtedness:
(1) Indebtedness Incurred by the Company pursuant to any Revolving
Credit Facility; provided, however, that, immediately after giving effect
to any such Incurrence, the aggregate principal amount of all Indebtedness
Incurred under this clause (1) and then outstanding does not exceed the
greater of (A) $100.0 million less the sum of all principal
47
payments with respect to such Indebtedness pursuant to Section
4.06(a)(3)(A) and (B) 80% of the book value of the accounts receivable of
the Company and its Restricted Subsidiaries;
(2) Indebtedness Incurred by the Company pursuant to any Term Loan
Facility; provided, however, that, after giving effect to any such
Incurrence, the aggregate principal amount of all Indebtedness Incurred
under this clause (2) and then outstanding does not exceed $225.0 million
less the aggregate sum of all principal payments actually made from time to
time after the Issue Date with respect to such Indebtedness (other than
principal payments made from Refinancings thereof);
(3) Indebtedness owed to and held by the Company or a Restricted
Subsidiary; provided, however, that (A) any subsequent issuance or
transfer of any Capital Stock which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to the Company or a
Restricted Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the obligor thereon and (B)
if the Company is the obligor on such Indebtedness, such Indebtedness
is expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Securities;
(4) the Securities and the Exchange Securities (other than any
Additional Securities);
(5) Indebtedness of CB Xxxxxxx Xxxxx Services and its Subsidiaries
outstanding on both the Issue Date and the Merger Date (after giving effect
to the Transactions) (other than Indebtedness described in clause (1), (2),
(3) or (4) of this Section 4.03(b));
(6) Indebtedness of a Restricted Subsidiary Incurred and outstanding
on or prior to the date on which such Subsidiary was acquired by the
Company (other than Indebtedness Incurred in connection with, or to provide
all or any portion of the funds or credit support utilized to consummate,
the transaction or series of related transactions pursuant to which such
Subsidiary became a Subsidiary or was acquired by the Company); provided,
however, that on the date of such acquisition and after giving effect
thereto, the aggregate principal amount of all Indebtedness Incurred
48
pursuant to this clause (6) and then outstanding does not exceed $10.0
million;
(7) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to Section 4.03(a) or pursuant to clause (4), (5) or (6) of this
Section 4.03(b) or this clause (7); provided, however, that to the extent
such Refinancing Indebtedness directly or indirectly Refinances
Indebtedness of a Subsidiary Incurred pursuant to clause (6), such
Refinancing Indebtedness shall be Incurred only by such Subsidiary;
(8) Hedging Obligations entered into in the ordinary course of
business and not for the purpose of speculation;
(9) obligations in respect of letters of credit, performance, bid and
surety bonds, completion guarantees, payment obligations in connection with
self-insurance or similar requirements provided by the Company or any
Restricted Subsidiary in the ordinary course of business;
(10) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within five Business Days of its
Incurrence;
(11) any Guarantee (including the Subsidiary Guaranties) by the
Company or a Restricted Subsidiary of Indebtedness or other obligations of
the Company or any of its Restricted Subsidiaries so long as the Incurrence
of such Indebtedness by the Company or such Restricted Subsidiary is
permitted under the terms of this Indenture (other than Indebtedness
Incurred pursuant to clause (6) above);
(12) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, in
each case, incurred or assumed in connection with the acquisition or
disposition of any business, assets or a Subsidiary; provided that (A) such
Indebtedness is not reflected on the balance sheet of the Company or any
Restricted Subsidiary (contingent obligations referred to in a footnote or
footnotes to financial statements and not otherwise reflected on the
balance sheet will not be deemed to be reflected on such balance sheet for
49
purposes of this clause (A)) and (B) in the case of a disposition, the
maximum liability in respect of such Indebtedness shall at no time exceed
the gross proceeds including non-cash proceeds (the fair market value of
such non-cash proceeds being determined at the time received and without
giving effect to any subsequent changes in value) actually received by the
Company or such Restricted Subsidiary in connection with such disposition;
(13) Melody Permitted Indebtedness;
(14) Purchase Money Indebtedness Incurred to finance the acquisition
by the Company or any Restricted Subsidiary of any fixed or capital assets
in the ordinary course of business in an aggregate principal amount which,
when taken together with all other Indebtedness Incurred pursuant to this
clause (14) and then outstanding, does not exceed $10.0 million;
(15) Indebtedness of Foreign Restricted Subsidiaries in an aggregate
principal amount which, when taken together with all other Indebtedness of
Foreign Restricted Subsidiaries Incurred pursuant to this clause (15) and
then outstanding, does not exceed $15.0 million; and
(16) Indebtedness of the Company or any Restricted Subsidiary in an
aggregate principal amount which, when taken together with all other
Indebtedness of the Company and the Restricted Subsidiaries outstanding on
the date of such Incurrence (other than Indebtedness permitted by clauses
(1) through (15) of this Section 4.03(b) or Section 4.03(a)), does not
exceed $30.0 million.
(c) Notwithstanding the foregoing, none of the Company or any
Restricted Subsidiary shall Incur any Indebtedness pursuant to Section 4.03(b)
if the proceeds thereof are used, directly or indirectly, to Refinance any
Subordinated Obligations of the Company or any Restricted Subsidiary unless
such Indebtedness shall be subordinated to the Securities or the applicable
Subsidiary Guaranty to at least the same extent as such Subordinated
Obligations.
(d) For purposes of determining compliance with this Section 4.03,
(1) in the event that an item of Indebtedness meets the criteria of more than
one of the types of Indebtedness described herein, the Company, in its sole
discretion, shall classify such item of Indebtedness at
50
the time of Incurrence and only be required to include the amount and type of
such Indebtedness in one of the above clauses (provided that any Indebtedness
originally classified as Incurred pursuant to clause (b)(16) above may later
be reclassified as having been Incurred pursuant to paragraph (a) above to
the extent that such reclassified Indebtedness could be Incurred pursuant to
paragraph (a) above at the time of such reclassification) and (2) the Company
shall be entitled to divide and classify an item of Indebtedness in more than
one of the types of Indebtedness described herein.
(e) Notwithstanding Section 4.03(a) or 4.03(b), none of the Company,
Parent and any Restricted Subsidiary shall Incur (1) any Indebtedness if such
Indebtedness is subordinate or junior in ranking in any respect to any Senior
Indebtedness of such Person, unless such Indebtedness is Senior Subordinated
Indebtedness of such Person or is expressly subordinated in right of payment
to Senior Subordinated Indebtedness of such Person or (2) any Secured
Indebtedness that is not Senior Indebtedness of such Person unless
contemporaneously therewith such Person makes effective provision to secure
the Securities or applicable Guaranty equally and ratably with such Secured
Indebtedness for so long as such Secured Indebtedness is secured by a Lien.
(f) For purposes of determining compliance with any U.S. dollar
restriction on the Incurrence of Indebtedness where the Indebtedness Incurred
is denominated in a different currency, the amount of such Indebtedness will
be the U.S. Dollar Equivalent determined on the date of the Incurrence of such
Indebtedness, provided, however, that if any such Indebtedness denominated in
a different currency is subject to a Currency Agreement with respect to U.S.
dollars covering all principal, premium, if any, and interest payable on such
Indebtedness, the amount of such Indebtedness expressed in U.S. dollars will
be as provided in such Currency Agreement. The principal amount of any
Refinancing Indebtedness Incurred in the same currency as the Indebtedness
being Refinanced will be the U.S. Dollar Equivalent of the Indebtedness
Refinanced, except to the extent that (1) such U.S. Dollar Equivalent was
determined based on a Currency Agreement, in which case the Refinancing
Indebtedness will be determined in accordance with the preceding sentence,
and (2) the principal amount of the Refinancing Indebtedness exceeds the
principal amount of the Indebtedness being Refinanced, in which case the
U.S. Dollar Equivalent of such excess will be determined on the date such
Refinancing Indebtedness is Incurred.
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SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS. (a) The Company
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to make a Restricted Payment if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would
result therefrom);
(2) the Company is not entitled to Incur an additional $1.00 of
Indebtedness under Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum of (without
duplication):
(A) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) from the Merger Date to the end of
the most recent fiscal quarter ended for which internal financial
statements are available prior to the date of such Restricted Payment
(or, in case such Consolidated Net Income shall be a deficit, minus
100% of such deficit); plus
----
(B) 100% of the aggregate Net Cash Proceeds received by the
Company from the issuance or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Issue Date (other than an
issuance or sale to a Subsidiary of the Company and other than an
issuance or sale to an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the benefit
of their employees) and 100% of any cash capital contribution received
by the Company from its shareholders subsequent to the Issue Date;
plus
----
(C) the amount by which Indebtedness of the Company is reduced
on the Company's balance sheet upon the conversion or exchange (other
than by a Subsidiary of the Company) subsequent to the Issue Date of
any Indebtedness of the Company convertible or exchangeable for
Capital Stock (other than Disqualified Stock) of the Company (less the
amount of any cash, or the fair value of any other property,
distributed by the Company upon such conversion or exchange); plus
----
52
(D) an amount equal to the sum of (x) the net reduction in the
Investments (other than Permitted Investments) made by the Company or
any Restricted Subsidiary in any Person resulting from repurchases,
repayments or redemptions of such Investments by such Person, proceeds
realized on the sale of such Investment and proceeds representing the
return of capital (excluding dividends and distributions), in each
case received by the Company or any Restricted Subsidiary and (y) to
the extent such Person is an Unrestricted Subsidiary, the portion
(proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of such Unrestricted
Subsidiary at the time such Unrestricted Subsidiary is designated a
Restricted Subsidiary; provided, however, that the foregoing sum shall
not exceed, in the case of any such Person or Unrestricted Subsidiary,
the amount of Investments (excluding Permitted Investments) previously
made (and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Person or Unrestricted Subsidiary.
(b) The provisions of Section 4.04(a) shall not prohibit:
(1) any Restricted Payment made out of the Net Cash Proceeds of the
substantially concurrent sale of, or made by exchange for, Capital Stock of
the Company (other than Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary of the Company or an employee stock
ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees) or a substantially
concurrent cash capital contribution received by the Company from its
shareholders; provided, however, that (A) such Restricted Payment shall be
excluded in the calculation of the amount of Restricted Payments and (B)
the Net Cash Proceeds from such sale or such cash capital contribution (to
the extent so used for such Restricted Payment) shall be excluded from the
calculation of amounts under Section 4.04(a)(3)(B);
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations of the
Company or a Restricted Subsidiary made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Indebtedness which is
permitted to be Incurred pursuant
53
to Section 4.03; provided, however, that such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value shall
be excluded in the calculation of the amount of Restricted Payments;
(3) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this Section 4.04; provided, however, that such dividend shall be
included in the calculation of the amount of Restricted Payments;
(4) repurchases of Capital Stock of Parent required under the
Company's 401(k) plan as it existed as of the Merger Date; provided,
however, that such repurchases shall be excluded from the calculation of
the amount of Restricted Payments;
(5) so long as no Default has occurred and is continuing, the
repurchase or other acquisition of shares of Capital Stock of Parent or the
Company or any of the Company's Subsidiaries from employees (including
substantially full-time independent contractors), former employees,
directors, former directors or consultants of the Company or any of its
Subsidiaries (or permitted transferees of such employees, former employees,
directors, former directors or consultants), pursuant to the terms of the
agreements (including employment agreements)or plans (or amendments
thereto)approved by the Board of Directors under which such individuals
purchase or sell or are granted the option to purchase or sell, shares of
such Capital Stock; provided, however, that the aggregate amount of such
repurchases and other acquisitions shall not exceed the sum of (A) $5.0
million, (B) the Net Cash Proceeds from the sale of Capital Stock to
members of management, consultants or directors of the Company and its
Subsidiaries that occurs after the Merger Date (to the extent the Net Cash
Proceeds from the sale of such Capital Stock have not otherwise been
applied to the payment of Restricted Payments by virtue of clause (3)(B) of
paragraph (a) above) and (C) the cash proceeds of any "key man" life
insurance policies that are used to make such repurchases; provided
further, however, that (x) such repurchases and other acquisitions shall be
excluded in the calculation of the amount of Restricted Payments and (y)
the Net Cash Proceeds from such sale shall be excluded from the calculation
of amounts under clause (3)(B) of paragraph (a) above;
54
(6) Investments made by Melody in connection with the Melody Loan
Arbitrage Facility or the Melody Mortgage Warehousing Facility; provided,
however, that such Investments shall be excluded in the calculation of the
amount of Restricted Payments;
(7) payments required pursuant to the terms of the Merger Agreement
to consummate the Merger; provided, however, that such payments shall be
excluded in the calculation of the amount of Restricted Payments;
(8) dividends to Parent to be used by Parent solely to pay its
franchise taxes and other fees required to maintain its corporate existence
and to pay for general corporate and overhead expenses (including salaries
and other compensation of the employees)incurred by Parent in the ordinary
course of its business; provided, however, that such dividends shall not
exceed $1.0 million in any calendar year; provided further, however, that
such dividends shall be excluded in the calculation of the amount of
Restricted Payments;
(9) payments to Parent in respect of Federal, state and local taxes
directly attributable to (or arising as a result of) the operations of the
Company and its consolidated Subsidiaries; provided, however, that the
amount of such payments in any fiscal year do not exceed the amount that
the Company and its consolidated Subsidiaries would be required to pay in
respect of Federal, state and local taxes for such fiscal year were the
Company to pay such taxes as a stand-alone taxpayer (whether or not all
such amounts are actually used by Parent for such purposes); provided
further, however, that such payments shall be excluded in the calculation
of the amount of Restricted Payments; and
(10) Restricted Payments in an aggregate amount which, when taken
together with all Restricted Payments made pursuant to this clause (10)
which have not been repaid, does not exceed $20.0 million; provided,
however, that (A) at the time of such Restricted Payments, no Default shall
have occurred and be continuing (or result therefrom) and (B) such
Restricted Payments shall be excluded in the calculation of the amount of
Restricted Payments.
SECTION 4.05. LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
RESTRICTED SUBSIDIARIES. The Company shall not, and shall not permit any
Restricted Subsidiary
55
to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) pay dividends or make any other distributions on its Capital
Stock to the Company or a Restricted Subsidiary or pay any Indebtedness owed
to the Company, (b) make any loans or advances to the Company or (c) transfer
any of its property or assets to the Company, except:
(1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction pursuant to an agreement of CB
Xxxxxxx Xxxxx Services or any of its Subsidiaries in effect at or entered
into on the Issue Date or, in the case of the Credit Agreement, as in
effect on the Merger Date;
(B) any encumbrance or restriction contained in the terms of any
Indebtedness Incurred pursuant to Section 4.03(b)(15) or any agreement
pursuant to which such Indebtedness was issued if (x) either (i) the
encumbrance or restriction applies only in the event of and during the
continuance of a payment default or a default with respect to a financial
covenant contained in such Indebtedness or agreement or (ii) the Company
determines at the time any such Indebtedness is Incurred (and at the time
of any modification of the terms of any such encumbrance or restriction)
that any such encumbrance or restriction will not materially affect the
Company's ability to make principal or interest payments on the Securities
and (y) the encumbrance or restriction is not materially more
disadvantageous to the Holders than is customary in comparable financings
or agreements (as determined by the Board of Directors in good faith);
(C) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred
by such Restricted Subsidiary on or prior to the date on which such
Restricted Subsidiary was acquired by the Company (other than Indebtedness
Incurred as consideration in, or to provide all or any portion of the funds
or credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company) and outstanding on
such date;
(D) any encumbrance or restriction pursuant to an agreement effecting
a Refinancing of Indebtedness
56
Incurred pursuant to an agreement referred to in Section 4.05(1) (A), (B)
or (C) or this clause (D) or contained in any amendment to an agreement
referred to in Section 4.05(1)(A), (B) or (C) or this clause (D); provided,
however, that the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in any such refinancing agreement or
amendment are no less favorable to the Securityholders than encumbrances
and restrictions with respect to such Restricted Subsidiary contained in
such predecessor agreements; and
(E) any encumbrance or restriction pursuant to applicable law; and
(2) with respect to clause (c) only,
(A) any such encumbrance or restriction consisting of customary non-
assignment provisions in leases governing leasehold interests to the extent
such provisions restrict the transfer of the lease or the property leased
thereunder;
(B) restrictions contained in security agreements or mortgages
securing Indebtedness of a Restricted Subsidiary to the extent such
restrictions restrict the transfer of the property subject to such security
agreements or mortgages;
(C) restrictions on the transfer of assets subject to any Lien
permitted under this Indenture imposed by the holder of such Lien; and
(D) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition.
SECTION 4.06. LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK.
(a) The Company shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, consummate any Asset Disposition unless (1) the Company
or such Restricted Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value (including as to the value
of all non-cash consideration), as determined in good faith by the Board of
Directors, of the shares and assets subject to such Asset Disposition; (2) at
least 80% of the consideration thereof received by the Company or such
Restricted Subsidiary is in
57
the form of cash or cash equivalents; and (3) an amount equal to 100% of the
Net Available Cash from such Asset Disposition is applied by the Company (or
such Restricted Subsidiary, as the case may be) (A) first, to the extent the
Company elects (or is required by the terms of any Indebtedness), to prepay,
repay, redeem or purchase Senior Indebtedness of the Company or a Subsidiary
Guarantor or Indebtedness (other than any Disqualified Stock) of any other
Wholly Owned Subsidiary (in each case other than Indebtedness owed to the
Company or an Affiliate of the Company) within one year from the later of
the date of such Asset Disposition or the receipt of such Net Available
Cash; (B) second, to the extent of the balance of such Net Available Cash
after application in accordance with clause (A), to the extent the Company
elects, to acquire Additional Assets within one year from the later of the
date of such Asset Disposition or the receipt of such Net Available Cash;
and (C) third, to the extent of the balance of such Net Available Cash after
application in accordance with clauses (A) and (B), to make an Offer to the
holders of the Securities (and to holders of other Senior Subordinated
Indebtedness of the Company designated by the Company) to purchase
Securities (and such other Senior Subordinated Indebtedness of the Company)
pursuant to and subject to the conditions of Section 4.06(b); provided,
however, that in connection with any prepayment, repayment or purchase of
Indebtedness pursuant to clause (A) or (C) above, the Company or such
Restricted Subsidiary shall permanently retire such Indebtedness and shall
cause the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section 4.06, the Company
and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section 4.06(a) except to the extent
that the aggregate Net Available Cash from all Asset Dispositions which is
not applied in accordance with this Section 4.06(a) exceeds $10.0 million.
Pending application of Net Available Cash pursuant to this Section 4.06(a),
such Net Available Cash shall be invested in Temporary Cash Investments or
applied to temporarily reduce revolving credit indebtedness.
For the purposes of this Section 4.06(a), the following are deemed
to be cash or cash equivalents: (1) the assumption of Indebtedness of the
Company or any Restricted Subsidiary and the release of the Company or such
Restricted Subsidiary from all liability on such Indebtedness in connection
with such Asset Disposition and (2) securities received by the Company or any
Restricted
58
Subsidiary from the transferee that are promptly converted by the Company or
such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase
of Securities (and other Senior Subordinated Indebtedness of the Company)
pursuant to Section 4.06(a)(3)(C), the Company shall purchase Securities
tendered pursuant to an offer by the Company for the Securities (and such
other Senior Subordinated Indebtedness of the Company) (the "Offer") at a
purchase price of 100% of their principal amount (or, in the event such other
Senior Subordinated Indebtedness of the Company was issued with significant
original issue discount, 100% of the accreted value thereof), without premium,
plus accrued but unpaid interest (or, in respect of such other Senior
Subordinated Indebtedness, such lesser price, if any, as may be provided for
by the terms of such Senior Subordinated Indebtedness of the Company) in
accordance with the procedures (including prorating in the event of over-
subscription) set forth in Section 4.06(c). If the aggregate purchase price
of Securities (and any other Senior Subordinated Indebtedness of the Company)
tendered pursuant to the Offer exceeds the Net Available Cash allotted to
their purchase, the Company shall select the Securities and other Senior
Subordinated Indebtedness to be purchased on a pro rata basis but in round
denominations, which in the case of the Securities will be denominations of
$1,000 principal amount or multiples thereof. The Company shall not be
required to make an Offer to purchase Securities (and other Senior
Subordinated Indebtedness of the Company) pursuant to this Section 4.06 if
the Net Available Cash available therefor is less than $10.0 million (which
lesser amount shall be carried forward for purposes of determining whether
such an Offer is required with respect to the Net Available Cash from any
subsequent Asset Disposition).
(c) (1) Promptly, and in any event within 10 days after the Company
becomes obligated to make an Offer, the Company shall deliver to the Trustee
and send, by first-class mail to each Holder, a written notice stating that the
Holder may elect to have his Securities purchased by the Company either in
whole or in part (subject to prorating as described in Section 4.06(b) in the
event the Offer is oversubscribed) in integral multiples of $1,000 of principal
amount, at the applicable purchase price. The notice shall specify a purchase
date not less than 30 days nor more than 60 days after the date of such notice
(the "Purchase Date") and shall contain such information concerning the
business of the Company which the Company in good faith believes will enable
such Holders to make an informed decision (which at a minimum will include (A)
the most recently filed Annual
59
Report on Form 10-K (including audited consolidated financial statements) of
the Company, the most recent subsequently filed Quarterly Report on Form
10-Q and any Current Report on Form 8-K of the Company filed subsequent to
such Quarterly Report, other than Current Reports describing Asset
Dispositions otherwise described in the offering materials (or corresponding
successor reports), (B) a description of material developments in the Company's
business subsequent to the date of the latest of such Reports, and (C) if
material, appropriate pro forma financial information) and all instructions
and materials necessary to tender Securities pursuant to the Offer, together
with the information contained in clause (3).
(2) Not later than the date upon which written notice of an Offer
is delivered to the Trustee as provided below, the Company shall deliver to
the Trustee an Officers' Certificate as to (A) the amount of the Offer (the
"Offer Amount"), including information as to any other Senior Subordinated
Indebtedness included in the Offer, (B) the allocation of the Net Available
Cash from the Asset Dispositions pursuant to which such Offer is being made
and (C) the compliance of such allocation with the provisions of Section
4.06(a) and (b). On such date, the Company shall also irrevocably deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust) in Temporary Cash
Investments, maturing on the last day prior to the Purchase Date or on
the Purchase Date if funds are immediately available by open of business,
an amount equal to the Offer Amount to be held for payment in accordance
with the provisions of this Section. If the Offer includes other Senior
Subordinated Indebtedness, the deposit described in the preceding sentence
may be made with any other paying agent pursuant to arrangements satisfactory
to the Trustee. Upon the expiration of the period for which the Offer remains
open (the "Offer Period"), the Company shall deliver to the Trustee for
cancellation the Securities or portions thereof which have been properly
tendered to and are to be accepted by the Company. The Trustee shall, on
the Purchase Date, mail or deliver payment (or cause the delivery of payment)
to each tendering Holder in the amount of the purchase price. In the event
that the aggregate purchase price of the Securities delivered by the Company
to the Trustee is less than the Offer Amount applicable to the Securities,
the Trustee shall deliver the excess to the Company immediately after the
expiration of the Offer Period for application in accordance with this
Section 4.06.
(3) Holders electing to have a Security purchased shall be
required to surrender the Security, with an appro-
60
priate form duly completed, to the Company at the address specified in the
notice at least three Business Days prior to the Purchase Date. Holders shall
be entitled to withdraw their election if the Trustee or the Company receives
not later than one Business Day prior to the Purchase Date, a telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such Security
purchased. Holders whose Securities are purchased only in part shall be
issued new Securities equal in principal amount to the unpurchased portion
of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee
which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating that such Securities are to be accepted by
the Company pursuant to and in accordance with the terms of this Section.
A Security shall be deemed to have been accepted for purchase at the time
the Trustee, directly or through an agent, mails or delivers payment therefor
to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the purchase of Securities pursuant
to this Section. To the extent that the provisions of any securities laws
or regulations conflict with provisions of this Section, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue of its
compliance with such securities laws or regulations.
SECTION 4.07. LIMITATION ON AFFILIATE TRANSACTIONS. (a) The Company
shall not, and shall not permit any Restricted Subsidiary to, enter into or
permit to exist any transaction (including the purchase, sale, lease or
exchange of any property, employee compensation arrangements or the rendering
of any service) with, or for the benefit of, any Affiliate of the Company
(an "Affiliate Transaction") unless (1) the terms thereof are no less
favorable to the Company or such Restricted Subsidiary than those that
could be obtained at the time of such Affiliate Transaction in arm's-length
dealings with a Person who is not such an Affiliate; (2) if such Affiliate
Transaction involves an amount in excess of $2.5 million, the terms of the
Affiliate Transaction are set forth in writing and a majority of the
directors of the Company disinterested with respect to such Affiliate
Transaction have determined in
61
good faith that the criteria set forth in clause (1) are satisfied and have
approved the relevant Affiliate Transaction as evidenced by a resolution of
the Board of Directors; and (3) if such Affiliate Transaction involves an
amount in excess of $10.0 million, the Board of Directors shall also have
received a written opinion from an Independent Qualified Party to the effect
that such Affiliate Transaction is fair, from a financial standpoint, to the
Company and its Restricted Subsidiaries or is not less favorable to the Company
and its Restricted Subsidiaries than could reasonably be expected to be obtained
at the time in an arm's-length transaction with a Person who was not an
Affiliate.
(b) The provisions of Section 4.07(a) shall not prohibit (1) any
Investment (other than a Permitted Investment) or other Restricted Payment,
in each case permitted to be made pursuant to Section 4.04; (2) any issuance
of securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, stock
options and stock ownership plans approved by the Board of Directors; (3)
loans or advances to employees or consultants in the ordinary course of
business of the Company or its Restricted Subsidiaries, but in any event
not to exceed $3.0 million in the aggregate outstanding at any one time;
(4) the payment of reasonable fees and compensation to, or the provision of
employee benefit arrangements and indemnity for the benefit of, directors,
officers, employees and consultants of the Company and its Restricted
Subsidiaries in the ordinary course of business; (5) any transaction between
or among the Company, any Restricted Subsidiary or joint venture or similar
entity which would constitute an Affiliate Transaction solely because the
Company or a Restricted Subsidiary owns an equity interest in or otherwise
controls such Restricted Subsidiary, joint venture or similar entity; (6)
the issuance or sale of any Capital Stock (other than Disqualified Stock)
of the Company; (7) the existence of, or the performance by the Company or
any of its Restricted Subsidiaries of its obligations under the terms of any
stockholders agreement (including any registration rights agreement or
purchase agreement related thereto) or warrant agreement to which it is a
party as of the Merger Date and any similar agreements which it may enter
into thereafter; provided, however, that the existence of, or the performance
by the Company or -any of its Restricted Subsidiaries of obligations under
any future amendment to any such existing agreement or under any similar
agreement entered into after the Merger Date shall only be permitted by
this clause (7) to the extent that the terms of any such amendment or new
agreement are not otherwise disadvantageous to the Holders
62
in any material respect; (8) the payment of fees and other expenses to be
paid by Parent, the Company or any of its Subsidiaries in connection with
the Merger; (9) any agreement as in effect on the Merger Date and described
in the Offering Circular or any renewals, extensions or amendments of any
such agreement (so long as such renewals, extensions or amendments are not
less favorable to the Company or the Restricted Subsidiaries)and the
transactions evidenced thereby; and (10) transactions with customers,
clients, suppliers or purchasers or sellers of goods or services in each
case in the ordinary course of business and otherwise in compliance with
the terms of the applicable Indenture which are fair to the Company or its
Restricted Subsidiaries, in the reasonable determination of the Board of
Directors of the Company or the senior management thereof, or are on terms
at least as favorable as might reasonably have been obtained at such time
from an unaffiliated party.
SECTION 4.08. LIMITATION ON THE SALE OR ISSUANCE OF CAPITAL STOCK
OF RESTRICTED SUBSIDIARIES. The Company (1) shall not, and shall not permit
any Restricted Subsidiary to, sell, lease, transfer or otherwise dispose of
any Capital Stock of any Restricted Subsidiary to any Person (other than to
the Company or a Wholly Owned Subsidiary), and (2) shall not permit any
Restricted Subsidiary to issue any of its Capital Stock (other than, if
necessary, shares of its Capital Stock constituting directors' or other
legally required qualifying shares) to any Person (other than the Company
or a Wholly Owned Subsidiary) unless (A) immediately after giving effect
to such issuance, sale or other disposition, neither the Company nor any
of its Subsidiaries owns any Capital Stock of such Restricted Subsidiary
or (B) immediately after giving effect to such issuance, sale or other
disposition, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary and any Investment in such Person (other than in
the case of an Exempt Subsidiary) remaining after giving effect thereto
is treated as a new Investment by the Company and such Investment would
have been permitted to be made under Section 4.04 if made on the date of
such issuance, sale or other disposition.
SECTION 4.09. CHANGE OF CONTROL. (a) Upon the occurrence of a
Change of Control, each Holder shall have the right to require that the
Company purchase such Holder's Securities at a purchase price in cash
equal to 101% of the principal amount thereof on the date of purchase
plus accrued and unpaid interest, if any, to the date of purchase (subject
to the right of holders of record on the relevant record date to receive
interest due on the relevant interest
63
payment date), in accordance with the terms contemplated in Section 4.09(b).
In the event that at the time of such Change of Control the terms of the
Credit Agreement prohibit the Company from making a Change of Control Offer
or from purchasing Securities pursuant thereto, then prior to the mailing of
the notice to Holders provided for in Section 4.09(b) below but in any event
within 30 days following any Change of Control, the Company shall (1) repay
in full all indebtedness outstanding under the Credit Agreement offer to repay
in full all such indebtedness and repay the indebtedness of each lender who
has accepted such offer or (ii) obtain the requisite consent under the Credit
Agreement to permit the repurchase of the Securities as provided for in Section
4.09(b).
(b) Within 30 days following any Change of Control, unless the
Company has exercised its option to redeem all the Securities pursuant to
paragraph 6 of the Securities the Company shall mail a notice to each Holder
with a copy to the Trustee (the "Change of Control Offer") stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Securities at a
purchase price in cash equal to 101% of the principal amount thereof on the
date of purchase plus accrued and unpaid interest, if any, to the date of
purchase (subject to the right of Holders of record on the relevant record
date to receive interest on the relevant interest payment date);
(2) the circumstances and relevant facts regarding such Change of
Control (including information with respect to pro forma historical income,
cash flow and capitalization, in each case after giving effect to such
Change of Control);
(3) the purchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(4) the instructions, as determined by the Company, consistent with
this Section, that a Holder must follow in order to have its Securities
purchased.
(c) Holders electing to have a Security purchased will be required
to surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the purchase date. Holders will be entitled to withdraw
64
their election if the Trustee or the Company receives not later than one
Business Day prior to the purchase date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security which was delivered for purchase by the Holder and a
statement that such Holder is withdrawing his election to have such Security
purchased.
(d) On the purchase date, all Securities purchased by the Company
under this Section shall be delivered by the Company to the Trustee for
cancellation, and the Company shall pay the purchase price plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
(e) Notwithstanding the foregoing provisions of this Section, the
Company shall not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner,
at the times and otherwise in compliance with the requirements set forth in
this Section applicable to a Change of Control Offer made by the Company and
purchases all Securities validly tendered and not withdrawn under such Change
of Control Offer or if the Company has exercised its option to redeem all the
Securities pursuant to paragraph 6 of the Securities.
(f) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the purchase of Securities pursuant
to this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue of its compliance
with such securities laws or regulations.
SECTION 4.10. FUTURE GUARANTORS. On the Merger Date, the Company
shall cause each of its Restricted Subsidiaries that is a guarantor under
the Credit Agreement to execute and deliver to the Trustee a Guaranty
Agreement pursuant to which such Restricted Subsidiary shall Guarantee
the Company's obligations with respect to the Securities on the terms set
forth therein. After the Merger Date, the Company shall cause each Restricted
Subsidiary that Guarantees any Indebtedness of the Company to, at the same
time, execute and deliver to the Trustee a Guaranty Agreement pursuant to
which such Restricted Subsidiary shall Guarantee the Company's obligations
with respect to the Securities on the terms set forth herein.
65
SECTION 4.11. COMPLIANCE CERTIFICATE. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company
an Officers' Certificate stating that in the course of the performance by
the signers of their duties as Officers of the Company they would normally
have knowledge of any Default and whether or not the signers know of any
Default that occurred during such period. If they do, the certificate shall
describe the Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
TIA ss. 314(a)(4).
SECTION 4.12. PAYMENT OF ADDITIONAL INTEREST. If additional
interest is payable by the Company pursuant to the Registration Rights
Agreement and paragraph 1 of the Securities, the Company shall deliver to
the Trustee a certificate to that effect stating (i) the amount of such
additional interest that is payable and (ii) the date on which such interest
is payable. Unless and until the Trustee receives such a certificate, the
Trustee may assume without inquiry that no Registration Default (as defined
in the Registration Rights Agreement) exists and that no additional interest
is owed by the Company. If the Company has paid additional interest directly
to the persons entitled to such interest, the Company shall deliver to the
Trustee a certificate setting forth the particulars of such payment.
SECTION 4.13. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE 5
MERGER AND CONSOLIDATION
Following the first day that (a) the ratings assigned to the Notes
by both of the Rating Agencies are Investment Grade Ratings and (b) no
Default has occurred and is continuing under this Indenture (and
notwithstanding that the Company may later cease to have an Investment
Grade Rating from either or both Rating Agencies or default under the
Indenture), the Company shall not be subject to clause (3) of Section 5.01(a).
SECTION 5.01. WHEN COMPANY, SUBSIDIARY GUARANTORS AND PARENT MAY
MERGE OR TRANSFER ASSETS. (a) The Company shall not consolidate with or merge
with or into, or convey,
66
transfer or lease, in one transaction or a series of transactions, directly
or indirectly, all or substantially all its assets to, any Person, unless:
(1) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
the Successor Company (if not the Company) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, all the obligations of the
Company under the Securities and this Indenture;
(2) immediately after giving pro forma effect to such transaction
(and treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary as a result of such transaction as having been
Incurred by the Successor Company or such Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing;
(3) immediately after giving pro forma effect to such transaction,
the Successor Company would be able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a); and
(4) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture;
provided, however, that clause (3) shall not be applicable to (A) a Restricted
-Subsidiary consolidating with, merging into or transferring all or part of its
properties and assets to the Company or (B) the Company merging with an
Affiliate of the Company solely for the purpose and with the sole effect of
reincorporating the Company in another jurisdiction. In addition,
notwithstanding clause (3) above, XXXX XX Corp. may merge into CB Xxxxxxx Xxxxx
Services, Inc. on the Merger Date as contemplated by the Merger Agreement.
The Successor Company shall be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, and the predecessor Company, except in the
case of a lease, shall be released from the obligation to pay the principal of
and interest on the Securities.
67
(b) The Company shall not permit any Subsidiary Guarantor to
consolidate with or merge with or into, or convey, transfer or lease, in one
transaction or series of transactions, all or substantially all of its assets
to any Person unless:
(1) except in the case of a Subsidiary Guarantor that has been
disposed of in its entirety to another Person (other than to the Company or
an Affiliate of the Company), whether through a merger, consolidation or
sale of Capital Stock or assets, if in connection therewith the Company
provides an Officers' Certificate to the Trustee to the effect that the
Company will comply with its obligations under Section 4.06 in respect of
such disposition, the resulting, surviving or transferee Person (if not
such Subsidiary) shall be a Person organized and existing under the laws of
the jurisdiction under which such Subsidiary was organized or under the
laws of the United States of America, or any State thereof or the District
of Columbia, and such Person shall expressly assume, by a Guaranty
Agreement, all the obligations of such Subsidiary, if any, under its
Subsidiary Guaranty;
(2) immediately after giving effect to such transaction or
transactions on a pro forma basis (and treating any Indebtedness which
becomes an obligation of the resulting, surviving or transferee Person as a
result of such transaction as having been issued by such Person at the time
of such transaction), no Default shall have occurred and be continuing; and
(3) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such Guaranty Agreement, if any, complies with this Indenture.
(c) Parent shall not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions, all
or substantially all of its assets to any Person unless:
(1) the resulting, surviving or transferee Person (if not Parent)
shall be a Person organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia, and
such Person shall expressly assume, by a Guaranty Agreement, all the
obligations of Parent, if any, under its Guaranty;
68
(2) immediately after giving effect to such transaction or
transactions on a pro forma basis (and treating any Indebtedness which
becomes an obligation of the resulting, surviving or transferee Person as a
result of such transaction as having been issued by such Person at the time
of such transaction), no Default shall have occurred and be continuing; and
(3) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such Guaranty Agreement, if any, complies with this Indenture.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any Security
when the same becomes due and payable, whether or not such payment shall be
prohibited by Article 10, and such default continues for a period of 30
days;
(2) the Company (i) defaults in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity, upon
redemption, upon declaration of acceleration or otherwise, whether or not
such payment shall be prohibited by Article 10 or (ii) fails to redeem or
purchase Securities when required pursuant to this Indenture or the
Securities, whether or not such redemption or purchase shall be prohibited
by Article 10;
(3) the Company, Parent or any Subsidiary Guarantor fails to comply
with Section 5.01;
(4) the Company, Parent or any Subsidiary Guarantor, as the case may
be, fails to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08,
4.09 or 4.10 (other than a failure to purchase Securities when required
under Section 4.06 or 4.09) and such failure continues for 30 days after
the notice specified below;
(5) the Company, Parent or any Subsidiary Guarantor fails to comply
with any of its agreements in
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the Securities or this Indenture (other than those referred to in clause
(1), (2), (3) or (4) above) and such failure continues for 60 days after
the notice specified below;
(6) Indebtedness of the Company or any Significant Subsidiary is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $10.0 million, or
its foreign currency equivalent at the time;
(7) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days;
(9) any judgment or decree for the payment of money (other than
judgments which are covered by
70
enforceable insurance policies issued by solvent carriers) in excess of
$10.0 million (or its foreign currency equivalent at the time) is entered
against the Company or any Significant Subsidiary, remains outstanding for
a period of 60 days following the entry of such judgment or decree and is
not discharged, waived or the execution thereof stayed within 10 days after
the notice specified below; or
(10) the Parent Guaranty or a Subsidiary Guaranty ceases to be in full
force and effect (other than in accordance with the terms of such Guaranty)
or a Guarantor denies or disaffirms its obligations under its Guaranty.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
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.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clauses (4), (5) or (9) is not an Event of Default
until the Trustee or the holders of at least 25% in principal amount of the
outstanding Securities notify the Company of the Default and the Company does
not cure such Default within the time specified after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state
that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate
of any Event of Default under clause (6) or (10) and any event which with
the giving of notice or the lapse of time would become an Event of Default
under clause (4), (5) or (9), its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in principal amount of the
71
Securities by notice to the Company and the Trustee, may declare the principal
of and accrued but unpaid interest on all the Securities to be due and payable;
provided, however, that so long as any Bank Indebtedness remains outstanding,
no such acceleration shall be effective until the earlier of (1) five Business
Days after the giving of written notice to the Company and the administrative
agent (or similar agent if there is no administrative agent) under the Credit
Agreement and (2) the day on which any Bank Indebtedness is accelerated. Upon
such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(7) or (8) with
respect to the Company occurs and is continuing, the principal of and interest
on all the Securities shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or
any Security-holders. The Holders of a majority in principal amount of the
Securities by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because
of acceleration. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Securityholder 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.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences except (i) a Default in the payment of
the principal of or interest on a Security (ii) a Default arising from the
failure to redeem or purchase any Security when required pursuant to this
Indenture or (iii) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Securityholder affected.
When a Default is waived, it is deemed cured, but no such
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waiver shall extend to any subsequent or other Default or impair any consequent
right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses
caused by taking or not taking such action.
SECTION 6.06. LIMITATION ON SUITS. Except to enforce the right to
receive payment of principal, premium (if any) or interest when due, no
Securityholder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the Securities
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Securities
do not give the Trustee a direction inconsistent with the request during
such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
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SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Securities held by such Holder,
on or after the respective due dates expressed in the Securities, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount then due and owing (together with interest
on any unpaid interest to the extent lawful) and the amounts provided for in
Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may
file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property
in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Company and, if such
money or property has been collected from a Guarantor, to holders of Senior
Indebtedness of such Guarantor, in each case to the extent required by
Article 10 and 12;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind,
74
according to the amounts due and payable on the Securities for principal
and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Securities.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. The Company (to the
extent it may lawfully do so under applicable law) shall not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
75
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(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 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its
76
duties hereunder or in the exercise of any of its rights or powers, if it
shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall
be subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as
77
to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, and
it shall not be responsible for any statement of the Company in the Indenture
or in any document issued in connection with the sale of the Securities or in
the Securities other than the Trustee's certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except
in the case of a Default in payment of principal of or interest on any Security
(including payments pursuant to the mandatory redemption provisions of such
Security, if any), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. As promptly as
practicable after each May 15 beginning with the May 15 following the date
of this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of May 15 that
complies with TIA (s) 313(a). The Trustee also shall comply with TIA (s) 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Trustee's agents, counsel,
accountants and experts. The Company shall indemnify the Trustee against any
and all loss, liability or expense (including attorneys' fees) incurred by it
in connection with the administration of this trust and the performance of its
duties hereunder. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so
78
notify the Company shall not relieve the Company of its obligations hereunder.
The Company shall defend the claim and the Trustee may have separate counsel and
the Company shall pay the fees and expenses of such counsel. The Company need
not reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own wilful misconduct, negligence
or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust
to pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(7) or (8) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders
of a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor
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Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities 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 Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets (including the administration of the
trust created by this Indenture) to, another corporation or banking association,
the resulting, surviving or transferee corporation without any further act shall
be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the
Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA (S)310(a). The Trustee (or, in the case
of a subsidiary of a bank holding company, its corporate parent) shall have a
80
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S) 310(b); provided, however, that there shall be excluded from the operation
of TIA (S) 310(b)(1) any indenture or indentures under which other securities
or certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA (S)
310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES; DEFEASANCE. (a)
When (1) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancellation or (2) all
outstanding Securities have become due and payable, whether at maturity or on
a redemption date as a result of the mailing of a notice of redemption pursuant
to Article 3 hereof and the Company irrevocably deposits with the Trustee funds
sufficient to pay at maturity or upon redemption all outstanding Securities,
including interest thereon to maturity or such redemption date (other than
Securities replaced pursuant to Section 2.07), and if in either case the Company
pays all other sums payable hereunder by the Company, then this Indenture shall,
subject to Section 8.01(c), cease to be of further effect. The Trustee shall
acknowledge satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers' Certificate and an Opinion of Counsel and
at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (1) all its obligations under the Securities and this Indenture
("legal defeasance option") or (2) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09 and 4.10 and the operation of Sections
6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of Sections
6.01(7) and (8), with respect only to Significant Subsidiaries) and the
limitations contained in Section 5.01(a)(3) ("covenant defeasance option").
The Company may exercise its legal
81
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance option, payment of
the Securities may not be accelerated because of an Event of Default specified
in Sections 6.01(4), 6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of
Sections 6.01(7) and (8), with respect only to Significant Subsidiaries) or
because of the failure of the Company to comply with Section 5.01(a)(3). If the
Company exercises its legal defeasance option or its covenant defeasance option,
each Guarantor, if any, shall be released from all its obligations with respect
to its Guaranty.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 and
in this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02. CONDITIONS TO DEFEASANCE. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of and interest
on the Securities to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Securities to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in
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Sections 6.01(7) or (8) with respect to the Company occurs which is
continuing at the end of the period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(5) the Company delivers to the Trustee an Opinion of Counsel to
the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(6) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (B) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Security holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
(8) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
to the defeasance and discharge of the Securities as contemplated by
this Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date
in accordance with Article 3.
SECTION 8.03. APPLICATION OF TRUST MONEY. The Trustee shall hold
in trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It
83
shall apply the deposited money and the money from U.S. Government Obligations
through the Paying Agent and in accordance with this Indenture to the payment
of principal of and interest on the Securities. Money and securities so held
in trust are not subject to Article 10.
SECTION 8.04. REPAYMENT TO COMPANY. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, 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 two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
this Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities and the Guarantors' obligations under their
respective Guaranties shall be revived and reinstated as though no deposit
had occurred pursuant to this Article 8 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if
the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company, the
Guarantors and the Trustee may amend this Indenture, or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add guarantees with respect to the Securities, including
any Guaranties, or to secure the Securities ;
(5) to add to the covenants of the Company or a Guarantor for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company or a Guarantor;
(6) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under
the TIA; or
(7) to make any change that does not adversely affect the rights
of any Securityholder.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 or 12 of any holder of Senior
Indebtedness of the Company or of a Guarantor then outstanding unless the
holders of such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any
defect therein, shall not impair or affect the validity of an amendment under
this Section.
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SECTION 9.02. WITH CONSENT OF HOLDERS. The Company, the
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange for
the Securities). However, without the consent of each Securityholder affected
thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment;
(2) reduce the rate of or extend the time for payment of interest
on any Security;
(3) reduce the principal amount of or extend the Stated Maturity
of any Security;
(4) reduce the amount payable upon the redemption of any Security
or change the time at which any Security may or shall be redeemed in
accordance with Article 3;
(5) make any Security payable in money other than that stated in
the Security;
(6) make any changes in the ranking or priority of any Security
that would adversely affect the Securityholders;
(7) make any change in Section 6.04 or 6.07 or the second
sentence of this Section; or
(8) make any change in any Guaranty that would adversely affect
the Securityholders.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 or 12 or any Guaranty Agreement
of any holder of Senior Indebtedness of the Company or of a Guarantor then
outstanding unless the holders of such Senior Indebtedness (or any group or
representative thereof authorized to give a consent) consent to such change.
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After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any
defect therein, shall not impair or affect the validity of an amendment under
this Section.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every
amendment to this Indenture or the Securities shall comply with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any
such Holder or subsequent Holder may revoke the consent or waiver as to such
Holder's Security or portion of the Security if the Trustee receives the notice
of revocation before the date the amendment or waiver becomes effective. After
an amendment or waiver becomes effective, it shall bind every Security holder.
An amendment or waiver becomes effective upon the execution of such amendment
or waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to
be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 120 days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. If an
amendment changes the terms of a Security, the Trustee may require the Holder
of the Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security regarding the changed terms and return
it to the Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make
the appropriate notation or to issue a new Security shall not affect the
validity of such amendment.
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment
does not adversely affect the rights, duties, liabilities or immunities of
the Trustee. If it does, the Trustee may but need not sign it. In signing
such amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
SECTION 9.07. PAYMENT FOR CONSENT. Neither the Company nor
any Affiliate of the Company shall, directly or indirectly, pay or cause to
be paid any consideration, whether by way of interest, fee or otherwise, to
any Holder for or as an inducement to any consent, waiver or amendment of any
of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid to all Holders that so consent, waive
or agree to amend in the time frame set forth in solicitation documents
relating to such consent, waiver or agreement.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE. The Company agrees,
and each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article 10, to the prior payment of all
Senior Indebtedness of the Company and that the subordination is for the
benefit of and enforceable by the holders of such Senior Indebtedness. The
Securities shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness of the Company and only Indebtedness of the Company
which is Senior Indebtedness of the Company shall rank senior to the
Securities in accordance with the provisions set forth herein. All provisions
of this Article 10 shall be subject to Section 10.12.
SECTION 10.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation
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or a total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to
the Company or its property:
(1) holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full in cash of such Senior Indebtedness
before Securityholders shall be entitled to receive any payment; and
(2) until the Senior Indebtedness of the Company is paid in full
in cash, any payment or distribution to which Securityholders would be
entitled but for this Article 10 shall be made to holders of such
Senior Indebtedness as their interests may appear, except that
Securityholders may receive shares of stock and any debt securities
that are subordinated to such Senior Indebtedness to at least the same
extent as the Securities.
SECTION 10.03. DEFAULT ON SENIOR INDEBTEDNESS OF THE COMPANY.
The Company shall not pay the principal of, premium, if any, or interest on
the Securities or make any deposit pursuant to Section 8.01 and may not
purchase, redeem or (except for Securities delivered to the Trustee pursuant
to the second sentence of paragraph 6 of the Securities) otherwise retire any
Securities (except for any redemption pursuant to paragraph 6 of the
Securities) (collectively, "pay the Securities") if either of the following
(a "Payment Default") occurs (1) any Designated Senior Indebtedness of the
Company is not paid in full in cash when due; or (2) any other default on
Designated Senior Indebtedness of the Company occurs and the maturity of such
Designated Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, the Payment Default has been cured or waived and any
such acceleration has been rescinded or such Designated Senior Indebtedness
has been paid in full in cash; provided, however, that the Company shall be
entitled to pay the Securities ----without regard to the foregoing if the
Company and the Trustee receive written notice approving such payment from
the Representative of any Designated Senior Indebtedness with respect to
which the Payment Default has occurred and is continuing. During the
continuance of any default (other than a Payment Default) with respect to
any Designated Senior Indebtedness of the Company pursuant to which the
maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or
the expiration of any applicable grace periods, the Company shall not pay
the Securities for a period (a "Payment Blockage Period") commencing upon
the receipt by the Trustee of (with a copy to the Company) written notice
(a "Blockage
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Notice") of such default from the Representative of such Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period and
ending 179 days thereafter. The Payment Blockage Period shall end earlier
if such Payment Blockage Period is terminated (1) by written notice to the
Trustee and the Company from the Person or Persons who gave such Blockage
Notice; (2) because the default giving rise to such Blockage Notice is cured,
waived or otherwise no longer continuing; or (3) because such Designated
Senior Indebtedness has been discharged or repaid in full in cash.
Notwithstanding the provisions described in the immediately preceding two
sentences (but subject to the provisions contained in the first sentence of
this Section), unless the holders of such Designated Senior Indebtedness or
the Representative of such Designated Senior Indebtedness shall have
accelerated the maturity of such Designated Senior Indebtedness, the Company
shall be entitled to resume payments on the Securities after termination of
such Payment Blockage Period. The Securities shall not be subject to more
than one Payment Blockage Period in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness of the Company during such period; provided, however, that if
any Blockage Notice within such 360-day period is given by or -on behalf of
any holders of Designated Senior Indebtedness of the Company (other than the
Bank Indebtedness), the Representative of the Bank Indebtedness shall be
entitled to give another Blockage Notice within such period; provided
further, however, that in no event shall the total number of days during
which any Payment Blockage Period or Periods is in effect exceed 179 days in
the aggregate during any 360-day consecutive period, and there must be 181
days during any 360-day consecutive period during which no Payment Blockage
Period is in effect. For purposes of this Section, no default or event of
default which existed or was continuing on the date of the commencement of
any Payment Blockage Period with respect to the Designated Senior
Indebtedness of the Company initiating such Payment Blockage Period shall
be, or be made, the basis of the commencement of a subsequent Payment
Blockage Period by the Representative of such Designated Senior Indebtedness,
whether or not within a period of 360 consecutive days, unless such default
or event of default shall have been cured or waived for a period of not less
than 90 consecutive days.
SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default,
the Company or the Trustee shall promptly notify the holders of the
Designated Senior
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Indebtedness of the Company (or their Representatives) of the acceleration.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a
distribution is made to Securityholders that because of this Article 10
should not have been made to them, the Securityholders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness of
the Company and pay it over to them as their interests may appear. If any
Designated Senior Indebtedness of the Company is outstanding, the Company
shall not pay the Securities until five Business Days after the
Representatives of all the issues of Designated Senior Indebtedness of
the Company receive notice of such acceleration and, thereafter, shall be
entitled to pay the Securities only if this Article 10 otherwise permits
payment at that time.
SECTION 10.06. SUBROGATION. After all Senior Indebtedness of
the Company is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to such Senior Indebtedness.
A distribution made under this Article 10 to holders of such Senior
Indebtedness which otherwise would have been made to Securityholders is not,
as between the Company and Securityholders, a payment by the Company on such
Senior Indebtedness.
SECTION 10.07. RELATIVE RIGHTS. This Article 10 defines the
relative rights of Securityholders and holders of Senior Indebtedness of the
Company. Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive distributions otherwise
payable to Securityholders.
SECTION 10.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No
right of any holder of Senior Indebtedness of the Company to enforce the
subordination of the Indebtedness evidenced by the Securities shall be impaired
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by any act or failure to act by the Company or by its failure to comply with
this Indenture.
SECTION 10.09. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 10.03, the Trustee or Paying Agent shall continue
to make payments on the Securities and shall not be charged with knowledge
of the existence of facts that under this Article 10 would prohibit the
making of any such payments unless, not less than two Business Days prior
to the date of such payment, a Trust Officer of the Trustee receives notice
satisfactory to it that such payments are prohibited by this Article 10. The
Company, the Registrar or co-registrar, the Paying Agent, a Representative
or a holder of Senior Indebtedness of the Company shall be entitled to give
the notice; provided, however, that, if an issue of Senior Indebtedness of
the Company has a Representative, only the Representative shall be entitled
to give the notice.
The Trustee in its individual or any other capacity shall be
entitled to hold Senior Indebtedness of the Company with the same rights it
would have if it were not Trustee. The Registrar and co-registrar and the
Paying Agent shall be entitled to do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article 10 with respect
to any Senior Indebtedness of the Company which may at any time be held by it,
to the same extent as any other holder of such Senior Indebtedness; and nothing
in Article 7 shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever any Person is to make a distribution or give a notice to holders of
Senior Indebtedness of the Company, such Person shall be entitled to make
such distribution or give such notice to their Representative (if any).
SECTION 10.11. ARTICLE 10 NOT TO PREVENT EVENTS OF DEFAULT
OR LIMIT RIGHT TO ACCELERATE. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be
construed as preventing the occurrence of a Default. Nothing in this Article
10 shall have any effect on the right of the Securityholders or the Trustee
to accelerate the maturity of the Securities.
SECTION 10.12. TRUST MONEYS NOT SUBORDINATED. Notwithstanding
anything contained herein to the contrary,
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payments from money or the proceeds of U.S. Government Obligations held in
trust under Article 8 by the Trustee for the payment of principal of and
interest on the Securities shall not be subordinated to the prior payment of
any Senior Indebtedness of the Company or subject to the restrictions set
forth in this Article 10 if the provisions of this Article 10 were not
violated at the time funds were deposited in trust with the Trustee pursuant
to Article 8, and none of the Securityholders shall be obligated to pay over
any such amount to the Company or any holder of Senior Indebtedness of the
Company or any other creditor of the Company.
SECTION 10.13. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Securityholders
shall be entitled to rely (1) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to
in Section 10.02 are pending, (2) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or to the Security holders or (3) upon the Representatives of
Senior Indebtedness of the Company for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the
holders of such Senior Indebtedness and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
10. In the event that the Trustee determines, in good faith, that evidence
is required with respect to the right of any Person as a holder of Senior
Indebtedness of the Company to participate in any payment or distribution
pursuant to this Article 10, the Trustee shall be entitled to request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under
this Article 10, and, if such evidence is not furnished, the Trustee shall
be entitled to defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment. The provisions of
Sections 7.01 and 7.02 shall be applicable to all actions or omissions of
actions by the Trustee pursuant to this Article 10.
SECTION 10.14. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Securityholder
by accepting a Security authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and
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the holders of Senior Indebtedness of the Company as provided in this Article
10 and appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 10.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS OF THE COMPANY. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of the Company and
shall not be liable to any such holders if it shall mistakenly pay over
or distribute to Securityholders or the Company or any other Person, money
or assets to which any holders of Senior Indebtedness of the Company shall
be entitled by virtue of this Article 10 or otherwise.
SECTION 10.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS OF THE
COMPANY ON SUBORDINATION PROVISIONS. Each Securityholder by accepting a
Security acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each holder
of any Senior Indebtedness of the Company, whether such Senior Indebtedness
was created or acquired before or after the issuance of the Securities, to
acquire and continue to hold, or to continue to hold, such Senior Indebtedness
and such holder of such Senior Indebtedness shall be deemed conclusively to
have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE 11
GUARANTIES
SECTION 11.01. GUARANTIES. Each Guarantor hereby unconditionally and
irrevocably guarantees, jointly and severally, to each Holder and to the
Trustee and its successors and assigns (a) the full and punctual payment of
principal of and interest on the Securities when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations
of the Company under this Indenture and the Securities and (b) the full and
punctual performance within applicable grace periods of all other obligations
of the Company under this Indenture and the Securities (all the foregoing
being hereinafter collectively called the "Guaranteed Obligations"). Each
Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from such
Guarantor and that such Guarantor will remain bound under this Article 11
notwithstanding any extension or renewal of any Guaranteed Obligation.
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Each Guarantor waives presentation to, demand of, payment from
and protest to the Company of any of the Guaranteed Obligations and also
waives notice of protest for nonpayment. Each Guarantor waives notice of
any default under the Securities or the Guaranteed Obligations. The
obligations of each Guarantor hereunder shall not be affected by (a) the
failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under
this Indenture, the Securities or any other agreement or otherwise; (b)
any extension or renewal of any thereof; (c) any rescission, waiver,
amendment or modification of any of the terms or provisions of this
Indenture, the Securities or any other agreement; (d) the release of
any security held by any Holder or the Trustee for the Guaranteed
Obligations or any of them; (e) the failure of any Holder or the Trustee
to exercise any right or remedy against any other guarantor of the
Obligations; or (f) except as set forth in Section 11.06, any change
in the ownership of such Guarantor.
Each Guarantor further agrees that its Guaranty herein
constitutes a guarantee of payment, performance and compliance when
due (and not a guarantee of collection) and waives any right to require
that any resort be had by any Holder or the Trustee to any security
held for payment of the Guaranteed Obligations.
Each Guaranty is, to the extent and in the manner set forth
in Article 12, subordinated and subject in right of payment to the
prior payment in full of the principal of and premium, if any, and
interest on all Senior Indebtedness of the Guarantor giving such
Guaranty and each Guaranty is made subject to such provisions of this
Indenture.
Except as expressly set forth in Section 8.01(b), 11.02 and
11.06, the obligations of each Guarantor hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense of setoff,
counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Guaranteed Obligations
or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any remedy under
this Indenture, the Securities or any other agreement, by any waiver
or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the obligations, or by any
95
other act or thing or omission or delay to do any other act or thing which
may or might in any manner or to any extent vary the risk of such Guarantor
or would otherwise operate as a discharge of such Guarantor as a matter of
law or equity.
Each Guarantor further agrees that its Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any
Guaranteed Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Company
or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against
any Guarantor by virtue hereof, upon the failure of the Company to pay the
principal of or interest on any Guaranteed Obligation when and as the same
shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Guaranteed Obligation,
each Guarantor hereby promises to and shall, upon receipt of written demand
by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders
or the Trustee an amount equal to the sum of (1) the unpaid amount of such
Guaranteed Obligations, (2) accrued and unpaid interest on such Guaranteed
Obligations (but only to the extent not prohibited by law) and (3) all
other monetary Guaranteed Obligations of the Company to the Holders and
the Trustee.
Each Guarantor agrees that it shall not be entitled to any right
of subrogation in respect of any Guaranteed Obligations until payment in
full of all Guaranteed Obligations and all obligations to which the
Guaranteed Obligations are subordinated as provided in Article 12. Each
Guarantor further agrees that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the
Guaranteed Obligations may be accelerated as provided in Article 6 for
the purposes of such Guarantor's Guaranty herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of
the Guaranteed Obligations, and (y) in the event of any declaration of
acceleration of such Guaranteed Obligations as provided in Article 6,
such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of
this Section.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees)
96
incurred by the Trustee or any Holder in enforcing any rights under this
Section.
SECTION 11.02. LIMITATION ON LIABILITY. Any term or provision of
this Indenture to the contrary notwithstanding, the maximum aggregate amount
of the Obligations guaranteed hereunder by any Subsidiary Guarantor shall not
exceed the maximum amount that can be hereby guaranteed without rendering this
Indenture, as it relates to such Subsidiary Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
SECTION 11.03. SUCCESSORS AND ASSIGNS. This Article 11 shall be
binding upon each Guarantor and its 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 Securities shall automatically extend to and be vested
in such transferee or assignee, all subject to the terms and conditions of
this Indenture.
SECTION 11.04. NO WAIVER. Neither a failure nor a delay on the part
of either the Trustee or the Holders in exercising any right, power or
privilege under this Article 11 shall operate as a waiver thereof, nor shall
a single or partial exercise thereof preclude any other or further exercise
of any right, power or privilege. The rights, remedies and benefits of the
Trustee and the Holders herein expressly specified are cumulative and not
exclusive of any other rights, remedies or benefits which either may have
under this Article 11 at law, in equity, by statute or otherwise.
SECTION 11.05. MODIFICATION. No modification, amendment or waiver
of any provision of this Article 11, nor the consent to any departure by any
Guarantor 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 any Guarantor in any case shall entitle such Guarantor
to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 11.06. RELEASE OF SUBSIDIARY GUARANTOR. Upon the sale
(including any sale pursuant to any exercise of remedies by a holder of
Senior Indebtedness of the Company or of such Subsidiary Guarantor) or
other
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disposition (including by way of consolidation or merger) of a Subsidiary
Guarantor or the sale or disposition of all or substantially all the assets of
such Subsidiary Guarantor (in each case other than a sale or disposition to the
Company or an Affiliate of the Company), or at such time a Subsidiary Guarantor
no longer Guarantees any other Indebtedness of the Company, or upon designation
of a Subsidiary Guarantor as an Unrestricted Subsidiary pursuant to the terms of
this Indenture, such Subsidiary Guarantor shall be deemed released from all
obligations under this Article 11 without any further action required on the
part of the Trustee or any Holder. At the request of the Company, the Trustee
shall execute and deliver an appropriate instrument evidencing such release.
SECTION 11.07. CONTRIBUTION. Each Subsidiary Guarantor that makes a
payment under its Subsidiary Guaranty will be entitled upon payment in full
of all Guaranteed Obligations to a contribution from each other Subsidiary
Guarantor in an amount equal to such other Subsidiary Guarantor's pro rata
portion of such payment based on the respective net assets of all the
Subsidiary Guarantors at the time of such payment determined in accordance
with GAAP.
ARTICLE 12
SUBORDINATION OF GUARANTIES
SECTION 12.01. AGREEMENT TO SUBORDINATE. Each Guarantor agrees, and
each Securityholder by accepting a Security agrees, that the Indebtedness
evidenced by such Guarantor's Guaranty is subordinated in right of payment,
to the extent and in the manner provided in this Article 12, to the prior
payment of all Senior Indebtedness of such Guarantor and that the subordination
is for the benefit of and enforceable by the holders of such Senior
Indebtedness. The Guaranteed Obligations of a Guarantor shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness
of such Guarantor and only Senior Indebtedness of such Guarantor (including
such Guarantor's Guaranty of Senior Indebtedness of the Company) shall rank
senior to the Guaranteed Obligations of such Guarantor in accordance with
the provisions set forth herein.
SECTION 12.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment
or distribution of the assets of any Guarantor to creditors upon a total or
partial liqui-
98
dation or a total or partial dissolution of such Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such
Guarantor or its property:
(1) holders of Senior Indebtedness of such Guarantor shall be entitled
to receive payment in full in cash of such Senior Indebtedness before
Securityholders shall be entitled to receive any payment pursuant to the
Guaranty of such Guarantor; and
(2) until the Senior Indebtedness of any Guarantor is paid in full in
cash, any payment or distribution to which Securityholders would be
entitled but for this Article 12 shall be made to holders of such Senior
Indebtedness as their interests may appear, except that Securityholders may
receive shares of stock and any debt securities of such Guarantor that are
subordinated to such Senior Indebtedness to at least the same extent as its
Guaranty.
SECTION 12.03. DEFAULT ON SENIOR INDEBTEDNESS OF GUARANTOR. No
Guarantor shall make any payment on its Guaranty or purchase, redeem or
otherwise retire or defease any Securities or other Guaranteed Obligations
(collectively, "pay its Guaranty") if either of the following (a "Payment
Default") occurs (1) any Designated Senior Indebtedness of such Guarantor is
not paid in full in cash when due; or (2) any other default on Designated
Senior Indebtedness of such Guarantor occurs and the maturity of such
Designated Senior Indebtedness is accelerated in accordance with its terms;
unless, in either case, the Payment Default has been cured or waived and any
such acceleration has been rescinded or such Designated Senior Indebtedness
has been paid in full in cash; provided, however, that any Guarantor shall
be entitled to pay its Guaranty without regard to the foregoing if such
Guarantor and the Trustee receive written notice approving such payment from
the Representative of any Designated Senior Indebtedness with respect to which
the Payment Default has occurred and is continuing. During the continuance of
any default (other than a Payment Default) with respect to any Designated
Senior Indebtedness of such Guarantor pursuant to which the maturity thereof
may be accelerated immediately without further notice (except such notice as
may be required to effect such acceleration) or the expiration of any
applicable grace periods, such Guarantor shall not pay its Guaranty for a
period (a "Payment Blockage Period") commencing upon the receipt by the
Trustee of (with a copy to such Guarantor) written notice (a "Blockage Notice")
of such default from the Representative of such Designated
99
Senior Indebtedness specifying an election to effect a Payment Blockage
Period and ending 179 days thereafter. The Payment Blockage Period shall
end earlier if such Payment Blockage Period is terminated (1) by written
notice to the Trustee and such Guarantor from the Person or Persons who
gave such Blockage Notice; (2) because the default giving rise to such
Blockage Notice is cured, waived or otherwise no longer continuing; or
(3) because such Designated Senior Indebtedness has been discharged or
repaid in full in cash. Notwithstanding the provisions described in the
immediately preceding two sentences (but subject to the provisions contained
in the first sentence of this Section), unless the holders of such Designated
Senior Indebtedness giving such Payment Notice or the Representative of such
Designated Senior Indebtedness shall have accelerated the maturity of such
Designated Senior Indebtedness, any Guarantor shall be entitled to resume
payments pursuant to its Guaranty after termination of such Payment Blockage
Period. No Guarantor shall be subject to more than one Blockage Period in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Designated Senior Indebtedness of such Guarantor during such period;
provided, however, that if any Blockage Notice within such 360-day period is
given by or on behalf of any holders of Designated Senior Indebtedness of such
Guarantor (other than the Bank Indebtedness), the Representative of the Bank
Indebtedness shall be entitled to give another Blockage Notice within such
period; provided further, however, that in no event shall the total number of
days during which any Payment Blockage Period or Periods is in effect exceed
179 days in the aggregate during any 360-day consecutive period, and there
must be 181 days during any 360-day consecutive period during which no Payment
Blockage Period is in effect. For purposes of this Section, no default or
event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness of such Guarantor initiating such Payment Blockage Period
shall be, or be made, the basis of the commencement of a subsequent Payment
Blockage Period by the Representative of such Designated Senior Indebtedness,
whether or not within a period of 360 consecutive days, unless such default or
event of default shall have been cured or waived for a period of not less than
90 consecutive days.
SECTION 12.04. DEMAND FOR PAYMENT. If a demand for payment is made
on a Guarantor pursuant to Article 11, the Trustee shall promptly notify the
holders of the Designated Senior Indebtedness of such Guarantor (or their
Representatives) of such demand.
100
SECTION 12.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a
distribution is made to Securityholders that because of this Article 12
should not have been made to them, the Securityholders who receive the
distribution shall hold it in trust for holders of Senior Indebtedness
of the applicable Guarantor and pay it over to them or their Representatives
as their interests may appear. If any Designated Senior Indebtedness of a
Subsidiary Guarantor is outstanding, such Subsidiary Guarantor shall not
make a payment on its Guaranty until five Business Days after the
Representations of all the issuers of Designated Senior Indebtedness of
such Guarantor receive notice of such acceleration and, thereafter, shall
be entitled to pay the Securities only if Article 12 otherwise permits
payment at that time.
SECTION 12.06. SUBROGATION. After all Senior Indebtedness of a
Guarantor is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to Senior Indebtedness of
such Guarantor. A distribution made under this Article 12 to holders of such
Senior Indebtedness which otherwise would have been made to Securityholders
is not, as between the relevant Guarantor and Securityholders, a payment by
such Guarantor on such Senior Indebtedness.
SECTION 12.07. RELATIVE RIGHTS. This Article 12 defines the
relative rights of Securityholders and holders of Senior Indebtedness of
a Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Guarantor and Security holders, the
obligation of such Guarantor, which is absolute and unconditional, to pay
its Guaranty to the extent set forth in Article 11; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a default by such Guarantor under its Guaranty,
subject to the rights of holders of Senior Indebtedness of such Guarantor
to receive distributions otherwise payable to Securityholders.
SECTION 12.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No right
of any holder of Senior Indebtedness of any Guarantor to enforce the
subordination of the Guaranty of such Guarantor shall be impaired by any act
or failure to act by such Guarantor or by its failure to comply with this
Indenture.
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SECTION 12.09. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
Section 12.03, the Trustee or Paying Agent shall continue to make payments
on any Guaranty and shall not be charged with knowledge of the existence
of facts that would prohibit the making of any such payments unless, not
less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice satisfactory to it that
such payments are prohibited by this Article 12. The Company, the relevant
Guarantor, the Registrar or co- registrar, the Paying Agent, a Representative
or a holder of Senior Indebtedness of such Guarantor shall be entitled to
give the notice; provided, however, that, if an issue of Senior Indebtedness
of any Guarantor has a Representative, only the Representative shall be
entitled to give the notice.
The Trustee in its individual or any other capacity shall be
entitled to hold Senior Indebtedness of any Guarantor with the same rights
it would have if it were not the Trustee. The Registrar and co-registrar and
the Paying Agent may do the same with like rights. The Trustee shall be
entitled to all the rights set forth in this Article 12 with respect to any
Senior Indebtedness of any Guarantor which may at any time be held by it, to
the same extent as any other holder of such Senior Indebtedness; and nothing
in Article 7 shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article 12 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever
any Person is to make a distribution or give a notice to holders of Senior
Indebtedness of any Guarantor, such Person shall be entitled to make such
distribution or give such notice to their Representative (if any).
SECTION 12.11. ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO DEMAND PAYMENT. The failure to make a payment pursuant to a Guaranty
by reason of any provision in this Article 12 shall not be construed as
preventing the occurrence of a Default. Nothing in this Article 12 shall have
any effect on the right of the Securityholders or the Trustee to make a demand
for payment on any Guarantor pursuant to its Guaranty.
SECTION 12.12. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article 12, the Trustee and the Securityholders
shall be entitled to rely (1) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to
102
in Section 12.02 are pending, (2) upon a certificate of the liquidating
trustee or agent or other Person making such payment or distribution to
the Trustee or to the Securityholders or (3) upon the Representatives for
the holders of Senior Indebtedness of any Guarantor for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of such Senior Indebtedness and other indebtedness
of such Guarantor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 12. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness of any Guarantor to participate in any payment or
distribution pursuant to this Article 12, the Trustee shall be entitled to
request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness of such Guarantor held
by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of
such Person under this Article 12, and, if such evidence is not furnished,
the Trustee shall be entitled to defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
The provisions of Sections 7.01 and 7.02 shall be applicable to all actions
or omissions of actions by the Trustee pursuant to this Article 12.
SECTION 12.13. TRUSTEE TO EFFECTUATE SUBORDINATION. Each
Securityholder by accepting a Security authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Securityholders and
the holders of Senior Indebtedness of any Guarantor as provided in this
Article 12 and appoints the Trustee as attorney-in-fact for any and all
such purposes.
SECTION 12.14. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS OF GUARANTOR. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of any Guarantor and
shall not be liable to any such holders if it shall mistakenly pay over
or distribute to Securityholders or the Company or any other Person, money
or assets to which any holders of such Senior Indebtedness shall be entitled
by virtue of this Article 12 or otherwise.
SECTION 12.15. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS OF
GUARANTORS ON SUBORDINATION PROVISIONS. Each Securityholder by accepting
a Security acknowledges and agrees that the foregoing subordination
provisions are, and
103
are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness of any Guarantor, whether such Senior Indebtedness was
created or acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02. NOTICES. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company or any Guarantor:
XXXX XX Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx
Attention of Xxxx Xxxxxx
if to the Trustee:
State Street Bank and Trust Company of
California, N.A.
000 Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust Administration
(XXXX XX Corp. 11 1/4% Senior Subordinated Notes
due June 15, 2011)
The Company, any Guarantor or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall be
mailed to the Securityholder at the Secu-
104
rityholder's address as it appears on the registration books of the Registrar
and shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, any Guarantor, the Trustee, the Registrar and
anyone else shall have the protection of TIA (S) 312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or
105
investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.06. WHEN SECURITIES DISREGARDED. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the fore going, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 13.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 13.08. LEGAL HOLIDAYS. A "Legal Holiday" is a Saturday, a
Sunday or a day on which commercial banking institutions are authorized or
required by law to close in New York City. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period.
If a regular record date is a Legal Holiday, the record date shall not be
affected.
SECTION 13.09. GOVERNING LAW. This Indenture and the Securities
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 13.10. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company or any Guarantor shall not
have any liability for any obligations of the Company under the Securities
or this Indenture or of such Guarantor under its Guaranty or this Indenture
or for any claim based on, in respect of or by reason of such obligations
or their creation. By accepting a Security, each Securityholder shall waive
and release all such liability. The waiver and release shall be part of the
consideration for the issue of the Securities.
106
SECTION 13.11. SUCCESSORS. All agreements of the Company and the
Guarantors in this Indenture and the Securities shall bind their respective
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 13.12. MULTIPLE ORIGINALS. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
SECTION 13.13. TABLE OF CONTENTS; HEADINGS. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any
of the terms or provisions hereof.
107
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
XXXX XX CORP.,
by /s/ Claus X. Xxxxxx
-------------------------
Name: Claus X. Xxxxxx
Title: President
CBRE HOLDING, INC.,
by /s/ Claus X. Xxxxxx
-------------------------
Name: Claus X. Xxxxxx
Title: President
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
by /s/ Xxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxxx
Title: Vice President
RULE 144A/REGULATION S APPENDIX
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. DEFINITIONS
1.1 DEFINITIONS
For the purposes of this Appendix the following terms shall have
the meanings indicated below:
"Depository" means The Depository Trust Company, its nominees and
their respective successors.
"Exchange Securities" means (1) the 11 1/4% Senior Subordinated
Notes Due June 15, 2011 issued pursuant to the Indenture in connection
with a Registered Exchange Offer pursuant to a Registration Rights
Agreement and (2) Additional Securities, if any, issued pursuant to a
registration statement filed with the SEC under the Securities Act.
"Initial Purchasers" means (1) with respect to the Initial
Securities issued on the Issue Date, Credit Suisse First Boston
Corporation, Credit Lyonnais Securities (USA) Inc., HSBC Securities
(USA) Inc. and Scotia Capital (USA) Inc. and (2) with respect to each
issuance of Additional Securities, the Persons purchasing such Additional
Securities under the related Purchase Agreement.
"Initial Securities" means (1) $229.0 million aggregate principal
amount of 11 1/4% Senior Subordinated Notes Due June 15, 2011 issued
on the Issue Date and (2) Additional Securities, if any, issued in a
transaction exempt from the registration requirements of the Securities
Act.
"Private Exchange" means the offer by the Company, pursuant to a
Registration Rights Agreement, to the Initial Purchasers to issue and
deliver to the Initial Purchasers, in exchange for the Initial
Securities held by the Initial Purchasers as part of its initial
distribution, a like aggregate principal amount of Private Exchange
Securities.
"Private Exchange Securities" means any 11 1/4% Senior Subordinated
Notes Due June 15, 2011 issued in connection with a Private Exchange.
"Purchase Agreement" means (1) with respect to the Initial
Securities issued on the Issue Date, the Purchase Agreement dated
May 31, 2001 among the Company, Parent and
the Initial Purchasers, as such agreement has been amended on or prior
to the date hereof, and (2) with respect to each issuance of Additional
Securities, the purchase agreement or underwriting agreement among the
Company, Parent and the Persons purchasing such Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by the Company,
pursuant to a Registration Rights Agreement, to certain Holders of
Initial Securities, to issue and deliver to such Holders, in exchange
for the Initial Securities, a like aggregate principal amount of Exchange
Securities registered under the Securities Act.
"Registration Rights Agreement" means (1) with respect to the Initial
Securities issued on the Issue Date, the Registration Rights Agreement
dated May 31, 2001 among the Company, Parent and the Initial Purchasers,
and (2) with respect to each issuance of Additional Securities issued in
a transaction exempt from the registration requirements of the Securities
Act, the registration rights agreement, if any, among the Company and the
Persons purchasing such Additional Securities under the related Purchase
Agreement.
"Securities" means the Initial Securities, the Exchange Securities
and the Private Exchange Securities, treated as a single class.
"Securities Custodian" means the custodian with respect to a
Global Security (as appointed by the Depository), or any successor
Person thereto and shall initially be the Trustee.
"Shelf Registration Statement" means the registration statement
issued by the Company in connection with the offer and sale of Initial
Securities or Private Exchange Securities pursuant to a Registration
Rights Agreement.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 2.3(b)hereto.
1.2 OTHER DEFINITIONS
Defined in
Term Section:
---- -------
"Agent Members"............................................ 2.1(b)
"Global Security".......................................... 2.1(a)
2
"Regulation S".............................................. 2.1(a)
"Restricted Global Security"................................ 2.1(a)
"Rule 144A"................................................. 2.1(a)
2. THE SECURITIES.
2.1 (a) FORM AND DATING. Initial Securities offered and sold to
QIBs in reliance on Rule 144A under the Securities Act ("Rule 144A") or in
reliance on Regulation S under the Securities Act ("Regulation S"),
in each case as provided in a Purchase Agreement, and Private Exchange
Securities, as provided in a Registration Rights Agreement, shall be
issued initially in the form of one or more permanent global Securities
in definitive, fully registered form without interest coupons with the
global securities legend and restricted securities legend set forth in
Exhibit 1 hereto (each, a "Restricted Global Security"), which shall be
deposited on behalf of the purchasers of the Initial Securities
represented thereby with the Trustee, at its principal corporate trust
office, as custodian for the Depository (or with such other custodian as
the Depository may direct), and registered in the name of the Depository
or a nominee of the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee
and the Depository or its nominee as hereinafter provided. Exchange
Securities shall be issued in global form (with the global securities
legend set forth in Exhibit 1 hereto) or in certificated form at the
option of the Holders thereof from time to time. Exchange Securities
issued in global form and Restricted Global Securities are sometimes
referred to in this Appendix as "Global Securities."
(b) BOOK-ENTRY PROVISIONS. This Section 2.1(b) shall apply only
to a Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or
more Global Securities that (a) shall be registered in the name of the
Depository for such Global Security or Global Securities or the nominee
of such Depository and (b) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instructions or held by the
Trustee as custodian for the Depository.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository or by the Trustee as
the custodian of the
3
Depository or under such Global Security, and the Company, the Trustee
and any agent of the Company or the Trustee shall be entitled to treat
the Depository as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices
of such Depository governing the exercise of the rights of a holder of a
beneficial interest in any Global Security.
(c) CERTIFICATED SECURITIES. Except as provided in this Section
2.1 or Section 2.3 or 2.4, owners of beneficial interests in Restricted
Global Securities shall not be entitled to receive physical delivery
of certificated Securities.
2.2 AUTHENTICATION. The Trustee shall authenticate and deliver:
(1) on the Issue Date, an aggregate principal amount of $229.0 million 11 1/4%
Senior Subordinated Notes Due June 15, 2011, (2) any Additional
Securities for an original issue in an aggregate principal amount
specified in the written order of the Company pursuant to Section 2.02
of the Indenture and (3) Exchange Securities or Private Exchange
Securities for issue only in a Registered Exchange Offer or a Private
Exchange, respectively, pursuant to a Registration Rights Agreement, for
a like principal amount of Initial Securities, in each case upon a
written order of the Company signed by one Officer. Such order shall
specify the amount of the Securities to be authenticated and the date
on which the original issue of Securities is to be authenticated and,
in the case of any issuance of Additional Securities pursuant to
Section 2.13 of the Indenture, shall certify that such issuance is
in compliance with Section 4.03 of the Indenture.
2.3 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES. (i) The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture
(including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Depository therefor. A transferor of a
beneficial interest in a Global Security shall deliver to the Registrar
a written order given in accordance with the Depositary's procedures
containing information regarding the participant account of the Depositary
to be credited with a beneficial interest in the Global Security. The
Registrar shall, in accordance with such instructions instruct the
4
Depositary to credit to the account of the Person specified in such
instructions a beneficial interest in the Global Security and to debit
the account of the Person making the transfer the beneficial interest in
the Global Security being transferred.
(ii) Notwithstanding any other provisions of this Appendix (other
than the provisions set forth in Section 2.4), a Global Security may not
be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(iii) In the event that a Restricted Global Security is exchanged
for Securities in certificated registered form pursuant to Section 2.4
of this Appendix, prior to the consummation of a Registered Exchange
Offer or the effectiveness of a Shelf Registration Statement with
respect to such Securities, such Securities may be exchanged only in
accordance with such procedures as are substantially consistent with the
provisions of this Section 2.3 (including the certification requirements
set forth on the reverse of the Initial Securities intended to ensure
that such transfers comply with Rule 144A or Regulation S, as the case
may be) and such other procedures as may from time to time be adopted
by the Company.
(b) LEGEND.
(i) Except as permitted by the following paragraphs (ii), (iii)
and (iv), each Security certificate evidencing the Restricted
Global Securities (and all Securities issued in exchange therefor
or in substitution thereof) shall bear a legend in substantially
the following form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF
THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) THE COMPANY, (II) IN THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN
5
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (IV) PURSUANT TO EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES,
AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Restricted Global Security) pursuant to Rule 144 under the Securities
Act, the Registrar shall permit the transferee thereof to exchange
such Transfer Restricted Security for a certificated Security that
does not bear the legend set forth above and rescind any restriction
on the transfer of such Transfer Restricted Security, if the
transferor thereof certifies in writing to the Registrar that such
sale or transfer was made in reliance on Rule 144 (such certification
to be in the form set forth on the reverse of the Security).
(iii) After a transfer of any Initial Securities or Private Exchange
Securities pursuant to and during the period of the effectiveness of
a Shelf Registration Statement with respect to such Initial Securities
or Private Exchange Securities, as the case may be, all requirements
pertaining to legends on such Initial Security or such Private
Exchange Security will cease to apply, the requirements requiring any
such Initial Security or such Private Exchange Security issued to
certain Holders be issued in global form will cease to apply, and a
certificated Initial Security or Private Exchange Security or an
Initial Security or Private Exchange Security in global form, in each
case without restrictive transfer legends, will be available to the
transferee of the Holder of such Initial Securities or Private
Exchange Securities upon exchange of such transferring Holder's
certificated Initial Security or Private Exchange Security or
directions to transfer such Holder's interest in the Global Security,
as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Securities, all requirements pertaining to such
Initial Securities that Initial Securities issued to certain Holders
be issued in global form will still apply with respect to Holders of
such Initial Securities that do not exchange their Initial Securities,
and Exchange
6
Securities in certificated or global form will be available to Holders
that exchange such Initial Securities in such Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to
the Initial Securities, all requirements pertaining to such Initial
Securities that Initial Securities issued to certain Holders be issued
in global form will still apply with respect to Holders of such Initial
Securities that do not exchange their Initial Securities, and Private
Exchange Securities in global form with the global securities legend
and the Restricted Securities Legend set forth in Exhibit 1 hereto
will be available to Holders that exchange such Initial Securities in
such Private Exchange.
(c) CANCELLATION OR ADJUSTMENT OF GLOBAL SECURITY. At such time
as all beneficial interests in a Global Security have either been exchanged
for certificated Securities, redeemed, purchased or canceled, such
Global Security shall be returned to the Depository for cancellation
or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is
exchanged for certificated Securities, redeemed, purchased or canceled,
the principal amount of Securities represented by such Global Security
shall be reduced and an adjustment shall be made on the books and records
of the Trustee (if it is then the Securities Custodian for such Global
Security) with respect to such Global Security, by the Trustee or the
Securities Custodian, to reflect such reduction.
(d) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
SECURITIES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate certificated
Securities and Global Securities at the Registrar's or co-registrar's
request.
(ii) 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, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.06, 3.06
and 4.09 of the Indenture).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Security for a period
beginning 15 Business Days before the mailing of a notice of an
offer to repurchase or redeem Securities or 15 Business Days before
an interest payment date.
7
(iv) Prior to the due presentation for registration of transfer
of any Security, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose
name a Security is registered as the absolute owner of such Security
for the purpose of receiving payment of principal of and interest on
such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be affected by
notice to the contrary.
(v) All Securities issued upon any transfer or exchange pursuant
to the terms of this Indenture shall evidence the same debt and shall
be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(e) NO OBLIGATION OF THE TRUSTEE.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant
in the Depository or other Person with respect to the accuracy of the
records of the Depository or its nominee or of any participant or
member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depository) of any
notice (including any notice of redemption) or the payment of any
amount, under or with respect to such Securities. All notices and
communications to be given to the Holders and all payments to be
made to Holders under the Securities shall be given or made only to
or upon the order of the registered Holders (which shall be the
Depository or its nominee in the case of a Global Security). The
rights of beneficial owners in any Global Security shall be exercised
only through the Depository subject to the applicable rules and
procedures of the Depository. The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository
with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Security (including
any transfers between or among Depository participants, members or
beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence
as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the
8
same to determine substantial compliance as to form with the express
requirements hereof.
2.4 CERTIFICATED SECURITIES.
(a) A Restricted Global Security deposited with the Depository or
with the Trustee as custodian for the Depository pursuant to Section 2.1
shall be transferred to the beneficial owners thereof in the form of
certificated Securities in an aggregate principal amount equal to the
principal amount of such Global Security, in exchange for such Global
Security, only if such transfer complies with Section 2.3 and (i) the
Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Restricted Global Security or if at any
time such Depository ceases to be a "clearing agency" registered under
the Exchange Act 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 or (iii) the Company, in its sole discretion,
notifies the Trustee in writing that it elects to cause the issuance of
certificated Securities under this Indenture.
(b) Any Restricted Global Security that is transferable to the
beneficial owners thereof pursuant to this Section shall be surrendered
by the Depository to the Trustee located at its principal corporate
trust office in the Borough of Manhattan, The City of New York, to be
so transferred, in whole or from time to time in part, without charge,
and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Restricted Global Security, an equal aggregate
principal amount of certificated Initial Securities of authorized
denominations. Any portion of a Restricted Global Security transferred
pursuant to this Section shall be executed, authenticated and delivered
only in denominations of $1,000 principal amount and any integral
multiple thereof and registered in such names as the Depository shall
direct. Any certificated Initial Security or Private Exchange Security
delivered in exchange for an interest in the Restricted Global Security
shall, except as otherwise provided by Section 2.3(b), bear the
restricted securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the registered
Holder of a Global Security shall be entitled to 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 Securities.
(d) In the event of the occurrence of either of the events
specified in Section 2.4(a), the Company shall promptly make
9
available to the Trustee a reasonable supply of certificated Securities
in definitive, fully registered form without interest coupons.
10
EXHIBIT 1
to
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK,
NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT 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 DTC 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 THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE
COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF NOTES WITHIN THE UNITED
STATES BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE THE
REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR
SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.
[Restricted Securities Legend]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS
HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) THE COMPANY, (II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
2
REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
3
CUSIP
---------
No.
------------- $
---------
11 1/4% Senior Subordinated Notes Due June 15, 2011
Xxxx XX Corp., a Delaware corporation, promises to pay to
, or registered assigns, the principal sum of
Dollars on June 15, 2011.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: June 7, 2001
XXXX XX CORP.,
by
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.
as Trustee, certifies that
this is one of the
Securities referred to in
the Indenture.
by
Authorized Signatory
4
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
11 1/4% Senior Subordinated Note Due June 15, 2011
1. Interest
--------
Xxxx XX Corp., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above; provided,
however, that if a Registration
-----------------
Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.50% per
annum (increasing by an additional 0.50% per annum after each consecutive
90-day period that occurs after the date on which such Registration
Default occurs up to a maximum additional interest rate of 2.00%) from
and including the date on which any such Registration Default shall occur
to but excluding the date on which all Registration Defaults have been
cured. The Company will pay interest semiannually on June 15 and December
15 of each year, commencing December 15, 2001. Interest on the Securities
will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from June 7, 2001. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
-----------------
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at
the close of business on the June 1 or December 1 next preceding the
interest payment date even if Securities are canceled after the record
date and on or before the interest payment date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company
will 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.
Payments in respect of the Securities represented by a Global Security
(including principal, premium and interest) will be made by wire transfer
of immediately available funds to the accounts specified by The Depository
Trust Company. The Company will make all payments in respect of a
certificated Security (including principal, premium and interest) by
mailing a check to the registered address of each Holder thereof;
provided, however, that
-----------------
payments on a certificated Security will be made by wire transfer to a
U.S. dollar account maintained by the payee with
5
a bank in the United States if such Holder elects payment by wire
transfer by giving written notice to the Trustee or the Paying Agent to
such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the
Trustee may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, State Street Bank and Trust Company of California, N.A.
(the "Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co- registrar.
4. Indenture
---------
The Company issued the Securities under an Indenture dated as of
June 7, 2001 ("Indenture"), between the Company, Parent and the Trustee.
The terms of the Securities 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.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the
Indenture (the "Act"). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the Company.
The Company shall be entitled, subject to its compliance with Section
4.03 of the Indenture, to issue Additional Securities pursuant to Section
2.13 of the Indenture. The Initial Securities issued on the Issue Date,
any Additional Securities and all Exchange Securities or Private Exchange
Securities issued in exchange therefor will be treated as a single class
for all purposes under the Indenture. The Indenture contains covenants
that limit the ability of the Company and its subsidiaries to incur
additional indebtedness; pay dividends or distributions on, or redeem or
repurchase capital stock; make investments; issue or sell capital stock
of subsidiaries; engage in transactions with affiliates; transfer or sell
assets; guarantee indebtedness; restrict dividends or other payments of
subsidiaries; and consolidate, merge or transfer all or substantially all
of its assets and the assets of its
6
subsidiaries. These covenants are subject to important exceptions and
qualifications.
5. Optional Redemption
-------------------
Except as set forth below, the Company shall not be entitled to
redeem the Securities at its option prior to June 15, 2006.
On and after June 15, 2006, the Company shall be entitled at its
option to redeem all or a portion of the Securities upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed in
percentages of principal amount on the redemption date), plus accrued
interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the related
interest payment date), if redeemed during the 12-month period commencing
on June 15 of the years set forth below:
Redemption
Period Price
------ ----------
2006 105.625%
2007 103.750
2008 101.875
2009 and thereafter 100.000%
In addition, prior to June 15, 2004, the Company shall be entitled
at its option on one or more occasions to redeem Securities (which
includes Additional Securities, if any) in an aggregate principal amount
not to exceed 35% of the aggregate principal amount of the Securities
(which includes Additional Securities, if any) originally issued at a
redemption price (expressed as a percentage of principal amount) of
111 1/4%, plus accrued and unpaid interest to the redemption date, with
the net cash proceeds from one or more Public Equity Offerings (provided
that if the Public Equity Offering is an offering by Parent,
--------
a portion of the Net Cash Proceeds thereof equal to the amount required
to redeem any Securities is contributed to the equity capital of the
Company); provided, however, that (1) at least 65% of such aggregate
principal amount of -------- -------
Securities (which includes Additional Securities, if any) remains
outstanding immediately after the occurrence of each such redemption
(other than Securities held, directly or indirectly, by the Company or
its Affiliates); and (2) each such redemption occurs within 90 days
after the date of the related Public Equity Offering.
7
6. Special Mandatory Redemption
----------------------------
In the event the Transactions are not consummated on or prior to
the 75th day after the Issue Date or the Merger Agreement is terminated
at any time prior thereto, the Company shall redeem the Securities at a
redemption price equal to 100% of the accreted value thereof on the
redemption date (calculated for the period from the Issue Date to such
redemption date based on the straight line method over the life of the
Securities), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date
to receive interest due on the related interest payment date). The
Company shall be entitled to receive a credit against the accreted value
of the Securities required to be redeemed pursuant to this paragraph
equal to the accreted value on such redemption date (excluding premium)
of any Securities that the Company has acquired or redeemed other than
pursuant to this paragraph and has delivered to the Trustee for
cancellation. The Company shall be entitled to receive the credit only
once for any Security. The Company shall cause the notice of the special
mandatory redemption to be mailed no later than the next Business Day
following the 75th day after the Issue Date or following the date the
Merger Agreement is terminated, as applicable, and shall redeem the
Securities three Business Days following the date of notice of redemption.
7. Notice of Redemption
--------------------
Except as set forth in paragraph 6 above, notice of redemption
will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder of Securities to be redeemed at his
registered address. Securities in denominations larger than $1,000
principal amount may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued
interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Put Provisions
--------------
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions, to cause the Company to purchase
all or any part of the Securities of such Holder at a purchase price
equal to 101% of the principal amount
8
thereof on the date of purchase plus accrued and unpaid interest to the
date of repurchase (subject to the right of holders of record on the
relevant record date to receive interest due on the related interest
payment date) as provided in, and subject to the terms of, the Indenture.
9. Subordination
-------------
The Securities are subordinated to Senior Indebtedness of the
Company, as defined in the Indenture. To the extent provided in the
Indenture, Senior Indebtedness of the Company must be paid before the
Securities may be paid. The Company agrees, and each Securityholder by
accepting a Security agrees, to the subordination provisions contained
in the Indenture and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in-fact for such purpose.
10. Guaranty
--------
The payment by the Company of the principal of, and premium and
interest on, the Securities is fully and unconditionally guaranteed on
a joint and several senior subordinated basis by each of the Guarantors.
11. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 principal amount and whole multiples of $1,000.
A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements or transfer documents and to pay any
taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to be redeemed
in part, the portion of the Security not to be redeemed) or any Securities
for a period of 15 days before a selection of Securities to be redeemed or
15 days before an interest payment date.
12. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner
of it for all purposes.
13. Unclaimed Money
---------------
9
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money
must look only to the Company and not to the Trustee for payment.
14. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company at any time shall be
entitled to terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
15. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture and the Securities may be amended with the written consent of
the Holders of at least a majority in principal amount outstanding of the
Securities and (ii) any default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in principal
amount outstanding of the Securities. Subject to certain exceptions set
forth in the Indenture, without the consent of any Securityholder, the
Company, the Guarantors and the Trustee shall be entitled to amend the
Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to
provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the
Securities, including Guaranties, or to secure the Securities, or to
add additional covenants or surrender rights and powers conferred on
the Company or the Guarantors, or to comply with any request of the SEC
in connection with qualifying the Indenture under the Act or to make any
change that does not adversely affect the rights of any Securityholder.
16. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default for 30
days in payment of interest on the Securities; (ii) default in payment
of principal on the Securities at maturity, upon redemption pursuant to
paragraph 5 or 6 of the Securities, upon acceleration or otherwise, or
failure by the Company to redeem or purchase Securities when required;
10
(iii) failure by the Company, Parent or any Subsidiary Guarantor to
comply with other agreements in the Indenture or the Securities, in
certain cases subject to notice and lapse of time; (iv) certain
accelerations (including failure to pay within any grace period after
final maturity) of other Indebtedness of the Company or any Significant
Subsidiary if the amount accelerated (or so unpaid) exceeds $10.0
million; (v) certain events of bankruptcy or insolvency with respect to
the Company and the Significant Subsidiaries; (vi) certain judgments or
decrees for the payment of money in excess of $10.0 million; and (vii)
certain defaults with respect to Guaranties. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the Securities may declare all the Securities to be
due and payable immediately. Certain events of bankruptcy or insolvency
are Events of Default which will result in the Securities being due and
payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce
the Indenture or the Securities unless it receives indemnity or security
satisfactory to it. Subject to certain limitations, Holders of a majority
in principal amount of the Securities may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing Default (except a Default in
payment of principal or interest) if it determines that withholding notice
is in the interest of the Holders.
17. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise
deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.
18. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations
of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and
releases all such
11
liability. The waiver and release are part of the consideration for the
issue of the Securities.
19. Authentication
--------------
This Security shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs
the certificate of authentication on the other side of this Security.
20. Abbreviations
-------------
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common),
TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST (=custodian),
and U/G/M/A (=Uniform Gift to Minors Act).
21. 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 Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience
to Securityholders. No representation is made as to the accuracy of such
numbers either as printed on the Securities or as contained in any notice
of redemption and reliance may be placed only on the other identification
numbers placed thereon.
22. Holders' Compliance with Registration Rights Agreement.
------------------------------------------------------
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement,
including the obligations of the Holders with respect to a registration
and the indemnification of the Company to the extent provided therein.
23. Governing Law.
--------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a
12
copy of the Indenture which has in it the text of this Security in
larger type. Requests may be made to:
XXXX XX Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
13
-----------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company. The agent may
substitute another to act for him.
------------------------------------------------------------------------
Date: Your Signature:
-------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by
this certificate occurring prior to the expiration of the period
referred to in Rule 144(k) under the Securities Act after the later of
the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate
of the Company, the undersigned confirms that such Securities are being
transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) [ ] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities
Act of 1933) that purchases for its own account or
for the account of a qualified institutional buyer
to whom notice is given that such transfer is being
made in reliance on Rule 144A, in each
14
case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction
within the meaning of Regulation S under the
Securities Act in compliance with Rule 904 under
the Securities Act of 1933; or
(5) [ ] pursuant to the exemption from registration provided
by Rule 144 under the Securities Act of 1933.
If such transfer is being made pursuant to an offshore
transaction in accordance with Rule 904 under the Securities Act, the
undersigned further certifies that :
(i) the offer of the Securities was not made to a
person in the United States;
(ii) 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;
(iii) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903
or Rule 904 of Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act;
(v) we have advised the transferee of the transfer
restrictions applicable to the Securities; and
(vi) if the circumstances set forth in Rule 904(b) under
the Securities Act are applicable, we have complied with the
additional conditions therein, including (if applicable)
sending a confirmation or other notice stating that the
Securities may be offered and sold during the distribution
compliance period specified in Rule 903 of Regulation S;
pursuant to registration of the Securities under the
Securities Act; or pursuant to an available exemption from the
registration requirements under the Securities Act.
15
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in
the name of any person other than the registered holder thereof;
provided, however, that if box
-------- -------
(4) or (5) is checked, the Trustee shall be entitled to require,
prior to registering any such transfer of the Securities, such
legal opinions, certifications and other information as 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,
such as the exemption provided by Rule 144 under such Act.
----------------------------------
Signature
Signature Guarantee:
-------------------------------- --------------------------
Signature must be guaranteed Signature
Signatures 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 Securities Exchange Act of 1934, as amended.
----------------------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, 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
16
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
17
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
Date of Amount of decrease Amount of increase Principal amount Signature of
Exchange in Principal in Principal of this Global authorized Officer
amount of this amount of this Security following of Trustee or
Global Security Global Security such decrease or Securities
increase) Custodian
18
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.09 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.09 of the
Indenture, state the amount in principal amount: $
Date: Your Signature:
------------------ -----------------------------
(Sign exactly as your name
appears on the other side of
this Security.)
Signature Guarantee:
-----------------------------------------
(Signature must be guaranteed)
Signatures 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 Securities Exchange Act of 1934, as amended.
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY]
*/If the Security is to be issued in global form add the Global
Securities - Legend from Exhibit 1 to Appendix A and the attachment
from such Exhibit 1 captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
**/If the Security is a Private Exchange Security issued in a Private
Exchange --
to an Initial Purchaser holding an unsold portion of its initial
allotment, add the Restricted Securities Legend from Exhibit 1 to
Appendix A and replace the Assignment Form included in this Exhibit A
with the Assignment Form included in such Exhibit 1.
2
CUSIP
--------
No. $
--------------- -------------
11 1/4% Senior Subordinated Notes Due June 15, 2011
Xxxx XX Corp., a Delaware corporation, promises to pay
to , or registered assigns, the principal sum of
Dollars on June 15, 2011.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on
the other side of this Security.
Dated:
XXXX XX CORP.
by
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.
as Trustee, certifies that
this is one of the
Securities referred to in
the Indenture.
by
Authorized Signatory
3
[FORM OF REVERSE SIDE OF SECURITY
OR PRIVATE EXCHANGE SECURITY]
11 1/4% Senior Subordinated Note Due June 15, 2011
1. Interest
--------
Xxxx XX Corp., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above[;
provided, however, that if a
-------- ------- Registration
Default (as defined in the Registration Rights Agreement) occurs,
additional interest will accrue on this Security at a rate of 0.50% per
annum (increasing by an additional 0.50% per annum after each consecutive
90-day period that occurs after the date on which such Registration
Default occurs up to a maximum additional interest rate of 2.00%) from
and including the date on which any such Registration Default shall
occur to but excluding the date on which all Registration Defaults have
been cured.]1 The Company will pay interest semiannually on June 15 and
December 15 of each year, commencing December 15, 2001. Interest on the
Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from June 7, 2001. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
-----------------
The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered holders of
Securities at the close of business on the June 1 or December 1 next
preceding the interest payment date even if Securities are canceled
after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will 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. Payments in respect of the Securities
represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds
to the accounts specified by The Depository Trust Company. The Company
will make all
-------------------------
1. Insert if at the date of issuance of the Exchange Security or
Private Exchange Security (as the case may be) any Registration
Default has occurred with respect to the related Initial Securities
during the interest period in which such date of issuance occurs.
4
payments in respect of a certificated Security (including principal,
premium and interest) by mailing a check to the registered address of each
Holder thereof; provided, however, that payments on a certificated Security
will be made by wire -------- -------
transfer to a U.S. dollar account maintained by the payee with a bank
in the United States if such Holder elects payment by wire transfer by
giving written notice to the Trustee or the Paying Agent to such effect
designating such account no later than 30 days immediately preceding
the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, State Street Bank and Trust Company of California,
N.A. (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
---------
The Company issued the Securities under an Indenture dated
as of June 7, 2001 ("Indenture"), between the Company, Parent and the
Trustee. The terms of the Securities 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.C. (S)(S)
------ 77aaa-77bbbb)
as in effect on the date of the Indenture (the "Act"). Terms defined in
the Indenture and not defined herein have the meanings ascribed thereto
in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement
of those terms.
The Securities are general unsecured obligations of the
Company. The Company shall be entitled, subject to its compliance
with Section 4.03 of the Indenture, to issue Additional Securities
pursuant to Section 2.13 of the Indenture. The Initial Securities
issued on the Issue Date, any Additional Securities and all Exchange
Securities or Private Exchange Securities issued in exchange therefor
will be treated as a single class for all purposes under the Indenture.
The Indenture contains covenants that limit the ability of the Company
and its subsidiaries to incur additional indebtedness; pay dividends or
distributions on, or redeem or repurchase capital stock; make investments;
issue or sell capital stock of subsidiaries; engage in transactions with
affiliates; transfer or sell assets; guarantee indebtedness; restrict
dividends or other payments of subsidiaries; and consolidate, merge or
transfer all or substantially all of its
5
assets and the assets of its subsidiaries. These covenants are subject
to important exceptions and qualifications.
5. Optional Redemption
-------------------
Except as set forth below, the Company shall not be entitled
to redeem the Securities at its option prior to June 15, 2006.
On and after June 15, 2006, the Company shall be entitled at
its option to redeem all or a portion of the Securities upon not
less than 30 nor more than 60 days' notice, at the redemption prices
(expressed in percentages of principal amount, on the redemption date)
plus accrued interest to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due
on the related interest payment date), if redeemed during the 12-month
period commencing on June 15 of the years set forth below:
Redemption
Period Price
------ ----------
2006 105.625%
2007 103.750
2008 101.875
2009 and thereafter 100.000%
In addition, prior to June 15, 2004, the Company shall be
entitled at its option on one or more occasions to redeem Securities
(which includes Additional Securities, if any) in an aggregate principal
amount not to exceed 35% of the aggregate principal amount of the
Securities (which includes Additional Securities, if any) originally
issued at a redemption price (expressed as a percentage of principal
amount) of 111 1/4%, plus accrued and unpaid interest to the redemption
date, with the net cash proceeds from one or more Public Equity Offerings
(provided that if the Public Equity Offering is an
--------
offering by Parent, a portion of the Net Cash Proceeds equal to the
amount required to redeem any Securities is contributed to the equity
capital of the Company); provided, however, that (1) at least 65% of
such aggregate principal
-------- -------
amount of Securities (which includes Additional Securities, if any)
remains outstanding immediately after the occurrence of each such
redemption (other than Securities held, directly or indirectly, by the
Company or its Affiliates); and (2) each such redemption occurs within
90 days after the date of the related Public Equity Offering.
6
6. Special Mandatory Redemption
----------------------------
In the event the Transactions are not consummated on or
prior to the 75th day after the Issue Date or the Merger Agreement
is terminated at any time prior thereto, the Company shall redeem
the Securities at a redemption price equal to 100% of the accreted
value thereof on the redemption date (calculated for the period from
the Issue Date to such redemption date based on the straight line
method over the life of the Securities), plus accrued and unpaid
interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the
related interest payment date). The Company shall be entitled to
receive a credit against the accreted value of the Securities required
to be redeemed pursuant to this paragraph equal to the accreted value
on such redemption date (excluding premium) of any Securities that the
Company has acquired or redeemed other than pursuant to this paragraph
and has delivered to the Trustee for cancellation. The Company shall be
entitled to receive the credit only once for any Security. The Company
shall cause the notice of the special mandatory redemption to be mailed
no later than the next Business Day following the 75th day after the
Issue Date or following the date the Merger Agreement is terminated, as
applicable, and shall redeem the Securities three Business Days following
the date of notice of redemption.
7. Notice of Redemption
--------------------
Except as set forth in paragraph 6 above, notice of redemption
will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder of Securities to be redeemed at his
registered address. Securities in denominations larger than $1,000
principal amount may be redeemed in part but only in whole multiples
of $1,000. If money sufficient to pay the redemption price of and accrued
interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after
such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
8. Put Provisions
--------------
Upon a Change of Control, any Holder of Securities will
have the right, subject to certain conditions, to cause the Company
to purchase all or any part of the Securities of such Holder at a
purchase price equal to 101% of the principal amount thereof on the
date of purchase plus accrued and unpaid interest to the date of
repurchase (subject to the right of holders of record on the relevant
record date to receive interest due on the related
7
interest payment date) as provided in, and subject to the terms of, the
Indenture.
9. Subordination
-------------
The Securities are subordinated to Senior Indebtedness of the
Company, as defined in the Indenture. To the extent provided in the
Indenture, Senior Indebtedness of the Company must be paid before the
Securities may be paid. The Company agrees, and each Securityholder by
accepting a Security agrees, to the subordination provisions contained
in the Indenture and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in-fact for such purpose.
10. Guarantee
---------
The payment by the Company of the principal of, and premium
and interest on, the Securities is fully and unconditionally guaranteed
on a joint and several senior subordinated basis by each of the
Guarantors.
11. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 principal amount and whole multiples of $1,000.
A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things,
to furnish appropriate endorsements or transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities
selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or
any Securities for a period of 15 days before a selection of Securities
to be redeemed or 15 days before an interest payment date.
12. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the
owner of it for all purposes.
13. Unclaimed Money
---------------
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Company at its request unless an abandoned
8
property law designates another Person. After any such payment, Holders
entitled to the money must look only to the Company and not to the
Trustee for payment.
14. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company at any time
shall be entitled to terminate some or all of its obligations under
the Securities and the Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of
principal and interest on the Securities to redemption or maturity,
as the case may be.
15. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture and the Securities may be amended with the written consent
of the Holders of at least a majority in principal amount outstanding of
the Securities and (ii) any default or noncompliance with any provision
may be waived with the written consent of the Holders of a majority in
principal amount outstanding of the Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company, the Guarantors and the Trustee shall be
entitled to amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the
Indenture, or to provide for uncertificated Securities in addition to or
in place of certificated Securities, or to add guarantees with respect to
the Securities, including Guaranties, or to secure the Securities, or to
add additional covenants or surrender rights and powers conferred on the
Company or the Guarantors, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make any
change that does not adversely affect the rights of any Securityholder.
16. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment
of principal on the Securities at maturity, upon redemption pursuant to
paragraph 5 or 6 of the Securities, upon acceleration or otherwise, or
failure by the Company to redeem or purchase Securities when required;
(iii) failure by the Company, Parent or any Subsidiary Guarantor to
comply with other agreements in the Indenture or the Securities, in
certain cases subject to notice and lapse of time; (iv) certain
accelerations (including failure to pay within any grace period after
final maturity) of other Indebtedness of the Company or any Significant
Subsidiary if
9
the amount accelerated (or so unpaid) exceeds $10.0 million; (v) certain
events of bankruptcy or insolvency with respect to the Company and the
Significant Subsidiaries; (vi) certain judgments or decrees for the
payment of money in excess of $10.0 million; and (vii) certain defaults
with respect to the Guaranties. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal
amount of the Securities may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Securities being due and
payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse
to enforce the Indenture or the Securities unless it receives indemnity
or security satisfactory to it. Subject to certain limitations, Holders
of a majority in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold
from Securityholders notice of any continuing Default (except a Default
in payment of principal or interest) if it determines that withholding
notice is in the interest of the Holders.
17. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the Act, the
Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal
with and collect obligations owed to it by the Company or its Affiliates
and may otherwise deal with the Company or its Affiliates with the same
rights it would have if it were not Trustee.
18. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations
of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
19. Authentication
--------------
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually
10
signs the certificate of authentication on the other side of this
Security.
20. Abbreviations
-------------
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common),
TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST (=custodian),
and U/G/M/A (=Uniform Gift to Minors Act).
21. 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 Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption as a convenience
to Securityholders. No representation is made as to the accuracy of
such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
22. Holders' Compliance with Registration Rights Agreement
------------------------------------------------------
Each Holder of a Security, by acceptance hereof, acknowledges
and agrees to the provisions of the Registration Rights Agreement,
including the obligations of the Holders with respect to a registration
and the indemnification of the Company to the extent provided therein.
23. Governing Law
-------------
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture
which has in it the text of this Security in larger type. Requests may
be made to:
XXXX XX Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
11
--------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------
Date: Your Signature:
------------------ -----------------------------
----------------------------------------- Sign exactly as your name appears
on the other side of this Security.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.09 of the Indenture, check the box:
[_]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or of the Indenture,
state the amount in principal amount: $
Date: _______________ Your Signature: ____________________________
(Sign exactly as your name
appears on the other side of
this Security.)
Signature Guarantee:
(Signature must be guaranteed)
Signatures 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 Securities Exchange Act of 1934, as amended.
