INDENTURE, dated as of March 22, 1999, between Jordan Industries,
Inc., an Illinois corporation (the "Company"), and U.S. Bank Trust National
Association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 10 3/8%
Series C Senior Notes due 2007 (the "Series C Notes") and the Company's 10 3/8%
Series D Senior Notes due 2007 (the "Series D Notes" and, together with the
Series C Notes, the "Securities").
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. DEFINITIONS.
"Affiliate" means any of the following:
(i) any Person directly or indirectly controlling or
controlled by or under direct or indirect common
control with the Company,
(ii) any spouse, immediate family member or other
relative who has the same principal residence as any
Person described in clause (i) above,
(iii) any trust in which any such Person described in
clause (i) or (ii) above has a beneficial interest,
and
(iv) any corporation or other organization of which any
such Persons described above collectively own 50% or
more of the equity of such entity.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means the sale, lease, conveyance or other disposition
by the Company or a Restricted Subsidiary of assets or property (other than (i)
the sale or disposition of any Restricted Investment, (ii) the sale or lease of
inventory, equipment, receivables or other assets in the ordinary course of
business, (iii) Receivables Financings, (iv) any sale or transfer of properties
or assets by the Company or a Restricted Subsidiary to the Company or any other
Restricted Subsidiary, (v) the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company as permitted pursuant to
Section 5.1 or (vi) Restricted Payments permitted by Section 4.5).
"Bankruptcy Law" means title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
"Board of Directors" means the Company's board of directors or any
authorized committee of such board of directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligations" means any obligation that is required to
be classified and accounted for as a capitalized lease for financial purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of corporate stock, including any
Preferred Stock.
"Cash Equivalents" means (a) securities with maturities of one year
or less from the date of acquisition Issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit, time deposits, overnight bank deposits, bankers acceptances and
repurchase agreements of any commercial bank that has capital and surplus in
excess of $100,000,000 having maturities of one year or less from the date of
acquisition, (c) commercial paper of an issuer rated at least A-2 by Standard &
Poor's Corporation or P-2 by Xxxxx'x Investor Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of investments, and (d) money
market accounts or funds with or Issued by Qualified Issuers.
"Cash Flow" means, for any given period and Person, the sum of,
without duplication, Consolidated Net Income, plus
(i) the portion of Net Income attributable to the
minority interests in its Subsidiaries, to the
extent not included in calculating Consolidated Net
Income, plus
(ii) provision for taxes based on income or profits to
the extent such income or profits were included in
computing Consolidated Net Income, plus
(iii) Consolidated Interest Expense, to the extent
deducted in computing Consolidated Net Income, plus
(iv) the amortization of all intangible assets, to the
extent such amortization was deducted in computing
Consolidated Net Income (including, but not limited
to, inventory write-ups, goodwill, debt and
financing costs and Incentive Arrangements), plus
(v) noncapitalized transaction costs incurred in
connection with financings, acquisitions or
dispositions (including, but not limited to,
financing and refinancing fees, to the extent
deducted in computing Consolidated Net Income), plus
(vi) all depreciation and all other noncash charges
(including, without limitation, those charges
relating to purchase accounting adjustments to the
extent deducted in computing Consolidated Net
Income), plus
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(vii) interest income, to the extent such income was not
included in computing Consolidated Net Income, plus
(viii) all dividend payments on Preferred Stock (whether or
not paid in cash), to the extent deducted in
computing Consolidated Net Income, plus
(ix) any extraordinary or nonrecurring charge or expense
arising out of the implementation of SFAS 106 or
SFAS 109 to the extent deducted in computing
Consolidated Net Income,
provided, however, that if any such calculation includes any period during
which an acquisition or sale of a Person or the incurrence or repayment of
Indebtedness occurred, then such calculation for such period shall be made on a
Pro Forma Basis.
"Cash Flow Coverage Ratio" means, for any given period and Person,
the ratio of:
(i) Cash Flow, divided by
(ii) the sum of Consolidated Interest Expense and the
amount of all dividend payments on any series of
Preferred Stock of such Person (except dividends
paid or payable in additional shares of Capital
Stock (other than Disqualified Stock)), in each
case, without duplication;
provided, however, that if any such calculation includes any period during
which an acquisition or sale of a Person or the incurrence or repayment of
Indebtedness occurred, then such calculation for such period shall be made on a
Pro Forma Basis.
"Certificated Securities" means Securities that are in the form of
Exhibit A attached hereto (but without including the text referred to in
footnotes 1 and 2 thereto).
"Change of Control" means the occurrence of any of the following:
(i) the Jordan Stockholders shall fail to be the beneficial owners, directly or
indirectly, of at least 22% of the outstanding shares of common stock of the
Company on a fully-diluted basis (provided that the Issuance of any shares of
the Company's common stock pursuant to a primary public offering shall not be
considered to have diluted such percentage ownership); or (ii) the Company is
merged or consolidated with another corporation, or all or substantially all of
the assets of the Company are sold, leased or conveyed to another Person, and
the Jordan Stockholders are not the beneficial owners, directly or indirectly,
immediately following such transaction, of at least 22% of the Equity Interests
(which are entitled to vote in the election of directors or other governing
body) of the corporation surviving any such consolidation or merger, or the
Person to which such sale, lease or conveyance shall have been made; or (iii)
the Company is liquidated or dissolved.
"Commission" means the Securities and Exchange Commission.
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"Company" means Jordan Industries, Inc. until a successor replaces
it in accordance with Article 5 and thereafter means the successor, and shall
include any and all other obligors on the Securities.
"Company Order" means a written request or order signed in the name
of the Company by its Chairman of the Board, President or Senior Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary and delivered to the Trustee.
"Consolidated Interest Expense" means, for any given period and
Person, the aggregate of the interest expense in respect of all Indebtedness of
such Person and its Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP (including amortization of original issue
discount on any such Indebtedness, all noncash interest payments, the interest
portion of any deferred payment obligation and the interest component of
Capital Lease Obligations, but excluding amortization of deferred financing
fees if such amortization would otherwise be included in interest expense);
provided, however, that for the purpose of the Cash Flow Coverage Ratio (with
respect to Sections 4.7 and 5.1), Consolidated Interest Expense shall be
calculated on a Pro Forma Basis; provided further that any premiums, fees and
expenses (including the amortization thereof) payable in connection with the
Plan, the Prior Offering and the Offering and the application of the net
proceeds therefrom or any other refinancing of Indebtedness will be excluded.
"Consolidated Net Income" means, for any given period and Person,
the aggregate of the Net Income of such Person and its Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP; provided,
however, that
(i) 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, and
(ii) Consolidated Net Income of any Person will not include,
without duplication, any deduction for:
(A) any increased amortization or depreciation resulting
from the write-up of assets pursuant to Accounting
Principles Board Opinion Nos. 16 and 17, as amended
or supplemented from time to time,
(B) the amortization of all intangible assets (including
amortization attributable to inventory write-ups,
goodwill, debt and financing costs, and Incentive
Arrangements),
(C) any noncapitalized transaction costs incurred in
connection with financings, acquisitions or
divestitures (including, but not limited to,
financing and refinancing fees),
(D) any extraordinary or nonrecurring charges relating
to any premium or penalty paid, write-off of
deferred financing costs or other financial
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recapitalization charges in connection with
redeeming or retiring any Indebtedness prior to its
stated maturity, and
(E) any nonrecurring charge arising out of the
restructuring or consolidation of the operations of
any Person(s) or business either alone or together
with the Company or any Restricted Subsidiary,
incurred within 18 months following the acquisition
of such Person(s) or business by the Company or any
Restricted Subsidiary;
provided, however, that for purposes of determining the Cash Flow Coverage
Ratio, Consolidated Net Income shall be calculated on a Pro Forma Basis.
"Consolidated Net Worth" with respect to any Person means, as of any
date, the consolidated equity of the common stockholders of such Person
(excluding the accumulated foreign currency translation adjustment), all
determined on a consolidated basis in accordance with GAAP, but without any
reduction in respect of the payment of dividends on any series of such Person's
Preferred Stock if such dividends are paid in additional shares of Capital
Stock (other than Disqualified Stock); provided, however, that Consolidated Net
Worth shall also include, without duplication:
(i) the amortization of all write-ups of inventory,
(ii) the amortization of all intangible assets (including
amortization of goodwill, debt and financing costs, and Incentive
Arrangements),
(iii) any noncapitalized transaction costs incurred in connection
with financings, acquisitions or divestitures (including, but not limited to,
financing and refinancing fees),
(iv) any increased amortization or depreciation resulting from the
write-up of assets pursuant to Accounting Principles Board Opinion Nos. 16 and
17, as amended and supplemented from time to time,
(v) any extraordinary or nonrecurring charges or expenses relating
to any premium or penalty paid, write-off of deferred financing costs or other
financial recapitalization charges incurred in connection with redeeming or
retiring any Indebtedness prior to its stated maturity,
(vi) any nonrecurring cash charge arising out of the restructuring
or consolidation of the operations of any Person(s) or business either alone or
together with the Company or any Restricted Subsidiary, incurred within 18
months following the acquisition of such Person(s) or business by the Company
or any Restricted Subsidiary, and
(vii) any extraordinary or nonrecurring charge arising out of the
implementation of SFAS 106 or SFAS 109;
provided, however, that for purposes of determining Consolidated Net Worth
(with respect to Section 5.1), Consolidated Net Worth shall be calculated on a
Pro Forma Basis.
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"Corporate Trust Office" shall be at the address of the Trustee
specified in Section 10.2 or such other address as the Trustee may give notice
to the Company.
"Credit Agreement" means the credit agreement, dated July 25, 1997
entered into by JII, Inc. and certain of its Subsidiaries, the lenders named
therein in their capacities as lenders thereunder and BankBoston, N.A., as
agent, together with all loan documents and instruments thereunder (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 or otherwise
restructuring (including, without limitation, increasing the amount of
available borrowings thereunder, and all Obligations with respect thereto, in
each case, to the extent permitted by Section 4.7, or adding Subsidiaries of
JII, Inc. 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.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the Person specified in Section 2.3
as the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and thereafter "Depositary" shall mean or include such successor.
"Discount Debentures" means the 11 3/4% Senior Subordinated Discount
Debentures due 2009 of the Company.
"Disqualified Stock" means any Capital Stock that by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part on, or
prior to, the maturity date of the Securities.
"Equity Interests" means Capital Stock or partnership interests or
warrants, options or other rights to acquire Capital Stock or partnership
interests (but excluding (i) any debt security that is convertible into, or
exchangeable for, Capital Stock or partnership interests, and (ii) any other
Indebtedness or Obligation); provided, however, that Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exchange Offer" means the offer by the Company to Holders of Series
C Notes to exchange their Series C Notes for Series D Notes pursuant to the
Registration Rights Agreement.
"GAAP" means generally accepted accounting principles, consistently
applied, as of the Issue Date. All financial and accounting determinations and
calculations under this Indenture shall be made in accordance with GAAP.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 2
in the form of the Security attached hereto as Exhibit A.
"Hedging Obligations" means, with respect to any Person, the
Obligations of such Persons under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) foreign exchange
contracts, currency swap agreements or similar agreements, and (iii) other
agreements or arrangements designed to protect such Person against fluctuations
in, or otherwise to establish financial xxxxxx in respect of, exchange rates,
currency rates or interest rates.
"Holder" means a Person in whose name a Security is registered.
"Incentive Arrangements" means any earn-out agreements, stock
appreciation rights, "phantom" stock plans, employment agreements,
noncompetition agreements, subscription and stockholders agreements and other
incentive and bonus plans and similar arrangements made in connection with
acquisitions of Persons or businesses by the Company or the Restricted
Subsidiaries or the retention of executives, officers or employees by the
Company or the Restricted Subsidiaries.
"Indebtedness" means, with respect to any Person, any indebtedness,
whether or not contingent, in respect of borrowed money or evidenced by bonds,
notes, debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or representing the deferred and unpaid balance
of the purchase price of any property (including pursuant to capital leases),
except any such balance that constitutes an accrued expense or a trade payable,
and any Hedging Obligations, if and to the extent such indebtedness (other than
a Hedging Obligation) would appear as a liability upon a balance sheet of such
Person prepared on a consolidated basis in accordance with GAAP, and also
includes, to the extent not otherwise included, the guarantee of items that
would be included within this definition; provided, however, that
"Indebtedness" will not include any Incentive Arrangements or obligations or
payments thereunder.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Initial Purchasers" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Xxxxxxxxx & Company, Inc. and BancBoston Xxxxxxxxx Xxxxxxxx Inc.
"Insolvency or Liquidation Proceeding" means (i) any insolvency or
bankruptcy or similar case or proceeding, or any reorganization, receivership,
liquidation, dissolution or
7
winding up of the Company, whether voluntary or involuntary, or (ii) any
assignment for the benefit of creditors or any other marshaling of assets and
liabilities of the Company.
"Issue" means to create, issue, assume, guarantee, incur or
otherwise become directly or indirectly liable for any Indebtedness or Capital
Stock, as applicable; provided, however, that any Indebtedness or Capital Stock
of a Person existing at the time such Person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be deemed to
be issued by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary. For this definition, the terms "Issuing," "Issuer," "Issuance" and
"Issued" have meanings correlative to the foregoing.
"Issue Date" means the date on which Securities are first Issued
pursuant to the Indenture.
"JI Properties Services Agreement" means the JI Properties Services
Agreement, between the Company and JI Properties, Inc., as in effect on the
Issue Date.
"Jordan Stockholders" means Xxxx X. Xxxxxx, XX, and/or his heirs,
executors and administrators, and/or The Xxxx X. Xxxxxx, XX Revocable Trust,
The Jordan Family Trust and/or any other trust established by Xxxx X. Xxxxxx,
XX whose beneficiaries are Xxxx X. Xxxxxx, XX and/or his lineal descendants or
other relatives.
"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 and any filing of
or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction).
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York are not required to be open.
"Liquidated Damages" has the meaning set out in the Registration
Rights Agreement.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP, excluding, however,
any gain or loss, together with any related provision for taxes, realized in
connection with any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions).
"Net Proceeds" means, with respect to any Asset Sale, the aggregate
amount of cash proceeds (including any cash received by way of deferred payment
pursuant to a note receivable Issued in connection with such Asset Sale, other
than the portion of such deferred payment constituting interest, and including
any amounts received as disbursements or withdrawals from any escrow or similar
account established in connection with any such Asset Sale, but, in either such
case, only as and when so received) received by the Company or any of its
Restricted Subsidiaries in respect of such Asset Sale, net of:
8
(i) the cash expenses of such Asset Sale (including, without
limitation, the payment of principal, premium, if any, and
interest on Indebtedness required to be paid as a result of
such Asset Sale (other than the Securities and the Series B
Notes) and legal, accounting, management, advisory and
investment banking fees and sales commissions),
(ii) taxes paid or payable as a result thereof,
(iii) any portion of cash proceeds that the Company determines in
good faith should be reserved for post-closing adjustments,
it being understood and agreed that on the day that all such
post-closing adjustments have been determined, the amount (if
any) by which the reserved amount in respect of such Asset
Sale exceeds the actual post-closing adjustments payable by
the Company or any of its Restricted Subsidiaries shall
constitute Net Proceeds on such date,
(iv) any relocation expenses and pension, severance and shutdown
costs incurred as a result thereof, and
(v) any deduction of appropriate amounts to be provided by the
Company or any of its Restricted Subsidiaries as a reserve in
accordance with GAAP against any liabilities associated with
the asset disposed of in such transaction and retained by the
Company or such Restricted Subsidiary after such sale or
other disposition thereof, including, without limitation,
pension and other postemployment benefit liabilities and
liabilities related to environmental matters or against any
indemnification obligations associated with such transaction.
"Nonrestricted Subsidiary" means Motors and Gears Holdings, Inc. and
its Subsidiaries, Jordan Telecommunication Products, Inc. and its Subsidiaries,
JI Properties, Inc. and its Subsidiaries, and any other Subsidiary of the
Company other than a Restricted Subsidiary.
"Obligations" means, with respect to any Indebtedness, all
principal, interest, premium, penalties, fees, indemnities, expenses (including
legal fees and expenses), reimbursement obligations and other liabilities
payable to the holder of such Indebtedness under the documentation governing
such Indebtedness, and any other claims of such holder arising in respect of
such Indebtedness.
"Offering" means the offering and sale of the Securities as
contemplated by the Offering Memorandum.
"Offering Memorandum" means the offering memorandum, dated March 17,
1999, relating to the Company's offering and placement of the Securities.
"Officer" means the President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Vice President of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
9
"Opinion of Counsel" means a written opinion in form and substance
satisfactory to, and from legal counsel who is acceptable to, the Trustee (such
counsel may be an employee of or counsel to the Company or the Trustee).
"Other Permitted Indebtedness" means:
(i) Indebtedness of the Company and its Restricted Subsidiaries
existing as of the Issue Date and all related Obligations as
in effect on such date (including the Series B Notes, the
Discount Debentures and the Securities);
(ii) Indebtedness of the Company and its Restricted Subsidiaries in
respect of bankers' acceptances and letters of credit
(including, without limitation, letters of credit in respect
of workers' compensation claims) Issued in the ordinary course
of business, or other Indebtedness in respect of
reimbursement-type obligations regarding workers' compensation
claims;
(iii) Refinancing Indebtedness, provided that:
(A) the principal amount of such Refinancing
Indebtedness shall not exceed the outstanding
principal amount of Indebtedness (including unused
commitments) so extended, refinanced, renewed,
replaced, substituted or refunded plus any amounts
incurred to pay premiums, fees and expenses in
connection therewith,
(B) 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, substituted or refunded, and
(C) in the case of Refinancing Indebtedness for
subordinated Indebtedness, such Refinancing
Indebtedness shall be subordinated to the Securities
at least to the same extent as the Indebtedness
being extended, refinanced, renewed, replaced,
substituted or refunded;
(iv) intercompany Indebtedness of and among the Company and its
Restricted Subsidiaries (excluding guarantees by Restricted
Subsidiaries of Indebtedness of the Company not Issued in
compliance with Section 4.15);
(v) Indebtedness of the Company and its Restricted Subsidiaries
Issued in connection with making permitted Restricted
Payments under clause (iv) or (v) of Section 4.5(b) and
guarantees by the Company of Capital Lease Obligations of the
Company's Nonrestricted Subsidiaries up to the aggregate
amount permitted by clause (xv) of Section 4.5(b);
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(vi) Indebtedness of any Nonrestricted Subsidiary; provided that
such Indebtedness is nonrecourse to the Company and its
Restricted Subsidiaries and the Company and its Restricted
Subsidiaries have no Obligations with respect to such
Indebtedness;
(vi) Indebtedness of the Company and its Restricted Subsidiaries
under Hedging Obligations;
(vii) Indebtedness of the Company and its Restricted Subsidiaries
arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts,
which will not be, and will not be deemed to be, inadvertent)
drawn against insufficient funds in the ordinary course of
business;
(ix) Indebtedness of any Person at the time it is acquired as a
Restricted Subsidiary; provided that such Indebtedness was
not Issued by such Person in connection with or in
anticipation of such acquisition and that such Indebtedness
is nonrecourse to the Company and any other Restricted
Subsidiary and the Company and such other Restricted
Subsidiaries have no Obligations with respect to such
Indebtedness;
(x) guarantees by Restricted Subsidiaries of Indebtedness of any
Restricted Subsidiary if the Indebtedness so guaranteed is
permitted under this Indenture;
(xi) guarantees by a Restricted Subsidiary of Indebtedness of the
Company if the Indebtedness so guaranteed is permitted under
this Indenture and the Securities are guaranteed by such
Restricted Subsidiary to the extent required by Section 4.15;
(xii) guarantees by the Company of Indebtedness of any Restricted
Subsidiaries if the Indebtedness so guaranteed is permitted
under this Indenture;
(xiii) Indebtedness of the Company and its Restricted Subsidiaries
Issued in connection with performance, surety, statutory,
appeal or similar bonds in the ordinary course of business;
and
(xiv) Indebtedness of the Company and its Restricted Subsidiaries
Issued in connection with agreements providing for
indemnification, purchase price adjustments and similar
obligations in connection with the sale or disposition of any
of their business, properties or assets.
"Permitted Liens" means:
(a) with respect to the Company and the Restricted Subsidiaries,
(1) Liens for taxes, assessments, governmental charges
or claims which are being contested in good faith by
appropriate proceedings promptly
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instituted and diligently conducted and if a reserve
or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made
therefor;
(2) statutory Liens of landlords and carriers',
warehousemen's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with
respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings
if a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall
have been made therefor;
(3) Liens incurred on deposits made in the ordinary
course of business in connection with workers'
compensation, unemployment insurance and other types
of social security;
(4) Liens incurred on deposits made to secure the
performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, government
contracts, performance and return of money bonds and
other obligations of a like nature incurred in the
ordinary course of business (exclusive of
obligations for the payment of borrowed money);
(5) easements, rights-of-way, zoning or other
restrictions, minor defects or irregularities in
title and other similar charges or encumbrances not
interfering in any material respect with the
business of the Company or any of its Restricted
Subsidiaries incurred in the ordinary course of
business;
(6) Liens (including extensions, renewals and
replacements thereof) upon property acquired (the
"Acquired Property") after the Issue Date, provided
that
(A) any such Lien is created solely for the
purpose of securing Indebtedness
representing, or Issued to finance,
refinance or refund, the cost (including
the cost of construction) of the Acquired
Property,
(B) the principal amount of the Indebtedness
secured by such Lien does not exceed 100%
of the cost of the Acquired Property,
(C) such Lien does not extend to or cover any
property other than the Acquired Property
and any improvements on such Acquired
Property, and
(D) the Issuance of the Indebtedness to
purchase the Acquired Property is permitted
by Section 4.7;
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(7) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of
customs duties in connection with the importation of
goods;
(8) judgment and attachment Liens not giving rise to an
Event of Default;
(9) leases or subleases granted to others not
interfering in any material respect with the
business of the Company or any of its Restricted
Subsidiaries;
(10) Liens encumbering customary initial deposits and
margin deposits, and other Liens incurred in the
ordinary course of business and that are within the
general parameters customary in the industry, in
each case securing Indebtedness under Hedging
Obligations;
(11) Liens encumbering deposits made to secure
obligations arising from statutory, regulatory,
contractual or warranty requirements of the Company
or its Restricted Subsidiaries;
(12) Liens arising out of consignment or similar
arrangements for the sale of goods entered into by
the Company or its Restricted Subsidiaries in the
ordinary course of business;
(13) any interest or title of a lessor in property
subject to any Capital Lease Obligation or operating
lease;
(14) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(15) Liens existing on the Issue Date and any extensions,
renewals or replacements thereof; and
(16) any Lien granted to the Trustee under this Indenture
and any substantially equivalent Lien granted to any
trustee or similar institution under any indenture
for senior Indebtedness permitted by the terms of
this Indenture;
(b) with respect to the Restricted Subsidiaries,
(1) Liens securing Restricted Subsidiaries'
reimbursement Obligations with respect to letters of
credit that encumber documents and other property
relating to such letters of credit and the products
and proceeds thereof;
(2) Liens securing Indebtedness Issued by Restricted
Subsidiaries if such Indebtedness is permitted by
(A) Section 4.7(a), (B) Section 4.7(b)(i), (b)(ii),
(b)(iii) or (b)(iv), or (C) clause (i), (iii) (to
the extent the Indebtedness subject to such
Refinancing Indebtedness was subject to Liens),
(vii), (ix) or (x) of the definition of Other
Permitted Indebtedness;
13
(3) Liens securing intercompany Indebtedness Issued by
any Restricted Subsidiary to the Company or another
Restricted Subsidiary;
(4) additional Liens at any one time outstanding with
respect to assets of the Restricted Subsidiaries the
aggregate fair market value of which does not exceed
$10,000,000 (the fair market value of any such asset
is to be determined on the date such Lien is granted
on such asset); and
(5) Liens securing guarantees by Restricted Subsidiaries
of Indebtedness Issued by the Company if such
guarantees are permitted by clause (xi) (but only in
respect of the property, rights and assets of the
Restricted Subsidiaries Issuing such guarantees) of
the definition of Other Permitted Indebtedness; and
(c) with respect to the Company,
(1) Liens securing Indebtedness Issued by the Company
under the Credit Agreement if such Indebtedness is
permitted by Section 4.7 (including, but not limited
to, Indebtedness Issued by the Company under the
Credit Agreement pursuant to Section 4.7(b)(i)
and/or (iv));
(2) Liens securing Indebtedness of the Company if such
Indebtedness is permitted by clauses (i), (iii) (to
the extent the Indebtedness subject to such
Refinancing Indebtedness is subject to Liens) or
(vii) of the definition of Other Permitted
Indebtedness; and
(3) Liens securing guarantees by the Company of
Indebtedness Issued by Restricted Subsidiaries if
(x) such Indebtedness is permitted by Section 4.7
(including, but not limited to, Indebtedness Issued
by Restricted Subsidiaries under the Credit
Agreement pursuant to Sections 4.7(b)(i) and/or (v))
and (y) such guarantees are permitted by clause
(xii) (but only in respect of Indebtedness Issued by
the Restricted Subsidiaries under the Credit
Agreement pursuant to Section 4.7) of the definition
of Other Permitted Indebtedness;
provided, however, that, notwithstanding any of the foregoing, the Permitted
Liens referred to in clause (c) of this definition shall not include any Lien
on Capital Stock of Restricted Subsidiaries held by the Company (as
distinguished from Liens on Capital Stock of Restricted Subsidiaries held by
other Restricted Subsidiaries) other than Liens securing (A) Indebtedness of
the Company Issued under the Credit Agreement pursuant to Section 4.7 and any
permitted Refinancing Indebtedness of such Indebtedness and (B) guarantees by
the Company of Indebtedness Issued by Restricted Subsidiaries under the Credit
Agreement pursuant to Section 4.7 and any permitted Refinancing Indebtedness of
such Indebtedness.
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"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Plan" means the Company's 1997 Recapitalization and Reposition Plan
as referenced in the Offering Memorandum and all agreements, instruments and
transactions pursuant thereto.
"Postpetition Interest" means all interest accrued or accruing after
the commencement of any Insolvency or Liquidation Proceeding in accordance with
and at the contract rate (including, without limitation, any rate applicable
upon default) specified in the agreement or instrument creating, evidencing or
governing any Indebtedness which is not subordinated in right of payment to any
other Indebtedness of the Company, whether or not, pursuant to applicable law
or otherwise, the claim for such interest is allowed as a claim in such
Insolvency or Liquidation Proceeding.
"Preferred Stock" as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
that is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Prior Offering" means the offer and sale of the Series B Notes.
"Pro Forma Basis" means, for purposes of determining Consolidated
Net Income, Cash Flow, and Consolidated Interest Expense in connection with the
Cash Flow Coverage Ratio (including, in connection with Section 4.5, the
incurrence of Indebtedness pursuant to Section 4.7(a) and Consolidated Net
Worth for purposes of Section 5.1), giving pro forma effect to (x) any
acquisition or sale of a Person, business or asset, related incurrence,
repayment or refinancing of Indebtedness or other related transactions,
including any related restructuring charges in respect of restructurings,
consolidations, compensation or head-count reductions or other cost savings
which would otherwise be accounted for as an adjustment permitted by Regulation
S-X under the Securities Act or on a pro forma basis under GAAP, or (y) any
incurrence, repayment or refinancing of any Indebtedness and the application of
the proceeds therefrom, in each case, as if such acquisition or sale and
related transactions, restructurings, consolidations, cost savings, reductions,
incurrence, repayment or refinancing were realized on the first day of the
relevant period permitted by Regulation S-X under the Securities Act or on a
pro forma basis under GAAP. Furthermore, in calculating the Cash Flow Coverage
Ratio, (1) interest on outstanding Indebtedness which is determined on a
fluctuating basis as of the determination date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the
determination date; (2) if interest on any Indebtedness actually incurred on
the determined date may optionally be determined at an interest rate based upon
a factor of a prime or similar rate, a eurocurrency interbank offered rate, or
other rates, then the interest rate in effect on the determination date will be
deemed to have been in effect during the relevant period; and (3),
notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to
15
the extent such interest is covered by agreements relating to interest rate
swaps or similar interest rate protection Hedging Obligations, shall be deemed
to accrue at the rate per annum resulting after giving effect to the operation
of such agreements.
"Qualified Issuer" means any commercial bank (a) which has capital
and surplus in excess of $100,000,000, and (b) the outstanding long-term debt
securities of which are rated at least A-2 by Standard & Poor's Corporation or
P-2 by Xxxxx'x Investor Service, Inc., or carry an equivalent rating by a
nationally recognized rating agency if both of the two named rating agencies
cease publishing ratings of investments.
"Qualified Stock" means, with respect to any Person, Capital Stock
of such Person other than Disqualified Stock.
"QIB" shall mean "qualified institutional buyer" as defined in Rule
144A.
"Receivables" means, with respect to any person or entity, all of
the following property and interests in property of such person or entity,
whether now existing or existing in the future or hereafter acquired or
arising: (i) accounts, (ii) accounts receivable (including, without limitation,
all rights to payment created by or arising from sales of goods, leases of
goods or leased or the rendition of services rendered no matter how evidenced,
whether or not earned by performance), (iii) all unpaid seller's or lessor's
rights (including, without limitation, recession, replevin, reclamation and
stoppage in transit, relating to any of the foregoing or arising therefrom),
(iv) all rights to any goods or merchandise represented by any of the foregoing
(including, without limitation, returned or repossessed goods), (v) all
reserves and credit balances with respect to any such accounts receivable or
account debtors, (vi) all letters of credit, security or guarantees of any of
the foregoing, (vii) all insurance policies or reports relating to any of the
foregoing, (viii) all collection or deposit accounts relating to any of the
foregoing, (ix) all proceeds of any of the foregoing, and (x) all books and
records relating to any of the foregoing.
"Receivables Financing" means (i) the sale or other disposition of
Receivables arising in the ordinary course of business or (ii) the sale or
other disposition of Receivables arising in the ordinary course of business to
a Receivables Subsidiary followed by a financing transaction in connection with
such sale or disposition of such Receivables.
"Receivables Subsidiary" means a Subsidiary of the Company that is
exclusively engaged in Receivables Financings and activities reasonably related
thereto.
"Refinancing Indebtedness" means (i) Indebtedness of the Company and
its Restricted Subsidiaries Issued or given in exchange for, or the proceeds of
which are used to, extend, refinance, renew, replace, substitute or refund any
Indebtedness permitted under this Indenture or any Indebtedness Issued to so
extend, refinance, renew, replace, substitute or refund such Indebtedness, (ii)
any refinancings of Indebtedness Issued under the Credit Agreement, and (iii)
any additional Indebtedness Issued to pay premiums and fees in connection with
clauses (i) and (ii).
16
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and between the Company, and the
Initial Purchasers as such agreement may be amended, modified or supplemented
from time to time.
"Restricted Investment" means any capital contribution to, or other
debt or equity investment in (other than certain investments in marketable
securities and other negotiable instruments permitted by this Indenture), any
Nonrestricted Subsidiary or any Person other than a Restricted Subsidiary or
the Company, provided that Restricted Investments will not include any
Incentive Arrangements. The amount of any Restricted Investment shall be the
amount of cash and the fair market value at the time of transfer of all other
property (as determined by the Board of Directors in good faith) included in
the original Restricted Investment, plus all additions thereto, without any
adjustments for increases or decreases in value or write-ups, write-downs or
write-offs with respect to such Restricted Investment. Notwithstanding the
foregoing, the assignment by the Company and the assumption by a Nonrestricted
Subsidiary of operating leases of the Company shall not be deemed a Restricted
Investment so long as the Obligations of the Company thereunder are not
increased thereby.
"Restricted Securities" means Securities that bear or are required
to bear the legends set forth in Exhibit A hereto.
"Restricted Subsidiary" means:
(i) any Subsidiary of the Company existing on the Issue Date,
other than a Nonrestricted Subsidiary, and
(ii) any other Subsidiary of the Company formed, acquired or
existing after the Issue Date that is designated as a
"Restricted Subsidiary" by the Company pursuant to a
resolution approved by a majority of the Board of Directors,
provided that any Restricted Subsidiary that is organized under the laws of a
foreign jurisdiction and whose stock or ownership interests are sold or
transferred to a Nonrestricted Subsidiary may, by resolution approved by a
majority of the Board of Directors, be thereafter designated and considered as
a Nonrestricted Subsidiary.
"Restructuring Charges" means any charges or expenses in respect of
restructuring or consolidating any business, operations or facilities, any
compensation or head-count reduction, or any other cost savings, of any Persons
or businesses either alone or together with the Company or any Restricted
Subsidiary, as permitted by GAAP or Regulation S-X under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or under any similar rule or regulation
hereafter adopted by the Commission.
"SAR Agreements" means any agreements of the Company with regard to
stock appreciation rights in effect on the Issue Date.
"Securities" has the meaning set forth in the preamble to this
Indenture.
17
"Securities Act" means the Securities Act of 1933, as amended.
"Series B Notes" means the Company's 10 3/8% Series B Senior Notes
due 2007, which were issued on October 3, 1997 in a registered exchange offer
for the Company's 10 3/8% Series A Senior Notes due 2007.
"SFAS 106" means Statement of Financial Accounting Standards No. 106.
"SFAS 109" means Statement of Financial Accounting Standards No. 109.
"Significant Subsidiary" means (i) any Restricted Subsidiary of the
Company that would be a "significant subsidiary" as defined in clause (2) of
the definition of such term in Rule 1-02 of Regulation S-X under the Securities
Act and the Exchange Act and (ii) any other Restricted Subsidiary of the
Company that is material to the business, earnings, prospects, assets or
condition, financial or otherwise, of the Company and its Restricted
Subsidiaries taken as a whole.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" of any Person means any entity of which the Equity
Interests entitled to cast at least a majority of the votes that may be cast by
all Equity Interests having ordinary voting power for the election of directors
or other governing body of such entity are owned by such Person (regardless of
whether such Equity Interests are owned directly by such Person or through one
or more Subsidiaries).
"Subsidiary Advisory Agreements" means the Subsidiary Advisory
Agreements, between the Company and each of its Restricted and Nonrestricted
Subsidiaries, as in effect on the Issue Date.
"Subsidiary Consulting Agreements" means the Subsidiary Consulting
Agreements, between the Company and each of its Restricted and Nonrestricted
Subsidiaries, as in effect on the Issue Date.
"Tax Sharing Agreement" means the tax sharing agreement between the
Company and each of its Subsidiaries, as in effect on the Issue Date.
"TJC Management Consulting Agreement" means the TJC Management
Consulting Agreement, between the Company and TJC Management Corporation, as in
effect on the Issue Date.
18
"Transition Agreement" means the transition agreement between the
Company and Motors and Gears Holdings, Inc. and the transition agreement
between the Company and Jordan Telecommunication Products, Inc., as in effect
on the Issue Date.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Code ss.ss.77aaa-77bbbb) as in effect on the Issue Date.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
"Trust Officer" means the chairman of the board, the president or
any other officer or assistant officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged, provided that no U.S. Government
Obligation shall be callable at the Issuer's option.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the sum of the
product(s) obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required 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.
Section 1.2. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"................................. 4.8
"Asset Sale Disposition Date"........................... 4.14
"Asset Sale Offer Amount" .............................. 4.14
"Asset Sale Trigger Date" .............................. 4.14
"Change of Control Trigger Date"........................ 4.13
"covenant defeasance option"............................ 8.1
"DTC"................................................... 2.3
"Disposition"........................................... 5.1
"Event of Default"...................................... 6.1
"Excess Proceeds"....................................... 4.14
"legal defeasance option"............................... 8.1
"Notice of Default"..................................... 6.1
"Offer"................................................. 3.8
"Other Indebtedness".................................... 4.15
"Other Indebtedness Guarantee".......................... 4.15
"Paying Agent".......................................... 2.3
"Purchase Date"......................................... 3.8
19
"Registrar"............................................. 2.3
"Restricted Payments"................................... 4.5
"Successor Corporation"................................. 5.1
"Trustee Expenses"...................................... 6.8
Section 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
Any terms incorporated by reference in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined in a Commission
rule under the TIA have the meanings so assigned to them therein.
Section 1.4. 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 under GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2.
THE SECURITIES
Section 2.1. FORM AND DATING.
The Securities and the Trustee's certificates of authentication
shall be substantially in the form of Exhibit A, which is part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of
its authentication. The Securities shall be in denominations of $1,000 and
integral multiples thereof.
The Securities will be Issued (i) in the form of a Global Security,
substantially in the form of Exhibit A attached hereto (including the text
referred to in footnotes 1 and 2 thereto), and (ii) in the form of a
Certificated Security, substantially in the form of Exhibit A attached hereto
(excluding the text referred to in footnotes 1 and 2 thereto). The Global
Security shall represent the aggregate amount of outstanding Securities from
time to time endorsed thereon; provided that the aggregate amount of
outstanding Securities represented thereby may from time to time be
20
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of the Global Security to reflect the amount of any increase or
decrease in the amount of outstanding Securities represented thereby shall be
made by the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.6 hereof.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Section 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. If an Officer whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The Trustee's signature shall be conclusive evidence
that the Security has been authenticated under this Indenture. The form of
Trustee's certificate of authentication to be borne by the Securities shall be
substantially as set forth in Exhibit A.
The Trustee shall upon a Company Order authenticate Securities for
original Issuance up to an aggregate principal amount of $155,000,000. The
aggregate principal amount of Securities outstanding at any time may not exceed
$155,000,000 except as provided in Section 2.7.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
Section 2.3. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Securities may
be presented for registration of transfer or for exchange (the "Registrar") and
an office or agency where Securities may be presented for payment (the "Paying
Agent"). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may appoint one or more co-registrars and
one or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder. The Company shall notify the
Trustee and the Trustee shall notify the Holders of the name and address of any
Agent not a party to this Indenture. The Company shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture,
which shall incorporate the TIA's provisions. The agreement shall implement
this Indenture's provisions that relate to such Agent.
21
The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the
Securities. The Company or any of its subsidiaries may act as Paying Agent,
Registrar or co-registrar. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with Section 7.7.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to Global Securities. The Trustee shall act
as custodian for the Depositary with respect to the Global Securities.
Section 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the Holders'
benefit or the Trustee all money the Paying Agent holds for redemption or
purchase of the Securities or for the payment of principal of, premium, if any,
and interest on, the Securities, and will notify the Trustee of any Default by
the Company in providing the Paying Agent with sufficient funds to (i) purchase
Securities tendered pursuant to a Change of Control Offer, (ii) redeem
Securities called for redemption, or (iii) make any payment of principal,
premium or interest due on the Securities. While any such Default continues,
the Trustee may require the Paying Agent to pay all money it holds to the
Trustee. The Company at any time may require the Paying Agent to pay all money
it holds to the Trustee. Upon payment over to the Trustee, the Paying Agent (if
other than the Company or any of its Subsidiaries) shall have no further
liability for the money it delivered to the Trustee. If the Company or any of
its Subsidiaries acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the Holders' benefit or the Trustee all money it holds
as Paying Agent.
Section 2.5. 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
Holders and shall otherwise comply with ss. 312(a) of the TIA. If the Trustee
is not the Registrar, the Company shall furnish to the Trustee, at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders including
the aggregate principal amount of the Securities each holds, and the Company
shall otherwise comply with ss. 312(a) of the TIA.
Section 2.6. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Certificated Securities. When
Certificated Securities are presented by a Holder to the Registrar or
co-registrar with a request (1) to register the transfer of the Certificated
Securities or (2) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided that any Certificated
Securities so presented shall (A) have been duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the
22
Registrar duly executed by such Holder or by his attorney duly authorized in
writing; and (B) in the case of a Restricted Security such request shall be
accompanied by the following additional documents:
(i) if such Restricted Security is being delivered to
the Registrar or co-registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification to that effect (in
substantially the form of Exhibit B attached
hereto); or
(ii) if such Restricted Security is being transferred to
a QIB in accordance with Rule 144A or pursuant to an
effective registration statement under the
Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached
hereto); or
(iii) if such Restricted Security is being transferred to
an accredited "institutional investor," as defined
in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, a transferee letter of
representations (in substantially the form attached
hereto as Exhibit C); or
(iv) if such Restricted Security is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (in substantially the form of Exhibit
B attached hereto) and an opinion of counsel
reasonably acceptable to the Company and the
Registrar to the effect that such transfer is in
compliance with the Securities Act.
(b) Transfer of a Certificated Security for a Beneficial
Interest in a Global Security. A Certificated Security may be exchanged for a
beneficial interest in a Global Security only upon receipt by the Trustee of a
Certificated Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Trustee, together with
(i) written instructions directing the Trustee to make
an endorsement on the Global Security to reflect an
increase in the aggregate principal amount of the
Securities represented by the Global Security; and
(ii) if such Certificated Security is a Restricted
Security, a certification (in substantially the form
of Exhibit B attached hereto) to the effect that
such Certificated Security is being transferred to a
QIB in accordance with Rule 144A;
in which case the Trustee shall cancel such Certificated Security and cause the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Security is then outstanding, the
Company shall issue and the Trustee shall authenticate a new Global Security in
the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer
and exchange of
23
a Global Security or beneficial interests therein shall be effected through the
Depositary in accordance with this Indenture and the procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Security
for a Certificated Security. Upon receipt by the Trustee of written transfer
instructions (or such other form of instructions as is customary for the
Depositary), from the Depositary (or its nominee) on behalf of any Person
having a beneficial interest in a Global Security, the Trustee shall, in
accordance with the standing instructions and procedures existing between the
Depositary and the Trustee, cause the aggregate principal amount of Global
Securities to be reduced accordingly and, following such reduction, the Company
shall execute and the Trustee shall authenticate and deliver to the transferee
a Certificated Security in the appropriate principal amount; provided that in
the case of a Restricted Security such instructions shall be accompanied by the
following additional documents:
(i) if such beneficial interest is being transferred to
the Person designated by the Depositary as being the
beneficial owner, a certification to that effect (in
substantially the form of Exhibit B attached
hereto); or
(ii) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A or pursuant to an
effective registration statement under the
Securities Act, a certification to that effect (in
substantially the form of Exhibit B attached
hereto); or
(iii) if such Restricted Security is being transferred to
an accredited "institutional investor," as defined
in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, a transferee letter of
representations (in substantially the form attached
as hereto as Exhibit C); or
(iv) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (in substantially the form of Exhibit
B attached hereto) and an opinion of counsel
reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in
compliance with the Securities Act.
Certificated Securities Issued in exchange for a beneficial interest
in a Global Security shall be registered in such names and in such authorized
denominations as the Depositary shall instruct the Trustee.
(e) Transfer and Exchange of Global Securities.
Notwithstanding any other provision of this Indenture, the Global Security may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary; provided that
if
24
(i) the Depositary notifies the Company that the
Depositary is unwilling or unable to continue as
Depositary and a successor Depositary is not
appointed by the Company within 90 days after
delivery of such notice, or
(ii) the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the
Issuance of Certificated Securities under this
Indenture,
then the Company shall execute, and the Trustee shall authenticate and deliver,
Certificated Securities in an aggregate principal amount equal to the aggregate
principal amount of the Global Security in exchange for such Global Security.
(f) Cancellation and/or Adjustment of Global Securities. At
such time as all beneficial interests in the Global Security have either been
exchanged for Certificated Securities, redeemed, repurchased or canceled, the
Global Security shall be returned to or retained and canceled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in the
Global Security is exchanged for Certificated Securities, redeemed, repurchased
or canceled, the aggregate principal amount of Securities represented by such
Global Security shall be reduced accordingly and an endorsement shall be made
on such Global Security by the Trustee to reflect such reduction.
(g) General Provisions Relating to Transfers and Exchanges.
To permit registrations of transfers and exchanges, the Company shall execute
and the Trustee shall authenticate Certificated Securities and Global
Securities at the Registrar's request. All Certificated Securities and Global
Securities Issued upon any registration of transfer or exchange of Certificated
Securities or Global Securities shall be legal, valid and binding obligations
of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Certificated Securities or Global Securities
surrendered upon such registration of transfer or exchange.
No service charge shall be made to a Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon exchanges
(without transfer to another Person) pursuant to Section 2.10, 3.6, 3.8 or 9.5,
which the Company shall pay).
The Company shall not be required to (i) issue, register the
transfer of or exchange Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities for redemption
under Section 3.2 hereof and ending at the close of business on the day of
selection; or (ii) register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part; or (iii) register the transfer of or
exchange a Security between a record date and the next succeeding interest
payment date.
Prior to due presentment for registration of transfer of any
Security, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Security is registered
25
as the absolute owner of such Security for all purposes, and neither the
Trustee, any Agent nor the Company shall be affected by notice to the contrary.
(h) Exchange of Series C Notes for Series D Notes. The Series
C Notes may be exchanged for Series D Notes pursuant to the terms of the
Exchange Offer. The Trustee and Registrar shall make the exchange as follows:
The Company shall present the Trustee with an Officers' Certificate
certifying the following:
(A) upon Issuance of the Series D Notes, the
transactions contemplated by the Exchange Offer have
been consummated; and
(B) the principal amount of Series C Notes properly
tendered in the Exchange Offer that are represented
by Global Securities and the principal amount of
Series C Notes properly tendered in the Exchange
Offer that are represented by Certificated
Securities, the name of each Holder of such
Certificated Securities, the principal amount at
maturity properly tendered in the Exchange Offer by
each such Holder and the name and address to which
Certificated Securities for Series D Notes shall be
registered and sent for each such Holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii) an
Opinion of Counsel (x) to the effect that the Series D Notes have been
registered under Section 5 of the Securities Act and this Indenture has been
qualified under the TIA and (y) with respect to the matters set forth in
Section 6(c)(ix)(A)(2) of the Registration Rights Agreement and (iii) a Company
Order, shall authenticate (A) a Global Security for Series D Notes in aggregate
principal amount equal to the aggregate principal amount of Series C Notes
represented by a Global Security indicated in such Officers' Certificate as
having been properly tendered and (B) Certificated Securities representing
Series D Notes registered in the names of and in the principal amounts
indicated in such Officers' Certificate.
If the principal amount at maturity of the Global Security for the
Series D Notes is less than the aggregate principal amount at maturity of the
Global Security for the Series C Notes, the Trustee shall make an endorsement
on such Global Security for Series C Notes indicating a reduction in the
principal amount at maturity represented thereby.
The Trustee shall deliver such Certificated Securities for Series D
Notes to the Holders thereof as indicated in such Officers' Certificate.
Section 2.7. REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee, or if the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall Issue and the
Trustee, upon the Company's written order signed by two Officers, shall
authenticate a replacement Security if the Trustee's requirements are met. If
the Trustee or
26
the Company requires, the Holder must supply an indemnity bond that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent or any authenticating agent from any loss which
any of them may suffer if a Security is replaced. The Company and the Trustee
may charge for its expenses in replacing a Security.
Every replacement Security is an additional Obligation of the
Company.
Section 2.8. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities the
Trustee has authenticated except for those it has canceled, those delivered to
it for cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that a bona
fide purchaser holds the replaced Security.
If the entire principal of and premium, if any, and accrued interest
on any Security is considered paid under Section 4.1, it ceases to be
outstanding and interest on it ceases to accrue.
Subject to Section 2.9, a Security does not cease to be outstanding
because the Company or an Affiliate holds the Security.
Section 2.9. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, waiver or consent, Securities
that the Company or an Affiliate own 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
Securities which the Trustee knows are so owned shall be so disregarded.
Notwithstanding the foregoing, Securities that the Company or an Affiliate
offers to purchase or acquire pursuant to an Offer, exchange offer, tender
offer or otherwise shall not be deemed to be owned by the Company or an
Affiliate until legal title to such Securities passes to the Company or such
Affiliate, as the case may be.
Section 2.10. TEMPORARY SECURITIES.
Until Certificated Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Certificated Securities but
may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee, upon receipt of the Company's written order signed by two Officers,
shall authenticate Certificated Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as Certificated Securities.
27
Section 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, any co-registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange, replacement, payment (including all Securities called for
redemption and all Securities accepted for payment pursuant to an Offer) or
cancellation, and the Trustee shall cancel all such Securities and shall
destroy all canceled Securities (subject to the Exchange Act's record retention
requirements) and deliver a certificate of their destruction to the Company
unless by a Company Order, the Company shall direct that canceled Securities be
returned to it. The Company may not Issue new Securities to replace Securities
that have been canceled by the Trustee or that have been delivered to the
Trustee for cancellation. If the Company or an Affiliate acquires any
Securities (other than by redemption or pursuant to an Offer), such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Securities unless and until such Securities are delivered
to the Trustee for cancellation.
Section 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to Holders on a subsequent
special record date, in each case at the rate provided in the Securities and
Section 4.1. The Company shall, with the Trustee's consent, fix or cause to be
fixed each such special record date and payment date. At least 15 days before
the special record date, the Company (or the Trustee, in the name of and at the
expense of the Company) shall mail a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
Section 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders
of Securities entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided
for in ss. 316(c) of the TIA.
Section 2.14. CUSIP NUMBER.
A "CUSIP" number will be printed on the Securities, and the Trustee
shall use the CUSIP number in notices of redemption, purchase or exchange as a
convenience to Holders, provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities and that reliance may be placed only
on the other identification numbers printed on the Securities. The Company will
promptly notify the Trustee of any change in the CUSIP number.
Section 2.15. LEGENDS.
(a) Except as permitted by subsection (b) or (c) hereof, each
Security shall bear legends relating to restrictions on transfer pursuant to
the securities laws in substantially the
28
form set forth on Exhibit A attached hereto.
(b) Upon any sale or transfer of a Restricted Security
(including any Restricted Security represented by a Global Security) pursuant
to Rule 144 under the Securities Act or pursuant to an effective registration
statement under the Securities Act:
(i) in the case of any Restricted Security that is a
Certificated Security, the Registrar shall permit
the Holder thereof to exchange such Restricted
Security for a Certificated Security that does not
bear the legends required by subsection (a) above;
and
(ii) in the case of any Restricted Security represented
by a Global Security, such Restricted Security shall
not be required to bear the legends required by
subsection (a) above but shall continue to be
subject to the provisions of Section 2.6(c) hereof;
provided that with respect to any request for an
exchange of a Restricted Security that is
represented by a Global Security for a Certificated
Security that does not bear the legends required by
subsection (a) above, which request is made in
reliance upon Rule 144, the Holder thereof shall
certify in writing to the Registrar that such
request is being made pursuant to Rule 144.
(c) The Company shall issue and the Trustee shall
authenticate Series D Notes in exchange for Series C Notes accepted for
exchange in the Exchange Offer. The Series D Notes shall not bear the legends
required by subsection (a) above unless the Holder of such Series C Notes is
either (A) a broker-dealer who purchased such Series C Notes directly from the
Company to resell pursuant to Rule 144A or any other available exemption under
the Securities Act, (B) a Person participating in the distribution of the
Series C Notes or (C) a Person who is an affiliate (as defined in Rule 144A) of
the Company.
ARTICLE 3.
REDEMPTION
Section 3.1. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to Section 3.7,
it shall furnish to the Trustee, at least 10 but not more than 15 days before
notice of redemption is to be mailed by the Company to the Holders, an
Officers' Certificate stating that the Company has elected to redeem Securities
pursuant to Section 3.7, the date notice of redemption is to be mailed to
Holders, the redemption date, the aggregate principal amount of Securities to
be redeemed, the redemption price for such Securities and the amount of accrued
and unpaid interest on such Securities as of the redemption date. If the
Trustee is not the Registrar, the Company shall, concurrently with delivery of
its notice to the Trustee of a redemption, cause the Registrar to deliver to
the Trustee a certificate (upon which the Trustee may rely) setting forth the
name of, and the aggregate principal amount of Securities held by, each Holder.
29
If the Company is required to offer to purchase Securities pursuant
to Section 4.13 or 4.14, it shall furnish to the Trustee, at least 2 Business
Days before notice of the Offer is to be mailed to Holders, an Officers'
Certificate setting forth that the Offer is being made pursuant to Section 4.13
or 4.14, as the case may be, the Purchase Date, the maximum principal amount of
Securities the Company is offering to purchase pursuant to the Offer, the
purchase price for such Securities, and the amount of accrued and unpaid
interest on such Securities as of the Purchase Date.
The Company will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
Section 3.2. SELECTION OF SECURITIES TO BE REDEEMED OR PURCHASED.
If less than all the Securities are to be redeemed or if less than
all the Securities tendered pursuant to an Offer are to be accepted for
payment, the Trustee shall select the outstanding Securities to be redeemed or
accepted for payment pro rata, by lot or by a method that complies with the
requirements of any exchange, if any, on which the Securities or the Series B
Notes are listed and that the Trustee considers fair and appropriate and for
this purpose the Trustee shall consider the Securities and the Series B Notes
together as one series. If the Company elects to mail notice of a redemption to
Holders, the Trustee shall at least 5 business days prior to the date notice of
redemption is to be mailed, (i) select the Securities to be redeemed from
Securities outstanding not previously called for redemption, and (ii) notify
the Company of the names of each Holder of Securities selected for redemption,
the principal amount of Securities held by each such Holder and the principal
amount of such Holder's Securities that are to be redeemed. If less than all
Securities tendered pursuant to an Offer on the Purchase Date are to be
accepted for payment, the Trustee shall select on or promptly after the
Purchase Date the Securities to be accepted for payment. The Trustee shall
select for redemption or purchase Securities or portions of Securities in
principal amounts of $1,000 or integral multiples of $1,000; except that if all
of the Securities of a Holder are selected for redemption or purchase, the
entire outstanding amount of Securities held by such Holder, even if not a
multiple of $1,000, shall be redeemed or purchased. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Securities
called for redemption or tendered pursuant to an Offer also apply to portions
of Securities called for redemption or tendered pursuant to an Offer. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be called for redemption or selected for purchase.
Section 3.3. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption to each Holder of Securities or
portions thereof to be redeemed. The notice shall identify the Securities or
portions thereof to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Securities and the
amount of unpaid and accrued interest on such
Securities as of the date of redemption;
30
(3) if any Security is being redeemed in part, the
portion of the principal amount of such Security to
be redeemed and that, after the redemption date,
upon surrender of such Security, a new Security or
Securities in principal amount equal to the
unredeemed portion will be Issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price for, and any accrued and unpaid
interest on, such Securities;
(6) that, unless the Company defaults in making such
redemption payment, interest on Securities called
for redemption ceases to accrue on and after the
redemption date;
(7) the paragraph of the Securities pursuant to which
the Securities called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Securities.
At the Company's request, the Trustee shall (at the Company's
expense) give notice of redemption in the Company's name at least 30 but not
more than 60 days before a redemption; provided, however, that the Company
shall deliver to the Trustee, at least 45 days prior to the redemption date and
at least 10 days prior to the date that notice of the redemption is to be
mailed to Holders, an Officers' Certificate that (i) requests the Trustee to
give notice of the redemption to Holders, (ii) sets forth the information to be
provided to Holders in the notice of redemption, as set forth in the preceding
paragraph, (iii) states that the Company has elected to redeem Securities
pursuant to Section 3.7(a) or 3.7(b), as the case may be, and (iv) sets forth
the aggregate principal amount of Securities to be redeemed and the amount of
accrued and unpaid interest thereon as of the redemption date. If the Trustee
is not the Registrar, the Company shall, concurrently with any such request,
cause the Registrar to deliver to the Trustee a certificate (upon which the
Trustee may rely) setting forth the name of, the address of, and the aggregate
principal amount of Securities held by, each Holder.
Section 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date at the price set forth
in the Security.
Section 3.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to any redemption date, the Company shall deposit with
the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Securities to be redeemed on that date.
The Trustee or the Paying Agent shall return to the Company any money that the
Company deposited with the Trustee or the Paying Agent in excess
31
of the amounts necessary to pay the redemption price of, and accrued interest
on, all Securities to be redeemed.
If the Company complies with the preceding paragraph, interest on
the Securities to be redeemed will cease to accrue on such Securities on the
applicable redemption date, whether or not such Securities are presented for
payment. If a Security is redeemed on or after an interest record date but on
or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Security was registered
at the close of business on such record date. If any Security called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest will be
paid on the unpaid principal and premium, if any, and interest from the
redemption date until such principal, premium and interest is paid, at the rate
of interest provided in the Securities and in Section 4.1.
Section 3.6. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Company
shall Issue and the Trustee shall authenticate for the Holder at the Company's
expense a new Security equal in principal amount to the unredeemed portion of
the Security surrendered.
Section 3.7. OPTIONAL REDEMPTION PROVISIONS.
The Securities may not be redeemed at the option of the Company
prior to August 1, 2002. During the twelve-month period beginning August 1 of
the years indicated below, the Securities will be redeemable at the option of
the Company, in whole or in part, on at least 30 but not more than 60 days'
notice to each Holder to be redeemed, at the redemption prices (expressed as
percentages of the principal amount) set forth below, plus any accrued and
unpaid interest to the date of redemption:
Year Percentage
---- ----------
2002............................................................ 105.188%
2003............................................................ 102.594%
2004 and thereafter............................................. 100.000%
Section 3.8. MANDATORY PURCHASE PROVISION.
(a) Within 30 days after any Change of Control Trigger Date
or Asset Sale Trigger Date, the Company shall mail a notice to each Holder
stating:
(i) that an offer ("Offer") is being made pursuant to
Section 4.13 or 4.14, as the case may be, the length
of time the Offer shall remain open and the maximum
aggregate principal amount of Securities that the
Company is offering to purchase;
32
(ii) the purchase price for the Securities (as set forth
in Section 4.13 or 4.14, as the case may be), the
amount of accrued and unpaid interest and Liquidated
Damages, if any, on such Securities as of the
purchase date, and the purchase date (which shall be
no earlier than 30 days nor later than 40 days from
the date such notice is mailed (the "Purchase
Date"));
(iii) that any Security not accepted for payment will
continue to accrue interest;
(iv) that, unless the Company fails to deposit with the
Paying Agent on the Purchase Date an amount
sufficient to purchase all Securities and Series B
Notes accepted for payment, interest shall cease to
accrue on such Securities after the Purchase Date;
(v) that Holders electing to tender any Security or
portion thereof will be required to surrender their
Security, with a form entitled "Option of Holder to
Elect Purchase" completed, to the Paying Agent at
the address specified in the notice prior to the
close of business on the Business Day preceding the
Purchase Date; provided that Holders electing to
tender only a portion of any Security must tender a
principal amount of $1,000 or integral multiples
thereof;
(vi) that Holders will be entitled to withdraw their
election to tender Securities if the Paying Agent
receives, not later than the close of business on
the third Business Day preceding the Purchase Date,
a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal
amount of Securities delivered for purchase and a
statement that such Holder is withdrawing his
election to have such Security purchased; and
(vii) that Holders whose Securities are accepted for
payment in part will be Issued new Securities equal
in principal amount to the unpurchased portion of
Securities surrendered; provided that only
Securities in a principal amount of $1,000 or
integral multiples thereof will be accepted for
payment.
(b) On the Purchase Date, the Company will, to the extent
required by this Indenture and the Offer,
(i) accept for payment Securities or portions thereof
tendered pursuant to such Offer,
(ii) deposit with the Paying Agent an amount sufficient
to purchase the lesser of (a) the Securities and
Series B Notes or portions thereof tendered pursuant
to such Offer, and (b) the maximum aggregate
principal amount of Securities and Series B Notes
that the Company offered to purchase pursuant to
such Offer, and
33
(iii) deliver or cause to be delivered to the Trustee all
Securities tendered pursuant to the Offer, together
with an Officers' Certificate setting forth the name
of each Holder that tendered Securities and the
principal amount of the Securities or portions
thereof tendered by each such Holder.
(c) With respect to any Offer, if less than all of the
Securities tendered pursuant to an Offer are to be purchased by the Company,
the Trustee shall select on the Purchase Date the Securities or portions
thereof to be accepted for payment pursuant to Section 3.2.
(d) Promptly after consummation of an Offer, (i) the Paying
Agent shall mail to each Holder of Securities or portions thereof accepted for
payment an amount equal to the purchase price for, plus any accrued and unpaid
interest and Liquidated Damages, if any, on, such Securities, (ii) with respect
to any tendered Security not accepted for payment in whole or in part, the
Trustee shall return such Security to the Holder thereof, and (iii) with
respect to any Security accepted for payment in part, the Trustee shall
authenticate and mail to each such Holder a new Security equal in principal
amount to the unpurchased portion of the tendered Security.
(e) The Company will publicly announce the results of the
Offer on or as soon as practicable after the Purchase Date.
(f) The Company will comply with Rule 14e-1 under the
Exchange Act and any other securities laws and regulations to the extent such
laws and regulations are applicable to any Offer.
(g) With respect to any Offer, if the Company deposits with
the Paying Agent on the Purchase Date an amount sufficient to purchase all
Securities accepted for payment, interest shall cease to accrue on such
Securities after the Purchase Date; provided, however, that if the Company
fails to deposit such amount on the Purchase Date, interest shall continue to
accrue on such Securities until such deposit is made.
34
ARTICLE 4.
COVENANTS
Section 4.1. PAYMENT OF SECURITIES.
The Company shall pay the principal of, and premium, if any, and
interest on the Securities on the dates and in the manner provided in the
Securities. Holders of Securities must surrender their Securities to the Paying
Agent to collect principal payments. Principal, premium and interest shall be
considered paid on the date due if the Paying Agent (other than the Company or
any of its Subsidiaries) holds as of 10:00 a.m. Eastern Time money the Company
deposited in immediately available funds designated for and sufficient to pay
all principal, premium, if any, and interest then due. The Paying Agent shall
return to the Company, no later than five days following the date of payment,
any money (including accrued interest) that exceeds such amount of principal,
premium, if any, and interest paid on the Securities. The Company shall pay any
and all amounts, including, without limitation, Liquidated Damages, if any, on
the dates and in the manner required under the Registration Rights Agreement.
Section 4.2. SEC REPORTS.
(a) The Company shall file with the Trustee, within 15 days
after the time of filing with the Commission, copies of the reports,
information and other documents (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe) that the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act. If the Company is not subject to the requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with the
Commission and the Trustee all such reports, information and other documents as
it would be required to file if it were subject to the requirements of Section
13 or 15(d) of the Exchange Act; provided, that the Company shall not be in
default of the provisions of this Section 4.2 for any failure to file reports
with the Commission solely by refusal by the Commission to accept the same for
filing. The Company shall deliver (or cause the Trustee to deliver) copies of
all reports, information and documents required to be filed with the Trustee
pursuant to this Section 4.2 to the Holders at their addresses appearing in the
register of Securities maintained by the Registrar. The Company shall also
comply with the provisions of TIA ss. 314(a).
(b) If the Company is required to furnish annual, quarterly
or current reports to its stockholders pursuant to the Exchange Act, the
Company shall cause any annual, quarterly, current or other financial report
furnished by it generally to its stockholders to be filed with the Trustee and
mailed to the Holders at their addresses appearing in the register of
Securities maintained by the Registrar. If the Company is not required to
furnish annual, quarterly or current reports to its stockholders pursuant to
the Exchange Act, the Company shall cause the financial statements of the
Company and its consolidated Subsidiaries (and similar financial statements for
all unconsolidated Subsidiaries, if any), including any notes thereto (and,
with respect to annual reports, an auditors' report by an accounting firm of
established national reputation), and a "Management's Discussion and Analysis
of Financial Condition and Results of Operations," comparable to that which
would have been required to appear in annual or quarterly
35
reports filed under Section 13 or 15(d) of the Exchange Act to be so filed with
the Trustee and mailed to the Holders promptly, but in any event, within 120
days after the end of each of the fiscal years of the Company and within 60
days after the end of each of the first three fiscal quarters of each such
fiscal year.
(c) So long as is required for an offer or sale of the
Securities to qualify for an exemption under Rule 144A, the Company shall, upon
request, provide the information as would be required by clause (d)(4)
thereunder if the Company were subject to the requirements of such clause to
each Holder and to each beneficial owner and prospective purchaser of
Securities identified by any Holder of Restricted Securities.
(d) Notwithstanding anything herein to the contrary, the
Trustee shall have no duty to review such documents for purposes of determining
their compliance with any provision of this Indenture.
Section 4.3. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, an Officers' Certificate
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company 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 or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action the Company has taken or proposes to take with
respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of, or premium, if any or interest on, the Securities are prohibited
or if such event has occurred, a description of the event and what action the
Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
financial statements delivered pursuant to Section 4.2 shall be accompanied by
a written statement of the Company's independent public accountants (who shall
be a firm of established national reputation reasonably satisfactory to the
Trustee) that in making the examination necessary for certification of such
financial statements nothing has come to their attention which would lead them
to believe that the Company has violated any provisions of Section 4.1, 4.5,
4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14 or 4.15 or of Article 5 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) The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of (i) any Default or Event of Default
36
or (ii) any event of default under any other mortgage, indenture or instrument
that could result in an Event of Default under Section 6.1(4), an Officers'
Certificate specifying such Default, Event of Default or default and what
action the Company is taking or proposes to take with respect thereto.
Section 4.4. STAY, EXTENSION AND 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, extension or usury law
wherever enacted, now or at any time hereafter in force, that might affect the
covenants or the performance of this Indenture; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law, 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
has been enacted.
Section 4.5. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any distribution
on account of the Company's or such Restricted
Subsidiary's Capital Stock or other Equity Interests
(other than dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of
the Company or a Restricted Subsidiary and other
than dividends or distributions payable by a
Restricted Subsidiary to another Restricted
Subsidiary or to the Company),
(ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Company or any of
its Restricted Subsidiaries (other than any such
Equity Interest purchased from the Company or any
Restricted Subsidiary),
(iii) voluntarily prepay Indebtedness that is subordinated
to the Securities, whether any such subordinated
Indebtedness is outstanding on, or Issued after,
July 25, 1997, or
(iv) make any Restricted Investment (all such dividends,
distributions, purchases, redemptions or other
acquisitions, retirements, prepayments and
Restricted Investments being collectively referred
to as "Restricted Payments"), if, at the time of
such Restricted Payment:
(1) a Default or Event of Default shall have occurred
and be continuing or shall occur as a consequence
thereof; or
37
(2) immediately after such Restricted Payment and after
giving effect thereto on a Pro Forma Basis, the
Company shall not be able to Issue $1.00 of
additional Indebtedness pursuant to Section 4.7(a);
or
(3) such Restricted Payment, together with the aggregate
of all other Restricted Payments made after July 25,
1997, exceeds the sum, without duplication, of
(A) 50% of the aggregate Consolidated Net
Income (including, for this purpose, gains
from Asset Sales and, to the extent not
included in Consolidated Net Income, any
gain from a Restricted Investment) of the
Company (or, in case such aggregate is a
loss, 100% of such loss) for the period
(taken as one accounting period) from the
beginning of the first fiscal quarter
commencing immediately after July 25, 1997
and ending as of the Company's most
recently ended fiscal quarter at the time
of such Restricted Payment, plus
(B) 100% of the aggregate net cash proceeds and
the fair market value of any property or
securities (as determined by the Board of
Directors in good faith) received by the
Company from the Issue or sale of Equity
Interests or warrants, options or rights to
acquire Equity Interests of the Company or
any Restricted Subsidiary subsequent to
July 25, 1997 (other than Equity Interests
Issued or sold to a Restricted Subsidiary
and other than Disqualified Stock), plus
(C) $5,000,000, plus
(D) the amount by which the principal amount of
and any accrued interest on either senior
Indebtedness of the Company or any
Indebtedness of the Restricted Subsidiaries
(not held by the Company or any Restricted
Subsidiary) is reduced on the Company's
consolidated balance sheet upon the
conversion or exchange subsequent to July
25, 1997 of such Indebtedness for Equity
Interests (other than Disqualified Stock)
of the Company or any Restricted Subsidiary
(less the amount of any cash, or the fair
market value of any other property or
securities (as determined by the Board of
Directors in good faith), distributed by
the Company or any Restricted Subsidiary
(to Persons other than the Company or any
other Restricted Subsidiary) upon such
conversion or exchange, plus
(E) if any Nonrestricted Subsidiary is
redesignated as a Restricted Subsidiary,
the fair market value (as determined by the
Board of Directors in good faith) of such
Nonrestricted Subsidiary as of the date it
is redesignated; provided, however, that
for purposes of this
38
clause (E), the fair market value of any
redesignated Nonrestricted Subsidiary shall
be reduced by the amount that any such
redesignation replenishes or increases the
amount of Restricted Investments permitted
to be made pursuant to Section 4.5(b)(iii).
(b) Notwithstanding Section 4.5(a), the following
Restricted Payments may be made:
(i) the payment of any dividend within 60 days after the
date of declaration thereof if at said date of
declaration such payment would comply with the
provisions hereof;
(ii) the retirement of any of the Company's Capital Stock
or subordinated Indebtedness in exchange for, or out
of the net proceeds of the substantially concurrent
sale (other than to a Restricted Subsidiary) of,
other Capital Stock (other than Disqualified Stock)
and neither such retirement nor the proceeds of any
such sale or exchange shall be included in any
computation made pursuant to Section 4.5(a);
(iii) making Restricted Investments at any time, and from
time to time, in an aggregate outstanding amount of
$50,000,000 after July 25, 1997 (it being understood
that if any Restricted Investment acquired with a
Restricted Payment after July 25, 1997 pursuant to
this Section 4.5(b)(iii) is sold, transferred or
otherwise conveyed to any Person other than the
Company or a Restricted Subsidiary, the portion of
the net cash proceeds or fair market value of
securities or properties paid or transferred to the
Company and its Restricted Subsidiaries in
connection with such sale, transfer or conveyance
that relates or corresponds to the repayment or
return of the original cost of such a Restricted
Investment will replenish or increase the amount of
Restricted Investments permitted to be made pursuant
to this Section 4.5(b)(iii), so that up to
$50,000,000 of Restricted Investments may be
outstanding under this Section 4.5(b)(iii) at any
given time);
(iv) the repurchase or redemption of the Company's common
stock upon the death of Xxxxxx X. Xxxxx, pursuant to
the terms of an employment agreement, dated as of
February 25, 1988, between the Company and Xxxxxx X.
Xxxxx; provided, however, that the funds necessary
to satisfy the Company's obligation to repurchase or
redeem such Common Stock shall be fully reimbursed
by insurance;
(v) the repurchase or redemption of the Company's common
stock pursuant to the terms of the several
Restricted Stock Agreements, each dated as of
February 25, 1988, between the Company and each of
Xxxxxx X. Xxxxx, Xxxxxxxx X. Xxxxxxx and Xxxx X.
Xxxxxx, the Restricted Stock Agreement, dated as of
January 1, 1992, between the Company and Xxxxxx X.
Xxxxx, the Restricted Stock Agreements, each dated
as of
39
January 1, 1992, between the Company and each of
Xxxxxxxx X. Xxxxxxx, Xxxx Max and Xxxxxx X. Xxxxx,
and the Restricted Stock Agreement, dated as of
May 16, 1997, between the Company and Xxxxxx X.
Xxxxx, in each case as amended or supplemented, up to
an aggregate amount not to exceed $7,500,000;
(vi) any loans, advances, distributions or payments from
the Company to its Restricted Subsidiaries, or any
loans, advances, distributions or payments by a
Restricted Subsidiary to the Company or to another
Restricted Subsidiary, pursuant to intercompany
Indebtedness, intercompany management agreements,
intercompany tax sharing agreements, and other
intercompany agreements and obligations;
(vii) the payment of directors' fees in an annual
aggregate amount not to exceed $250,000;
(viii) to the extent constituting Restricted Payments, if
no Default or Event of Default shall have occurred
and be continuing or shall occur as a consequence
thereof, the payment of consulting, financial and
investment banking fees (but not limiting the
payment of indemnities, expenses and other amounts)
under the TJC Management Consulting Agreement,
provided that the obligation of the Company to pay
such fees under the TJC Management Consulting
Agreement shall be subordinated expressly to the
Company's Obligations on the Securities;
(ix) the purchase, redemption, retirement or other
acquisition of the Discount Debentures required by
their terms to be purchased, redeemed, retired or
acquired with the net proceeds from asset sales (as
defined in the instrument evidencing such
subordinated Indebtedness) or upon a change of
control (as defined in the instrument evidencing
such subordinated Indebtedness);
(x) the exchanging, refinancing or refunding of
subordinated Indebtedness through the Issuance of
subordinated Indebtedness so long as the
subordinated Indebtedness to be Issued is
Refinancing Indebtedness permitted under Section
4.7;
(xi) to the extent constituting Restricted Payments, any
payments made in connection with the Plan, the Prior
Offering and the Offering;
(xii) Restricted Investments received as consideration for
the sale, transfer or disposition of any business,
properties or assets of the Company or any
Restricted Subsidiary, provided that the Company
complies with Section 4.14;
(xiii) any Restricted Investment constituting securities or
instruments of a
40
Person Issued in exchange for trade or other claims
against such Person in connection with a financial
reorganization or restructuring of such Person;
(xiv) any Restricted Investment constituting an equity
investment in a Receivables Subsidiary; provided
that the aggregate amount of such equity investments
does not exceed $1,000,000; and
(xv) guarantees by the Company of Capital Lease
Obligations of Nonrestricted Subsidiaries in an
aggregate principal or face amount not exceeding the
aggregate principal or face amount of capital leases
of the Nonrestricted Subsidiaries guaranteed by the
Company on July 25, 1997.
Section 4.6. CORPORATE EXISTENCE.
Subject to Section 4.14 and Article 5 hereof, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other
existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents of each of its Restricted Subsidiaries and
the rights (charter and statutory), licenses and franchises of the Company and
each of its Restricted Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any Restricted Subsidiary, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole and that the loss thereof is not adverse in any
material respect to the Holders.
Section 4.7. LIMITATION ON INCURRENCE OF INDEBTEDNESS.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, Issue any Indebtedness (other than the Indebtedness represented
by the Securities), unless the Company's Cash Flow Coverage Ratio for the four
full fiscal quarters next preceding the date such additional Indebtedness is
Issued would have been at least (i) 1.7 to 1, if such date is between the date
of original Issuance of the Securities and June 30, 1999, (ii) 1.85 to 1, from
July 1, 1999, through June 30, 2001, or (iii) 2.0 to 1, from July 1, 2001, and
thereafter, in each case determined on a Pro Forma Basis as if such additional
Indebtedness and any other Indebtedness Issued since the end of the applicable
four-quarter period had been Issued at the beginning of such four-quarter
period.
(b) Section 4.7(a) will not apply to the Issuance of:
(i) Indebtedness of the Company and/or its Restricted
Subsidiaries up to the greater of (A) $75.0 million
in aggregate principal amount pursuant to the Credit
Agreement and (B) an aggregate principal amount up
to the sum of (x) 85% of the book value of the
Company and its Restricted Subsidiaries' Receivables
on a consolidated basis and (y) 65% of the book
value of the Company and its Restricted
Subsidiaries' inventories on a consolidated basis;
41
(ii) Indebtedness of the Company and its Restricted
Subsidiaries pursuant to any Receivables Financing;
(iii) Indebtedness of the Company and its Restricted
Subsidiaries in connection with capital leases, sale
and leaseback transactions, purchase money
obligations, capital expenditures or similar
financing transactions relating to (A) their
properties, assets and rights as of the date of
original Issuance of the Securities up to
$20,000,000 in aggregate principal amount, or (B)
their properties, assets and rights acquired after
the date of original Issuance of the Securities,
provided that such Indebtedness under this Section
4.7(b)(iii)(B) does not exceed 100% of the cost of
such properties, assets and rights;
(iv) additional Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal
amount up to $25,000,000 (all or any portion of
which may be Issued as additional Indebtedness under
the Credit Agreement); and
(v) Other Permitted Indebtedness.
Section 4.8. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) Except as otherwise set forth in this Indenture, neither
the Company nor any of its Restricted Subsidiaries may make any loan, advance,
guarantee or capital contribution to, or for the benefit of, or sell, lease,
transfer or dispose of any properties or assets to, or for the benefit of, or
purchase or lease any property or assets from, or enter into any or amend any
contract, agreement or understanding with, or for the benefit of, an Affiliate
(each such transaction or series of related transactions that are part of a
common plan an "Affiliate Transaction"), except in good faith and on terms that
are no less favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction on an
arm's-length basis from an unrelated Person.
(b) Neither the Company nor any of its Restricted
Subsidiaries may engage in any Affiliate Transaction involving aggregate
payments or other transfers by the Company and its Restricted Subsidiaries in
excess of $5,000,000 (including cash and noncash payments and benefits valued
at their fair market value by the Board of Directors in good faith) unless the
Company delivers to the Trustee (i) a resolution of the Board of Directors
stating that the Board of Directors (including a majority of the disinterested
directors, if any) has, in good faith, determined that such Affiliate
Transaction complies with the provisions of this Indenture, and (ii) an opinion
as to the fairness of such Affiliate Transaction to the Company or such
Restricted Subsidiary and the Holders of Securities, in each case from a
financial point of view by an investment banking firm of national prominence
that is not an Affiliate of the Company.
(c) Notwithstanding Sections 4.8(a) and (b), this Section 4.8
will not apply to (i) transactions between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries, (ii) any Restricted Payments
permitted pursuant to Section 4.5, (iii) payments of
42
fees and other amounts expressly due under any SAR Agreements, the Subsidiary
Advisory Agreements, the Subsidiary Consulting Agreements, the Tax Sharing
Agreement, the JI Properties Service Agreement, the Transition Agreement and
the TJC Management Consulting Agreement, provided that any amendments,
supplements, modifications, substitutions, renewals or replacements of the
foregoing agreements are approved by a majority of the Board of Directors
(including a majority of the disinterested directors, if any) as fair to the
Company and the Holders of Securities, (iv) the payment of reasonable and
customary directors' fees to directors of the Company and its Restricted
Subsidiaries, (v) transactions in connection with a Receivables Financing or
(vi) payments and transactions in connection with the Offering.
Section 4.9. LIMITATION ON LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than Permitted Liens) upon any asset now owned or
hereafter acquired by them, or any income or profits therefrom or assign or
convey any right to receive income therefrom; provided, however, that in
addition to creating Permitted Liens on its properties or assets, the Company
and any of its Restricted Subsidiaries may create any Lien upon any of their
properties or assets (including, but not limited to, any Capital Stock of its
Subsidiaries) if the Securities are equally and ratably secured.
Section 4.10. COMPLIANCE WITH LAWS, TAXES.
The Company shall, and shall cause each of its Restricted
Subsidiaries to, comply with all statutes, laws, ordinances, or government
rules and regulations to which it is subject, noncompliance with which would
materially adversely affect the business, prospects, earnings, properties,
assets or condition, financial or otherwise, of the Company and its Restricted
Subsidiaries taken as a whole.
The Company shall, and shall cause each of its Restricted
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies, except those contested in good faith and by appropriate
proceedings.
Section 4.11. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective, any encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on its
Capital Stock or any other interest or participation
in, or measured by, its profits, owned by the
Company or any Restricted Subsidiary, or pay any
Indebtedness owed to, the Company or any Restricted
Subsidiary,
(ii) make loans or advances to the Company, or
43
(iii) transfer any of its properties or assets to the
Company, except for such encumbrances or
restrictions existing under or by reason of:
(A) applicable law,
(B) Indebtedness permitted (x) under Section 4.7(a),
(y) under Sections 4.7(b)(i), (ii) and (iv) and
clauses (i), (vii) and (ix) of the definition of
Other Permitted Indebtedness, or (z) Restricted
Payments and agreements or instruments evidencing
Restricted Payments permitted under Section 4.5,
(C) customary provisions restricting subletting or
assignment of any lease or license of the Company or
any Restricted Subsidiary,
(D) customary provisions of any franchise,
distribution or similar agreement,
(E) any instrument governing Indebtedness or any
other encumbrance or restriction of a Person
acquired by the Company or any Restricted Subsidiary
at the time 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,
(F) Indebtedness or other agreements existing on the
Issue Date,
44
(G) any Refinancing Indebtedness of Indebtedness
described in Section 4.7(b)(i), (ii), (iii) and (iv)
and clauses (i), (vi), and (ix) of the definition of
Other Permitted Indebtedness; provided that the
encumbrances and restrictions created in connection
with such Refinancing Indebtedness are no more
restrictive in any material respect with regard to
the interests of the Holders than the encumbrances
and restrictions in the refinanced Indebtedness,
(H) any restrictions, with respect to a Restricted
Subsidiary, imposed pursuant to an agreement that
has been entered into for the sale or disposition of
the stock, business, assets or properties of such
Restricted Subsidiary,
(I) the terms of any Indebtedness of the Company
incurred in connection with Section 4.7, provided
that the terms of such Indebtedness constitute no
greater encumbrance or restriction on the ability of
any Restricted Subsidiary to pay dividends or make
distributions, make loans or advances or transfer
properties or assets than is permitted by this
Section 4.11, and
(J) the terms of purchase money obligations, but
only to the extent such purchase money obligations
restrict or prohibit the transfer of the property so
acquired.
(b) Nothing contained in this Section 4.11 shall prevent the
Company from entering into any agreement or instrument providing for the
incurrence of Permitted Liens or restricting the sale or other disposition of
property or assets of the Company or its Restricted Subsidiaries that are
subject to Permitted Liens.
Section 4.12. MAINTENANCE OF OFFICE OR AGENCIES.
The Company will maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of any Agent) where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice
to the Trustee of any change in the location of such office or agency. If at
any time the Company shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any matter
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
45
The Company hereby designates the Corporate Trust Office of the
Trustee located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 as one such
office or agency of the Company in accordance with Section 2.3.
Section 4.13. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control (such date
being the "Change of Control Trigger Date"), each Holder shall have the right
to require the Company to purchase such Holder's Securities pursuant to an
Offer at a purchase price equal to 101% of the aggregate principal amount of
such Securities, plus any accrued and unpaid interest and Liquidated Damages,
if any, to the Purchase Date. Although the failure of the Company to purchase
all Securities tendered in such an Offer shall be a Default, if the Company is
unable to purchase all Securities and Series B Notes tendered in such an Offer,
the Company shall nevertheless purchase the maximum principal amount of
Securities that it is able to purchase at that time in accordance with the
provisions of Section 3.2.
(b) In the event of a Change of Control, the Company shall
not offer to purchase or redeem any subordinated Indebtedness required or
entitled by its terms to be redeemed or purchased until the Change of Control
Offer for the Securities has been consummated and all Securities tendered
pursuant to such Offer have been accepted for payment.
Section 4.14. LIMITATION ON ASSET SALES.
(a) The Company may not, and may not permit any Restricted
Subsidiary to, directly or indirectly, consummate an Asset Sale (including the
sale of any of the Capital Stock of any Restricted Subsidiary) providing for
Net Proceeds in excess of $2,500,000 unless at least (A) 50% of the
consideration thereof received by the Company is in the form of cash and/or
Cash Equivalents and/or Marketable Securities and (B) 75% of the Net Proceeds
from such Asset Sale are applied to one or more of the following in such
combination as the Company shall elect: (i) an investment in another asset or
business in the same line of business as, or a line of business similar to that
of, the line of business of the Company and its Restricted Subsidiaries at that
time; provided that such investment occurs on or prior to the 365th day
following the date of such Asset Sale (the "Asset Sale Disposition Date"), (ii)
the purchase, redemption or other prepayment or repayment of outstanding senior
Indebtedness on or prior to the Asset Sale Disposition Date or (iii) an Offer
expiring on or prior to the Purchase Date.
(b) Any Net Proceeds from any Asset Sale that are not applied
or invested as provided in Section 4.14(a)(i) or (a)(ii) shall constitute
"Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds
$10,000,000 (such date being an "Asset Sale Trigger Date"), the Company shall
make an Offer to purchase the maximum principal amount of Securities and Series
B Notes (the "Asset Sale Offer Amount") then outstanding that may be purchased
out of Excess Proceeds, at an offer price in cash in an amount equal to 100% of
the outstanding principal amount thereof plus any accrued and unpaid interest
and Liquidated Damages, if any, to the Purchase Date.
46
(d) To the extent that any Excess Proceeds remain after
completion of the Offer, the Company may use such remaining amount for general
corporate purposes.
(e) Upon completion of each such Offer, the amount of Excess
Proceeds shall be reset to zero.
(f) Notwithstanding the foregoing, to the extent that any or
all of the Net Proceeds of an Asset Sale is prohibited or delayed by applicable
local law from being repatriated to the United States, the portion of such Net
Proceeds so affected will not be required to be applied pursuant to this
Section 4.14, but may be retained for so long, but only for so long, as the
applicable local law prohibits repatriation to the United States. The Company
will promptly take all reasonable actions required by the applicable local law
to permit such repatriation, and once such repatriation of any affected Net
Proceeds is not prohibited under applicable local law, such repatriation will
be immediately effected and such repatriated Net Proceeds will be applied in
the manner set forth above as if such Asset Sale had occurred on the date of
repatriation.
Section 4.15. LIMITATION ON GUARANTEES OF COMPANY INDEBTEDNESS BY
RESTRICTED SUBSIDIARIES.
(a) The Company will not permit any Restricted Subsidiary,
directly or indirectly, to guarantee any Indebtedness of the Company other than
the Securities ("Other Indebtedness") unless:
(i) such Restricted Subsidiary contemporaneously
executes and delivers a supplemental indenture to
this Indenture providing for a guarantee of payment
of the Securities then outstanding by such
Restricted Subsidiary to the same extent as the
guarantee (the "Other Indebtedness Guarantee") of
the Other Indebtedness (including waiver of
subrogation, if any), and
(ii) if the Other Indebtedness guaranteed by such
Restricted Subsidiary is:
(A) senior Indebtedness, the guarantee for the
Securities shall be equal in right of
payment with the Other Indebtedness
Guarantee, and
(B) subordinated Indebtedness, the guarantee
for the Securities shall be senior in right
of payment to the Other Indebtedness
Guarantee,
provided that the foregoing will not limit or restrict
guarantees Issued by any Restricted Subsidiary in respect of
Indebtedness of other Restricted Subsidiaries.
(b) Each guarantee of the Securities created by a Restricted
Subsidiary pursuant to Section 4.15(a) shall be in form and substance
satisfactory to the Trustee and shall provide, among other things, that it
shall be automatically and unconditionally released and discharged upon:
(i) any sale, exchange or transfer permitted by this
Indenture to any Person not an Affiliate of the
Company of (A) all of the Company's Capital Stock
47
in such Restricted Subsidiary, or (B) the sale of all
or substantially all of the assets of the Restricted
Subsidiary and upon the application of the Net
Proceeds from such sale in accordance with Section
4.14, or
(ii) the release or discharge of the Other Indebtedness
Guarantee that resulted in the creation of such
guarantee of the Securities, except a discharge or
release by or as a result of payment under such
Other Indebtedness Guarantee.
ARTICLE 5.
SUCCESSORS
Section 5.1. MERGER OR CONSOLIDATION.
(a) The Company shall not consolidate or merge with or into,
or sell, lease, convey or otherwise dispose of all or substantially all of its
assets to, any Person (any such consolidation, merger or sale being a
"Disposition") unless:
(i) the successor entity of such Disposition or the
Person to which such Disposition shall have been
made is a corporation organized or existing under
the laws of the United States, any state thereof or
the District of Columbia;
(ii) the successor corporation of such Disposition or the
corporation to which such Disposition shall have
been made expressly assumes the Obligations of the
Company, pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee, under
this Indenture and the Securities;
(iii) immediately after such Disposition, no Default or
Event of Default exists; and
(iv) the entity (the "Successor Corporation") formed by
or surviving any such Disposition, or the
corporation to which such Disposition shall have
been made, shall
(A) have Consolidated Net Worth (immediately after
the Disposition but prior to any purchase accounting
adjustments resulting from the Disposition) equal to
or greater than the Consolidated Net Worth of the
Company immediately preceding the Disposition,
(B) be permitted immediately after the
Disposition by the terms of Section 4.7(a)
to Issue at least $1.00 of additional
Indebtedness determined on a Pro Forma
Basis pursuant to Section 4.7(a), and
48
(C) have a Cash Flow Coverage Ratio, for the
four fiscal quarters immediately preceding
the applicable Disposition determined on a
Pro Forma Basis, equal to or greater than
the actual Cash Flow Coverage Ratio of the
Company for such four-quarter period.
Prior to the consummation of any proposed Disposition, the Company
shall deliver to the Trustee an Officers' Certificate to the foregoing effect
and an Opinion of Counsel stating that the proposed Disposition and such
supplemental indenture comply with this Indenture.
Section 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any Disposition, the successor corporation resulting from such
Disposition shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such Successor Corporation has been named as the Company herein; provided,
however, that neither the Company nor any Successor Corporation shall be
released from its Obligation to pay the principal of, and premium, if any, and
interest on, the Securities.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1. EVENTS OF DEFAULT.
(a) An "Event of Default" is
(1) a default for 30 days in payment of interest on the
Securities;
(2) a default in payment when due of principal or
premium, if any;
(3) the failure of the Company to comply with any of its
other agreements or covenants in, or provisions of,
this Indenture or the Securities and the Default
continues for the period, if applicable, and after
the notice specified in Section 6.1(b);
(4) a default by the Company or any Restricted
Subsidiary under any mortgage, indenture or
instrument under which there may be Issued or by
which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or
any Restricted Subsidiary (or the payment of which
is guaranteed by the Company or any Restricted
Subsidiary), whether such Indebtedness exists prior
to or is created after the Issue Date; if
(A) either (i) such default results from the
failure to pay principal of or interest on
any such Indebtedness and such default
continues for 30 days beyond any applicable
grace period, or (ii) as a result of such
49
default the maturity of such Indebtedness
has been accelerated prior to its expressed
maturity; and
(B) the principal amount of such Indebtedness,
together with the principal amount of any
other such Indebtedness in default for
failure to pay principal or interest
thereon, or the maturity of which has been
accelerated, aggregates in excess of
$15,000,000;
(5) a failure by the Company or any Restricted
Subsidiary to pay final judgments (not covered by
insurance) aggregating in excess of $7,500,000 which
judgments a court of competent jurisdiction does not
rescind, annul or stay within 45 days after their
entry and the Default continues for the period and
after the notice specified in Section 6.1(b);
(6) in existence when the Company or any Significant
Subsidiary pursuant to or within the meaning of any
Bankruptcy Law
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of
its property, or
(D) makes a general assignment for the benefit
of its creditors; and
(7) in existence when a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law
that
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary
case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or
substantially all of the property of the
Company or any Significant Subsidiary, or
(C) order the liquidation of the Company or any
Significant Subsidiary,
and any such order or decree remains unstayed and
in effect for 60 days.
(b) A Default under Section 6.1(a)(3)(other than a Default
under Sections 4.5, 4.7, 4.8, 4.11, 4.13, 4.14, 4.15, and 5.1 any of which
shall be an Event of Default with the notice but without the passage of time
specified in this Section 6.1(b)) or Section 6.1(a)(5) is not an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Securities notify the Company of the Default and the
Company does not cure the Default within 30 days after receipt of the notice.
The notice must specify the Default, demand
50
that it be remedied and state that the notice is a "Notice of Default."
(c) In the case of any Event of Default pursuant to Section
6.1(a) occurring by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company with the intention of avoiding payment of
the premium which the Company would have to pay if the Company then had elected
to redeem the Securities pursuant to paragraph 5 of the Securities, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law, anything in this Indenture or in the Securities
contained to the contrary notwithstanding.
Section 6.2. ACCELERATION.
(a) Upon the occurrence of any Event of Default (other than
an Event of Default under Section 6.1(a)(6) or (a)(7)), the Trustee or the
Holders of a least 25% in principal amount of the then outstanding Securities
may declare all outstanding Securities to be due and payable immediately and,
upon such declaration, the principal amount and premium, if any, of all such
Securities, and any accrued interest and Liquidated Damages, if any, on, all
such Securities to the date of payment shall be due and payable immediately;
provided, however, that if an Event of Default arises under Section 6.01(a)(6)
or (a)(7) the principal amount of, and premium, if any, and any accrued and
unpaid interest and Liquidated Damages, if any, on, all such Securities, shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders.
(b) The Holders of a majority in principal amount of the
Securities then outstanding by notice to the Trustee may rescind any such
declaration of acceleration of such Securities and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (other than the nonpayment of principal of, or premium, if
any, or interest and Liquidated Damages, if any, on, the Securities which shall
have become due by such declaration) shall have been cured or waived.
(c) If there has been a declaration of acceleration of the
Securities because an Event of Default under Section 6.1(a)(4) has occurred and
is continuing, such declaration of acceleration shall be automatically annulled
if the holders of the Indebtedness described in Section 6.1(a)(4) have
rescinded the declaration of acceleration in respect of such Indebtedness
within 30 Business Days thereof and if:
(i) the annulment of such acceleration would not
conflict with any judgment or decree of a court of
competent jurisdiction,
(ii) all existing Events of Default, except non-payment
of principal or interest that shall have become due
solely because of the acceleration, have been cured
or waived, and
(iii) the Company has delivered an Officer's Certificate
to the Trustee to the effect of clauses (i) and (ii)
above.
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Section 6.3. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of, or premium,
if any, or interest and Liquidated Damages, if any, on, the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.4. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the then
outstanding Securities by notice to the Trustee may waive an existing Default
or Event of Default and its consequences, except a continuing Default or Event
of Default in the payment of the principal of, premium, if any, or interest and
Liquidated Damages, if any, on any Security (which may be waived only with the
consent of each Holder affected). Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall deemed to have
been cured for every purpose of this Indenture; provided, that no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.5. CONTROL BY MAJORITY.
Subject to Section 7.1(e), the Holders of a majority in principal
amount of the then outstanding Securities 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 by this Indenture. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or would involve the Trustee in personal liability.
Section 6.6. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Securities only if:
(i) the Holder gives to the Trustee notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in principal amount of
the then outstanding Securities make a request to
the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any
loss, liability or expense;
(iv) the Trustee does not comply with the request within
60 days after receipt of the request and the offer
of indemnity; and
52
(v) during such 60-day period the Holders of a majority
in principal amount of the then outstanding
Securities do not give the Trustee a direction
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 another Holder.
Holders of the Securities may not enforce this Indenture, except as
provided herein.
Section 6.7. 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, if any, interest and
Liquidated Damages, if any, on a Security, on or after a respective due date
expressed in the Security, or to bring suit for the enforcement of any such
payment on or after such respective date, shall not be impaired or affected
without the consent of the Holder.
Section 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a)(1) or (a)(2)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company for (i) the
principal, premium, if any, interest and Liquidated Damages, if any, remaining
unpaid on the Securities, (ii) interest on overdue principal and premium, if
any, and, to the extent lawful, interest and (iii) 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 ("Trustee Expenses").
53
Section 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable to have the claims of the Trustee
(including any claim for Trustee Expenses) and the Holders allowed in any
Insolvency or Liquidation Proceeding or other judicial proceedings relative to
the Company (or any other obligor upon the Securities), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
to Holders any money or other property payable or deliverable on any such
claims, and each Holder authorizes any Custodian in any such Insolvency or
Liquidation Proceeding or other judicial proceeding to make such payments to
the Trustee, and if the Trustee shall consent to the making of such payments
directly to the Holders any such Custodian is hereby authorized to make such
payments directly to the Holders, and to pay to the Trustee any amount due to
it hereunder for Trustee Expenses, and any other amounts due the Trustee under
Section 7.7. To the extent that the payment of any such Trustee Expenses, and
any other amounts due the Trustee under Section 7.7 out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Holders may be
entitled to receive in such proceeding, whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder,
or to authorize the Trustee to vote in respect of the claim of any Holder in
any Insolvency or Liquidation Proceeding.
Section 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to the Holders for amounts due and unpaid on the
Securities for principal, premium, if any, and
interest, ratably, without preference or priority of
any kind, according to the amounts due and payable
on the Securities for principal, premium, if any,
and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders.
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 a 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,
54
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.7, or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities.
ARTICLE 7.
TRUSTEE
Section 7.1. DUTIES OF TRUSTEE.
(a) If any Event of Default occurs (and has not been cured),
the Trustee shall (i) exercise the rights and powers vested in it by this
Indenture, and (ii) use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee's duties shall be determined solely by
the express provisions of this Indenture, and the
Trustee need perform only those duties that are
specifically set forth in this Indenture and no
others, and no implied covenants or obligations
shall be read into this Indenture against the
Trustee; and
(ii) 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 upon certificates or opinions furnished to
the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine
the certificates and opinions to determine whether
they conform to this Indenture's requirements and to
confirm the correctness of all mathematical
computations.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of Section
7.1(b);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction it receives pursuant to
Section 6.5.
(d) Whether or not expressly so provided, every provision of
this Indenture
55
that in any way relates to the Trustee is subject to paragraphs (a), (b) and
(c) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holders shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
it receives except as the Trustee may agree in writing with the Company. Money
the Trustee holds in trust need not be segregated from other funds except to
the extent required by law.
Section 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document it believes to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) Unless otherwise specifically provided in the Indenture,
any demand, request, direction or notice from the Company shall be sufficient
if signed by an Officer.
(f) Except with respect to Section 4.1, the Trustee shall
have no duty to inquire as to the performance by the Company with respect to
the covenants contained in Article 4. In addition, the Trustee shall not be
deemed to have knowledge of a Default or Event of Default except (i) any
Default or Event of Default occurring pursuant to Sections 4.1, 6.1(a)(i) or
6.1(a)(ii), or (ii) any Default or Event of Default of which the Trustee shall
have received written notification or obtained actual knowledge.
Section 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. However,
if the Trustee acquires any conflicting interest it must
56
eliminate such conflict within 90 days, apply to the Commission for permission
to the continue as trustee or resign. Any Agent may do the same with like
rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall
not be accountable for the Company's use of the proceeds from the Securities or
for any money paid to the Company or upon the Company's direction under any
provisions hereof, it shall not be responsible for the use or application of
any money any Paying Agent other than the Trustee receives, and it shall not be
responsible for any statement or recital herein or any statement in the
Securities or any other document in connection with the sale of the Securities
or pursuant to this Indenture, other than its certificate of authentication.
Section 7.5. NOTICE TO HOLDERS OF DEFAULTS AND EVENTS OF DEFAULT.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment on any Security (including any
failure to redeem Securities called for redemption or any failure to purchase
Securities tendered pursuant to an Offer that are required to be purchased by
the terms of this Indenture), the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the Holders' interests.
Section 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following
the Issue Date, the Trustee shall mail to Holders a brief report dated as of
such reporting date that complies with ss. 313(a) of the TIA (but if no event
described in ss. 313(a) of the TIA has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with ss. 313(b)(2) of the TIA. The Trustee shall also transmit by
mail all reports as required by ss. 313(c) of the TIA.
Commencing at the time this Indenture is qualified under the TIA, a
copy of each report at the time of its mailing to the Holders shall be filed
with the Commission and each stock exchange on which the Securities are listed.
The Company shall notify the Trustee when the Securities are listed on any
stock exchange.
Section 7.7. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder. 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
disbursements, advances and expenses it incurs or makes in addition to
57
the compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses the Trustee incurs arising out of or in connection with
the acceptance or administration of its duties under this Indenture, except as
set forth below. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its Obligations hereunder. The Company shall
defend the claim, and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The Company's Obligations under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability the Trustee incurs through negligence or bad faith.
To secure the Company's payment of its Obligations in this Section,
the Trustee shall have a Lien prior to the Securities on all money or property
the Trustee holds or collects, except that held in trust to pay principal of,
premium, if any, and interest on particular Securities. Such Lien shall survive
the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1(a)(6) or (a)(7) occurs, the expenses and
the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute administrative expenses under
any Bankruptcy Law.
Section 7.8. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in principal
amount of the then outstanding Securities may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to
the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the
Trustee or its property; or
58
(iv) 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 promptly appoint a
successor Trustee; provided, that the Holders of a majority in principal amount
of the then outstanding Securities may appoint a successor Trustee to replace
any successor Trustee the Company appoints.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property it holds as Trustee to the successor Trustee, provided all sums owing
to the retiring Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.7. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under Section 7.7 shall
continue for the retiring Trustee's benefit with respect to expenses and
liabilities it incurred prior to such replacement.
Section 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times (i) be a corporation organized and
doing business under the laws of the United States of America, of any state
thereof, or the District of Columbia authorized under such laws to exercise
corporate trustee power, (ii) be subject to supervision or examination by
federal or state authority, (iii) have a combined capital and surplus of at
least $25 million ($100 million in the case of any successor Trustee) as set
forth in its most recent published annual report of condition, and (iv) satisfy
the requirements of ss. 310(a)(1), (2) and (5) of the TIA. The Trustee is
subject to ss. 310(b) of the TIA.
59
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to ss. 311(a) of the TIA, excluding any
creditor relationship listed in ss. 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to ss. 311(a) of the TIA to the
extent indicated therein.
ARTICLE 8.
DISCHARGE OF INDENTURE
Section 8.1. DISCHARGE OF LIABILITY ON SECURITIES; DEFEASANCE.
(a) When (i) the Company delivers to the Trustee all
outstanding Securities (other than Securities replaced pursuant to Section 2.7)
for cancellation or (ii) all outstanding Securities have become due and payable
and the Company irrevocably deposits with the Trustee funds sufficient to pay
at maturity all outstanding Securities, including interest thereon (other than
Securities replaced pursuant to Section 2.7), and if in either case the Company
pays all other sums payable hereunder by the Company, then this Indenture
shall, subject to Sections 8.1(c) and 8.6, cease to be of further effect.
(b) Subject to Sections 8.1(c), 8.2, and 8.6, the Company at
any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.2, 4.3, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.13, 4.14 and 4.15, and the
operation of Sections 5.1(a)(iii), 5.1(a)(iv) or 6.1(a)(3) through (a)(7)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section
6.1(a)(3) through (a)(7) or because of the Company's failure to comply with
Section 5.1(a)(iii) or 5.1(a)(iv).
Upon satisfaction of the conditions set forth herein and upon the
Company's request (and at the Company's expense), the Trustee shall acknowledge
in writing the discharge of those obligations that the Company has terminated.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 4.1, 4.4, 7.7, 7.8, 8.4, 8.5,
and 8.6, and the Trustee's and the Paying Agent's Obligations in Section 8.4
shall survive until the Securities have been paid in full. Thereafter, the
Company's Obligations in Sections 7.7 and 8.5 and the Company's, Trustee's and
Paying Agent's Obligations in Section 8.4 shall survive.
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Section 8.2. CONDITIONS TO DEFEASANCE.
The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the
payment in full of the principal of and any premium
due on, the Securities, and any accrued and unpaid
interest, and Liquidated Damages, if any, as of the
maturity date, the redemption date or the Purchase
Date, as the case may be;
(2) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent
accountants expressing their opinion that the
payments of principal and interest when due and
without reinvestment of the deposited U.S.
Government Obligations plus any deposited money
without investment will provide cash at such times
and in such amounts as will be sufficient to pay
principal of, premium, if any, interest and
Liquidated Damages, if any, when due on all the
Securities to maturity or redemption, as the case
may be;
(3) since the Company's irrevocable deposit provided for
in Section 8.2(1) 91 days have passed;
(4) no Default has occurred and is continuing on the
date of such deposit and after giving effect to it;
(5) the deposit does not constitute a default under any
other agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from
the deposit does not constitute, or is qualified as,
a regulated investment company under the Investment
Company Act of 1940, as amended;
(7) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) under
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 defeasance and will
be subject to federal income tax on the same
amounts, in the same manner and at the same times as
would have been the case if such defeasance had not
occurred;
61
(8) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders
will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the
same times as would have been the case if such
covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance and
discharge of the Securities as this Article 8
contemplates have been satisfied.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption or purchase of Securities at a
future date in accordance with Article 3.
Section 8.3. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited
money and the money from U.S. Government Obligations through the Paying Agent
and in accordance with this Indenture to the payment of principal of and
interest on the Securities.
Section 8.4. REPAYMENT TO COMPANY.
After the Securities have been paid in full, the Trustee and the
Paying Agent shall promptly turn over to the Company any excess money or
securities they hold.
The Trustee and the Paying Agent shall pay to the Company upon
written request any money they hold for the payment of principal, premium or
interest that remains unclaimed for one year after the date upon which such
payment shall have become due; provided, however, that the Company shall have
either caused notice of such payment to be mailed to each Holder entitled
thereto no less than 30 days prior to such repayment or within such period
shall have published such notice in a financial newspaper of widespread
circulation published in The City of New York (including, without limitation,
The Wall Street Journal). After payment to the Company, Holders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
Section 8.5. INDEMNITY FOR GOVERNMENT OBLIGATIONS.
The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
62
Section 8.6. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 8 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article 8
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article 8;
provided, however, that if the Company has made any payment of principal of, or
premium, if any, or interest on any Securities because of the reinstatement of
its Obligations, the Company shall be subrogated to the Holders' rights to
receive such payment from the money or U.S. Government Obligations the Trustee
or Paying Agent holds.
ARTICLE 9.
AMENDMENTS
Section 9.1. AMENDMENTS AND SUPPLEMENTS PERMITTED WITHOUT CONSENT OF
HOLDERS.
Notwithstanding Section 9.2 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Securities without the
consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(c) to provide for the assumption by a Successor Corporation
of the Company's Obligations to the Holders in the event of a Disposition
pursuant to Article 5;
(d) to comply with the Commission's requirements to effect or
maintain the qualification of this Indenture under the TIA; or
(e) to make any change that does not materially adversely
affect any Holder's legal rights hereunder.
Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any amended
or supplemental indenture and the documents described in Section 9.6, the
Trustee shall join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental indenture which affects its own rights, duties or
immunities under this Indenture or otherwise.
63
Section 9.2. AMENDMENTS AND SUPPLEMENTS REQUIRING CONSENT OF HOLDERS.
Subject to Section 6.7, the Company and the Trustee may amend or
supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities (including consents obtained in connection with a tender offer or
exchange offer for the Securities). Subject to Sections 6.4 and 6.7, the
Holders of a majority in principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange
offer for the Securities) may also waive any existing Default or Event of
Default (other than a payment Default) and its consequences or compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities.
Upon the Company's request, after receipt by the Trustee of a
resolution of the Board of Directors authorizing the execution of any
supplemental indenture, evidence of the Holders' consent, and the documents
described in Section 9.6, the Trustee shall join with the Company in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective,
the Company shall mail to each Holder 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 amended or supplemental indenture or waiver.
Without the consent of each Holder affected, an amendment, supplement or waiver
under this Section may not
(1) reduce the principal amount of Securities whose
Holders must consent to an amendment, supplement or
waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest as set forth in
Section 4.1, on any Security or alter the redemption
or purchase provisions with respect thereto;
(3) reduce the principal of or change the fixed maturity
of any Security;
(4) make any Security payable in money other than that
stated in the Security;
(5) make any change in Section 6.4 or 6.7 or in this
sentence of this Section 9.2; or
64
(6) waive a default in the payment of the principal of,
or premium, if any, or interest and Liquidated
Damages, if any, on, or redemption or purchase
payment with respect to, any Security (except a
rescission of acceleration of the Securities by the
Holders of at least a majority in aggregate
principal amount of the then outstanding Securities
and a waiver of the payment default that resulted
from such acceleration).
Section 9.3. COMPLIANCE WITH TIA.
Every amendment or supplement to this Indenture or the Securities
shall be set forth in an amended supplemental indenture that complies with the
TIA as then in effect.
Section 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that
evidences the same Indebtedness as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such Holder
or subsequent Holder may revoke the consent as to his or her Security or
portion of a Security if the Trustee receives the notice of revocation before
the date on which the Trustee receives an Officer's Certificate certifying that
the Holders of the requisite principal amount of Securities have consented to
the amendment or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the holders of Securities entitled to consent to
any amendment or waiver. If a record date is fixed, then notwithstanding the
provisions of the immediately preceding paragraph, those Persons who were
holders of Securities at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be holders of Securities after such record date. No consent shall
be valid or effective for more than 90 days after such record date unless
consents from Holders of the principal amount of Securities required hereunder
for such amendment or waiver to be effective shall have also been given and not
revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every
Holder, unless it is of the type described in any of clauses (1) through (6) of
Section 9.2. In such case the amendment or waiver shall bind each Holder who
has consented to it and every subsequent holder of a Security that evidences
the same debt as the consenting Holder's Security.
Section 9.5. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Security thereafter authenticated. The Company in
exchange for all Securities may Issue and the Trustee shall authenticate new
Securities that reflect the amendment, supplement or waiver.
65
Failure to make the appropriate notation or Issue a new Security
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.6. TRUSTEE PROTECTED.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject
to Section 7.1, shall be fully protected in relying upon, an Officers'
Certificate and Opinion of Counsel as conclusive evidence that such amendment
or supplemental indenture is authorized or permitted by this Indenture, that it
is not inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms. The Company may not sign an amendment or
supplemental indenture until the Board of Directors approves it.
ARTICLE 10.
MISCELLANEOUS
Section 10.1. TRUSTEE INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by the operation of ss. 318(c) of the TIA, the imposed
duties shall control.
Section 10.2. NOTICES.
Any notice or communication by the Company or the Trustee to the
other is duly given if in writing and delivered in person, mailed by registered
or certified mail, postage prepaid, return receipt requested or delivered by
telecopier or overnight air courier guaranteeing next-day delivery to the
other's address:
If to the Company:
Jordan Industries, Inc.
ArborLake Centre
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
If to the Trustee:
U.S. Bank Trust National Association
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn.: Corporate Trust Department
Telecopier No.: (000) 000-0000
66
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given at the time delivered by hand if
personally delivered; the date receipt is acknowledged if mailed by registered
or certified mail; when answered back if telecopied; and the next Business Day
after timely delivery to the courier if sent by overnight air courier
guaranteeing next-day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail to his or her address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 10.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA ss. 312(c).
Section 10.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the
statements set forth in Section 10.5) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel (which shall include the statements
set forth in Section 10.5) stating that, in the opinion of such
counsel, all such conditions precedent provided for in this Indenture
relating to the proposed action have been complied with.
Section 10.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall include:
67
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in such Person's opinion,
such condition or covenant has been complied with.
Section 10.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 10.7. LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 10.8. NO RECOURSE AGAINST OTHERS.
No director, officer, employee or stockholder of the Company shall
have any liability for any Obligations of the Company under the Securities, the
Registration Rights Agreement or the Indenture or for any Claim based on, in
respect of or by reason of such Obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the Issuance of the Securities.
Section 10.9. COUNTERPARTS.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10. VARIABLE PROVISIONS.
The Company initially appoints the Trustee as Paying Agent,
Registrar and authenticating agent. The first certificate pursuant to Section
4.3 shall be for the fiscal year ending on December 31, 1999.
68
Section 10.11. GOVERNING LAW.
The internal laws of the State of New York shall govern this
Indenture and the Securities, without regard to the conflict-of-laws provisions
thereof.
Section 10.12. 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 10.13. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.14. SEVERABILITY.
If any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
69
Dated as of Xxxxx 00, 0000 XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Dated as of March 22, 1999 U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
70
EXHIBIT A
(Face of Security)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY
TRUST COMPANY (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. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.1
"THIS SENIOR NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS ACQUIRED
THIS SENIOR NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT OR (C) IT IS AN "INSTITUTIONAL ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7)) OR REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SENIOR NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF THE SECURITIES ACT,
A-1
(D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS SENIOR NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SENIOR NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AS BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SENIOR NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS SENIOR NOTE IN VIOLATION OF THE FOREGOING.
THIS NOTE WAS ISSUED WITH "ORIGINAL ISSUE DISCOUNT" (AS DEFINED IN SECTION 1273
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED). THE "ISSUE PRICE" OF THE
NOTE IS 96.62% OF ITS PRINCIPAL AMOUNT, THE TOTAL AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS 3.38% OF ITS PRINCIPAL AMOUNT, THE "ISSUE DATE" OF THE NOTE IS
MARCH 22, 1999 AND THE NOTE'S "YIELD TO MATURITY" ON THE ISSUE DATE IS 11.00%,
COMPOUNDED SEMI-ANNUALLY.
A-2
JORDAN INDUSTRIES, INC.
10 3/8% SENIOR NOTE
DUE 2007
NO. $
CUSIP NO.
Jordan Industries, Inc., an Illinois corporation (the
"Company"), as obligor, for value received promises to pay to __________ or
registered assigns, the principal sum of _______ Dollars on August 1, 2007.
Interest Payment Dates: February 1 and August 1 and on the maturity date.
Record Dates: January 15 and July 15 (whether or not a Business Day).
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated:
JORDAN INDUSTRIES, INC.
By:
Name:
Title:
By:
Name:
Title:
A-3
Trustee's Certificate of Authentication:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee
By:___________________________________
Authorized Signature
A-4
(Back of Security)
10 3/8% [SERIES C] [SERIES D] SENIOR NOTE
DUE 2007
1. Interest. Jordan Industries, Inc., (the "Company") promises to
pay interest on the principal amount of the Notes at the rate and in the manner
specified below. Interest on the Notes will accrue at 10 3/8% per annum from
February 1, 1999 until maturity. The Company will pay Liquidated Damages
pursuant to Section 5 of the Registration Rights Agreement referred to below.
Interest and Liquidated Damages, if any, will be payable semiannually in cash
on February 1 and August 1 of each year, or if any such day is not a Business
Day on the next succeeding Business Day (each an "Interest Payment Date").
Interest on the Notes will accrue from the most recent date on which interest
has been paid or, if no interest has been paid, from February 1, 1999; provided
that the first Interest Payment Date shall be August 1, 1999. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the record date for
the next Interest Payment Date even if such Notes are canceled after such
record date and on or before such Interest Payment Date. Holders must surrender
Notes to a Paying Agent to collect principal payments on such Notes. The
Company shall pay principal, premium, if any, interest and Liquidated Damages,
if any, in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
principal, premium, if any, and interest by check payable in such money, and
any such check may be mailed to a Holder's registered address.
3. Paying Agent and Registrar. U.S. Bank Trust National Association
(the "Trustee") will initially act as the Paying Agent and Registrar. The
Company may appoint additional paying agents or co-registrars, and change the
Paying Agent, any additional paying agent, the Registrar or any co-registrar
without prior notice to any Holder. The Company or any of its Subsidiaries may
act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated
as of March 22, 1999 (the "Indenture") between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (the "TIA") (15
U.S. Code xx.xx. 77aaa-77bbbb). The Notes are subject to, and qualified by, all
such terms, certain of which are summarized herein, and Holders are referred to
the Indenture and the TIA for a statement of such terms (all capitalized terms
not defined herein shall have the meanings assigned than in the Indenture). The
Notes are unsecured general obligations of the Company limited to $155,000,000
in aggregate principal amount.
5. Optional Redemption. Except as described in paragraph 6 below,
the Notes may not be redeemed at the option of the Company prior to August 1,
2002. During the twelve (12) month period beginning August 1 of the years
indicated below, the Notes will be redeemable at
A-5
the option of the Company, in whole or in part, at the redemption prices
(expressed as percentages of the principal amount) set forth below, plus any
accrued and unpaid interest and Liquidated Damages, if any, to the date of
redemption:
Year Percentage
2002....................................105.188 %
2003....................................102.594 %
2004 and thereafter.....................100.000 %
6. Mandatory Redemption. Subject to the Company's obligation to make
an offer to purchase Notes under certain circumstances pursuant to Section 4.13
and 4.14 of the Indenture (as described in paragraph 7 below), the Company is
not required to make any mandatory redemption, purchase or sinking fund
payments with respect to the Notes.
7. Mandatory Offers to Purchase Notes. (a) Following the occurrence
of a Change of Control (the "Change of Control Trigger Date"), the Company will
be required to offer (a "Change of Control Offer") to purchase all outstanding
Notes at a purchase price equal to 101% of the principal amount of such Notes,
plus any accrued and unpaid interest and Liquidated Damages, if any, to the
date of purchase.
(b) If the Company or any Restricted Subsidiary consummates one or
more Asset Sales and does not use all of the Net Proceeds from such Asset Sales
as provided in the Indenture, the Company will be required, under certain
circumstances, to utilize the Excess Proceeds from such Asset Sales to offer
(an "Asset Sale Offer") to purchase Notes at a purchase price equal to 100% of
the principal amount of the Notes, plus any accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase. If the Excess Proceeds are
insufficient to purchase all Notes tendered pursuant to any Asset Sale Offer,
the Trustee shall select the Notes to be purchased in accordance with the terms
of the Indenture.
(c) Holders may tender all or, subject to paragraph 8 below, any
portion of their Notes in a Change of Control or Asset Sale Offer
(collectively, an "Offer") by completing the form below entitled "OPTION OF
HOLDER TO ELECT PURCHASE."
(d) The Company will comply with Rule 14e-1 under the Securities
Exchange Act of 1934, as amended, and any other securities laws and regulations
to the extent applicable to any Offer.
8. Notice of Redemption or Purchase. Notice of an optional
redemption or an Offer will be mailed to each Holder at its registered address
at least 30 days but not more than 60 days before the date of redemption or
purchase. Notes may be redeemed or purchased in part, but only in whole
multiples of $1000 unless all Notes held by a Holder are to be redeemed or
purchased. On or after any date on which Notes are redeemed or purchased,
interest ceases to accrue on the Notes or portions thereof called for
redemption or accepted for purchase on such date.
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples thereof.
The transfer of Notes may be
A-6
registered and Notes may be exchanged as provided in the Indenture. Holders
seeking to transfer or exchange their Notes may be required, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption or tendered pursuant to an Offer.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Amendments and Waivers. Subject to certain exceptions, the
Indenture or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes, and any
existing Default or Event of Default (except a payment default) may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes. Without the consent of any Holder, the Indenture and the
Notes may be amended to: cure any ambiguity, defect or inconsistency; provide
for uncertificated Notes in addition to or in place of certified Notes; provide
for the assumption by another corporation of the Company's obligations to the
Holders in the event of a merger or consolidation of the Company in which the
Company is not the surviving corporation or a sale of substantially all of the
Company's assets to such other corporation; comply with the Securities and
Exchange Commission's requirements to effect or maintain the qualification of
the Indenture under the TIA; or, make any change that does not materially
adversely effect any Holder's rights under the Indenture. Certain provisions of
the Indenture cannot be amended without the consent of each Holder affected
thereby.
12. Defaults and Remedies. Events of Default include: default for 30
days in payment of interest on the Notes; default in payment of principal of or
premium, if any, on the Notes; failure by the Company for 30 days after notice
to it to comply with any of its other agreements or covenants in, or provisions
of, the Indenture or the Notes; certain defaults under and acceleration prior
to maturity, or failure to pay at maturity, of certain other Indebtedness;
certain final judgments that remain undischarged; and certain events of
bankruptcy or insolvency involving the Company or any Restricted Subsidiary
that is a Significant Subsidiary. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Notes may declare all the Notes to be immediately due and payable in an
amount equal to the principal amount of such Notes, plus any accrued and unpaid
interest; provided, however, that in the case of an Event of Default arising
from certain events of bankruptcy or insolvency, the principal amount of, and
any accrued and unpaid interest on, and Liquidated Damages, if any, with
respect to the Notes becomes due and payable immediately without further action
or notice. Subject to certain exceptions, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power, provided that the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at the request of the
Holders unless such Holders have offered to the Trustee security and indemnity
satisfactory to it. Holders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may withhold from Holder notice of
any continuing default (except a payment Default) if it determines that
withholding notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
A-7
13. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from and perform
services for the Company or any Affiliates, and may otherwise deal with the
Company or any Affiliates, as if it were not Trustee.
14. No Recourse Against Others. No director, officer, employee or
stockholder of the Company shall have any liability for any Obligations of the
Company under the Notes, the Indenture or the Registration Rights Agreement or
for any claim based on, in respect of, or by reason of such Obligations or the
creation of any such Obligation. Each Holder by accepting a Note waives and
releases all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes.
15. Successor Substituted. Upon the consolidation or merger by the
Company with or into another corporation, or upon the sale, conveyance, lease
or other disposition of all or substantially all of its assets to another
corporation, in accordance with the Indenture, the corporation surviving any
such merger or consolation (if not the Company) or the corporation to which
such assets were sold or transferred to shall succeed to, and be substituted
for, and may exercise every right and power of the Company under the Indenture
with the same effect as if such surviving or other corporation had been named
as the Company in the Indenture.
16. Governing Law. This Note shall be governed by and construed in
accordance with the internal laws of the State of New York.
17. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
18. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
20. Holders' Compliance with Registration Rights Agreement. Each
Holder of a Note, by his acceptance thereof, acknowledges and agrees to the
provisions of the Registration Rights Agreement, dated as of March 22, 1999,
among the Company and the parties named on the signature page thereof (the
"Registration Rights Agreement"), including but not limited to the obligations
of the Holders with respect to a registration and the indemnification of the
Company and the Purchasers (as defined therein) to the extent provided therein.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
A-8
Jordan Industries, Inc., ArborLake Centre, 0000 Xxxx Xxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000.
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to:
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint__________________________ as agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
Date:____________________
Your Signature: __________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee*
----------------
* NOTICE: The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guarantee
programs:
(1) The Securities Transfer Agent Medallion Program (STAMP);
(2) The New York Stock Exchange Medallion Program (MSP);
(3) The Stock Exchange Medallion Program (SEMP).
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.13 of the Indenture, check the box: [ ]
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.14 of the Indenture, check the box: [ ]
If you elect to have only part of this Note purchased by the Company
pursuant to Section 4.13 or 4.14 of the Indenture, state the amount (multiples
of $1000 only):
$______________________________
Date:__________________________ Your Signature:_________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*
--------------
* NOTICE: The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guarantee
programs:
(1) The Securities Transfer Agent Medallion Program (STAMP);
(2) The New York Stock Exchange Medallion Program (MSP);
(3) The Stock Exchange Medallion Program (SEMP).
A-11
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES2
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
Principal Amount of
Amount of decrease in Amount of increase in this Global Note
Principal Amount of Principal Amount of following such decrease Signature of authorized
Date of Exchange this Global Note this Global Note (or increase) officer of Trustee
-------------------------------------------------------------------------------------------------------------------------------
A-12
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re:[Series C] [Series D] 10 3/8% Senior Notes due 2007 (the "Notes") of Jordan
Industries, Inc.
This Certificate relates to $______ principal amount of Notes held in
* [ ] book-entry or * [ ] definitive form by _______________________ (the
"Transferor").
The Transferor, by written order, has requested the Trustee:
[] to deliver in exchange for its beneficial interest in the Global Note
held by the depository, a Note or Notes in definitive, registered form
of authorized denominations and an aggregate principal amount equal to
its beneficial interest in such Global Note (or the portion thereof
indicated above); or
[] to exchange or register the transfer of a Note or Notes. In connection
with such request and in respect of each such Note, the Transferor
does hereby certify that Transferor is familiar with the Indenture
relating to the above captioned Notes and the transfer of this Note
does not require registration under the Securities Act of 1933, as
amended (the "Securities Act"), because such Note:
[] is being acquired for the Transferor's own account, without transfer;
[] is being transferred pursuant to an effective registration statement;
[] is being transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act), in reliance on such Rule 144A;
[] is being transferred to an institutional "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act;**
[] is being transferred pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act;***
[] is being transferred pursuant to Rule 144 under the Securities Act;***
or
[] is being transferred pursuant to another exemption from the
registration requirements of the Securities Act (explain:
__________________________________________).***
B-1
[INSERT NAME OF TRANSFEROR]
By:_______________________________
Date:_____________________
* Check applicable box.
** If this box is checked, this certificate must be accompanied by a
transferee letter of representations.
*** If this box is checked, this certificate must be accompanied by an
opinion of counsel to the effect that such transfer is in compliance
with the Securities Act.
B-2
EXHIBIT C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Jordan Industries, Inc.
ArborLake Centre
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: 10 3/8% [Series C][Series D]] Senior Notes due 2007
Reference is hereby made to the Indenture, dated as of March 22,
1999 (the "Indenture"), between Jordan Industries, Inc., as issuer (the
"Company"), and U.S. Bank Trust, N.A., as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [ ] a beneficial interest in a Global Note, or
(b) [ ] a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and
to the Company a signed letter substantially in the form of this letter and, if
such transfer is in respect of a principal amount of Notes, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance
with the Securities Act, (D) outside the United States in accordance with Rule
904 of Regulation S under the Securities Act, (E) pursuant to the provisions of
Rule 144(k) under the Securities Act or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to
provide to any person purchasing the Definitive Note or beneficial interest in
C-1
a Global Note from us in a transaction meeting the requirements of clauses (A)
through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and
the Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes purchased
by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By:
Name:
Title:
Dated:
C-2
JORDAN INDUSTRIES, INC.
AND
U.S. BANK TRUST NATIONAL ASSOCIATION
AS TRUSTEE
$155,000,000
SERIES C AND SERIES D
10 3/8% SENIOR NOTES DUE 2007
INDENTURE
DATED AS OF MARCH 22, 1999
Trust Indenture
Act Section Indenture Section
310(a)(1)..................................................... 7.10
(a)(2)..................................................... 7.10
(a)(3)..................................................... N.A.4**
(a)(4)..................................................... N.A.
(a)(5)..................................................... 7.10
(b)........................................................ 7.10
(c)........................................................ N.A.
311(a)........................................................ 7.11
(b)........................................................ 7.11
(c)........................................................ N.A.
312(a)........................................................ 2.5
(b)........................................................ 10.3
(c)........................................................ 10.3
313(a)........................................................ 7.6
(b)(1)..................................................... N.A.
(b)(2)..................................................... 7.6
(c)........................................................7.6; 10.2
(d)........................................................ 7.6
314(a)........................................................4.2; 10.2
(b)........................................................ N.A.
(c)(1)..................................................... 10.4
(c)(2)..................................................... 10.4
(c)(3)..................................................... N.A.
(d)........................................................ N.A.
(e)........................................................ 10.5
(f)........................................................ N.A.
315(a)........................................................ 7.1
(b)........................................................7.5; 10.2
(c)........................................................ 7.1
(d)........................................................ 7.1
(e)........................................................ 6.11
316(a)(last sentence)......................................... 2.9
(a)(1)(A).................................................. 6.5
(a)(1)(B).................................................. 6.4
(a)(2)..................................................... N.A.
(b)........................................................ 9.2
i
317(a)(1)..................................................... 6.8
(a)(2)..................................................... 6.9
(b)........................................................ 2.4
318(a)........................................................ 10.1
ii
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions..........................................................................................1
Section 1.2. Other Definitions...................................................................................19
Section 1.3. Incorporation by Reference of Trust Indenture Act...................................................20
Section 1.4. Rules of Construction...............................................................................20
ARTICLE 2. THE SECURITIES
Section 2.1. Form and Dating.....................................................................................20
Section 2.2. Execution and Authentication........................................................................21
Section 2.3. Registrar and Paying Agent..........................................................................22
Section 2.4. Paying Agent to Hold Money in Trust.................................................................22
Section 2.5. Holder Lists........................................................................................22
Section 2.6. Transfer and Exchange...............................................................................22
Section 2.7. Replacement Securities..............................................................................26
Section 2.8. Outstanding Securities..............................................................................27
Section 2.9. Treasury Securities.................................................................................27
Section 2.10. Temporary Securities...............................................................................27
Section 2.11. Cancellation.......................................................................................28
Section 2.12. Defaulted Interest.................................................................................28
Section 2.13. Record Date........................................................................................28
Section 2.14. CUSIP Number.......................................................................................28
Section 2.15. Legends............................................................................................28
ARTICLE 3. REDEMPTION
Section 3.1. Notices to Trustee..................................................................................29
Section 3.2. Selection of Securities to Be Redeemed or Purchased.................................................30
Section 3.3. Notice of Redemption................................................................................30
Section 3.4. Effect of Notice of Redemption......................................................................31
Section 3.5. Deposit of Redemption Price.........................................................................31
Section 3.6. Securities Redeemed in Part.........................................................................32
Section 3.7. Optional Redemption Provisions......................................................................32
Section 3.8. Mandatory Purchase Provision........................................................................32
ARTICLE 4. COVENANTS
Section 4.1. Payment of Securities...............................................................................35
Section 4.2. SEC Reports.........................................................................................35
Section 4.3. Compliance Certificate..............................................................................36
Section 4.4. Stay, Extension and Usury Laws......................................................................37
iii
Section 4.5. Limitation on Restricted Payments...................................................................37
Section 4.6. Corporate Existence.................................................................................41
Section 4.7. Limitation on Incurrence of Indebtedness............................................................41
Section 4.8. Limitation on Transactions with Affiliates..........................................................42
Section 4.9. Limitation on Liens.................................................................................43
Section 4.10. Compliance with Laws, Taxes........................................................................43
Section 4.11. Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries...........43
Section 4.12. Maintenance of Office or Agencies..................................................................45
Section 4.13. Change of Control..................................................................................46
Section 4.14. Limitation on Asset Sales..........................................................................46
Section 4.15. Limitation on Guarantees of Company Indebtedness by Restricted Subsidiaries........................47
ARTICLE 5. SUCCESSORS
Section 5.1. Merger or Consolidation.............................................................................48
Section 5.2. Successor Corporation Substituted...................................................................49
ARTICLE 6. DEFAULTS AND REMEDIES
Section 6.1. Events of Default...................................................................................49
Section 6.2. Acceleration........................................................................................51
Section 6.3. Other Remedies......................................................................................52
Section 6.4. Waiver of Past Defaults.............................................................................52
Section 6.5. Control by Majority.................................................................................52
Section 6.6. Limitation on Suits.................................................................................52
Section 6.7. Rights of Holders to Receive Payment................................................................53
Section 6.8. Collection Suit by Trustee..........................................................................53
Section 6.9. Trustee May File Proofs of Claim....................................................................54
Section 6.10. Priorities.........................................................................................54
Section 6.11. Undertaking for Costs..............................................................................54
ARTICLE 7. TRUSTEE
Section 7.1. Duties of Trustee...................................................................................55
Section 7.2. Rights of Trustee...................................................................................56
Section 7.3. Individual Rights of Trustee........................................................................56
Section 7.4. Trustee's Disclaimer................................................................................57
Section 7.5. Notice to Holders of Defaults and Events of Default.................................................57
Section 7.6. Reports by Trustee to Holders.......................................................................57
Section 7.7. Compensation and Indemnity..........................................................................57
Section 7.8. Replacement of Trustee..............................................................................58
Section 7.9. Successor Trustee by Merger, etc....................................................................59
Section 7.10. Eligibility; Disqualification......................................................................59
Section 7.11. Preferential Collection of Claims Against Company..................................................60
ARTICLE 8. DISCHARGE OF INDENTURE
Section 8.1. Discharge of Liability on Securities; Defeasance....................................................60
iv
Section 8.2. Conditions to Defeasance............................................................................61
Section 8.3. Application of Trust Money..........................................................................62
Section 8.4. Repayment to Company................................................................................62
Section 8.5. Indemnity for Government Obligations................................................................62
Section 8.6. Reinstatement.......................................................................................63
ARTICLE 9. AMENDMENTS
Section 9.1. Amendments and Supplements Permitted Without Consent of Holders.....................................63
Section 9.2. Amendments and Supplements Requiring Consent of Holders.............................................64
Section 9.3. Compliance with TIA.................................................................................65
Section 9.4. Revocation and Effect of Consents...................................................................65
Section 9.5. Notation on or Exchange of Securities...............................................................65
Section 9.6. Trustee Protected...................................................................................66
ARTICLE 10. MISCELLANEOUS
Section 10.1. Trustee Indenture Act Controls.....................................................................66
Section 10.2. Notices............................................................................................66
Section 10.3. Communication by Holders with Other Holders........................................................67
Section 10.4. Certificate and Opinion as to Conditions Precedent.................................................67
Section 10.5. Statements Required in Certificate or Opinion......................................................67
Section 10.6. Rules by Trustee and Agents........................................................................68
Section 10.7. Legal Holidays.....................................................................................68
Section 10.8. No Recourse Against Others.........................................................................68
Section 10.9. Counterparts.......................................................................................68
Section 10.10. Variable Provisions...............................................................................69
Section 10.11. Governing Law.....................................................................................69
Section 10.12. No Adverse Interpretation of Other Agreements.....................................................69
Section 10.13. Successors........................................................................................69
Section 10.14. Severability......................................................................................69
Section 10.15. Table of Contents, Headings, etc..................................................................69
v
