Exhibit 4.2
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INDENTURE
Dated as of July 10, 1997
Among
CAMBRIDGE INDUSTRIES, INC., as Issuer,
each of the Guarantors named herein
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
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up to $130,000,000
10 1/4% Senior Subordinated Notes due 2007, Series A
10 1/4% Senior Subordinated Notes due 2007, Series B
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CROSS-REFERENCE TABLE
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TIA Indenture
Section Section
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310(a)(1)............................................. 7.10
(a)(2)............................................. 7.10
(a)(3)............................................. N.A.
(a)(4)............................................. N.A.
(a)(5)............................................. 7.08; 7.10
(b)................................................ 7.08; 7.10; 13.02
(c)................................................ N.A.
311(a)................................................ 7.11
(b)................................................ 7.11
(c)................................................ N.A.
312(a)................................................ 2.05
(b)................................................ 13.04
(c)................................................ 13.04
313(a)................................................ 7.06
(b)(1)............................................. N.A.
(b)(2)............................................. 7.06
(c)................................................ 7.06; 13.02
(d)................................................ 7.06
314(a)................................................ 4.06; 4.08; 13.02
(b)................................................ N.A.
(c)(1)............................................. 13.05
(c)(2)............................................. 13.05
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 13.06
(f)................................................ N.A.
315(a)................................................ 7.01(b)
(b)................................................ 7.05; 13.02
(c)................................................ 7.01(a)
(d)................................................ 7.01(c)
(e)................................................ 6.11
316(a)(last sentence)................................. 2.09
(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
(c)................................................ 13.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of this Indenture.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...................................................................1
SECTION 1.02. Incorporation by Reference of TIA............................................37
SECTION 1.03. Rules of Construction........................................................37
ARTICLE TW
THE NOTES
SECTION 2.01. Form and Dating..............................................................38
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount.....................39
SECTION 2.03. Registrar and Paying Agent...................................................40
SECTION 2.04. Paying Agent To Hold Assets in Trust.........................................41
SECTION 2.05. Holder Lists.................................................................41
SECTION 2.06. Transfer and Exchange........................................................42
SECTION 2.07. Replacement Notes............................................................42
SECTION 2.08. Outstanding Notes............................................................43
SECTION 2.09. Treasury Notes...............................................................43
SECTION 2.10. Temporary Notes..............................................................44
SECTION 2.11. Cancellation.................................................................44
SECTION 2.12. Defaulted Interest...........................................................44
SECTION 2.13. CUSIP Numbers................................................................45
SECTION 2.14. Deposit of Moneys............................................................45
SECTION 2.15. Book-Entry Provisions for Global Notes.......................................46
SECTION 2.16. Special Transfer Provisions..................................................47
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee...........................................................50
SECTION 3.02. Selection of Notes To Be Redeemed............................................51
SECTION 3.03. Notice of Redemption.........................................................51
SECTION 3.04. Effect of Notice of Redemption...............................................52
SECTION 3.05. Deposit of Redemption Price..................................................53
SECTION 3.06. Notes Redeemed in Part.......................................................53
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes...............................................................................53
SECTION 4.02. Maintenance of Office or Agency................................................................54
SECTION 4.03. Corporate Existence............................................................................54
SECTION 4.04. Payment of Taxes and Other Claims..............................................................54
SECTION 4.05. Maintenance of Properties and Insurance........................................................55
SECTION 4.06. Compliance Certificate; Notice of Default......................................................55
SECTION 4.07. Compliance with Laws...........................................................................56
SECTION 4.08. Reports to Holders.............................................................................57
SECTION 4.09. Waiver of Stay, Extension or Usury Laws........................................................57
SECTION 4.10. Limitation on Restricted Payments..............................................................58
SECTION 4.11. Limitations on Transactions with Affiliates....................................................60
SECTION 4.12. Limitation on Additional Indebtedness and Issuance of Preferred Stock..........................62
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries........63
SECTION 4.14. Change of Control..............................................................................64
SECTION 4.15. Limitation on Asset Sales......................................................................66
SECTION 4.16. Prohibition on Incurrence of Senior Subordinated Debt..........................................70
SECTION 4.17. Limitation on Liens............................................................................71
SECTION 4.18. Conduct of Business............................................................................71
SECTION 4.19. Limitation on Issuances and Sales of Capital Stock of Wholly Owned Restricted Subsidiaries.....71
SECTION 4.20. Guarantee of the Notes.........................................................................72
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.......................................................73
SECTION 5.02. Successor Corporation Substituted..............................................................75
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.....................................................................75
SECTION 6.02. Acceleration..........................................................................77
SECTION 6.03. Other Remedies........................................................................78
SECTION 6.04. Waiver of Past Defaults...............................................................79
SECTION 6.05. Control by Majority...................................................................79
SECTION 6.06. Limitation on Suits...................................................................79
SECTION 6.07. Rights of Holders To Receive Payment..................................................80
SECTION 6.08. Collection Suit by Trustee............................................................80
SECTION 6.09. Trustee May File Proofs of Claim......................................................80
SECTION 6.10. Priorities............................................................................81
SECTION 6.11. Undertaking for Costs.................................................................82
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.....................................................................82
SECTION 7.02. Rights of Trustee.....................................................................84
SECTION 7.03. Individual Rights of Trustee..........................................................85
SECTION 7.04. Trustee's Disclaimer..................................................................85
SECTION 7.05. Notice of Default.....................................................................85
SECTION 7.06. Reports by Trustee to Holders.........................................................86
SECTION 7.07. Compensation and Indemnity............................................................86
SECTION 7.08. Replacement of Trustee................................................................88
SECTION 7.09. Successor Trustee by Merger, Etc......................................................89
SECTION 7.10. Eligibility; Disqualification.........................................................89
SECTION 7.11. Preferential Collection of Claims Against the Company.................................89
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations..............................................90
SECTION 8.02. Legal Defeasance and Covenant Defeasance..............................................91
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.................................93
SECTION 8.04. Application of Trust Money............................................................94
SECTION 8.05. Repayment to the Company..............................................................95
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SECTION 8.06. Reinstatement..........................................................................................96
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.............................................................................96
SECTION 9.02. With Consent of Holders................................................................................97
SECTION 9.03. Compliance with TIA....................................................................................99
SECTION 9.04. Revocation and Effect of Consents......................................................................99
SECTION 9.05. Notation on or Exchange of Notes......................................................................100
SECTION 9.06. Trustee To Sign Amendments, Etc.......................................................................100
ARTICLE TEN
SUBORDINATION OF NOTES
SECTION 10.01. Notes Subordinated to Senior Debt....................................................................100
SECTION 10.02. No Payment on Notes in Certain Circumstances ........................................................101
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc. ....................................................102
SECTION 10.04. Payments May Be Paid Prior to Dissolution............................................................104
SECTION 10.05. Subrogation..........................................................................................105
SECTION 10.06. Obligations of the Company Unconditional.............................................................105
SECTION 10.07. Notice to Trustee....................................................................................105
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent.......................................106
SECTION 10.09. Trustee's Relation to Senior Debt....................................................................106
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt......107
SECTION 10.11. Noteholders Authorize Trustee To Effectuate Subordination of Notes...................................108
SECTION 10.12. This Article Ten Not To Prevent Events of Default....................................................108
SECTION 10.13. Trustee's Compensation Not Prejudiced................................................................108
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ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee......................................................................109
SECTION 11.02. Subordination of Guarantee...................................................................110
SECTION 11.03. Severability.................................................................................110
SECTION 11.04. Release of a Guarantor.......................................................................110
SECTION 11.05. Limitation of Guarantor's Liability..........................................................111
SECTION 11.06. Guarantors May Consolidate, etc., on Certain Terms...........................................111
SECTION 11.07. Contribution.................................................................................112
SECTION 11.08. Waiver of Subrogation........................................................................113
SECTION 11.09. Execution of Guarantee.......................................................................114
SECTION 11.10. Waiver of Stay, Extension or Usury Laws......................................................114
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
SECTION 12.01. Guarantee Obligations Subordinated to Guarantor Senior Debt..................................115
SECTION 12.02. No Payment on Notes in Certain Circumstances.................................................115
SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc...............................................117
SECTION 12.04. Payments May Be Paid Prior to Dissolution....................................................119
SECTION 12.05. Subrogation..................................................................................119
SECTION 12.06. Obligations of the Guarantors Unconditional..................................................120
SECTION 12.07. Notice to Trustee............................................................................120
SECTION 12.08. Reliance on Judicial Order or Certificate of Liquidating Agent...............................121
SECTION 12.09. Trustee's Relation to Guarantor Senior Debt..................................................121
SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions of the Guarantors or
Holders of Guarantor Senior Debt.............................................................122
SECTION 12.11. Noteholders Authorize Trustee To Effectuate Subordination of Guarantee Obligations...........122
SECTION 12.12. This Article Twelve Not To Prevent Events of Default.........................................123
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SECTION 12.13. Trustee's Compensation Not Prejudiced........................................................123
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls.................................................................................123
SECTION 13.02. Notices......................................................................................124
SECTION 13.03. Communications by Holders with Other Holders.................................................125
SECTION 13.04. Certificate and Opinion as to Conditions Precedent...........................................125
SECTION 13.05. Statements Required in Certificate or Opinion................................................125
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar....................................................126
SECTION 13.07. Legal Holidays...............................................................................126
SECTION 13.08. Governing Law................................................................................126
SECTION 13.09. No Adverse Interpretation of Other Agreements................................................127
SECTION 13.10. No Recourse Against Others...................................................................127
SECTION 13.11. Successors...................................................................................127
SECTION 13.12. Duplicate Originals..........................................................................127
SECTION 13.13. Severability.................................................................................127
SECTION 13.14. Independence of Covenants....................................................................127
SIGNATURES.....................................................................................................
Exhibit A - Form of Series A Note
Exhibit B - Form of Series B Note
Exhibit C - Form of Legend for Global Notes
Exhibit D - Form of Certificate To Be Delivered in Connection with Transfers to Non-QIB Accredited Investors
Exhibit E - Form of Certificate To Be Delivered in Connection with Transfers Pursuant to Regulation S
Exhibit F - Form of Guarantee
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of this Indenture.
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INDENTURE, dated as of July 10, 1997, among CAMBRIDGE INDUSTRIES,
INC., a Delaware corporation (the "Company"), each of the Guarantors named
herein, as guarantors, and STATE STREET BANK AND TRUST COMPANY, as trustee (the
"Trustee").
The Company has duly authorized the creation of an issue of 10 1/4%
Senior Subordinated Notes due 2007, Series A, and 10 1/4% Senior Subordinated
Notes due 2007, Series B, to be issued in exchange for the 10 1/4% Senior
Subordinated Notes due 2007, Series A, pursuant to a registration rights
agreement and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. All things necessary to make the
Notes, when duly issued and executed by the Company and authenticated and
delivered hereunder, the valid and binding obligations of the Company and to
make this Indenture a valid and binding agreement of the Company, have been
done.
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's 10
1/4% Senior Subordinated Notes due 2007, Series A and Series B:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Acceleration Notice" has the meaning provided in Section 6.02.
"Acquired Indebtedness" of any Person means Indebtedness of another
Person and any of its Subsidiaries existing at the time such other Person
becomes a Subsidiary of the referent Person or at the time it merges or
consolidates with the referent Person or any of the referent Person's
Subsidiaries or assumed by the referent Person or any Subsidiary of the referent
Person in connection with the acquisition of assets from such other Person and
in each case not incurred by the referent Person or any Subsidiary of the
referent Person or such other Person in connection with, or in anticipation or
contemplation of, such other Person becoming a Subsidiary of the referent Person
or such acquisition, merger or consolidation.
"Additional Interest" has the meaning provided in the Registration
Rights Agreement.
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"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise, and the terms
"controlling" and "controlled" have meanings correlative of the foregoing;
provided, however, that beneficial ownership of 10% or more of the voting
securities of a Person shall be deemed to be control. Notwithstanding the
foregoing, no Person (other than the Company or any Restricted Subsidiary of the
Company) in whom a Receivables Subsidiary makes an Investment in connection with
a Qualified Receivables Transaction shall be deemed to be an Affiliate of the
Company or any of its Restricted Subsidiaries solely by reason of such
Investment.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or Co-Registrar.
"Agent Bank" means: Bankers Trust Company or any successor as agent
under the Credit Agreement.
"all or substantially all" shall have the meaning given such phrase
in the Revised Model Business Corporation Act.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprises any division or line of business
of such Person or any other properties or assets of such Person other than in
the ordinary course of business.
"Asset Sale" means (i) the sale, lease (other than pursuant to
operating leases of real or personal property entered into in the ordinary
course of business), conveyance or other disposition (collectively,
"dispositions") of any assets
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(including by way of a Sale/Leaseback Transaction) other than dispositions of
inventory in the ordinary course of business; (ii) the issuance by any
Restricted Subsidiary of Equity Interests of such Restricted Subsidiary; and
(iii) the disposition by the Company, in the case of either clause (i), (ii) or
(iii), whether in a single transaction or a series of related transactions (a)
that have a fair market value in excess of $1,000,000 or (b) for net proceeds in
excess of $1,000,000. Notwithstanding the foregoing, the following will not be
deemed to be Asset Sales: (i) a disposition of assets by the Company or a
Restricted Subsidiary to the Company or a Wholly Owned Restricted Subsidiary;
(ii) an issuance of (a) Equity Interests by a Restricted Subsidiary to the
Company or to a Wholly Owned Restricted Subsidiary, (b) Preferred Stock issued
in accordance with the Fixed Charge Coverage Ratio under Section 4.12 or (c)
Permitted Subsidiary Preferred Stock; (iii) a disposition consisting of a
Permitted Investment or Restricted Payment permitted by Section 4.10; (iv) the
disposition of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole permitted by the covenant described
above under Section 5.01; (v) the surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other claims of any kind;
(vi) the grant in the ordinary course of business of any non-exclusive license
of patents, trademarks, registrations therefor and other similar intellectual
property; (vii) sales of accounts receivable and related assets of the type
specified in the definition of "Qualified Receivables Transaction" to a
Receivables Subsidiary for the fair market value thereof, including cash in an
amount at least equal to 75% of the book value thereof as determined in
accordance with GAAP; (viii) transfers of accounts receivable and related assets
of the type specified in the definition of "Qualified Receivables Transaction"
(or a fractional undivided interest therein) by a Receivables Subsidiary in a
Qualified Receivables Transaction; and (ix) the sale or discount, in each case
without recourse, of accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection thereof. For
the purposes of clause (viii), notes received in exchange for the transfer of
accounts receivable and related assets shall be deemed cash if the Receivables
Subsidiary or other payor is required to repay said notes as soon as practicable
from available cash collections less amounts required to be established as
reserves pursuant to contractual agreements with entities that are not
Affiliates of the Company entered into as part of a Qualified Receivables
Transaction.
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"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP or,
in the event that such rate of interest is not reasonably determinable,
discounted at the rate of interest borne by the Notes) of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such Sale and Leaseback Transaction (including any period for which such
lease has been extended or may, at the option of the lessor, be extended).
"Bain" means Xxxx Capital, Inc., a Delaware corporation.
"Bain Funds" means Xxxx Capital Fund V, L.P., Xxxx Capital Fund V-B,
L.P., Xxxx Capital V Mezzanine Fund, L.P., Xxxx Capital Fund IV, L.P., Xxxx
Capital Fund IV-B, L.P., BCIP Associates, and BCIP Trust Associates, L.P.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any similar
federal, state or foreign law for the relief of debtors.
"Blockage Period" has the meaning provided in Section 10.02.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Borrowing Base" means the sum of (i) 85% of the net book value
(after allowance for doubtful accounts) of accounts receivable of the Company
and the Guarantors arising in the ordinary course of business from the sale of
products sold by the Company and the Guarantors or the provision of services by
the Company and the Guarantors and (ii) 65% of the net book value (after
appropriate write-downs of obsolescence, quality problems and the like) of
inventories of the Company and the Guarantors held in the ordinary course of
business, in each case on a consolidated basis with Restricted Subsidiaries in
accordance with generally accepted accounting principles.
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"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligation at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation ("S&P") or Xxxxx'x
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any commercial bank organized under
the laws of the United States of America or any state thereof or the District of
Columbia or any U.S. branch of a foreign bank having at the date of acquisition
thereof combined capital and surplus of not less than $100,000,000; (v)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) above; and (vi) investments
in money market funds which invest substantially all their assets in securities
of the types described in clauses (i) through (v).
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"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition, in one or a series
of related transactions, of all or substantially all of the assets of Holdings
or the Company to any Person or group (as such term is used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act) other than the Principals or their Related
Parties; (ii) the adoption of a plan relating to the liquidation or dissolution
of Holdings or the Company; (iii) any Person or group (as defined above), other
than the Principals or their Related Parties, is or becomes the "beneficial
owner" (as defined in Rules 13d-2 and 13d-5 under the Exchange Act, except that
a Person shall be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 25% of the total voting power of the Voting Stock of the Company, including
by way of merger, consolidation or otherwise; provided that the Principals or
their Related Parties "beneficially own" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), 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 (for the purposes of this clause); (iii) any Person shall be
deemed to beneficially own any Voting Stock of a corporation held by any other
corporation (the "parent corporation"), if such Person "beneficially owns" (with
respect to any Person or group other than the Principals or their Related
Parties, as defined in clause (iii) above or, with respect to the Principals or
their Related Parties, as defined in the provision to clause (iii) above),
directly or indirectly, more than 50% of the voting power of the Voting Stock of
such parent corporation); and (iv) the first day on which a majority of the
members of the Board of Directors of Holdings or the Company are not Continuing
Directors.
"Change of Control Offer" has the meaning provided in Section 4.14.
"Change of Control Payment Date" has the meaning provided in
Section 4.14.
"Commission" or "SEC" means the Securities and Exchange Commission.
"Commodity Agreement" means any commodity futures contract, commodity
option or other similar agreement or arrangement entered into by the Company or
any Subsidiary designed to protect the Company or any of its Subsidiaries
-7-
against fluctuations in the price of commodities actually used in the ordinary
course of business of the Company and its Subsidiaries.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor and also includes for the purposes of any provision contained herein
and required by the TIA any other obligor on the Notes.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period, plus (a) an
amount equal to any extraordinary loss plus any net loss realized in connection
with an asset sale, to the extent such losses were deducted in computing
Consolidated Net Income, plus (b) provision for taxes based on income or profits
of such Person for such period, to the extent such provision for taxes was
deducted in computing Consolidated Net Income, plus (c) Consolidated Interest
Expense of such Person for such period, to the extent such amount was deducted
in computing Consolidated Net Income, plus (d) depreciation and amortization
(including amortization of goodwill and other intangibles and amortization of
deferred compensation in respect of non-cash compensation but excluding
amortization of prepaid cash expenses that were paid in a prior period) of such
Person for such period, to the extent such depreciation and amortization were
deducted in computing Consolidated Net Income, in each case, for such period
without duplication on a consolidated basis and determined in accordance with
GAAP.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes attributable to
sales or dispositions outside the ordinary course of business), (B) Consolidated
Interest Expense and (C) Consolidated Non-cash Charges.
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"Consolidated Interest Expense" means, with respect to any Person for
any period, the aggregate consolidated interest, whether expensed or
capitalized, paid, accrued or scheduled to be paid or accrued, of such Person
and its Restricted Subsidiaries for such period (including: (i) amortization of
original issue discount and non-cash interest payments and accruals; (ii) the
interest portion of all deferred payment obligations, calculated in accordance
with the effective interest method; and (iii) the interest component of any
payments associated with Capitalized Lease Obligations and net payments (if any)
pursuant to Hedging Obligations, in each case, to the extent attributable to
such period, but excluding (x) commissions, discounts and other fees and charges
incurred with respect to letters of credit and bankers' acceptances financing
and (y) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or secured by a Lien on assets of such Person)
determined in accordance with GAAP. Consolidated Interest Expense of the Company
shall not include any prepayment premiums or amortization of original issue
discount or deferred financing costs, to the extent such amounts are incurred as
a result of the prepayment on the date of this Indenture of any Indebtedness of
the Company with the proceeds of the Notes.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of cash dividends or cash
distributions paid to the referent Person or a Wholly Owned Subsidiary thereof
that is a Guarantor or Foreign Subsidiary or both; (ii) the Net Income of any
Person that is a Restricted Subsidiary (other than a Wholly Owned Restricted
Subsidiary that is a Guarantor or Foreign Subsidiary or both) shall be included
only to the extent of the amount of cash dividends or cash distributions paid to
the referent Person or a Wholly Owned Restricted Subsidiary thereof that is a
Guarantor; (iii) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded; (iv) all extraordinary gains and extraordinary losses and any unusual
or non-recurring charges recorded or accrued in connection with the issuance of
the Notes (including without limitation the amounts described in the last
sentence of the definition of Consolidated Interest Expense) shall be excluded;
(v) the cumulative effect of a change in accounting principles shall be
excluded;
-9-
and (vi) gains from Asset Sales (without regard to the $1.0 million limitation
set forth in the definition thereof) or abandonments or reserves relating
thereto and the related tax effects according to GAAP shall be excluded.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any Person,
for any period, the aggregate (A) depreciation, (B) amortization and (C) other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (excluding
for purposes of clause (C) any such charges which require an accrual of or a
reserve for cash charges for any future period).
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company, who: (i) was a member of such
Board of Directors on the date of this Indenture; (ii) was nominated for
election or elected to such Board of Directors with the affirmative vote of a
majority of the Continuing Directors who were members of such Board at the time
of such nomination or election; or (iii) was nominated for election or elected
to such Board of Directors by one or more of the Principals.
"Credit Agreement" means that certain Credit Agreement dated as of
July 10, 1997, among the Company, Holdings, the lenders party thereto from time
to time in their capacities as lenders thereunder and Bankers Trust Company, as
agent (and any successor agent thereunder), together with the related documents
thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time, including any agreement extending the maturity of, refinancing,
replacing, refunding or otherwise restructuring (including, without limitation,
increasing the amount of available borrowings thereunder or adding Subsidiaries
of the Company as additional borrowers or guarantors thereunder) all or any
portion of the Indebtedness under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group of
lenders.
-10-
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any of its Restricted Subsidiaries in the ordinary course of business
against fluctuation in the values of the currencies of the countries (other than
the United States) in which the Company or its Restricted Subsidiaries conduct
business.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Default Notice" has the meaning provided in Section 10.02.
"Depository" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Senior Debt" means (a) with respect to the Company, (i)
the Obligations of the Company with respect to the Senior Bank Debt and (ii) any
other Senior Debt of the Company permitted under this Indenture the principal
amount of which at original issuance is $25.0 million or more and is
specifically designated in the instrument evidencing such Senior Debt as
"Designated Senior Debt" by the Company and (b) with respect to any Guarantor,
(i) the Obligations of such Guarantor with respect to the Senior Bank Debt and
(ii) any other Senior Debt of such Guarantor permitted under this Indenture the
principal amount of which at original issuance is $25.0 million or more and is
specifically designated in the instrument evidencing such Senior Debt as
"Designated Senior Debt" by the Company.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Notes and to have satisfied all the obligations under this Indenture relating to
the Notes (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same upon compliance by the Company with the
provisions of Article Eight, except (i) the rights of the Holders of Notes to
receive, from the
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trust fund described in Article Eight, payment of the principal of and the
interest on such Notes when such payments are due, (ii) the Company's
obligations with respect to the Notes under Sections 2.03 through 2.07, 7.07 and
7.08 and (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder.
"Disqualified Capital Stock" means 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), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the Holder thereof (other than as a result of a
Change of Control), in whole or in part, on or prior to July 15, 2007.
"Eagle-Picher Acquisition" means the acquisition of all or
substantially all of the assets of the Plastics Division of Eagle-Picher
Industries, Inc. pursuant to a purchase and sale agreement.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" has the meaning provided in paragraph 5 of the
Notes.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the 10 1/4% Senior Subordinated Notes due
2007, Series B, to be issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement.
"Exchange Offer" has the meaning provided in the Registration Rights
Agreement.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than the Senior Bank Debt) in existence on the date of this
Indenture, until such amounts are repaid.
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"Fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"Fixed Charge Coverage Ratio" means with respect to any Person for
any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the Company or any of its Subsidiaries incurs, assumes, guarantees or redeems
any Indebtedness (other than revolving credit borrowings) or if the Company or
any of its Subsidiaries issues or redeems any preferred stock, in each case
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date of the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Transaction Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter period. For purposes of making the
computation referred to above, acquisitions (including all mergers and
consolidations), dispositions and discontinuance of operations that have been
made by the Company or any of its Subsidiaries during the four-quarter reference
period or subsequent to such reference period and on or prior to the Transaction
Date shall be calculated on a pro forma basis assuming that all such
acquisitions, dispositions and discontinuance of operations had occurred on the
first day of the four-quarter reference period; provided, however, that Fixed
Charges shall be reduced by amounts attributable to operations that are so
disposed of or discontinued only to the extent that the obligations giving rise
to such Fixed Charges would no longer be obligations contributing to the
Company's Fixed Charges subsequent to the Transaction Date.
"Fixed Charges" means, with respect to any Person for any period, the
sum, without duplication, of (a) Consolidated Interest Expense, (b) commissions,
discounts and other fees and charges incurred with respect to letters of credit
and bankers' acceptances financing, (c) any interest expense on Indebtedness of
another Person that is guaranteed by such Person or secured by a Lien on assets
of such Person, and (d) the product of
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(i) all cash dividend payments (and non-cash dividend payments in the case of a
Subsidiary of such Person) on any series of preferred stock of such Person or
any Subsidiary of such Person, times (ii) a fraction, the numerator of which is
one and the denominator of which is one minus the then current combined federal,
state and local statutory tax rate of such Person, expressed as a decimal,
determined, in each case, on a consolidated basis and in accordance with GAAP.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary
organized under the laws of a country or jurisdiction other than the United
States, any state or territory thereof or the District of Columbia.
"Foreign Subsidiary" means any subsidiary organized and incorporated
in a jurisdiction outside of the United States.
"Funds" means the aggregate amount of U.S. Legal Tender and/or U.S.
Government Obligations deposited with the Trustee pursuant to Article Eight.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date. All ratios and computations based on GAAP contained in this
Indenture shall be computed in conformity with GAAP applied on a consistent
basis, except that calculations made for purposes of determining compliance with
the terms of the covenants and with other provisions of this Indenture shall be
made without giving effect to (i) the deduction or amortization of any premiums,
fees, and expenses incurred in connection with the Eagle-Picher Acquisition, the
Xxxxxxxx-Xxxxxxx Acquisition and related financings or any other permitted
incurrence of Indebtedness or Refinancing Indebtedness and (ii) except as
otherwise provided, the amortization of any amounts required or permitted by
Accounting Principles Board Opinion Nos. 16 (including non-cash write-ups and
non-cash charges relating to inventory, fixed assets and in-process research and
development, in each case arising in connection with
-14-
the Eagle-Picher Acquisition and the Xxxxxxxx-Xxxxxxx Acquisition) and 17
(including non-cash charges relating to intangibles and goodwill arising in
connection with the Eagle-Picher Acquisition and the Xxxxxxxx-Xxxxxxx
Acquisition).
"Global Notes" means one or more IAI Global Notes, Regulation S
Global Notes and 144A Global Notes.
"Xxxxxxxx-Xxxxxxx Acquisition" means the acquisition by the Company
of the engineered composites business of The Goodyear Tire and Rubber Company
pursuant to a purchase and sale agreement.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Guarantor" means: (i) CE Automotive Trim Systems, Inc.; and (ii)
each of the Company's Restricted Subsidiaries located in the U.S. that in the
future executes a supplemental indenture in which such Restricted Subsidiary
agrees to be bound by the terms of this Indenture as a Guarantor; provided that
any Person constituting a Guarantor as described above shall cease to constitute
a Guarantor when its respective Guarantee is released in accordance with the
terms of this Indenture.
"Guarantor Senior Debt" means with respect to any Guarantor, the
principal of, premium, if any, and interest (including any Post-Petition
Interest) on any Indebtedness of a Guarantor, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Guarantee of such
Guarantor. Without limiting the generality of the foregoing, "Guarantor Senior
Debt" shall also include the principal of, premium, if any, interest (including
any interest accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable law) on, and all other
amounts owing in respect of, (x) all monetary obligations of every nature of a
Guarantor under the Credit Agreement, including, without limitation, obligations
to pay principal and interest, reimbursement obligations under letters of
credit, fees, expenses and indemnities, (y) all Interest Swap Obligations and
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(z) all obligations under Currency Agreements, in each case whether outstanding
on the Issue Date or thereafter incurred. Notwithstanding the foregoing,
"Guarantor Senior Debt" shall not include (i) any Indebtedness of such Guarantor
to a Subsidiary of such Guarantor or any Affiliate of such Guarantor or any of
such Affiliate's Subsidiaries, (ii) Indebtedness to, or guaranteed on behalf of,
any shareholder, director, officer or employee of such Guarantor or any
Subsidiary of such Guarantor (including, without limitation, amounts owed for
compensation), (iii) Indebtedness to trade creditors and other amounts incurred
in connection with obtaining goods, materials or services, (iv) Indebtedness
represented by Disqualified Capital Stock, (v) any liability for federal, state,
local or other taxes owed or owing by such Guarantor, (vi) Indebtedness incurred
in violation of Section 4.12 (but, as to any such obligation, no such violation
shall be deemed to exist for purposes of this clause (vi) if the holder(s) of
such obligation or their representative and the Trustee shall have received an
officers' certificate of the Company to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit Indebtedness, that
the incurrence of the entire committed amount thereof at the date on which the
initial borrowing thereunder is made would not) violate such provisions of this
Indenture), (vii) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without
recourse to such Guarantor and (viii) any Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of such
Guarantor.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means the Person in whose name a Note is registered on the
Registrar's books.
"Holdings" means Cambridge Industries Holdings, Inc., a Delaware
corporation.
"Holdings Services Agreement" means the Services Agreement between
Holdings and the Company as in effect on the Issue Date.
-16-
"IAI Global Note" means a permanent global note in registered form
representing the aggregate principal amount of Notes sold to Institutional
Accredited Investors.
"incur" means, with respect to any Indebtedness or other obligation
of any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or other obligation on the balance sheet of such person
(and "incurrence," "incurred," "incurable," and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"Indebtedness" means with respect to any Person, without duplication:
(i) all Obligations of such Person for borrowed money; (ii) all Obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person; (iv) all Obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and accrued liabilities arising
in the ordinary course of business); (v) all Obligations for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction; (vi) all Guarantees of such Person; (vii) Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP; (viii) all Indebtedness of
others secured by any Lien on any asset or property (including, without
limitation, leasehold interests and any other tangible or intangible property)
of such Person, the amount of such Indebtedness for the purposes of this
definition shall be limited to the lesser of the amount of such Indebtedness
secured by such Lien or the fair market value of the assets or property securing
such Lien; and (ix) all Disqualified Capital Stock issued by such Person with
the amount of Indebtedness represented by such Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation preference and
its maximum fixed repurchase price, but excluding accrued dividends, if any.
-17-
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Industrial Revenue Obligations" means any debt obligation issued by
a state or local government or governmental authority to finance plants,
equipment or facilities that are made subject to a lease, or other transaction
which provides the credit support for such debt obligation, with the Company or
any Wholly Owned Restricted Subsidiary that is a Guarantor or a Foreign
Subsidiary or both.
"Initial Notes" means the 10 1/4% Senior Subordinated Notes due 2007,
Series A, of the Company.
"Initial Purchaser" means BT Securities Corporation.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of loans
(including Guarantees), advances or capital contributions (excluding commission,
travel, salary and other advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP. For purposes of Section 4.10, (i) "Investment" in a Subsidiary shall
include the portion (proportionate to the Company's Equity Interest in such
Subsidiary) of the fair market value (as determined in good faith by the Board
of Directors) of such
-18-
Subsidiary at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided 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 in 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 (as determined in good
faith by the Board of Directors) of the net assets of such Subsidiary at the
time of such redesignation; and (ii) 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.
"Issue Date" means July 10, 1997.
"Legal Holiday" has the meaning provided in Section 13.07.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Maturity Date" means July 15, 2007.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents (including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, brokerage, legal, accounting
and investment banking fees and sales commissions) and any relocation expenses
incurred as a result thereof, (b) taxes paid or payable ((1) including, without
limitation, income taxes reasonably estimated to be actually payable as a result
of any disposition of property within two years of the date of disposition and
(2) after taking into account any reduction in tax liability due to available
tax credits or deductions and any tax sharing arrangements) and (c) appropriate
amounts to be provided by the Com-
-19-
pany as a reserve, in accordance with GAAP, against any liabilities associated
with such Asset Sale and retained by the Company after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale and the
repayment of Indebtedness secured by a Lien on the asset or assets subject to
the Asset Sale.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (a) any gain or loss,
together with any related provision for taxes on such gain or loss, realized in
connection with (i) any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions), or (ii) the disposition of any
securities or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries, and (b) any extraordinary gain or loss, together
with any related provision for taxes on such extraordinary gain or loss, (c) any
one time charges relating to the GenCorp Acquisition including, without
limitation, any one-time charges relating to integration costs and adjustments
resulting in the write-up of inventory above cost, and (d) any write-off of
deferred financing fees or the incurrence of prepayment penalties or premiums
relating to the GenCorp Acquisition.
"Net Proceeds Offer" has the meaning provided in Section 4.15.
"Net Proceeds Offer Amount" has the meaning provided in Section 4.15.
"Net Proceeds Offer Payment Date" has the meaning provided in
Section 4.15.
"Net Proceeds Offer Trigger Date" has the meaning provided in
Section 4.15.
"Non-U.S. Person" has the meaning assigned to such term in
Regulation S.
"Notes" means, collectively, the Initial Notes, the Private Exchange
Notes, if any, and the Unrestricted Notes, treated as a single class of
securities under this Indenture.
-20-
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of such
Person, or any other officer designated by the Board of Directors serving in a
similar capacity.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"144A Global Note" means a permanent global note in registered form
representing the aggregate principal amount of Notes sold in reliance on Rule
144A under the Securities Act.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee complying with the requirements of
Sections 13.05 and 13.06, as they relate to the giving of an Opinion of Counsel,
and delivered to the Trustee.
"Paying Agent" has the meaning provided in Section 2.03, except that,
during the continuance of a Default or Event of Default and for the purposes of
Articles Three and Eight and Sections 4.14 and 4.15, the Paying Agent shall not
be the Company or any Affiliate of the Company.
"Permitted Business" means a business in which the Company and its
Subsidiaries was engaged on the date of this Indenture or a business that is
directly related or incidental thereto, including, without limitation, the
automotive component manufacturing business.
"Permitted Indebtedness" means without duplication each of the
following:
(i) Existing Indebtedness (including Indebtedness of the Company and
its Restricted Subsidiaries under the Notes issued on the Issue Date)
outstanding on the date of this Indenture;
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(ii) Indebtedness of the Company or any of its Restricted
Subsidiaries that are Guarantors or Foreign Subsidiaries or both incurred
pursuant to the Credit Agreement in an aggregate principal amount at any
time outstanding not to exceed the greater of (a) $280.0 million or (b) the
Borrowing Base at such time; provided, however that the aggregate principal
amount of Indebtedness under clauses (a) and (b) shall be reduced dollar
for dollar for any Indebtedness outstanding under clause (viii) below and
to the extent Net Cash Proceeds relating to an Asset Sale is used to prepay
Indebtedness under this clause (ii) in accordance with the provisions
described under Section 4.15; provided, further that the aggregate
principal amount of Indebtedness under clause (b) shall be reduced dollar
for dollar for any Indebtedness outstanding under clause (viii) below only
to the extent that the receivables transferred by the Company or any of its
Restricted Subsidiaries pursuant to the Qualified Receivables Transaction
giving rise to the Indebtedness incurred under clause (viii) below are
included in the Borrowing Base;
(iii) Obligations in respect of performance and surety bonds and
completion guarantees provided by the Company or any Restricted Subsidiary
of the Company in the ordinary course of business;
(iv) Hedging Obligations that are incurred by the Company or any of
its Restricted Subsidiaries that are Guarantors or Foreign Subsidiaries or
both for the purpose of fixing or hedging interest rate risk with respect
to any Indebtedness that is permitted by the terms of this Indenture to be
outstanding;
(v) Intercompany Indebtedness incurred by the Company or any of its
Restricted Subsidiaries to the Company or any of its Restricted
Subsidiaries that are Guarantors or Foreign Subsidiaries or both, in each
case subject to no Lien (other than Liens securing the Credit Agreement)
held by a Person other than the Company or a Restricted Subsidiary or a
Guarantor or a Foreign Subsidiary or the holders of Senior Debt; provided
--------
that if as of any date any Person other than the Company or a Restricted
Subsidiary or a Guarantor or a Foreign Subsidiary or the holders of Senior
Debt owns or holds any such Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness not
constituting Permitted Indebtedness;
-22-
(vi) Indebtedness of the Company or any of its Restricted
Subsidiaries that are Guarantors or Foreign Subsidiaries or both
attributable to any Currency Agreement or Commodity Agreement; provided,
however, that such agreements are entered into to protect the Company from
fluctuations in the prices of currency exchange rates and commodities,
respectively;
(vii) Acquired Indebtedness incurred pursuant to this clause (vii)
by the Company or any of its Restricted Subsidiaries that are Guarantors or
Foreign Subsidiaries or both, which does not exceed $15,000,000 at any time
outstanding;
(viii) The incurrence by a Receivables Subsidiary of Indebtedness in
a Qualified Receivables Transaction that is without recourse to the Company
or to any Restricted Subsidiary of the Company or their assets (other than
such Receivables Subsidiary and its assets), and is not guaranteed by any
such Person; provided that any outstanding Indebtedness incurred under this
clause (viii) shall reduce the aggregate amount permitted to be incurred
under clause (ii) above to the extent set forth therein;
(ix) Guarantees by the Company's Restricted Subsidiaries of
Indebtedness permitted to be incurred under this Indenture; provided that
such Restricted Subsidiary complies with Section 4.20;
(x) Additional Indebtedness of the Company or any of its
Restricted Subsidiaries that are Guarantors or Foreign Subsidiaries or both
incurred pursuant to this clause (x), which together with the aggregate
liquidation value of outstanding Permitted Subsidiary Preferred Stock, does
not exceed $20,000,000 at any time outstanding (which amount may be, but
need not be, incurred in whole or in part under the Credit Agreement);
(xi) The incurrence by the Company or any of its Restricted
Subsidiaries that are Guarantors or Foreign Subsidiaries or both of
Indebtedness issued in exchange for, or the proceeds of which are used to
extend, refinance, renew, replace, defease or refund Indebtedness permitted
to be incurred or remain outstanding under this Indenture in whole or in
part; provided, however, that (1) the principal amount of such Refinancing
-------- -------
Indebtedness shall not exceed the principal amount of Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded;
-23-
(2) the Refinancing Indebtedness shall have a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes, the
Refinancing Indebtedness shall be subordinated in right of payment to the Notes
or any Guarantees on terms at least as favorable to the Holders of Notes as
those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (4) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is Indebtedness of the Company or a Guarantor, the Refinancing Indebtedness
shall be incurred by the Company or a Guarantor (any such extension,
refinancing, renewal, replacement, defeasance or refunding being referred to as
"Refinancing Indebtedness"); provided, further, that the foregoing clauses (1),
-------- -------
(2) and (3) shall not apply with respect to the Indebtedness under clause (ii)
above or, to the extent incurred under the Credit Agreement, Indebtedness under
clauses (vii) and (x) above so long as the aggregate principal amount of such
Refinancing Indebtedness does not exceed the amount of Indebtedness permitted
under such clauses (ii), (vii) and (x);
(xii) Indebtedness (including Capitalized Lease Obligations, Industrial
Revenue Obligations or Purchase Money Obligations) incurred by the Company or
any of its Restricted Subsidiaries or Permitted Subsidiary Preferred Stock to
finance the purchase, lease or improvement of property (real or personal) or a
business or equipment (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets or any Indebtedness or Permitted
Subsidiary Preferred Stock issued to a seller to finance the purchase of
property, a business or equipment in connection therewith) in an aggregate
principal amount not to exceed the greater of $10,000,000 at any one time
outstanding or 5% of Total Assets at the time of any incurrence thereof
(including any Refinancing Indebtedness with respect thereto) (which amount may,
but need not, be incurred in whole or in part under Credit Agreement); and
(xiii) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary of the Company providing for indemnification, adjustment
of purchase price, earn
-24-
out or other similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Restricted
Subsidiary of the Company, other than guarantees of Indebtedness incurred
by any Person acquiring all or any portion of such business, assets or
Restricted Subsidiary for the purpose of financing such acquisition;
provided that the maximum assumable liability in respect of all such
Indebtedness shall at no time exceed the gross proceeds actually received
by the Company and its Restricted Subsidiaries in connection with such
disposition.
"Permitted Investments" means (a) any Investments in the Company or
in a Wholly Owned Restricted Subsidiary of the Company that is a Guarantor; (b)
any Investments in Cash Equivalents; (c) Investments by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment: (i) such Person becomes a Wholly Owned Restricted Subsidiary of the
Company and a Guarantor or (ii) such Person is consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Wholly Owned Restricted Subsidiary of the
Company that is a Guarantor; (d) Investments existing on the date of this
Indenture; (e) Investments in any Foreign Subsidiary in an aggregate amount not
to exceed $10,000,000 at any time outstanding; (f) any Investment in Voplex
Canada Inc. in an amount not to exceed $1,000,000; (g) any Investment by the
Company or a Wholly Owned Restricted Subsidiary of the Company in a Receivables
Subsidiary or any Investment by a Receivables Subsidiary in any other Person in
connection with a Qualified Receivables Transaction; provided that the foregoing
--------
Investment is in the form of a note that the Receivables Subsidiary or other
Person is required to repay as soon as practicable from available cash
collections less amounts required to be established as reserves pursuant to
contractual agreements with entities that are not Affiliates of the Company
entered into as part of a Qualified Receivables Transaction; (h) loans and
advances to employees and officers of the Company and its Restricted
Subsidiaries not in excess of $3,000,000 at any one time outstanding; (i)
accounts receivable created or acquired in the ordinary course of business; (j)
Hedging Obligations, Currency Agreements and Commodity Agreements entered into
in the ordinary course of the Company's or its Restricted Subsidiaries'
businesses and otherwise in compliance with this Indenture; (k) Investments in
Unrestricted Subsidiaries in an amount at any one time outstanding not to exceed
$5,000,000; (l) Guarantees (A) by the Company of Indebtedness otherwise
permitted to be incurred by Restricted Subsidiaries of the Company under
-25-
this Indenture or (B) permitted by Section 4.20; (m) Investments received by the
Company or its Restricted Subsidiaries as consideration for asset sales,
including Asset Sales; provided in the case of an Asset Sale, such Asset Sale is
effected in compliance with Section 4.15; (n) Investments in securities of trade
creditors or customers received pursuant to any plan of reorganization or
similar arrangement upon the bankruptcy or insolvency of such trade creditors or
customers; (o) additional Investments having an aggregate fair market value,
taken together with all other Investments made pursuant to this clause (o) that
are at that time outstanding, not to exceed 5% of Total Assets at the time of
such Investment (with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in value); and (p)
Investments the payment for which consists exclusively of Qualified Capital
Stock of the Company.
"Permitted Liens" means
(i) Liens in favor of the Company;
(ii) Liens securing Senior Debt of the Company or of any
Guarantor that was permitted to be incurred pursuant to this Indenture;
(iii) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any Restricted
Subsidiary of the Company, provided that such Liens were in existence prior
--------
to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with
the Company or such Restricted Subsidiary;
(iv) Liens on property existing at the time of acquisition
thereof by the Company or any Subsidiary of the Company; provided that such
--------
Liens were in existence prior to the contemplation of such acquisition;
(v) Liens to secure surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course
of business;
(vi) Liens existing on the date of this Indenture;
(vii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings
-26-
promptly instituted and diligently concluded; provided that any reserve or
other appropriate provision as shall be required in conformity with GAAP
shall have been made therefor;
(viii) Liens imposed by law, such as mechanics', carriers',
warehousemen's, materialmen's, and vendors' Liens, incurred in good faith
in the ordinary course of business with respect to amounts not yet
delinquent or being contested in good faith by appropriate proceedings if a
reserve or other appropriate proceedings if a reserve or other appropriate
provisions, if any, as shall be required by GAAP shall have been made
therefor;
(ix) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property or minor
irregularities of title incident thereto that do not, in the aggregate,
materially detract from the value of the property or the assets of the
Company or impair the use of such property in the operation of the
Company's business;
(x) judgment Liens to the extent that such judgments do not
cause or constitute a Default or an Event of Default;
(xi) Liens to secure the payment of all or a part of the
purchase price of property or assets acquired or constructed in the
ordinary course of business on or after the date of this Indenture,
provided that (a) such property or assets are used in the same or similar
line of business as the Company was engaged in on the date of this
Indenture, (b) at the time of incurrence of any such Lien, the aggregate
principal amount of the obligations secured by such Lien shall not exceed
the lesser of the cost or fair market value of the assets or property (or
portions thereof) so acquired or constructed, (c) each such Lien shall
encumber only the assets or property (or portions thereof) so acquired or
constructed and shall attach to such property within 180 days of the
purchase or construction thereof and (d) any Indebtedness secured by such
Lien shall have been permitted to be incurred under Section 4.12;
(xii) Liens of landlords or of mortgagees of landlords
arising by operation of law; provided that the rentals payments secured
--------
thereby are not yet due and payable;
-27-
(xiii) Liens incurred in the ordinary course of business of
the Company or any Subsidiary of the Company with respect to obligations
that do not exceed $5,000,000 at any one time outstanding and that (a) are
not incurred in connection with the borrowing of money or the obtaining of
advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Company or such Subsidiary;
(xiv) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security;
(xv) Liens securing reimbursement obligations with respect
to letters of credit which encumber only documents and other property
relating to such letters of credit and the products and proceeds thereof;
(xvi) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements;
(xvii) Liens arising out of consignment or similar
arrangements for the sale of goods in the ordinary course of business;
(xviii) any interest or title of a lessor in property subject
to any capital lease obligation or operating lease;
(xix) any interest or title of a lessor in property subject
to any capital lease obligation or operating lease;
(xx) Liens on assets of a Receivables Subsidiary incurred in
connection with a Qualified Receivables Transaction;
(xxi) Liens securing Indebtedness under Currency Agreements;
(xxii) Liens securing Hedging Obligations which Hedging
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
-28-
(xxiii) leases or subleases granted to others that do not
materially interfere with the ordinary course of business of the Company
and its Restricted Subsidiaries;
(xxiv) Liens arising from filing Uniform Commercial Code
financing statements regarding leases; and
(xxv) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of custom duties in connection
with the importation of goods.
"Permitted Subsidiary Preferred Stock" means any series of Preferred
Stock of a domestic or foreign Restricted Subsidiary of the Company or Wholly
Owned Restricted Subsidiary that constitutes Qualified Capital Stock and has a
fixed dividend rate, the liquidation value of all series of which is issued
pursuant to clauses (x) and (xii) of the definition of Permitted Indebtedness.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Physical Notes" shall have the meaning provided in Section 2.01.
"Post-Petition Interest" means any interest accruing subsequent to
the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"Principals" means Xxxx, the Xxxx Funds and Xxxxxxx X. Xxxxxxxx.
"Private Exchange Notes" shall have the meaning provided in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on
the Initial Notes in the form set forth on Exhibit A.
---------
-29-
"pro forma" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act as interpreted by the
Company's Board of Directors in consultation with its independent certified
public accountants.
"Purchase Money Obligations" of any Person means any obligations of
such Person or any of its subsidiaries to any seller or any other person
incurred or assumed in connection with the purchase of real or personal property
to be used in the business of such person or any of its subsidiaries within 180
days of such incurrence or assumption.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities act.
"Qualified Receivables Transaction" means any transaction or series
of transactions that may be entered into by the Company or any of its Restricted
Subsidiaries pursuant to which the Company or any of its Restricted Subsidiaries
may sell, convey or otherwise transfer to (i) a Receivables Subsidiary (in the
case of a transfer by the Company or any of its Restricted Subsidiaries) and
(ii) any other person (in the case of a transfer by a Receivables Subsidiary),
or may grant a security interest in, any accounts receivable (whether now
existing or arising in the future) of the Company or any of its Restricted
Subsidiaries, and any assets related thereto including, without limitation, all
collateral securing such accounts receivable, all contracts and all guarantees
or other obligations in respect of such accounts receivable, proceeds of such
accounts receivable and other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable.
"Receivables" means any right of payment from or on behalf of any
obligor, whether constituting an account, chattel paper, instrument, general
intangible or otherwise, arising from the financing by the Company or any
Restricted Subsidiary of the Company of merchandise or services, and monies due
thereunder, security in the merchandise and services financed thereby, records
related thereto, and the right to payment of any interest or finance charges and
other obligations with respect thereto, proceeds from claims on insurance
policies re
-30-
lated thereto, any other proceeds related thereto, and any other related rights.
"Receivables Subsidiary" means a Wholly Owned Restricted Subsidiary
of the Company that engages in no activities other than in connection with the
financing of accounts receivable and that is designated by the Board of
Directors of the Company (as provided below) as a Receivables Subsidiary (a) no
portion of the Indebtedness or any other Obligations (contingent or otherwise)
of which (i) is guaranteed by the Company or any Restricted Subsidiary of the
Company (excluding guarantees of Obligations (other than the principal of, and
interest on, Indebtedness) pursuant to representations, warranties, covenants
and indemnities entered into in the ordinary course of business in connection
with a Qualified Receivables Transaction), (ii) is recourse to or obligates the
Company or any Restricted Subsidiary of the Company in any way other than
pursuant to representations, warranties, covenants and indemnities entered into
in the ordinary course of business in connection with a Qualified Receivables
Transaction or (iii) subjects any property or asset of the Company or any
Restricted Subsidiary of the Company, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to representations,
warranties, covenants and indemnities entered into in the ordinary course of
business in connection with a Qualified Receivables Transaction, (b) with which
neither the Company nor any Restricted Subsidiary of the Company has any
material contract, agreement, arrangement or understanding other than on terms
no less favorable to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of the
Company, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable and (c) with which neither the
Company nor any Restricted Subsidiary of the Company has any obligation to
maintain or preserve such Restricted Subsidiary's financial condition or cause
such Restricted Subsidiary to achieve certain levels of operating results. Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"Redemption Date" means, with respect to any Notes, the Maturity Date
of such Note or the earlier date on which such Note is to be redeemed by the
Company pursuant to paragraph 5 of the Notes.
-31-
"Redemption Price" has the meaning provided in Section 3.03.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or
any Restricted Subsidiary of the Company of Indebtedness incurred in accordance
with Section 4.12 (other than pursuant to clause (ii), (iii), (iv), (v), (vi),
(vii), (viii), (ix), (xi), (xii) or (xiii) of the definition of Permitted
Indebtedness), in each case that does not (1) result in an increase in the
aggregate principal amount of Indebtedness of such Person as of the date of such
proposed Refinancing (plus the amount of any premium required to be paid under
the terms of the instrument governing such Indebtedness and plus the amount of
reasonable expenses incurred by the Company or such Restricted Subsidiary, as
the case may be, in connection with such Refinancing), except to the extent that
any such increase in Indebtedness is otherwise permitted by this Indenture, or
(2) create Indebtedness with (A) a Weighted Average Life to Maturity that is
less than the Weighted Average Life to Maturity of the Indebtedness being
Refinanced or (B) a final maturity earlier than the final maturity of the
Indebtedness being Refinanced; provided, however, that (x) if such Indebtedness
-------- -------
being Refinanced is Indebtedness of the Company, then such Refinancing
Indebtedness shall be Indebtedness solely of the Company, (y) if such
Indebtedness being Refinanced is subordinate or junior to the Notes, then such
Refinancing Indebtedness shall be subordinate to the Notes at least to the same
extent and in the same manner as the Indebtedness being Refinanced and (z) if
such Indebtedness being refinanced is subordinated or junior to the Guarantee of
such Guarantor, then such Refinancing Indebtedness shall be subordinate to the
Guarantee of such Guarantor at least to the same extent and in the same manner
as the Indebtedness being refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the exchange and registration
rights agreement dated the Issue Date between the Company, the Guarantors and
the Initial Purchaser.
-32-
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"Related Party" with respect to any Principal means (i) any
controlling stockholder, general partner, majority owned Subsidiary, or spouse
or immediate family member (in the case of an individual) of such Principal or
(ii) (a) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding 80% or more of
the Voting Stock of which consist of such Principal and/or such other Persons
referred to in the immediately preceding clause (i) or (b) any partnership the
sole general partner of which is a Principal or one of the Persons referred in
clause (i).
"Replacement Assets" has the meaning provided in Section 4.15.
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Debt; provided, however,
-------- -------
that if, and for so long as, any Designated Senior Debt lacks such a
representative, then the Representative for such Designated Senior Debt shall at
all times constitute the holders of a majority in outstanding principal amount
of such Designated Senior Debt in respect of any Designated Senior Debt.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Note" means a Note that constitutes a "Restricted
Security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
-------- -------
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Note.
"Restricted Payment" has the meaning provided in Section 4.10.
"Restricted Subsidiary" of a Person means any Subsidiary of such
Person that is not an Unrestricted Subsidiary.
-33-
"Revolving Credit Facility" means the revolving credit portion of the
Credit Agreement.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of the Company of any
property, whether owned by the Company or any Restricted Subsidiary of the
Company at the Issue Date or later acquired, which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person or to
any other Person from whom funds have been or are to be advanced by such Person
on the security of such Property.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Senior Bank Debt" means all Obligations arising under the Credit
Agreement.
"Senior Debt" means (a) with respect to the Company, (i) Senior Bank
Debt of the Company (including, without limitation, Post-Petition Interest with
respect thereto), (ii) Obligations of the Company with respect to Commodity
Agreements, (iii) Obligations of the Company with respect to Currency
Agreements, (iv) Hedging Obligations of the Company (including, without
limitation, Post-Petition Interest with respect thereto) and (v) any other
Indebtedness, including, without limitation, Post-Petition Interest with respect
thereto, incurred by the Company unless the instrument under which such
Indebtedness is incurred expressly provides that it is pari passu with or
----------
subordinated in right of payment to the Notes, and (b) with respect to any
Guarantor: (i) Senior Bank Debt of such Guarantor, (ii) Obligations of such
Guarantor with respect to Commodity Agreements, (iii) Obligations of such
Guarantor with respect to Currency Agreements, (iv) Hedging Obligations of such
Guarantor (including, without limitation, Post-Petition Interest with respect
thereto), (v) any Guarantee by such Guarantor of any Senior Debt of the Company
and (vi) any other Indebtedness, including, without limitation, Post-Petition
Interest with respect thereto, incurred by such Guarantor, unless the instrument
under which such Indebtedness is incurred expressly provides that it is pari
----
passu with or subordinated in right of payment to the Subsidiary Guarantee of
-----
such Guarantor. Notwithstanding anything to the contrary in the foregoing,
Senior Debt shall not include (v) any obligation of the Company or any Guarantor
to, in respect of or imposed by any environ-
-34-
mental, landfill, waste management or other regulatory governmental agency,
statute, law or court order, (w) any liability for federal, state, local or
other taxes owed or owing by the Company or any Guarantor, (x) any Indebtedness
of the Company or any Guarantor to any of the Company's Subsidiaries or other
Affiliates, (y) any trade payables or (z) that portion of any Indebtedness that
is incurred in violation of this Indenture on or before the date of this
Indenture (but, as to any such obligation, no such violation shall be deemed to
exist for purposes of this clause (z) if the holder(s) of such obligation or
their representative and the Trustee shall have received an officers'
certificate of the Company to the effect that the incurrence of such
Indebtedness does not (or, in the case of revolving credit Indebtedness, that
the incurrence of the entire committed amount thereof at the date on which the
initial borrowing thereunder is made would not) violate such provisions of this
Indenture).
"Senior Representative" means the Agent Bank or any other
representative designated in writing to the Trustee or the holders of any class
or issue of Designated Senior Debt; provided that, in the absence of a
--------
representative of the type described above, any holder or holders of a majority
of the principal amount outstanding of any class or issue of Designated Senior
Debt may collectively act as the Senior Representative for such class or issue.
"Significant Restricted Subsidiary" means any Restricted Subsidiary
of the Company constituting a Significant Subsidiary.
"Significant Subsidiary" means any Subsidiary of the Company that
would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation
is in effect on the date hereof.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
-35-
"Tax Sharing Agreement" means the tax sharing agreement, dated
November 17, 1995, between Holdings and the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
77aaa-77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"Total Assets" means total consolidated assets of the Company and its
Restricted Subsidiaries, as set forth on the Company's most recent consolidated
balance sheet.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters or, in the
case of a successor trustee, an officer assigned to the department, division or
group performing the corporate trust work of such successor.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Notes" means one or more Notes that do not and are not
required to bear the Private Placement Legend in the form set forth in
Exhibit A, including, without limitation, the Exchange Notes.
---------
"Unrestricted Subsidiary" means (A) any Wholly Owned Subsidiary of
the Company designated by the Board of Directors of the Company as an
Unrestricted Subsidiary pursuant to a Board resolution set forth in an Officers'
Certificate and delivered to the Trustee (i) that, at the time of designation,
(x) has total assets not exceeding $1,000 or (y) whose designation as such would
be permitted in accordance with Section 4.10, (ii) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which is (a)
guaranteed by the Company or any other Subsidiary (other than another
Unrestricted Subsidiary) of the Company, (b) is recourse to or obligates the
Company or any other Subsidiary (other than another Unrestricted Subsidiary) of
the Company in any way or (c) subjects any property or asset of the Company or
any other Subsidiary (other than another Unrestricted Subsidiary) of the
Company, directly or indirectly, contingently or otherwise, to the satisfaction
thereof, (iii) with which neither the Company nor any other Subsidiary of the
Company (other than another Unrestricted Subsidiary) has any contract,
agreement, arrangement
-36-
or understanding other than on terms no less favorable to the Company or such
other Subsidiary than those that might be obtained at the time from persons who
are not Affiliates of the Company and (iv) with which neither the Company nor
any other Subsidiary of the Company (other than another Unrestricted Subsidiary)
has any obligation (a) to subscribe for additional shares of Capital Stock or
other Equity Interests therein or (b) to maintain or preserve such Subsidiary's
financial condition or to cause such Subsidiary to achieve certain levels of
operating results and (B) any Subsidiary of an Unrestricted Subsidiary.
"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.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Voting Stock" means any class or classes of Capital Stock pursuant
to which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers,
general partners or trustees of any Person (irrespective of whether or not, at
the time, Capital Stock of any other class or classes shall have, or might have,
voting power by reason of the happening of any contingency) or, with respect to
a partnership (whether general or limited), any general partner interest in such
partnership.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, by (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which
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(other than directors qualifying shares, Permitted Subsidiary Preferred Stock or
Preferred Stock issued in accordance with the Fixed Charge Coverage Ratio under
Section 4.12) shall at the time be owned by such Person or by one or more Wholly
Owned Restricted Subsidiaries of such Person.
SECTION 1.02. Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, that
portion of such provision that is required to be incorporated for this Indenture
to be qualified under the TIA is incorporated by reference in, and made a part
of, this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by the TIA by reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP as in effect on the Issue Date;
(3) "or" is not exclusive;
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(4) words in the singular include the plural, and words in the plural
include the singular; and
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
---------------
The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Exchange Notes and
---------
the Trustee's certificate of authentication relating thereto shall be
substantially in the form of Exhibit B hereto. The Notes may have notations,
---------
legends or endorsements required by law, stock exchange rule or usage. The
Company shall approve the form of the Notes and any notation, legend or
endorsement thereon. Each Note shall be dated the date of issuance and shall
show the date of its authentication. Each Note shall have an executed Guarantee
from each of the Guarantors endorsed thereon substantially in the form of
Exhibit F hereto.
---------
The terms and provisions contained in the Notes annexed hereto as
Exhibits A and B, shall constitute, and are hereby expressly made, a part of
----------------
this Indenture and, to the extent applicable, the Company, the Guarantors and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A, Notes offered and
sold to institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) and Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of one or more Global Notes,
substantially in the form set forth in Exhibit A, deposited with the Trustee, as
---------
custodian for the Depository, duly executed by the Company (and having an
executed Guarantee from each of the Guarantors endorsed thereon) and
authenticated by the Trustee as hereinafter provided and shall bear the legend
set forth in Exhibit C. The aggregate principal amount of the Global Notes may
---------
from time to time be increased or de-
-39-
creased by adjustments made on the records of the Trustee, as custodian for the
Depository, as hereinafter provided.
Notes issued in exchange for interests in a Global Note pursuant to
Section 2.16 may be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A (the "Physical
--------- --------
Notes").
-----
All Notes offered and sold in reliance on Regulation S shall remain
in the form of a Global Note until the consummation of the Exchange Offer
pursuant to the Registration Rights Agreement; provided, however, that all of
-------- -------
the time periods specified in the Registration Rights Agreement to be complied
with by the Company and the Guarantors have been so complied with.
SECTION 2.02. Execution and Authentication; Aggregate
Principal Amount.
---------------------------------------
Two Officers, or an Officer and an Assistant Secretary, shall sign,
or one Officer shall sign, and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company, and the Guarantees for the
Guarantors, by manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a Note or
a Guarantee, as the case may be, was an Officer or Assistant Secretary at the
time of such execution but no longer holds that office or position at the time
the Trustee authenticates the Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature of such representative of the Trustee shall be conclusive evidence
that the Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue
in an aggregate principal amount not to exceed $100,000,000, (ii) Private
Exchange Notes from time to time only in exchange for a like principal amount of
Initial Notes and (iii) Unrestricted Notes from time to time only in exchange
for (A) a like principal amount of Initial Notes or (B) a like principal amount
of Private Exchange Notes, in each case upon a written order of the Company in
the form of an Officers' Certificate of the Company. Each such written order
shall specify the amount of Notes to be authenticated and the date on which
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the Notes are to be authenticated, whether the Notes are to be Initial Notes,
Private Exchange Notes or Unrestricted Notes and whether (subject to Section
2.01) the Notes are to be issued as Physical Notes or Global Notes and such
other information as the Trustee may reasonably request. The aggregate principal
amount of Notes outstanding at any time may not exceed $130,000,000, except as
provided in Sections 2.07 and 2.08.
Notwithstanding the foregoing, all Notes issued under this Indenture
shall vote and consent together on all matters (as to which any of such Notes
may vote or consent) as one class and no series of Notes will have the right to
vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New York),
where (a) Notes may be presented or surrendered for registration of transfer or
for exchange ("Registrar"), (b) Notes may be presented or surrendered for
payment ("Paying Agent") and (c) notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Registrar shall keep
a register of the Notes and of their transfer and exchange. The Company, upon
notice to the Trustee, may have one or more co-Registrars and one or more
additional paying agents reasonably acceptable to the Trustee. The term "Paying
Agent" includes any additional paying agent. The Company may change the Paying
Agent or Registrar without notice to any Holder.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such
-41-
Agent. The Company shall notify the Trustee, in advance, of the name and address
of any such Agent. If the Company fails to maintain a Registrar or Paying Agent,
or fails to give the foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying
Agent until such time as the Trustee has resigned or a successor has been
appointed. Any of the Registrar, the Paying Agent or any other agent may resign
upon 30 days' notice to the Company. The office of the Paying Agent as Registrar
for purposes of this Section 2.03 shall initially be at 00 Xxxxxxxx, Xxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, premium, if any, or interest on, the Notes (whether such assets
have been distributed to it by the Company or any other obligor on the Notes),
and shall notify the Trustee of any default by the Company (or any other obligor
on the Notes) in making any such payment. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any time during the continuance of
any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent and the completion of any
accounting required to be made hereunder, the Paying Agent shall have no further
liability for such assets.
SECTION 2.05. Holder Lists.
------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders and shall otherwise comply with TIA (S). 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee five (5) Business
Days before each Interest Payment Date and at such other times as the Trustee
may request in writing a list as of the applicable Record Date and in such form
as the Trustee may reasonably require of the names and addresses of the Holders,
which list may be conclusively relied upon by the Trustee.
-42-
SECTION 2.06. Transfer and Exchange.
---------------------
Subject to Sections 2.15 and 2.16, when Notes are presented to the
Registrar or a co-Registrar with a request to register the transfer of such
Notes or to exchange such Notes for an equal principal amount of Notes of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Notes presented or surrendered
-------- -------
for transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's written request. No service charge shall be made
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith. The Registrar or co-Registrar shall not
be required to register the transfer of or exchange of any Note (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption pursuant to Section 3.03 and paragraph 5 of the Notes and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Note being redeemed in part.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Notes may be effected only through a book entry system maintained by
the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Note shall be required to be reflected in a book
entry system.
SECTION 2.07. Replacement Notes.
-----------------
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note and
each of the Guarantors shall execute a Guarantee thereon if the Trustee's
requirements are met. If required by the Trustee or the Company, such Holder
must provide an indemnity bond or other indemnity, sufficient in the reasonable
judgment of the Company, the Guarantors and the Trustee, to protect the Company,
the
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Guarantors, the Trustee or any Agent from any loss which any of them may suffer
if a Note is replaced. The Company and the Trustee may charge such Holder for
its reasonable out-of-pocket expenses in replacing a Note, including reasonable
fees and expenses of counsel. Every replacement Note shall constitute an
additional obligation of the Company and every replacement Guarantee shall
constitute an additional obligation of the Guarantors.
SECTION 2.08. Outstanding Notes.
-----------------
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to Section 2.09, a Note does not cease to be outstanding because the Company or
any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
---- ----
of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal, premium, if any, and interest due on the Notes payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant to
the terms of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Notes.
--------------
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver, consent or
notice, Notes owned by the Company or an Affiliate shall be considered as though
they are not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes which the Trustee actually knows are so owned shall be so
considered. The Company shall notify the Trustee, in writing, when it or any of
its Affiliates repurchases or otherwise acquires Notes, of the aggregate
-44-
principal amount of such Notes so repurchased or otherwise acquired.
SECTION 2.10. Temporary Notes.
---------------
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes and the Guarantors
shall prepare temporary Guarantees thereon upon receipt of a written order of
the Company in the form of an Officers' Certificate. The Officers' Certificate
shall specify the amount of temporary Notes to be authenticated and the date on
which the temporary Notes are to be authenticated. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and execute, and the Trustee shall authenticate and
the Guarantors shall execute Guarantees on, upon receipt of a written order of
the Company pursuant to Section 2.02, definitive Notes in exchange for temporary
Notes.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and, at the written direction of the Company, shall dispose
and deliver evidence of disposal of all Notes surrendered for transfer,
exchange, payment or cancellation. Subject to Section 2.07, the Company may not
issue new Notes to replace Notes that the Company has paid or delivered to the
Trustee for cancellation. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
------------------
The Company will pay interest on overdue principal from time to time
on demand at the rate of interest then borne by the Notes. The Company shall, to
the extent lawful, pay interest on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
of interest then borne by the Notes. Interest will be computed on the basis of a
360-day year comprised of twelve 30-
-45-
day months, and, in the case of a partial month, the actual number of days
elapsed.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the fifteenth day next preceding the
date fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior to
the expiration of the 30-day period set forth in Section 6.01(1) shall be paid
to Holders as of the regular record date for the Interest Payment Date for which
interest has not been paid.
SECTION 2.13. CUSIP Numbers.
-------------
The Company in issuing the Notes may use one or more "CUSIP" numbers,
and if so, the Trustee shall use the CUSIP numbers in notices of redemption or
exchange as a convenience to Holders; provided, however, that no representation
-------- -------
is hereby deemed to be made by the Trustee as to the correctness or accuracy of
the CUSIP numbers printed in the notice or on the Notes, and that reliance may
be placed only on the other identification numbers printed on the Notes. The
Company shall promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14. Deposit of Moneys.
-----------------
Prior to 11:00 a.m. New York City time on each Interest Payment Date,
Maturity Date, Redemption Date, Change of Control Payment Date, and Net Proceeds
Offer Payment Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date, Maturity Date, Redemption Date, Change of Control
Payment Date, and Net Proceeds Offer Payment Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date, Maturity Date, Redemption Date,
-46-
Change of Control Payment Date, and Net Proceeds Offer Payment Date, as the case
may be.
SECTION 2.15. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) The Global Notes initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit C.
---------
Members of, or participants in, the Depository ("Participants") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent 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
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.16. In addition, Physical Notes shall
be transferred to all beneficial owners in exchange for their beneficial
interests in Global Notes if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for any Global Note and a
successor Depository is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to paragraph
(b), the Registrar shall (if one or more Physical Notes are to be issued)
reflect on its books and records the date and a decrease in the principal amount
of such Global Note in an amount equal to the principal amount of the beneficial
interest in the Global Note to be
-47-
transferred, and the Company shall execute and the Trustee shall authenticate
and deliver, one or more Physical Notes of authorized denominations in an
aggregate principal amount equal to the principal amount of the beneficial
interest in the Global Note so transferred.
(d) In connection with the transfer of a Global Note as an entirety
to beneficial owners pursuant to paragraph (b) of this Section 2.15, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, the Guarantors shall execute Guarantees on and the
Trustee shall upon written instructions from the Company authenticate and
deliver, to each beneficial owner identified by the Depository in exchange for
its beneficial interest in such Global Note, an equal aggregate principal amount
of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b) or (c) of
this Section 2.15 shall, except as otherwise provided by Section 2.16, bear the
Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
SECTION 2.16. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors and
-----------------------------------------------------------
Non-U.S. Persons. The following additional provisions shall apply with respect
----------------
to the registration of any proposed transfer of a Restricted Note to any
Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Restricted Note,
whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is after the second anniversary of the Issue Date;
provided, however, that neither the Company nor any Affiliate of the
-------- -------
Company has held any beneficial interest in such note, or portion thereof,
at any time on or prior to the second anniversary of the Issue Date or (y)
(1) in the case of a transfer to an Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Registrar a certificate
-48-
substantially in the form of Exhibit D hereto and any legal opinions and
---------
certifications required thereby and (2) in the case of a transfer to a Non-
U.S. Person, the proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit E hereto;
---------
(ii) if the proposed transferee is a Participant and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the IAI Global Note or Regulation S Global
Note, as the case may be, upon receipt by the Registrar of (x) written
instructions given in accordance with the Depository's and the Registrar's
procedures and (y) the appropriate certificate, if any, required by clause
(y) of paragraph (i) above, the Registrar shall register the transfer and
reflect on its books and records the date and an increase in the principal
amount of the IAI Global Note or Regulation S Global Note, as the case may
be, in an amount equal to the principal amount of Physical Notes to be
transferred, and the Trustee shall cancel the Physical Notes so
transferred; and
(iii) if the proposed transferor is a Participant seeking to transfer
an interest in a Global Note, upon receipt by the Registrar of (x) written
instructions given in accordance with the Depository's and the Registrar's
procedures and (y) the appropriate certificate, if any, required by clause
(y) of paragraph (i) above, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the
principal amount of the Global Note from which such interests are to be
transferred in an amount equal to the principal amount of the Notes to be
transferred and (B) an increase in the principal amount of the IAI Global
Note or the Regulation S Global Note, as the case may be, in an amount
equal to the principal amount of the Notes to be transferred.
(b) Transfers to QIBs. The following provisions shall apply with
------------------
respect to the registration of any proposed transfer of a Restricted Security to
a QIB:
(i) the Registrar shall register the transfer of any Restricted
Note, whether or not such Note bears the Private Placement Legend, if (x)
the requested transfer is after the second anniversary of the Issue Date;
provided, however, that neither the Company nor any Affiliate of the
-------- -------
Company has held any beneficial interest in such Note, or portion thereof,
at any time on or prior to the second an-
-49-
niversary of the Issue Date or (y) such transfer is being made by a
proposed transferor who has checked the box provided for on the form of
Note stating, or has otherwise advised the Company and the Registrar in
writing, that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who has signed the certification provided for on
the form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Note for its own account or
an account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule 144A,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as
it has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(ii) if the proposed transferee is a Participant and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the 144A Global Note, upon receipt by the
Registrar of written instructions given in accordance with the Depository's
and the Registrar's procedures, the Registrar shall register the transfer
and reflect on its book and records the date and an increase in the
principal amount of the 144A Global Note in an amount equal to the
principal amount of Physical Notes to be transferred, and the Trustee shall
cancel the Physical Note so transferred; and
(iii) if the proposed transferor is a Participant seeking to transfer
an interest in the IAI Global Note or the Regulation S Global Note, upon
receipt by the Registrar of written instructions given in accordance with
the Depository's and the Registrar's procedures, the Registrar shall
register the transfer and reflect on its books and records the date and (A)
a decrease in the principal amount of the IAI Global Note or the Regulation
S Global Note, as the case may be, in an amount equal to the principal
amount of the Notes to be transferred and (B) an increase in the principal
amount of the 144A Global Note in an amount equal to the principal amount
of the Notes to be transferred.
(c) Restrictions on Transfer and Exchange of Global Notes.
-----------------------------------------------------
Notwithstanding any other provisions of this Indenture,
-50-
a Global Note 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.
(d) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Notes not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver only Notes that
bear the Private Placement Legend unless (i) there is delivered to the Trustee
an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (ii) such Note has been sold pursuant to an effective registration
statement under the Securities Act.
(e) General. By its acceptance of any Note bearing the Private
-------
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Notes pursuant to paragraph 5 of the
Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the aggregate principal amount of the Notes to be redeemed.
Such notice must be given at least 30 days prior to the Redemption Date
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(unless a shorter notice shall be satisfactory to the Trustee), but shall not be
given more than 60 days before the Redemption Date. Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.02. Selection of Notes To Be Redeemed.
---------------------------------
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption will be made by the Trustee in compliance with
the requirements of the principal national securities exchange, if any, on which
the Notes are listed as certified to the Trustee by the Company, or, in the
absence of such requirements or if the Notes are not so listed, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided, however, that no Notes of $1,000 or less shall be redeemed in part. On
-------- -------
and after the Redemption Date, interest shall cease to accrue on the Note or
portions of them called for redemption; provided, further, however, that if a
-------- ------- -------
partial redemption is made with the proceeds of an Equity Offering, selection of
the Notes or portions thereof for redemption shall be made by the Trustee only
on a pro rata basis or on as nearly a pro rata basis as is practicable (subject
to DTC procedures), unless such method is otherwise prohibited.
SECTION 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a Redemption Date,
and, in the case of an Equity Proceeds Offer within 30 days following the date
upon which the relevant Equity Offering is consummated, the Company shall mail
or cause to be mailed a notice of redemption by first-class mail to each Holder
whose Notes are to be redeemed at its registered address, with a copy to the
Trustee. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice for
redemption shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest, if any,
to be paid (the "Redemption Price");
(3) the paragraph and subparagraph of the Notes pursuant to which the
Notes are being redeemed;
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(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(6) that, unless the Company defaults in making the redemption
payment, interest, if any, on Notes called for redemption shall cease to
accrue on and after the Redemption Date, and the only remaining right of
the Holders of such Notes is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Notes redeemed;
(7) that, if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, and upon surrender of such Note, a new Note or Notes in the aggregate
principal amount equal to the unredeemed portion thereof will be issued;
and
(8) that, if less than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding after such partial
redemption.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price. Upon surrender to the Trustee or Paying Agent, such Notes
called for redemption shall be paid at the Redemption Price, but installments of
interest, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant record
dates referred to in the Notes. Interest shall accrue on or after the Redemption
Date and shall be payable only if the Company defaults in payment of the
Redemption Price.
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SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or before 11:00 a.m. New York City time on the Redemption Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price of all Notes to be redeemed on that date. The Paying
Agent shall promptly return to the Company any U.S. Legal Tender so deposited
that is not required for that purpose, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven.
Unless the Company fails to comply with the preceding paragraph and
defaults in the payment of such Redemption Price, interest on the Notes to be
redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment.
SECTION 3.06. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is to be redeemed in part, the Trustee
shall authenticate for the Holder a new Note or Notes equal in principal amount
to the unredeemed portion of the Note surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
----------------
The Company shall pay the interest on the Notes on the dates and in
the manner provided in the Notes. An installment of principal of or interest on
the Notes shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds on
that date U.S. Legal Tender designated for and sufficient to pay in a timely
manner the installment in full and is not prohibited from paying such money to
the Holders, pursuant to the terms of this Indenture. Interest will be computed
on the basis of a 360-day year comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in this Indenture,
the Company may, to the extent it is required to do so by law, deduct or
withhold income or other similar taxes imposed by the United States of America
from principal, premium or interest payments hereunder.
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SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
SECTION 4.03. Corporate Existence.
-------------------
Except as otherwise permitted by Article Five, the Company shall do
or cause to be done all things reasonably necessary to preserve and keep in full
force and effect its corporate or other existence and the corporate or other
existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents of each such Restricted Subsidiary and the
material rights (charter and statutory) and franchises of the Company and each
such Restricted Subsidiary; provided, however, that the Company shall not be
-------- -------
required to preserve, with respect to itself, any material right or franchise
and, with respect to any of its Restricted Subsidiaries, any such existence,
material right or franchise, if the Board of Directors of the Company or such
Restricted Subsidiary, as the case may be, shall determine that the preservation
thereof is no longer reasonably necessary or desirable in the conduct of the
business of the Company or any such Restricted Subsidiary.
SECTION 4.04. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all material lawful claims
for labor, materials, supplies and services that, if unpaid, might by law become
a Lien upon the property of it or any of its Subsidiaries; provided, however,
-------- -------
that there shall not be required to be paid or discharged any such tax,
assessment or charge, the amount, applicability or validity of which is being
contested in good faith by appropriate proceedings and for which adequate
provision has been made or for which adequate reserves, to the extent required
un-
-55-
der GAAP, have been taken or where the failure to effect such payment or
discharge is not adverse in any material respect to the Holders.
SECTION 4.05. Maintenance of Properties and Insurance.
---------------------------------------
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, maintain its material properties in normal condition (subject
to ordinary wear and tear) and make all reasonably necessary repairs, renewals
or replacements thereto as in the judgment of the Company may be reasonably
necessary to the conduct of the business of the Company and its Restricted
Subsidiaries; provided, however, that nothing in this Section 4.05 shall prevent
-------- -------
the Company or any of its Restricted Subsidiaries from discontinuing the
operation and maintenance of any of its properties, if such properties are, in
the reasonable and good faith judgment of the Board of Directors of the Company
or the Restricted Subsidiary, as the case may be, no longer reasonably necessary
in the conduct of their respective businesses.
(b) The Company shall provide or cause to be provided, for itself and
each of its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith judgment of the Board of Directors of the Company, are adequate and
appropriate for the conduct of the business of the Company and such Restricted
Subsidiaries in a prudent manner, with reputable insurers or with the government
of the United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Board of Directors of the Company, for companies
similarly situated in the industry.
SECTION 4.06. Compliance Certificate; Notice of Default.
-----------------------------------------
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each of the Company's fiscal years, an Officers' Certificate (signed
by the principal executive officer, principal financial officer and principal
accounting officer) stating that a review of its activities and the activities
of its Restricted Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing officers with a view to determining whether
it has kept, observed, performed and fulfilled its obligations under this
Indenture and further stating, as to each such officer signing such certificate,
that to the best of his knowledge the Company during such
-56-
preceding fiscal year has kept, observed, performed and fulfilled each and every
such obligation and no Default or Event of Default occurred during such year and
at the date of such certificate there is no Default or Event of Default that has
occurred and is continuing or, if such signers do know of such Default or Event
of Default, the certificate shall describe the Default or Event of Default and
its status with particularity. The Officers' Certificate shall also notify the
Trustee should the Company elect to change the manner in which it fixes its
fiscal year end.
(b) The annual financial statements delivered to the Trustee pursuant
to Section 4.08 shall be accompanied by a written report of the Company's
independent accountants that in conducting their audit of the financial
statements which are a part of such annual report or such annual financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Article Four, Five or Six of
this Indenture insofar as they relate to accounting matters or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) So long as any of the Notes are outstanding (i) if any Default or
Event of Default has occurred and is continuing or (ii) if any Holder seeks to
exercise any remedy hereunder with respect to a claimed Default under this
Indenture or the Notes, the Company shall promptly deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five Business Days of its
becoming aware of such occurrence.
SECTION 4.07. Compliance with Laws.
--------------------
The Company shall comply, and shall cause each of its Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial condition
or
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results of operations of the Company and its Restricted Subsidiaries taken as
a whole.
SECTION 4.08. Reports to Holders.
------------------
(a) The Company (at its own expense) will deliver to the Trustee
within 15 days after the filing of the same with the Commission, copies of the
quarterly and annual reports and of the information, documents and other
reports, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual information
only, a report thereon by the Company's certified independent accountants, if
any, which the Company is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
(b) Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will provide the Trustee and Holders with such annual reports and such
information, documents and other reports specified in Sections 13 and 15(d) of
the Exchange Act.
(c) In addition, whether or not required by the rules and regulations
of the Commission, at any time after the Company files the Exchange Offer
Registration Statement with the Commission, the Company will file a copy of all
such information with the Commission for public availability (unless the
Commission will not accept such a filing) and make such information available to
investors who request it in writing. The Company will also comply with the other
provisions of TIA (S) 314(a).
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, premium or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the obligations or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the
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execution of every such power as though no such law had been enacted.
SECTION 4.10. Limitation on Restricted Payments.
---------------------------------
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company) on or in respect of shares of the
Company's Equity Interests, (b) purchase, redeem or otherwise acquire or retire
for value any Equity Interests of the Company, (c) purchase, redeem or otherwise
acquire or retire for value any Indebtedness (other than the Notes) that is
subordinated to the Notes, except at final maturity, (d) make any Investments
(other than Permitted Investments) (all such payments and other actions set
forth in clauses (a) through (d) above being referred to as "Restricted
Payments"), if, at the time of or immediately after giving effect to such
Restricted Payment, (i) a Default or Event of Default has occurred and is
continuing or would result therefrom; (ii) the Company is not able to incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12; (iii) the aggregate amount of Restricted Payments
made subsequent to the Issue Date (the amount of any such payment, if other than
cash, to be determined by the Board of Directors, whose determination shall be
conclusive and evidenced by a resolution in an Officers' Certificate delivered
to the Trustee), together with the aggregate of all other Restricted Payments
made after the date of this Indenture (including Restricted Payments permitted
by the next succeeding paragraph other than pursuant to clauses (ii), (iii),
(iv), (vii), (ix) or (x) or (vi) (to the extent "key-man" life insurance
policies are used to make such redemptions or repurchases in respect thereof),
shall exceed the sum of (1) $5,000,000, plus (2) the sum of (x) 50% of the
Consolidated Net Income of the Company (or, if such Consolidated Net Income for
such period is a loss, minus 100% of such loss) earned subsequent to the Issue
Date and on or prior to the date the Restricted Payment occurs (the "Reference
Date") (treating such period as a single accounting period); plus (y) 100% of
the aggregate net proceeds received by the Company (including the fair market
value of property other than cash) from the issue or sale subsequent to the
Issue Date of Qualified Capital Stock of the Company or of Disqualified Capital
Stock or debt securities of the Company that have been converted into, or
exchanged for, such Qualified Capital Stock (other than Qualified Capital Stock
sold or issued to a Subsidiary of the Company), plus (3) 100% of the aggregate
pro-
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ceeds (including the fair value of property other than cash) received by the
Company as capital contributions to the Company after the date on which the
Notes are originally issued, plus (4) the amount of the net reduction in
Investments in Unrestricted Subsidiaries resulting from (A) the payment of cash
dividends or the repayment in cash of the principal of loans or the cash return
on any Investment, in each case to the extent received by the Company or any
Wholly Owned Restricted Subsidiary of the Company from Unrestricted Subsidiaries
and to the extent not included in Consolidated Net Income, (B) to the extent
that any Restricted Investment that was made after the date of this Indenture is
sold for cash or otherwise liquidated or repaid for cash and to the extent such
proceeds are not included in Consolidated Net Income, the after-tax cash return
of capital with respect to such Restricted Investment (less the cost of
disposition, if any) and (C) the redesignation of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued as provided in the definition of "Investment"),
such aggregate amount of the net reduction in Investments not to exceed in the
case of any Unrestricted Subsidiary, the amount of Restricted Investments
previously made by the Company or any Restricted Subsidiary in such Unrestricted
Subsidiary, which amount was included in the calculation of the amount of
Restricted Payments.
Notwithstanding the foregoing, these provisions do not prohibit (i)
the payment of any dividend within 60 days after the date of declaration
thereof, if at said date of declaration such payment would have complied with
the provisions of this Indenture; (ii) the redemption, repurchase, retirement or
other acquisition of any Equity Interests of the Company, or the defeasance,
redemption or repurchase of subordinated Indebtedness in exchange for, or out of
the proceeds of, the substantially concurrent sale (other than to a Subsidiary
of the Company) of Equity Interests of the Company (other than any Disqualified
Stock) or out of the proceeds of a substantially concurrent cash capital
contribution received by the Company; (iii) the defeasance, redemption or
repurchase of subordinated Indebtedness with the net proceeds from an incurrence
of Refinancing Indebtedness; (iv) the making of Restricted Payments to Holdings
to be used by Holdings to pay its reasonable out-of-pocket operating and
administrative expenses, including directors' fees, legal and audit expenses,
Commission compliance expenses and corporate franchise and other taxes; provided
--------
that no such payments may be made to any Affiliate of Holdings; (v) the making
of Investments in joint ventures that are engaged in a Permitted Business in an
--------------
aggregate amount not to exceed $10,000,000; (vi) the making of Restricted
Payments to
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Holdings of up to $2,000,000 per year or $5,000,000 in the aggregate (which
amount shall be increased by the aggregate amount of (x) net cash proceeds from
sales of Capital Stock of Holdings to management employees subsequent to the
date of this Indenture to the extent contributed to the Company and not
otherwise applied to any calculation under clause (y) of the immediately
preceding paragraph to make a Restricted Payment and (y) any "key-man" insurance
policies that are used to make such redemptions or repurchases), net of the cash
proceeds received by the Company from subsequent reissuances of such Equity
Interests to new members of management, to be used by Holdings to redeem,
repurchase or retire for value any Equity Interests of Holdings held by one or
more employees of Holdings or the Company or any of its Subsidiaries in
connection with the termination of such employee's or employees' employment with
such employer for any reason; provided that the cancellation of Indebtedness
--------
owing to the Company from members of management of the Company or any of its
Restricted Subsidiaries in connection with a repurchase of Capital Stock of
Holdings will not be deemed to constitute a Restricted Payment under this
Indenture; (vii) the making of Restricted Payments to or for the benefit of
Holdings pursuant to the Tax Sharing Agreement or the Holdings Service Agreement
in each case as in effect on the Issue Date; (viii) the acquisition by a
Receivables Subsidiary in connection with a Qualified Receivables Transaction of
Equity Interests of a trust or other Person established by such Receivables
Subsidiary to effect such Qualified Receivables Transaction; (ix) so long as no
Default or Event of Default shall have occurred and be continuing, payments to
Holdings not to exceed $100,000 in the aggregate, to enable Holdings to make
payments to holders of its Capital Stock in lieu of issuance of fractional
shares of its Capital Stock; and (x) repurchases of Capital Stock deemed to
occur upon the exercise of stock options if such Capital Stock represents a
portion of the exercise price thereof.
SECTION 4.11. Limitations on Transactions with Affiliates.
-------------------------------------------
(a) The Company will not and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, conduct any business or
enter into any transaction or series of transactions with or for the benefit of
any of their Affiliates involving aggregate consideration in excess of $1.0
million (each an "Affiliate Transaction") other than (x) Affiliate Transactions
permitted under paragraph (b) below and (y) Affiliate Transactions on terms that
are not materially less favorable to the Company than those that could have been
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obtained in a comparable transaction on an arm's-length basis from a Person not
an Affiliate of the Company. With respect to all Affiliate Transactions
involving aggregate payments equal to or in excess of $5,000,000 and less than
$10,000,000, the Company or such Restricted Subsidiary, as the case may be,
shall have delivered a resolution of the Board of Directors of the Company set
forth in an officers' certificate to the Trustee certifying that such
transaction or series of transactions complies with clause (y) above. All
Affiliate Transactions (and each series of related Affiliate Transactions which
are similar or part of a common plan) involving aggregate payments or other
property with a fair market value in excess of $10,000,000, the Company or such
Restricted Subsidiary, as the case may be, shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of such transaction or
series of related transactions to the Company or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view from an
investment bank of national standing with an expertise in underwriting
non-investment grade debt securities and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to (i)
any employment agreement or stock option agreement entered into by the Company
or any of its Restricted Subsidiaries in the ordinary course of business; (ii)
transactions between or among the Company and its Restricted Subsidiaries; (iii)
transactions permitted by Section 4.10; (iv) the payment of reasonable fees to
directors of the Company or its Restricted Subsidiaries; (v) 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 of the Company entered into in the ordinary course of business
and approved by the Board of Directors, (vi) transactions exclusively between or
among the Company and/or its Wholly Owned Restricted Subsidiaries; provided that
--------
such transactions are not otherwise prohibited by this Indenture, transactions
exclusively between a Receivables Subsidiary and any Person in which the
Receivables Subsidiary has an Investment in connection with a Qualified
Receivable Transaction; (vii) any agreements as in effect as of the Issue Date
or any amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) in any replacement agreement thereto so long
as any such amendment or replacement is not more disadvantageous to the Holders
in any material respect than the original agreement as in effect on the Issue
Date; (viii) reasonable fees and related expenses paid to the Principals and
their Affiliates for management, consulting and advisory services as determined
in good
-62-
faith by the Company's Board of Directors or senior management; (ix) payments by
the Company or any of its Restricted Subsidiaries to the Principals and their
Affiliates made pursuant to any financial advisory, financing, underwriting or
placement agreement as in effect as of the Issue Date or any amendment thereto,
or any transaction contemplated thereby (including pursuant to any amendment
thereto) or any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders in any material
respect than the original agreement as in effect on the Issue Date; (x) payments
or loans to employees or consultants which are approved by the Board of
Directors of the Company in good faith; (xi) transactions permitted by, and
complying with the provisions of Section 5.01; and (xii) transactions with
customers, clients, suppliers, joint venture partners or purchasers or sellers
of goods or services, in each case in the ordinary course of business
(including, without limitation, pursuant to joint venture agreements) and
otherwise in compliance with the terms of this Indenture which 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 4.12. Limitation on Additional Indebtedness
and Issuance of Preferred Stock.
-------------------------------------
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee, acquire, become liable contingently or otherwise, with
respect to, or otherwise become responsible for payment of any Indebtedness
(other than Permitted Indebtedness), and the Company will not permit any of its
Subsidiaries to issue any shares of Preferred Stock other than Permitted
Subsidiary Preferred Stock; provided, however, that if no Default or Event of
-------- -------
Default shall have occurred or be continuing at the time of or as a consequence
of the incurrence of such Indebtedness or issuance of Preferred Stock, the
Company or any of its Restricted Subsidiaries that are Guarantors may incur
Indebtedness and Restricted Subsidiaries that are Guarantors may issue shares of
Preferred Stock if on the date of the incurrence of such Indebtedness or
issuance of such Preferred Stock, after giving effect to the incurrence or
issuance thereof, the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial statements
are available immediately preceding the date on which such additional
Indebtedness is incurred or such Pre-
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ferred Stock is issued, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred, or the Preferred Stock had been issued, as the case may be,
at the beginning of such four-quarter period would have been greater than 2.0 to
1.0 for Indebtedness incurred or Preferred Stock issued on or prior to July 15,
2000 and 2.25 to 1.0 thereafter.
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
-----------------------------------------------------
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or consensual
restriction on the ability of any Restricted Subsidiary to (a) pay dividends or
make any other distributions to the Company or any of its Restricted
Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest
or participation in, or measured by, its profits, (b) pay any indebtedness owed
to the Company or any of its Subsidiaries, (c) make loans or advances or pay any
indebtedness owed to the Company or any of its Subsidiaries or (d) transfer any
of its property or assets to the Company or any of its Subsidiaries, except for
such encumbrances or restrictions existing under or by reason of (1) Existing
Indebtedness as in effect on the date of this Indenture, (2) this Indenture, the
Notes and the Guarantees, (3) applicable law, (4) any instrument governing
Indebtedness or Capital Stock of a Person acquired by the Company or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to
the extent such Indebtedness was incurred in connection with or in contemplation
of such acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, (5) customary nonassignment
provisions in contracts entered into in the ordinary course of business, (6)
Purchase Money Obligations for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (d) above on
the property so acquired, (7) any restriction or encumbrance contained in
contracts for sale of assets permitted by Section 4.15 in respect of the assets
being sold pursuant to such contracts, (8) Indebtedness or other contractual
requirements of a Receivables Subsidiary in connection with a Qualified
Receivables Transaction, provided that such restrictions apply only to such
Receivables Subsidiary, (9) restrictions on the transfer of assets subject to
any Lien permitted under this Inden-
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ture imposed by the holder of such Lien, (10) Refinancing Indebtedness;
provided, however, that the provisions relating to such restrictions contained
-------- -------
in such Refinancing Indebtedness are not less favorable to the Company in any
material respect as determined by the Board of Directors of the Company than the
provisions relating to such restrictions contained in the agreements referred to
in clause (a), (b), (c) or (d) above.
SECTION 4.14. Change of Control.
-----------------
(a) Upon a Change of Control, the Company will be required to make an
offer to repurchase the Notes pursuant to the offer described below (the "Change
of Control Offer"), at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of repurchase.
(b) Prior to the mailing of the notice referred to in paragraph (c)
below, but in any event within 30 days following any Change of Control, the
Company will (i) repay in full and terminate all commitments under indebtedness
under the Credit Agreement and all other Senior Debt the terms of which require
repayment upon a Change of Control or offer to repay in full and terminate all
commitments under all Indebtedness under the Credit Agreement and all other such
Senior Debt and to repay the Indebtedness owed to each lender that has accepted
such offer or (ii) obtain the requisite consents under the Credit Agreement and
all other Senior Debt to permit the repurchase of the Notes as provided below.
The Company shall first comply with the covenant in the immediately preceding
sentence before it shall be required to repurchase Notes pursuant to the
provisions described below. The Company's failure to comply with the immediately
preceding paragraph and the next paragraph shall constitute an Event of Default
described in clause (3) and not in clause (2) under Section 6.01.
(c) Within 30 days following the date upon which a Change of Control
occurs, the Company must send, by first class mail, a notice to each Holder,
with a copy to the Trustee, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant
to Section 4.14 of this Indenture and that all Notes validly tendered and
not withdrawn will be accepted for payment;
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(2) the purchase price (including the amount of accrued interest, if
any) and the purchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed, other than as may
be required by law) (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Change
of Control Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent and Registrar for the Notes at the address
specified in the notice prior to the close of business on the third
Business Day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(7) that Holders whose Notes are purchased only in part will be issued
new Notes in a principal amount equal to the unpurchased portion of the
Notes surrendered; provided, however, that each Note purchased and each new
-------- -------
Note issued shall be in a principal amount of $1,000 or integral multiples
thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control.
(d) On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Notes or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest, if any, of all Notes
so tendered and (iii) deliver to the Trustee Notes so ac-
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cepted together with an Officers' Certificate stating the Notes or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Notes so accepted payment in an amount equal to the purchase
price plus accrued interest, if any, and the Trustee shall promptly authenticate
and mail to such Holders new Notes equal in principal amount to any unpurchased
portion of the Notes surrendered. Any Notes not so accepted shall be promptly
mailed by the Company to the Holder thereof. For purposes of this Section 4.14,
the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a Change
of Control Offer shall be returned by the Trustee to the Company.
(e) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the "Change
of Control" provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations relating to such Change of Control Offer by virtue
thereof.
SECTION 4.15. Limitation on Asset Sales.
-------------------------
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless: (i) the Company or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors, the approval shall be evidenced by a Board
Resolution); (ii) at least 75% of the consideration received by the Company or
the Restricted Subsidiary, as the case may be, from such Asset Sale shall be
cash or Cash Equivalents and is received at the time of such disposition;
provided, however, that the amount of (A) any liabilities (as shown on the
-------- -------
Company's or such Restricted Subsidiary's most recent balance sheet or in the
notes thereto) of the Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated in right of payment to the
Notes) that are assumed by the transferee of any such assets and (B) any notes
or other obligations received by the Company or such Restricted Subsidiary from
such transferee that are immediately
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converted by the Company or such Restricted Subsidiary into cash (to the extent
of the cash received), shall be deemed to be cash for purposes of this
provision; and provided, further, that the 75% limitation referred to in this
-------- -------
clause (ii) shall not apply to any Asset Sale in which the cash portion of the
consideration received therefrom, determined in accordance with the foregoing
proviso, is equal to or greater than what the after-tax proceeds would have been
had such Asset Sale complied with the aforementioned 75% limitation; and (iii)
upon the consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset
Sale within 270 days of receipt thereof either (A) to prepay any Senior Debt
and, in the case of any Senior Debt under any revolving credit facility, effect
a permanent reduction in the availability under such revolving credit facility,
(B) to invest in another business, capital expenditures or other long-term
tangible assets, in each case, in the same or a similar line of business as the
Company or any Subsidiary was engaged in on the date of this Indenture
("Replacement Assets") or (C) a combination of payment and investment permitted
by clauses (A) and (B) above. On the 271st day after an Asset Sale or such
earlier date, if any, as the Board of Directors of the Company or of such
Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to
such Asset Sale as set forth in clauses (iii)(A), (iii)(B) or (iii)(C) of the
next preceding sentence (each, a "Net Proceeds Offer Trigger Date"), such
aggregate amount of Net Cash Proceeds which have not been applied on or before
such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B)
and (iii)(C) of the next preceding sentence (each, a "Net Proceeds Offer
Amount") shall be applied by the Company or such Subsidiary to make an offer to
purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment
Date") not less than 30 nor more than 45 days following the applicable Net
Proceeds Offer Trigger Date, from all Holders on a pro rata basis that amount of
--- ----
Notes equal to the Net Proceeds Offer Amount at a price equal to 100% of the
principal amount of the Notes to be purchased, plus accrued and unpaid interest
thereon, if any, to the date of purchase; provided, however, that if at any time
-------- -------
any non-cash consideration received by the Company or any Restricted Subsidiary
of the Company, as the case may be, in connection with any Asset Sale is
converted into or sold or otherwise disposed of for cash (other than interest
received with respect to any such non-cash consideration), then such conversion
or disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with this Section 4.15. A
transfer of assets by the Company to a Wholly Owned Restricted Subsidiary
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or by a Restricted Subsidiary to the Company or to another Wholly Owned
Restricted Subsidiary will not be deemed to be an Asset Sale.
(b) Notwithstanding the immediately preceding paragraph (a) the Company
and its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraph to the extent (i) at least 75% of the
consideration for such Asset Sale constitutes Replacement Assets, cash, Cash
Equivalents and/or marketable securities (i.e., such securities which would be
----
converted into cash within 180 days of the acquisition thereof) and (ii) such
Asset Sale is for fair market value (as determined in good faith by the
Company's Board of Directors); provided that any consideration not constituting
--------
Replacement Assets received by the Company or any of its Restricted Subsidiaries
in connection with any Asset Sale permitted to be consummated under this
paragraph shall be subject to the provisions of the preceding paragraph.
(c) Notwithstanding the foregoing, if a Net Proceeds Offer Amount is
less than $10,000,000, the application of the Net Cash Proceeds constituting
such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until
such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net
Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date
relating to such initial Net Proceeds Offer Amount from all Asset Sales by the
Company and its Restricted Subsidiaries aggregates at least $10,000,000, at
which time the Company or such Subsidiary shall apply all Net Cash Proceeds
constituting all Net Proceeds Offer Amounts that have been so deferred to make a
Net Proceeds Offer (the first date the aggregate of all such deferred Net
Proceeds Offer Amounts is equal to $10,000,000 or more shall be deemed to be a
"Net Proceeds Offer Trigger Date"). To the extent the aggregate amount of the
Notes tendered pursuant to the Net Proceeds Offer is less than the Net Proceeds
Offer Amount, the Company may use such deficiency for general corporate
purposes. Upon completion of such offer to purchase, the Net Proceeds Offer
Amount shall be reset at zero.
(d) Subject to the deferral right set forth in the final proviso of
Section 4.15(a), each notice of a Net Proceeds Offer pursuant to this Section
4.15 shall be mailed, by first-class mail, by the Company to Holders of Notes at
their last registered address not less than 30 days nor more than 60 days
following the Net Proceeds Offer Trigger Date, with a copy to the Trustee. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursu-
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ant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section 4.15
of this Indenture, that all Notes tendered will be accepted for payment;
provided, however, that if the aggregate principal amount of Notes tendered
-------- -------
in a Net proceeds Offer plus accrued interest at the expiration of such
offer exceeds the aggregate amount of the Net Proceeds Offer, the Company
shall select the Notes to be purchased on a pro rata basis (with such
--- ----
adjustments as may be deemed appropriate by the Company so that only Notes
in denominations of $1,000 or multiples thereof shall be purchased) and
that the Net Proceeds Offer shall remain open for a period of 20 Business
Days or such longer periods as may be required by law;
(2) the purchase price (including the amount of accrued interest) and
the Net Proceeds Offer Payment Date (which shall be not less than 30 nor
more than 45 days following the applicable Net Proceeds Offer Trigger Date
and which shall be at least five business Days after the Trustee receives
notice thereof from the Company);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Net Proceeds Offer shall cease to
accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Net
Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice prior
to the close of business on the Business Day prior to the Net Proceeds
Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Notes the holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased; and
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(7) that Holders whose Notes are purchased only in part will
be issued new Notes in a principal amount equal to the unpurchased
portion of the Note surrendered; provided, however, that each Note
-------- -------
purchased and each new Note issued shall be in an original principal
amount of $1,000 or integral multiples thereof.
On or before the Net Proceeds Offer Payment Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with item (d)(1) above,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if ant, of all Notes to be purchased and
(iii) deliver to the Trustee Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price plus accrued interest,
if any. For purposes of this Section 4.15, the Trustee shall act as the Paying
Agent.
Any amounts remaining after the purchase of Notes pursuant to a Net
Proceeds Offer shall be returned by the Trustee to the Company.
(e) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with the "Asset Sale"
provisions of this Section 4.15, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the "Asset Sale" provisions of this Section 4.15 by virtue
thereof. The agreements governing certain outstanding Senior Debt of the Company
will require that the Company and its Subsidiaries apply all proceeds from asset
sales to repay in full outstanding obligations under such Senior Debt prior to
the application of such proceeds to repurchase outstanding notes.
SECTION 4.16. Prohibition on Incurrence of Senior Subordinated Debt.
-----------------------------------------------------
Neither the Company nor any Guarantor will incur or suffer to exist
Indebtedness that is senior in right of payment to the Notes or such Guarantor's
Guarantee and subordinate in
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right of payment to any Senior Debt of the Company or Guarantees by such
Guarantor.
SECTION 4.17. Limitation on Liens.
-------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or permit or
suffer to exist or remain in effect any Liens of any kind against or upon any of
its property or assets of the Company or any of its Restricted Subsidiaries
whether owned on the Issue Date or acquired after the Issue Date, or any
proceeds therefrom unless (i) in the case of Liens securing Indebtedness that is
expressly subordinate or junior in right of payment to the Notes, the Notes are
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens and (ii) in all other cases, the Notes are equally and
ratably secured, except for (A) Liens existing as of the Issue Date and any
extensions, renewals or replacements thereof; (B) Liens securing Senior Debt
and/or Guarantor Senior Debt; (C) Liens securing the Notes and the Guarantees;
(D) Liens of the Company or a Wholly Owned Restricted Subsidiary on assets of
any Restricted Subsidiary of the Company; (E) Liens securing Indebtedness which
is incurred to refinance Indebtedness which has been secured by a Lien permitted
under this Indenture and which has been incurred in accordance with the
provisions of this Indenture; provided, however, that such Liens do not extend
-------- -------
to or cover any property or assets of the Company or any of its Subsidiaries not
securing the Indebtedness so refinanced; and (F) Permitted Liens.
SECTION 4.18. Conduct of Business.
-------------------
The Company and its Subsidiaries will not engage in any businesses
which are not the same, similar or related to or a reasonable extension,
development or expansion of, the businesses in which the Company and its
Subsidiaries are engaged on the Issue Date.
SECTION 4.19. Limitation on Issuances and Sales of Capital Stock of
Wholly Owned Restricted Subsidiaries.
-----------------------------------------------------
Other than in connection with the issuance of Preferred Stock issued in
accordance with the Fixed Charge Coverage Ratio under Section 4.12 and Permitted
Subsidiary Preferred Stock, the Company (i) will not, and will not cause or
permit any Wholly Owned Restricted Subsidiary of the Company to, transfer,
convey, sell, lease or otherwise dispose of any Capi-
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tal Stock of any Wholly Owned Restricted Subsidiary of the Company to any Person
(other than the Company or a Wholly Owned Restricted Subsidiary of the Company)
unless (a) such transfer, conveyance, sale, lease or other disposition is of all
of the Capital Stock of such Wholly Owned Restricted Subsidiary and (b) the Net
Cash Proceeds from such transfer, conveyance, sale, lease or other disposition
are applied in accordance with Section 4.15, and (ii) will not permit any Wholly
Owned Restricted Subsidiary of the Company to issue any of its Equity Interests
(other than, if necessary, shares of its Capital Stock constituting directors'
qualifying shares) to any Person other than to the Company or a Wholly Owned
Restricted Subsidiary of the Company.
SECTION 4.20. Guarantee of the Notes.
----------------------
(a) The Company will not permit any Restricted Subsidiary to Guarantee
any Indebtedness (other than (A) Indebtedness and other obligations under the
Credit Agreement, (B) Permitted Indebtedness of a Restricted Subsidiary, (C)
Indebtedness under any Currency Agreements or Commodity Agreements in reliance
on clause (vi) of the definition of Permitted Indebtedness, (D) Hedging
Obligations incurred in reliance on clause (iv) of the definition of Permitted
Indebtedness, or (E) Indebtedness incurred in reliance on clause (x) of the
definition of Permitted Indebtedness), unless such Restricted Subsidiary enters
into or has entered into a Guarantee of the Notes in accordance with the terms
of this Indenture (except if such Guarantee is a Guarantee by a Foreign
Subsidiary solely of the Indebtedness of another Foreign Subsidiary).
(b) Any such Guarantee of the Notes by a Restricted Subsidiary will be
subordinated to all Guarantor Senior Debt of such Subsidiary, including any
guarantee by such Restricted Subsidiary of the Company's obligations under the
Credit Agreement, on substantially the same terms as the Notes are subordinated
to Senior Debt of the Company. Any such Guarantee by a Restricted Subsidiary
will be limited in amount to an amount not to exceed the maximum amount that can
be guaranteed by that Restricted Subsidiary without rendering such Guarantee
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.
Notwithstanding the foregoing, any such Guarantee by a Restricted Subsidiary of
the Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged, without any further action required on
the part of the Trustee or any Holder, upon: (i) release of such Restricted
Subsidiary from its liability in respect of the
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Indebtedness in connection with which such Guarantee was executed and delivered
pursuant to the preceding paragraph (including any deemed release upon payment
in full of all obligations under such Indebtedness); or (ii) sale or other
disposition of a Restricted Subsidiary that is a Guarantor (other than to the
Company or an Affiliate of the Company) permitted by this Indenture, provided
that the proceeds of such sale or disposition are applied in accordance with the
provisions described under Section 4.15.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
----------------------------------------
(a) The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of the Company's assets, whether as an entirety or substantially as an entirety
to any Person unless:
(i) either (A) the Company is the surviving corporation or
the Person formed by or surviving any such consolidation or merger (if
other than the Company) or (B) the surviving person to which such sale,
assignment, transfer, lease, conveyance or other disposition (x) shall have
been made is a corporation, partnership or trust and validly existing under
the laws of the United States, any state thereof or the District of
Columbia and (y) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made and shall expressly assume, by supplemental indenture, in a form
reasonably satisfactory to the Trustee all the obligations of the Company
under the Notes and this Indenture and the Registration Rights Agreement;
(ii) immediately after such transaction no Default or Event of Default
exists; and
(iii) the Company or any Person formed by or surviving any such
consolidation or merger, or to which such sale, assignment, transfer,
lease, conveyance or other disposi-
-74-
tion shall have been made, will, at the time of such transaction and
after giving pro forma effect thereto (including giving effect to any
--- -----
Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such transaction) as if
such transaction had occurred at the beginning of the applicable four-
quarter period, be permitted to incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties and assets of one or
more Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
(c) Each Guarantor (other than any Guarantor whose Guarantee
is to be released in accordance with the terms of the Guarantee and this
Indenture in connection with any transaction complying with the provisions of
Section 4.15) will not, and the Company will not cause or permit any Guarantor
to, consolidate with or merge with or into any Person other than the Company or
any other Guarantor unless: (i) the entity formed by or surviving any such
consolidation or merger (if other than the Guarantor) or to which such sale,
lease, conveyance or other disposition shall have been made is a corporation
organized and existing under the laws of the United States or any State thereof
or the District of Columbia; (ii) such entity assumes by supplemental indenture
all of the obligations of the Guarantor on the Guarantee; (iii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; and (iv) immediately after giving effect to
such transaction and the use of any net proceeds therefrom on a pro forma basis,
--- -----
the Company could satisfy the provisions of clause (iii) of the first paragraph
of this Section 5.01. Any merger or consolidation of a Guarantor with and into
the Company (with the Company being the surviving entity) or another Guarantor
that is a Wholly Owned Restricted Subsidiary of the Company need only comply
with the following sentence of this Section 5.01. The Company or the surviving
entity shall have delivered to the Trustee an officers' certificate and an
opinion of counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction, such
supplemental
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indenture comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have been
satisfied.
SECTION 5.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation, combination or merger, or any transfer
of all or substantially all of the assets of the Company in accordance with
Section 5.01 in which the Company is not the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Notes with the same effect as if such successor
Person had been named as the Company herein. When a successor corporation
assumes all of the obligations of the Company hereunder and under the Notes and
agrees to be bound hereby and thereby, the predecessor shall be released from
such obligations.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
Each of the following shall be an "Event of Default":
(1) the failure to pay interest, if any, on any Notes when
the same becomes due and payable and the default continues for a period
of 30 days;
(2) the failure to pay the principal on any Notes, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including, the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer or Net Proceeds Offer)
(whether or not such payment shall be prohibited by the provisions of
this Indenture);
(3) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default
continues for a period of 30 days after the Company receives written
notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the
outstanding
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principal amount of the Notes (except in the case of a default with
respect to Section 5.01, which will constitute an Event of Default with
such notice requirement but without such passage of time requirement);
(4) one or more judgments in an aggregate amount in excess
of $10,000,000 (to the extent not covered by third-party insurance as
to which the insurance company has acknowledged coverage) shall have
been rendered against the Company or any of its Significant Restricted
Subsidiaries and such judgments remain undischarged, unpaid or unstayed
for a period of 60 days after such judgment or judgments become final
and non-appealable;
(5) a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company or any of its Restricted
Subsidiaries (other than a Receivables Subsidiary) (or the payment of
which is guaranteed by the Company or any of its Restricted
Subsidiaries (other than a Receivables Subsidiary)), whether such
Indebtedness now exists or is created after the Issue Date, which
default either (x) is caused by a failure to pay any such Indebtedness
at its stated final maturity and such failure continues for a period of
20 days or more or (y) relates to an obligation other than the
obligation to pay such Indebtedness at its stated final maturity and
results in the holder or holders of such Indebtedness causing such
Indebtedness to become due prior to its stated final maturity (which
acceleration is not rescinded, annulled or otherwise cured within 20
days of receipt by the Company or such Restricted Subsidiary of notice
of any such acceleration) and, in each case, the principal amount of
any such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal at stated
final maturity or the maturity of which has been so accelerated, in
each case with respect to which the default continues for a period of
20 days, aggregates $10,000,000 or more at any one time outstanding;
(6) any Guarantee by a Significant Restricted Subsidiary
being held in any judicial proceeding to be unenforceable or invalid or
failure of any Guarantee by a Significant Restricted Subsidiary to be
in full force and effect other than as permitted by the Indenture or
the denial or disaffirmance by any Guarantor that is a Signifi-
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cant Restricted Subsidiary of its obligations under its Guarantee;
(7) the Company or any Significant Restricted Subsidiary of the Company
(A) commences a voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (B) consents to the entry of a judgment, decree or order
for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to the appointment of a Custodian of it or for
substantially all of its property, (D) consents to or acquiesces in the
institution of a bankruptcy or an insolvency proceeding against it, (E)
makes a general assignment for the benefit of its creditors, or (F) takes
any corporate action to authorize or effect any of the foregoing; and
(8) a court of competent jurisdiction enters a judgment, decree or
order or relief in respect of the Company or any Significant Subsidiary of
the Company in an involuntary case or proceeding under any Bankruptcy Law,
which shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Company or any such Significant Restricted Subsidiary, (B) appoint a
Custodian of the Company or any such Significant Restricted Subsidiary or
for substantially all of its property or (C) order the winding up or
liquidation of its affairs; and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days.
SECTION 6.02. Acceleration.
------------
(a) If any Event of Default occurs and is continuing and has not been
waived pursuant to Section 6.04, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare the principal of and
accrued interest on all the Notes to be due and payable immediately;
provided, however, that so long as the Credit Agreement shall be in effect, if
-------- -------
an Event of Default shall have occurred and be continuing (other than an Event
of Default specified in Section 6.01(7) or (8) above with respect to the
Company), any such acceleration shall not be effective until the earlier of (x)
five business days following delivery of a notice of acceleration specifying the
respective Event of Default and stating that it is a "notice of acceleration" to
the Agent Bank under the Credit Agreement (but if only such Event of Default is
then continuing) and (y) the acceleration of any Indebtedness under the Credit
Agreement. The Trustee may withhold from Holders of
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the Notes notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest.
(b) If an Event of Default specified in Section 6.01(7) or (8) occurs
and is continuing with respect to the Company, all unpaid principal of and
premium, if any, and accrued and unpaid interest on all of the outstanding Notes
shall ipso facto become and be immediately due and payable without any
---- -----
declaration or other act on the part of the Trustee or any Holder.
(c) At any time after a declaration of acceleration with respect to the
Notes as described in Section 6.02(a), the Holders of a majority in principal
amount of the Notes may rescind and cancel such declaration and its consequences
(i) if the rescission would not conflict with any judgment or decree, (ii) if
all existing Events of Default have been cured or waived except nonpayment of
principal or interest, if any, that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest, if any, and overdue principal that
has become due otherwise than by such declaration of acceleration has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and (v) in
the event of the cure or waiver of an Event of Default of the type described in
clauses (vi), (vii) and (viii) in the description above of Events of Default,
the Trustee shall have received an Officers' Certificate and an opinion of
counsel that such Event of Default has been cured or waived. 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 by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or accrued and unpaid interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an
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Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
-----------------------
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority in
principal amount of the Notes may waive any existing Default or Event of Default
under this Indenture, and its consequences, except a default in the payment of
the aggregate principal amount of or interest, if any, on any Notes as specified
in clauses (1) and (2) of Section 6.01. When a Default or Event of Default is
waived, it is cured and ceases.
SECTION 6.05. Control by Majority.
-------------------
Subject to Section 2.09, the Holders of a majority in principal amount
of the then outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it, including, without limitation, any remedies
provided for in Section 6.03. Subject to Section 7.01, however, the Trustee may,
in its discretion, refuse to follow any direction that conflicts with any law or
this Indenture, that the Trustee determines may be unduly prejudicial to the
rights of another Holder (it being understood that the Trustee shall have no
duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders) or that may involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
-------- -------
proper by the Trustee, in its discretion, that is not inconsistent with such
direction.
SECTION 6.06. Limitation on Suits.
-------------------
A Holder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(1) the Holder gives to the Trustee notice of a continuing
Event of Default;
(2) Holders of at least 25% in aggregate principal amount of
the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(3) such Holders offer to the Trustee indemnity or security
against any loss, liability or expense to be in-
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curred in compliance with such request which is satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 45 days after
receipt of the request and the offer of satisfactory indemnity or security;
and
(5) during such 45-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium and interest on a Note, on or
after the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal or interest specified in
clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount of principal and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest at the rate set forth in the Notes and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
SECTION 6.09. 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
(including any claim for the
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reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relating to the Company or any other obligor upon the Notes, any of
their respective creditors or any of their respective property, and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
custodian in any such judicial proceedings is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07. The Company's payment obligations
under this Section 6.09 shall be secured in accordance with the provisions of
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Sections 6.09 and 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, respectively; and
Fourth: to the Company or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
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The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
aggregate principal amount of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent Person would exercise or use under the circumstances in the
conduct of its own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) The Trustee need perform only those duties as are specifically set
forth in this Indenture or the TIA and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture that are
adverse to the Trustee.
(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 (including Officers'
Certifi-
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xxxxx) or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However,
as to any certificates or opinions which are required by any provision
of this Indenture to be delivered or provided to the Trustee, the
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained,
the Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section 7.01.
(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.
(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 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
(g) In the absence of bad faith, negligence or willful
misconduct on the part of the Trustee, the Trustee shall
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not be responsible for the application of any money by any Paying Agent other
than the Trustee.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 13.05 and 13.06. The Trustee shall
not be liable for and shall be fully protected in respect of any action it
takes or omits to take in good faith in reliance on such Officers'
Certificate, or an Opinion of Counsel or advice of counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith that it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate (including any
Officers' Certificate), statement, instrument, opinion (including any
Opinion of Counsel), notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled, upon reasonable notice to
the Company, to examine the books, records, and premises of the Company,
personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this
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Indenture at the request, order or direction of any of the Holders of the
Notes pursuant to the provisions of this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred by it in
compliance with such request, order or direction.
(g) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Notes shall be full and complete authorization and protection from
liability with 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.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any
Restricted or Unrestricted Subsidiary, or their respective Affiliates, with the
same rights it would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes, and it shall not be accountable for the Company's
use of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or the Notes other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and if
the Trustee has actual knowledge of such Default or Event of Default, the
Trustee shall mail to each Noteholder notice of the uncured Default or Event of
Default within 60 days after such Default or Event of Default occurs. Except in
the case of a Default or an Event of Default in the payment of interest or
principal of, premium or interest on, any Note, including an accelerated payment
and the failure to make pay-
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ment on the Change of Control Payment Date pursuant to a Change of Control Offer
or on the Proceeds Purchase Date pursuant to a Net Proceeds Offer and, except in
the case of a failure to comply with Article Five, the Trustee may withhold the
notice if and so long as its Board of Directors, the executive committee of its
Board of Directors or a committee of its Board of Directors and/or Trust
Officers in good faith determines that withholding the notice is in the interest
of the Holders. The Trustee shall not be deemed to have knowledge of a Default
or Event of Default other than (i) any Event of Default occurring pursuant to
Sections 6.01(1) or 6.01(2); or (ii) any Default or Event of Default of which a
Trust Officer shall have received written notification or obtained actual
knowledge. As used herein, the term "actual knowledge" means the actual fact or
statement of knowing, without any duty to make any investigation with regard
thereto.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
Within 60 days after May 15 of each year beginning with May 15, 1998,
the Trustee shall, to the extent that any of the events described in TIA (S)
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Noteholder a brief report dated as of such date that complies with TIA (S)
313(a). The Trustee also shall comply with TIA (S)(S) 313(b) and 313(c).
A copy of each report at the time of its mailing to Noteholders shall
be mailed to the Company and filed with the SEC and each stock exchange, if any,
on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any stock exchange, and if the Notes are so listed, the Trustee shall
comply with TIA (S) 313(d).
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as may be agreed upon by the
Company and the Trustee. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by it in connection with the
performance of its duties and the discharge of its obligations under this
Indenture. Such
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expenses shall include the reasonable fees and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee and its agents, employees,
officers, stockholders and directors for, and hold them harmless against, any
loss, liability or expense incurred by them except for such actions to the
extent caused by any negligence, bad faith or willful misconduct on their part,
arising out of or in connection with the acceptance or administration of this
trust including the reasonable costs and expenses of defending themselves
against or investigating any claim or liability in connection with the exercise
or performance of any of the Trustee's rights, powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee or any of its agents, employees, officers, stockholders and directors
for which it may seek indemnity. At the Trustee's sole discretion, the Company
shall defend the claim and the Trustee shall cooperate and may participate in
the defense; provided that any settlement of a claim shall be approved in
--------
writing by the Trustee. Alternatively, the Trustee may at its option have
separate counsel of its own choosing and the Company shall pay the reasonable
fees and expenses of such counsel; provided, however, that the Company will not
-------- -------
be required to pay such fees and expenses if it assumes the Trustee's defense
and there is no conflict of interest between the Company and the Trustee and its
agents, employees, officers, stockholders and directors subject to the claim in
connection with such defense as reasonably determined by the Trustee. The
Company need not pay for any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(7) or (8) occurs, such expenses and the
compensation for such services shall be paid to the extent allowed under any
Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company in writing at
least 10 days in advance. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by so notifying the Company and the
Trustee and may appoint a successor Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only with
the successor Trustee's acceptance of appointment as provided in this Section.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in aggregate principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided, however, that
-------- -------
such corporation shall be otherwise qualified and eligible under this Article
Seven.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirement of TIA (S)(S) 310(a)(1), (2) and (5). The Trustee (or in the case of
a corporation included in a bank holding company system, the related bank
holding company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding company,
shall meet the capital requirements of TIA (S) 310(a)(2). 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
notes, or certificates of interest or participation in other notes, of the
Company are outstanding, if the requirements for such exclusion set forth in TIA
(S) 310(b)(1) are met. The provisions of TIA (S) 310 shall apply to the Company
and any other obligor of the Notes.
SECTION 7.11. Preferential Collection of
Claims Against the 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 therein. The
provisions of
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TIA (S) 311 shall apply to the Company and any other obligor of the Notes.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01. Termination of the Company's Obligations.
----------------------------------------
The Company may terminate its obligations under the Notes and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 8.01, if all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes which have been replaced or paid or Notes
for whose payment U.S. Legal Tender has theretofore been deposited with the
Trustee or the Paying Agent in trust or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section 8.05) have
been delivered to the Trustee for cancellation and the Company has paid
sums payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, the Company shall have given
notice to the Trustee and mailed a notice of redemption to each Holder of
the redemption of all the Notes under arrangements satisfactory to the
Trustee for the giving of such notice or (ii) all Notes have otherwise
become due and payable hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the benefit
of the Holders for that purpose, U.S. Legal Tender in such amount as is
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, without consideration of reinvestment of such interest,
to pay principal of, premium, if any, and interest on the outstanding Notes
to maturity or redemption; provided that the Trustee shall have been
--------
irrevocably instructed to apply such U.S. Legal Tender to the payment of
said principal, premium, if any, interest with respect to the Notes and,
provided, further, that from and after the time of deposit, the money
-------- -------
deposited shall not be subject to the rights of holders of Senior Debt
pursuant to the provisions of Article Ten;
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(c) no Default or Event of Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such deposit
or shall occur as a result of such deposit and such deposit will not result
in a breach or violation of, or constitute a default under, any other
instrument to which the Company is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by it
hereunder; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for or relating to the termination of the Company's
obligations under the Notes and this Indenture have been complied with.
Such Opinion of Counsel shall also state that such satisfaction and
discharge does not result in a default under the Credit Agreement (if then
in effect) or any other agreement or instrument then known to such counsel
that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 8.05 and 8.06 shall survive
until the Notes are no longer outstanding pursuant to the last paragraph of
Section 2.08. After the Notes are no longer outstanding, the Company's
obligations in Sections 7.07, 8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes and this Indenture except for those surviving obligations specified
above.
SECTION 8.02. Legal Defeasance and Covenant Defeasance.
----------------------------------------
(a) The Company may, at its option by Board Resolution of the Board
of Directors of the Company, at any time, elect to have either paragraph (b) or
(c) below be applied to all outstanding Notes upon compliance with the
conditions set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.03, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter,
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"Legal Defeasance"). For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.04 hereof and the other Sections of this
Indenture referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), and Holders of the Notes and any amounts deposited
under Section 8.03 hereof shall cease to be subject to any obligations to, or
the rights of, any holder of Senior Debt under Article Ten or otherwise, except
for the following provisions, which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of and interest
on such Notes when such payments are due, (ii) the Company's obligations with
respect to such Notes under Article Two and Section 4.02 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (iv) this Article Eight.
Subject to compliance with this Article Eight, the Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.03 hereof, be released
from its obligations under the covenants contained in Sections 4.11 through 4.20
and Article Five hereof with respect to the outstanding Notes on and after the
date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes) and Holders of the Notes and any amounts deposited under Section 8.03
hereof shall cease to be subject to any obligations to, or the rights of, any
holder of Senior Debt under Article Ten or otherwise. For this purpose, such
Covenant Defeasance means that, with respect to the outstanding Notes, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such
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covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
6.01(3) hereof, but, except as specified above, the remainder of this Indenture
and such Notes shall be unaffected thereby. In addition, upon the Company's
exercise under paragraph (a) hereof of the option applicable to this paragraph
(c), subject to the satisfaction of the conditions set forth in Section 8.03
hereof, Sections 6.01(3), 6.01(4), 6.01(5) and 6.01(6) shall not constitute
Events of Default.
SECTION 8.03. Conditions to Legal Defeasance
or Covenant Defeasance.
------------------------------
The following shall be the conditions to the application of either
Section 8.02(b) or 8.02(c) hereof to the outstanding Notes:
(a) the Company shall have irrevocably deposited with the Trustee, in
trust, for the benefit of the Holders cash in U.S. dollars, non-callable
U.S. Government Obligations, or a combination thereof, in such amount as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any,
and interest on the Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be;
(b) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee an opinion of counsel in the United States reasonably
acceptable to the Trustee confirming that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling
or (B) since the date of the Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such opinion of counsel shall confirm that, the Holders will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee
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confirming that the 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default with respect to the Indenture resulting from the incurrence of
Indebtedness all or a portion of which will be used to defease the Notes
concurrently with such incurrence) or insofar as Events of Default from
bankruptcy or insolvency events are concerned, at any time in the period
ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under the Indenture or
any other material agreement or instrument to which the Company is a party
or by which the Company is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an opinion of
counsel to the effect that (A) the trust funds will not be subject to any
rights of holder of Senior Debt, including, without limitation, those
arising under the Indenture and (B) after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
SECTION 8.04. Application of Trust Money.
--------------------------
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or
U.S. Government Obligations deposited with it pursuant to Article Eight, and
shall apply the deposited U.S.
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Legal Tender and the money from U.S. Government Obligations in accordance with
this Indenture to the payment of principal of and interest on the Notes. The
Trustee shall be under no obligation to invest said U.S. Legal Tender or U.S.
Government Obligations except as it may agree with the Company.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.03 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any U.S. Legal Tender or U.S. Government Obligations held by it as
provided in Section 8.03 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
SECTION 8.05. Repayment to the Company.
------------------------
Subject to Section 8.01, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess U.S. Legal Tender or U.S.
Government Obligations held by them at any time and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years; provided that the
--------
Trustee or such Paying Agent, before being required to make any payment, may at
the expense of the Company cause to be published once in a newspaper of general
circulation in the City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein which shall be at least 30 days from the date of such publication or
mailing any unclaimed balance of such money then remaining will be repaid to the
Company. After payment to the Company, Holder entitled to such money must look
to the Company for payment as general creditors unless an applicable law
designates another Person.
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SECTION 8.06. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Article Eight 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 Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Article
Eight until such time as the Trustee or Paying Agent is permitted to apply all
such U.S. Legal Tender or U.S. Government Obligations in accordance with Article
Eight; provided that if the Company has made any payment of interest on or
--------
principal of any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the U.S. Legal Tender or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
--------------------------
The Company and the Guarantors, when authorized by a Board Resolution
and the Trustee, together, may amend or supplement this Indenture or the Notes
without the consent of any Holders:
(1) to cure any ambiguity, defect or inconsistency, so long as such
change does not, in the opinion of the Trustee, adversely affect the rights
of any of the Holders in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(4) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA;
(5) to make any other change that would provide any additional
benefit or rights to the Holders or that does
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not adversely affect in any material respect the rights of any Noteholders
hereunder;
(6) to provide for issuance of the Exchange Notes, which will have
terms substantially identical in all material respects to the Initial Notes
(except that the transfer restrictions contained in the Initial Notes will
be modified or eliminated, as appropriate), and which will be treated
together with any outstanding Initial Notes, as a single issue of
securities; or
(7) to make any other change that does not, in the opinion of the
Trustee, adversely affect in any material respect the rights of any Holders
hereunder;
provided, however, that the Company has delivered to the Trustee an Opinion of
-------- -------
Counsel and an Officers' Certificate, each stating that such amendment or
supplement complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
-----------------------
(a) Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder or
Holders of at least a majority in aggregate principal amount of the outstanding
Notes, may amend or supplement this Indenture or the Notes, without notice to
any other Holders. Subject to Section 6.07, the Holder or Holders of a majority
in aggregate principal amount of the outstanding Notes may waive compliance by
the Company with any provision of this Indenture or the Notes without notice to
any other Holder. No amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, shall, without the consent of each Holder of each Note
affected thereby:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, if any, including defaulted interest, on any
Notes;
(3) reduce the principal of or change or have the effect of changing
the fixed maturity of any Notes, or change the date on which any Notes may
be subject to redemption or repurchase, or reduce the redemption or
repurchase price therefor;
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(4) make any Notes payable in money other than that stated in the
Notes;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal and interest, if any,
on such Note on or after the due date thereof or to bring suit to enforce
such payment, or permitting Holders of a majority in principal amount of
Notes to waive Defaults or Events of Default;
(6) amend, change or modify in any material respect the obligation of
the Company to make and consummate a Net Proceeds Offer with respect to any
Asset Sale that has been consummated or modify any of the provisions or
definitions with respect thereto;
(7) modify or change any provision of this Indenture or the related
definitions affecting the subordination or ranking of the Notes or any
Guarantee in a manner that adversely affects the Holders; or
(8) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with the terms of
this Indenture.
(b) Without the consent of at least 80% in principal amount of the
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange offer for Notes), no waiver or amendment to this Indenture may
make any change in the provisions described above under Section 4.14 if such
change would adversely affect the rights of any Holder of Notes. Notwithstanding
the foregoing, without the consent of any Holder of Notes, the Company and the
Trustee may amend or supplement this Indenture or the Notes to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's or any Guarantor's obligations to Holders of the Notes in the case
of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under this Indenture of any such Holder, or to
comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form
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of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective (as provided in Section 9.04), the Company shall mail to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 9.03. Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to his Note or portion of his Note by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver (at which time such amendment, supplement or
waiver shall become effective).
The Company may, but shall not be obligated to, fix such record date
as it may select for the purpose of determining the Holders entitled to consent
to any amendment, supplement or waiver. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
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SECTION 9.05. Notation on or Exchange of Notes.
--------------------------------
If an amendment, supplement or waiver changes the terms of a Note,
the Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
-------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to and adopted in accordance with this Article Nine;
provided, however, that the Trustee may, but shall not be obligated to, execute
-------- -------
any such amendment, supplement or waiver which affects the Trustee's own rights,
duties or immunities under this Indenture. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel and
an Officers' Certificate each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture. Such Opinion of Counsel shall not be an expense of
the Trustee.
ARTICLE TEN
SUBORDINATION OF NOTES
SECTION 10.01. Notes Subordinated to Senior Debt.
---------------------------------
The Company covenants and agrees, and the Trustee and each Holder of
the Notes, by its acceptance thereof, likewise covenants and agrees, that all
Notes shall be issued subject to the provisions of this Article Ten; and the
Trustee and each Person holding any Note, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that the payment of
all Obligations on the Notes by the Company shall, to the extent and in the
manner herein set forth, be subordinated and junior in right of payment to the
prior payment in full in cash or Cash Equivalents of all Obligations on the
Senior Debt; that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Debt, and that each holder of
Senior Debt whether now outstanding or hereafter created, incurred, assumed or
guaranteed shall
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be deemed to have acquired Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Notes.
SECTION 10.02. No Payment on Notes in
Certain Circumstances.
---------------------
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of or regularly accruing fees with respect to any Senior Debt, no
payment of any kind or character shall be made by or on behalf of the Company or
any other Person on its or their behalf with respect to any Obligations on the
Notes or to acquire any of the Notes for cash or property or otherwise. In
addition, if any other event of default occurs and is continuing with respect to
any Designated Senior Debt, as such event of default is defined in the
instrument creating or evidencing such Designated Senior Debt, permitting the
holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives written notice of the event of default to the
Trustee (a "Default Notice"), then, unless and until all events of default have
been cured or waived or have ceased to exist or the Trustee receives notice from
the Representative for the respective issue of Designated Senior Debt
terminating the Blockage Period (as defined below), during the 179 days after
the delivery of such Default Notice (the "Blockage Period"), neither the Company
nor any other Person on its behalf shall (x) make any payment of any kind or
character with respect to any Obligations on the Notes or (y) acquire any of the
Notes for cash or property or otherwise. Notwithstanding anything herein to the
contrary, in no event will a Blockage Period extend beyond 179 days from the
date the payment on the Notes was due and only one such Blockage Period may be
commenced within any 360 consecutive days. No event of default which existed or
was continuing on the date of the commencement of any Blockage Period with
respect to the Designated Senior Debt shall be, or be made, the basis for
commencement of a second Blockage Period by the Representative of such
Designated Senior Debt whether or not within a period of 360 consecutive days
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days (it being acknowledged that any subsequent action
or any breach of any financial covenants for a period commencing after the date
of commencement of such Blockage Period that, in either case, would give rise to
an event of default pursuant to any provi-
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sions under which an event of default previously existed or was continuing shall
constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt (pro rata to such
holders on the basis of the respective amount of Senior Debt held by such
holders) or their respective Representatives, as their respective interests may
appear. The Trustee shall be entitled to rely on information regarding amounts
then due and owing on the Senior Debt, if any, received from the holders of
Senior Debt (or their Representatives) or, if such information is not received
from such holders or their Representatives, from the Company and only amounts
included in the information provided to the Trustee shall be paid to the holders
of Senior Debt.
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; provided that all Senior Debt thereafter due or declared to be due
--------
shall first be paid in full in cash or Cash Equivalents before the Holders are
entitled to receive any payment of any kind or character with respect to
Obligations on the Notes.
SECTION 10.03. Payment Over of Proceeds
upon Dissolution, Etc.
------------------------
(a) Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any total or partial liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character is made on account of any Obligations on
the Notes, or for the acquisition of any of the Notes for cash or property or
otherwise (except that Holders of Notes may receive securities of the Company
that are unsecured and subordinated at least to the same extent
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as the Notes to Senior Debt as provided in the Indenture, do not have a maturity
any shorter than the security which it is replacing and will not cause the Notes
to be treated in any case or proceeding as part of the same class of claims as
the Senior Debt or any class of claims pari passu with, or senior to, the Senior
---- -----
Debt for any payment or distribution). Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Notes or the Trustee under
this Indenture would be entitled, except for the provisions hereof, shall be
paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders or by the Trustee under this Indenture if received by them, directly to
the holders of Senior Debt (pro rata to such holders on the basis of the
respective amounts of Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt has been paid in full in cash or Cash
Equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf
of the Company, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then, if such payment is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by any Holder when such payment or
distribution is prohibited by Section 10.03(a), such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Debt (pro rata to such holders on the basis of the
respective amount of Senior Debt held by such holders) or their respective
Representatives,
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or to the trustee or trustees under any indenture pursuant to which any of such
Senior Debt may have been issued, as their respective interests may appear, for
application to the payment of Senior Debt remaining unpaid until all such Senior
Debt has been paid in full in cash or Cash Equivalents, after giving effect to
any concurrent payment, distribution or provision therefor to or for the holders
of such Senior Debt.
(d) The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of the Senior Debt
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, assume the Company's obligations
hereunder in accordance with Article Five hereof.
SECTION 10.04. Payments May Be Paid Prior
to Dissolution.
--------------------------
Nothing contained in this Article Ten or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Sections
10.02 and 10.03, from making payments at any time for the purpose of making
payments of principal of and interest on the Notes, or from depositing with the
Trustee any moneys for such payments, or (ii) in the absence of actual knowledge
by the Trustee that a given payment would be prohibited by Section 10.02 or
10.03, the application by the Trustee of any moneys deposited with it for the
purpose of making such payments of principal of, and interest on, the Notes to
the Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable a Trust Officer
shall have actually received the written notice provided for in the second
sentence of Section 10.02(a) or in Section 10.07 (provided that, notwithstanding
--------
the foregoing, such application shall otherwise be subject to the provisions of
the first sentence of Section 10.02(a) and Section 10.03). The Company shall
give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company.
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SECTION 10.05. Subrogation.
-----------
Subject to the payment in full in cash or Cash Equivalents of all
Senior Debt, the Holders of the Notes shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Debt until the Notes shall be
paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt by or on behalf of the Company
or by or on behalf of the Holders by virtue of this Article Ten which otherwise
would have been made to the Holders shall, as between the Company and the
Holders of the Notes, be deemed to be a payment by the Company to or on account
of the Senior Debt, it being understood that the provisions of this Article Ten
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the holders of the Senior Debt,
on the other hand.
SECTION 10.06. Obligations of the Company
Unconditional.
--------------------------
Nothing contained in this Article Ten or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Debt, and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders the
principal of and any interest on the Notes as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent the
Holder of any Note or the Trustee on its behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
SECTION 10.07. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes pursuant to the provisions of this
Article Ten. Regardless of anything to the contrary contained in this Article
Ten or elsewhere in this Indenture, the Trustee shall not be charged with
knowledge of the existence of any default or event of default with respect to
any Senior Debt or of any other
-106-
facts which would prohibit the making of any payment to or by the Trustee unless
and until a Trust officer shall have received notice in writing from the
Company, or from a holder of Senior Debt or a Representative therefor, and,
prior to the receipt of any such written notice, the Trustee shall be entitled
to assume (in the absence of actual knowledge by a Trust officer to the
contrary) that no such facts exist.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Ten, and if such evidence is not furnished the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such person to receive such payment.
SECTION 10.08. Reliance on Judicial Order or
Certificate of Liquidating Agent.
--------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, delivered to
the Trustee or the Holders of the Notes, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior
Debt 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 Ten.
SECTION 10.09. Trustee's Relation to Senior Debt.
---------------------------------
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and nothing in
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this Indenture shall deprive the Trustee or any such agent of any of its rights
as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
Whenever a distribution is to be made or a notice given to holders or
owners of Senior Debt, the distribution may be made and the notice may be given
to their Representative, if any.
SECTION 10.10. Subordination Rights Not Impaired
by Acts or Omissions of the Company
or Holders of Senior Debt.
-----------------------------------
No right of any present or future holders of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Notes and without impairing
or releasing the subordination provided in this Article Ten or the obligations
hereunder of the Holders of the Notes to the holders of the Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt, or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the payment or collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
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SECTION 10.11. Noteholders Authorize Trustee To
Effectuate Subordination of Notes.
---------------------------------
Each Holder of Notes by its acceptance of them authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior Debt
and the Holders of Notes, the subordination provided in this Article Ten, and
appoints the Trustee its attorney-in-fact for such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company, the filing of a claim for the unpaid balance of its Notes and accrued
interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Debt or their
Representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Notes. Nothing herein contained shall be deemed to authorize the
Trustee or the holders of Senior Debt or their Representative to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee or the holders of
Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 10.12. This Article Ten Not To
Prevent Events of Default.
-------------------------
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article Ten will not be
construed as preventing the occurrence of an Event of Default.
SECTION 10.13. Trustee's Compensation
Not Prejudiced.
----------------------
Nothing in this Article Ten will apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
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ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
-----------------------
Each Guarantor hereby unconditionally, jointly and severally,
guarantees, subject to Article Twelve, to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
that: (i) the principal of and interest on the Notes will be promptly paid in
full when due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise and interest on the overdue principal, if any, and
interest on any interest, to the extent lawful, of the Notes and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Notes or of any such other obligations, the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, subject to any applicable grace period, whether at stated maturity,
by acceleration or otherwise, subject, however, in the case of clauses (i) and
(ii) above, to the limitations set forth in Section 11.05. Each Guarantor hereby
agrees that its obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture and in this Guarantee. If any
Holder or the Trustee is required by any court or otherwise to return to the
Company, any Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Guarantor, any amount paid by
the Company or any Guarantor to the Trustee or such Holder, this Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor
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further agrees that, as between each Guarantor, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article Six, such obligations (whether or not due and payable) shall forthwith
become due and payable by each Guarantor for the purpose of this Guarantee.
SECTION 11.02. Subordination of Guarantee.
--------------------------
The obligations of each Guarantor to the Holders of Notes and to the
Trustee pursuant to the Guarantee and this Indenture are expressly subordinate
and subject in right of payment to the prior payment in full of all Guarantor
Senior Debt of such Guarantor, to the extent and in the manner provided in
Article Twelve.
SECTION 11.03. Severability.
------------
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.04. Release of a Guarantor.
----------------------
Upon (i) the release by the lenders under the Credit Agreement,
related documents and future refinancings thereof of all guarantees of a
Guarantor and all Liens on the property or assets of said Guarantor relating to
such Indebtedness or (ii) the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Guarantor (or all or substantially all
its assets) to an entity which is not a Subsidiary of the Company and which sale
or disposition is otherwise in compliance with the terms of this Indenture, such
Guarantor shall be deemed released from all obligations under this Article
Eleven without any further action required on the part of the Trustee or any
Holder; provided, however, that any such termination shall occur only to the
extent that all obligations of such Guarantor under the Credit Agreement and all
of its guarantees of, and under all of its pledges of assets or other security
interests which secure, such Indebtedness of the Company or the Guarantor shall
also terminate upon such release, sale or transfer.
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The Trustee shall execute an appropriate instrument delivered by the
Company evidencing such release upon receipt of a request by the Company
accompanied by an Officers' Certificate and Opinion of Counsel certifying as to
the compliance with this Section 11.04. Any Guarantor not so released remains
liable for the full amount of principal of and interest on the Notes as provided
in this Article Eleven.
SECTION 11.05. Limitation of
Guarantor's Liability.
-------------------------
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor (including, but not limited
to, the Guarantor Senior Debt of such Guarantor) and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 11.07, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 11.06. Guarantors May Consolidate, etc., on
Certain Terms.
------------------------------------
(a) Nothing contained in this Indenture or in any of the Notes shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor that is a Wholly Owned Restricted Subsidiary of the Company or
shall prevent any sale of assets or conveyance of the property of a Guarantor as
an entirety or substantially as an entirety, to the Company or another Guarantor
that is a Wholly Owned Restricted Subsidiary of the Company. Upon any such
consolidation, merger, sale or conveyance, the Guarantee given by such Guarantor
shall no longer have any force or effect.
(b) Except as set forth in Article Four and Article Five hereof,
nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guar-
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antor with or into a corporation or corporations other than the Company or
another Guarantor (whether or not affiliated with the Guarantor) or shall
prevent any sale of assets or conveyance of the property of a Guarantor as an
entirety or substantially as an entirety, to a corporation or corporations other
than the Company or another Guarantor (whether or not affiliated with the
Guarantor); provided, however, that, subject to Sections 11.04 and 11.06(a), (i)
-------- -------
immediately after such transaction and giving effect thereto, such transaction
does not (a) violate any covenants set forth herein or (b) result in a Default
or Event of Default under this Indenture that is continuing, (ii) upon any such
consolidation, merger, sale or conveyance, the Guarantee of such Guarantor set
forth in this Article Eleven, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by such Guarantor, shall be expressly assumed (in the event that the
Guarantor is not the surviving corporation in the merger), by supplemental
indenture satisfactory in form to the Trustee and in compliance with Section
9.06, executed and delivered to the Trustee, by the corporation formed by such
consolidation, or into which the Guarantor shall have merged, or by the
corporation that shall have acquired such property, and (iii) in the event that
such Guarantor is not the surviving corporation in the merger, such surviving
corporation shall be a corporation organized and existing under the laws of the
United States or any State thereof or the District of Columbia. In the case of
any such consolidation, merger, sale or conveyance and upon the assumption by
the successor corporation, by supplemental indenture executed and delivered to
the Trustee and satisfactory in form to the Trustee of the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor.
SECTION 11.07. Contribution.
-------------
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
--------
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Notes or any other Guarantor's obligations with
respect
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to the Guarantee. "Adjusted Net Assets" of such Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Guarantee, of such Guarantor at such date and (y) the
present fair saleable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such Guarantor
on its debts including, without limitation, Guarantor Senior Debt (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date and after giving effect to any collection from any Subsidiary of such
Guarantor in respect of the obligations of such Subsidiary under the Guarantee),
excluding debt in respect of the Guarantee of such Guarantor, as they become
absolute and matured.
SECTION 11.08. Waiver of Subrogation.
----------------------
Until all Obligations are paid in full each Guarantor hereby
irrevocably waives any claim or other rights which it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of such Guarantor's obligations under the Guarantees and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Notes against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and the Notes shall not have been paid in full, such amount shall have
been deemed to have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Holders of the Notes, and shall, subject to the
provisions of Section 11.02, Article Ten and Article Twelve, forthwith be paid
to the Trustee for the benefit of such Holders to be credited and applied upon
the Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 11.08 is knowingly made in contemplation of
such benefits.
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SECTION 11.09. Execution of Guarantee.
-----------------------
To evidence their guarantee to the Holders set forth in this Article
Eleven, the Guarantors hereby agree to execute the Guarantees in substantially
the form included in Exhibit F, which shall be endorsed on each Note ordered to
be authenticated and delivered by the Trustee. Each Guarantor hereby agrees that
its Guarantee set forth in this Article Eleven shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Guarantee. Each such Guarantee shall be signed on behalf of each Guarantor by
two Officers, or an Officer and an Assistant Secretary or one Officer shall sign
and one Officer or an Assistant Secretary (each of whom shall, in each case,
have been duly authorized by all requisite corporate actions) shall attest to
such Guarantee prior to the authentication of the Note on which it is endorsed,
and the delivery of such Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such Guarantee on behalf of such
Guarantor. Such signatures upon the Guarantees may be by manual or facsimile
signature of such officers and may be imprinted or otherwise reproduced on the
Guarantees, and in case any such officer who shall have signed the Guarantees
shall cease to be such officer before the Note on which such Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Note nevertheless may be authenticated and delivered or
disposed of as though the person who signed the Guarantees had not ceased to be
such officer of the Guarantor
SECTION 11.10. Waiver of Stay, Extension
or Usury Laws.
-------------------------
Each Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive each such Guarantor from
performing its Guarantee as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) each such
Guarantor hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
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ARTICLE TWELVE
SUBORDINATION OF GUARANTEE OBLIGATIONS
--------------------------------------
SECTION 12.01. Guarantee Obligations Subordinated
to Guarantor Senior Debt.
----------------------------------
Each Guarantor covenants and agrees, and the Trustee and each Holder
of the Notes, by its acceptance thereof, likewise covenants and agrees, that all
Guarantees shall be issued subject to the provisions of this Article Twelve; and
the Trustee and each Person holding any Note, whether upon original issue or
upon transfer, assignment or exchange thereof, accepts and agrees that the
payment of all Obligations on the Notes pursuant to the Guarantees by any
Guarantor shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior payment in full in cash
or Cash Equivalents of all Obligations on the Guarantor Senior Debt of such
Guarantor; that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Guarantor Senior Debt, and that each
holder of Guarantor Senior Debt whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired Guarantor
Senior Debt in reliance upon the covenants and provisions contained in this
Indenture, the Notes and the Guarantees.
SECTION 12.02. No Payment on Notes in Certain
Circumstances.
------------------------------
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of or regularly accruing fees with respect to any Guarantor Senior Debt
of any Guarantor, no payment of any kind or character shall be made by or on
behalf of such Guarantor or any other Person on its or their behalf with respect
to any Obligations on the Notes or to acquire any of the Notes for cash or
property or otherwise. In addition, if any other event of default occurs and is
continuing with respect to any Designated Senior Debt, as such event of default
is defined in the instrument creating or evidencing such Designated Senior Debt,
permitting the holders of such Designated Senior Debt then outstanding to
accelerate the maturity thereof and if the Representative for the respective
issue of Designated Senior Debt gives written notice of the event of default to
the Trustee (a "Default Notice"), then, unless and until all events of default
have been
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cured or waived or have ceased to exist or the Trustee receives notice from the
Representative for the respective issue of Designated Senior Debt terminating
the Blockage Period (as defined below), during the 179 days after the delivery
of such Default Notice (the "Blockage Period"), neither such Guarantor nor any
other Person on its behalf shall (x) make any payment of any kind or character
with respect to any Obligations on the Notes or (y) acquire any of the Notes for
cash or property or otherwise. Notwithstanding anything herein to the contrary,
in no event will a Blockage Period extend beyond 179 days from the date the
payment on the Notes was due and only one such Blockage Period may be commenced
within any 360 consecutive days. No event of default which existed or was
continuing on the date of the commencement of any Blockage Period with respect
to the Designated Senior Debt shall be, or be made, the basis for commencement
of a second Blockage Period by the Representative of such Designated Senior Debt
whether or not within a period of 360 consecutive days unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action or any breach
of any financial covenants for a period commencing after the date of
commencement of such Blockage Period that, in either case, would give rise to an
event of default pursuant to any provisions under which an event of default
previously existed or was continuing shall constitute a new event of default for
this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 12.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Guarantor Senior Debt (pro
rata to such holders on the basis of the respective amount of Guarantor Senior
Debt held by such holders) or their respective Representatives, as their
respective interests may appear. The Trustee shall be entitled to rely on
information regarding amounts then due and owing on the Guarantor Senior Debt,
if any, received from the holders of Guarantor Senior Debt (or their
Representatives) or, if such information is not received from such holders or
their Representatives, from the Guarantors and only amounts included in the
information provided to the Trustee shall be paid to the holders of Guarantor
Senior Debt.
Nothing contained in this Article Twelve shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; pro-
----
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vided that all Guarantor Senior Debt thereafter due or declared to be due shall
-----
first be paid in full in cash or Cash Equivalents before the Holders are
entitled to receive any payment of any kind or character with respect to
Obligations on the Guarantees.
SECTION 12.03. Payment Over of Proceeds
upon Dissolution, Etc.
------------------------
(a) Upon any payment or distribution of assets of any Guarantor of
any kind or character, whether in cash, property or securities, to creditors
upon any total or partial liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors or marshaling of assets of such
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other
similar proceeding relating to such Guarantor or its property, whether voluntary
or involuntary, all Obligations due or to become due upon all Guarantor Senior
Debt shall first be paid in full in cash or Cash Equivalents, or such payment
duly provided for to the satisfaction of the holders of Guarantor Senior Debt,
before any payment or distribution of any kind or character is made on account
of any Obligations on the Notes, or for the acquisition of any of the Notes for
cash or property or otherwise (except that Holders of Notes may receive
securities of the Guarantor that are unsecured and subordinated at least to the
same extent as the Notes to Guarantor Senior Debt as provided in the Indenture,
do not have a maturity any shorter than the security which it is replacing and
will not cause the Notes to be treated in any case or proceeding as part of the
same class of claims as the Guarantor Senior Debt or any class of claims pari
----
passu with, or senior to, the Guarantor Senior Debt for any payment or
-----
distribution). Upon any such dissolution, winding-up, liquidation,
reorganization, receivership or similar proceeding, any payment or distribution
of assets of any Guarantor of any kind or character, whether in cash, property
or securities, to which the Holders of the Notes or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
such Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the Holders or
by the Trustee under this Indenture if received by them, directly to the holders
of Guarantor Senior Debt of such Guarantor (pro rata to such holders on the
basis of the respective amounts of such Guarantor Senior Debt held by such
holders) or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Guarantor Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of such
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Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has
been paid in full in cash or Cash Equivalents after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of
such Guarantor Senior Debt.
(b) To the extent any payment of such Guarantor Senior Debt (whether
by or on behalf of such Guarantor, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or preferential, set
aside or required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then, if such payment is
recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person, such Guarantor Senior Debt or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of such Guarantor of any kind or character, whether in
cash, property or securities, shall be received by any Holder when such payment
or distribution is prohibited by Section 12.03(a), such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of such Guarantor Senior Debt (pro rata to such holders on the
basis of the respective amount of such Guarantor Senior Debt held by such
holders) or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Guarantor Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of such Guarantor Senior Debt remaining unpaid until all such Guarantor
Senior Debt has been paid in full in cash or Cash Equivalents, after giving
effect to any concurrent payment, distribution or provision therefor to or for
the holders of such Guarantor Senior Debt.
(d) The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution of
any Guarantor following the conveyance or transfer of all or substantially all
of its assets, to another corporation upon the terms and conditions provided in
Section 11.06 hereof and as long as permitted under the terms of the Guarantor
Senior Debt of such Guarantor shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if such other
cor-
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poration shall, as a part of such consolidation, merger, conveyance or transfer,
assume such Guarantor's obligations hereunder in accordance with Section 11.06
hereof.
SECTION 12.04. Payments May Be Paid Prior
to Dissolution.
--------------------------
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) a Guarantor, except under the conditions described
in Sections 12.02 and 12.03, from making payments at any time for the purpose of
making payments in respect of its Guarantee, or from depositing with the Trustee
any moneys for such payments, or (ii) in the absence of actual knowledge by the
Trustee that a given payment would be prohibited by Section 12.02 or 12.03, the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments in respect of the Notes to the Holders entitled thereto
unless at least two Business Days prior to the date upon which such payment
would otherwise become due and payable a Trust Officer shall have actually
received the written notice provided for in the second sentence of Section
12.02(a) or in Section 12.07 (provided that, notwithstanding the foregoing, such
application shall otherwise be subject to the provisions of the first sentence
of Section 12.02(a) and Section 12.03). A Guarantor shall give prompt written
notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of such Guarantor.
SECTION 12.05. Subrogation.
------------
Subject to the payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt of a Guarantor, the Holders of the Guarantee of such
Guarantor shall be subrogated to the rights of the holders of Guarantor Senior
Debt of such Guarantor to receive payments or distributions of cash, property or
securities of such Guarantor applicable to such Guarantor Senior Debt until the
Notes shall be paid in full; and, for the purposes of such subrogation, no such
payments or distributions to the holders of such Guarantor Senior Debt by or on
behalf of such Guarantor or by or on behalf of the Holders by virtue of this
Article Twelve which otherwise would have been made to the Holders shall, as
between such Guarantor and the Holders of the Notes, be deemed to be a payment
by such Guarantor to or on account of such Guarantor Senior Debt, it being
understood that the provisions of this Article Twelve are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Notes, on the one hand, and the holders of the Guarantor Senior Debt, on the
other hand.
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SECTION 12.06. Obligations of the Guarantors
Unconditional.
-----------------------------
(a) Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Notes or the Guarantees is intended to or shall impair, as
among the Guarantors, its creditors other than the holders of Guarantor Senior
Debt, and the Holders, the obligation of the Guarantors, which is absolute and
unconditional, to pay to the Holders all amounts due and payable under the
Guarantees as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Guarantors other than the holders of the Guarantor
Senior Debt, nor shall anything herein or therein prevent the Holder of any Note
or the Trustee on its behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
in respect of cash, property or securities of the Guarantors received upon the
exercise of any such remedy.
SECTION 12.07. Notice to Trustee.
------------------
The Guarantors shall give prompt written notice to the Trustee of any
fact known to the Guarantors which would prohibit the making of any payment to
or by the Trustee in respect of the Notes and the Guarantees pursuant to the
provisions of this Article Twelve. Regardless of anything to the contrary
contained in this Article Twelve or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any default or event of
default with respect to any Guarantor Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until a
Trust officer shall have received notice in writing from the Guarantors, or from
a holder of Guarantor Senior Debt or a Representative therefor, and, prior to
the receipt of any such written notice, the Trustee shall be entitled to assume
(in the absence of actual knowledge to the contrary) that no such facts exist.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Guarantor Senior Debt to participate in any payment or distribution pursuant to
this Article Twelve, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amounts of Guarantor Senior
Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of
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such Person under this Article Twelve, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such person to receive such payment.
SECTION 12.08. Reliance on Judicial Order or
Certificate of Liquidating Agent.
---------------------------------
Upon any payment or distribution of assets of the Guarantors referred
to in this Article Twelve, the Trustee, subject to the provisions of Article
Seven hereof, and the Holders of the Notes shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, delivered to
the Trustee or the Holders of the Notes, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the
Guarantor Senior Debt and other Indebtedness of the Guarantors, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve.
SECTION 12.09. Trustee's Relation to Guarantor
Senior Debt.
-------------------------------
The Trustee and any agent of the Guarantors or the Trustee shall be
entitled to all the rights set forth in this Article Twelve with respect to any
Guarantor Senior Debt which may at any time be held by it in its individual or
any other capacity to the same extent as any other holder of Guarantor Senior
Debt and nothing in this Indenture shall deprive the Trustee or any such agent
of any of its rights as such holder.
With respect to the holders of Guarantor Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Twelve, and no implied covenants
or obligations with respect to the holders of Guarantor Senior Debt shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Guarantor Senior Debt.
Whenever a distribution is to be made or a notice given to holders or
owners of Guarantor Senior Debt, the distribution may be made and the notice may
be given to their Representative, if any.
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SECTION 12.10. Subordination Rights Not Impaired by
Acts or Omissions of the Guarantors
or Holders of Guarantor Senior Debt.
------------------------------------
No right of any present or future holders of any Guarantor Senior
Debt to enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Guarantors or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Guarantors with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Guarantor Senior Debt may, at any time and from time
to time, without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Notes and without impairing
or releasing the subordination provided in this Article Twelve or the
obligations hereunder of the Holders of the Notes to the holders of the
Guarantor Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Guarantor Senior Debt, or otherwise amend or supplement in any manner
Guarantor Senior Debt, or any instrument evidencing the same or any agreement
under which Guarantor Senior Debt is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Guarantor Senior Debt; (iii) release any Person liable in any manner for the
payment or collection of Guarantor Senior Debt; and (iv) exercise or refrain
from exercising any rights against the Guarantors and any other Person.
SECTION 12.11. Noteholders Authorize Trustee To
Effectuate Subordination of Guarantee
Obligations.
-------------------------------------
Each Holder of the Notes and the Guarantees by its acceptance of them
authorizes and expressly directs the Trustee on its behalf to take such action
as may be necessary or appropriate to effectuate, as between the holders of
Guarantor Senior Debt and the Holders, the subordination provided in this
Article Twelve, and appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of
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the business and assets of any Guarantor, the filing of a claim for the unpaid
balance of its Notes and accrued interest in the form required in those
proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Guarantor Senior Debt
or their Representative are or is hereby authorized to have the right to file
and are or is hereby authorized to file an appropriate claim for and on behalf
of the Holders of said Notes. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Guarantor Senior Debt or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Guarantor Senior Debt or their Representative to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 12.12. This Article Twelve Not To
Prevent Events of Default.
--------------------------
The failure to make a payment in respect of the Guarantees by reason
of any provision of this Article Twelve will not be construed as preventing the
occurrence of an Event of Default.
SECTION 12.13. Trustee's Compensation
Not Prejudiced.
----------------------
Nothing in this Article Twelve will apply to amounts due to the
Trustee pursuant to other sections in this Indenture.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls.
-------------
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
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excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 13.02. Notices.
--------
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier, by reputable overnight delivery service, or registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to the Company or any Guarantor:
CAMBRIDGE INDUSTRIES, INC.
000 Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
with a copy to:
Jaffe, Raitt, Heuer & Xxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Sugar, Esq.
if to the Trustee:
STATE STREET BANK AND TRUST COMPANY
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Department
The Company, the Guarantors and the Trustee by written notice to each
other may designate additional or different addresses for notices. Any notice or
communication to the Company, the Guarantors or the Trustee shall be deemed to
have been given or made as of the date so delivered if personally delivered;
when answered back, if telexed; when receipt is acknowledged, if faxed; one (1)
business day after mailing by reputable overnight courier, and five (5) calendar
days after mailing if sent by registered or certified mail, postage prepaid
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee).
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Any notice or communication mailed to a Holder shall be mailed to him
by first class mail or other equivalent means at his address as it appears on
the registration books of the Registrar and shall be sufficiently given to him
if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 13.03. Communications by Holders with Other
Holders
------------------------------------
Holders may communicate pursuant to TIA (S) 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company,
the Trustee, the Registrar and any other Person shall have the protection of TIA
(S) 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions
Precedent.
----------------------------------------
Upon any request or application by the Company or the Guarantors to
the Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed by the Company, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action have been
complied with.
SECTION 13.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officer's
Certificate required by Section 4.06, shall include:
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(1) a statement that the Person making such certificate or opinion
has read such covenant or condition and the definitions relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 13.07. Legal Holidays.
--------------
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York, or at such place of payment are not required to be open. If a payment date
is a Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 13.08. Governing Law.
-------------
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Each of the parties hereto agrees to submit to the jurisdiction of the courts of
the State of New York in any action or proceeding arising out of or relating to
this Indenture or the Notes.
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SECTION 13.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.10. No Recourse Against Others.
--------------------------
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any Guarantor shall not have any
liability for any obligations of the Company or any Guarantor under the Notes,
the Guarantors or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Holder by accepting a Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 13.11. Successors.
----------
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 13.12. Duplicate Originals.
-------------------
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 13.13. Severability.
------------
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions shall not in any way be affected
or impaired thereby, it being intended that all of the provisions hereof shall
be enforceable to the full extent permitted by law.
SECTION 13.14. Independence of Covenants.
-------------------------
All covenants and agreements in this Indenture and the Notes shall be
given independent effect so that if any particular action or condition is not
permitted by any of such
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covenants, the fact that it would be permitted by an exception to, or otherwise
be within the limitations of, another covenant shall not avoid the occurrence of
a Default or an Event of Default if such action is taken or condition exists.
[Remainder of Page Intentionally Left Blank]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
CAMBRIDGE INDUSTRIES, INC., as Issuer
By: /signature appears here/
-------------------------------------------
Name:
Title:
CE AUTOMOTIVE TRIM SYSTEMS, INC., as Guarantor
By: /signature appears here/
-------------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as Trustee
By: /signature appears here/
-------------------------------------------
Name:
Title:
