EXHIBIT 4.1 (c)
================================================================================
XXXXXX XXXXX COMMAND COMPANY, as Issuer,
XXXXXX XXXXX CORP., for Itself and as a Domestic Guarantor
and
THE BANK OF NEW YORK, as Trustee
------------------------------
INDENTURE
Dated as of April 7, 1998
------------------------------
$135,000,000
8-1/8% Senior Notes due 2008
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE 1. DEFINITIONS AND INCORPORATION
BY REFERENCE.............................................. 1
Section 1.1. Definitions..................................... 1
Section 1.2. Other Definitions............................... 31
Section 1.3. Incorporation by Reference of Trust
Indenture Act................................... 32
Section 1.4. Rules of Construction........................... 32
ARTICLE 2. THE NOTES................................................. 33
Section 2.1. Dating; Incorporation of Form in
Indenture....................................... 33
Section 2.2. Execution and Authentication.................... 34
Section 2.3. Registrar and Paying Agent...................... 36
Section 2.4. Paying Agent to Hold Money in Trust............. 36
Section 2.5. Noteholder Lists................................ 37
Section 2.6. Transfer and Exchange........................... 37
Section 2.7. Replacement Notes............................... 41
Section 2.8. Outstanding Notes............................... 42
Section 2.9. Temporary Notes................................. 42
Section 2.10. Cancellation.................................... 42
Section 2.11. Defaulted Interest.............................. 43
Section 2.12. Deposit of Moneys............................... 43
Section 2.13. CUSIP Number.................................... 44
Section 2.14. Restrictive Legends............................. 44
Section 2.15. Special Transfer Provisions; Proxies............ 46
ARTICLE 3. REDEMPTION................................................ 49
Section 3.1. Notices to Trustee.............................. 49
Section 3.2. Selection by Trustee of Notes to Be Redeemed.... 50
Section 3.3. Notice of Redemption............................ 50
Section 3.4. Effect of Notice of Redemption.................. 52
Section 3.5. Deposit of Redemption Price..................... 52
Section 3.6. Notes Redeemed in Part.......................... 53
Section 3.7. Optional Redemption............................. 53
Section 3.8. Redemption for Changes in Canadian Withholding
Taxes........................................... 53
i
ARTICLE 4. COVENANTS................................................. 54
Section 4.1. Payment of Notes................................ 54
Section 4.2. SEC Reports..................................... 54
Section 4.3. Waiver of Stay, Extension or Usury Laws......... 55
Section 4.4. Compliance Certificate.......................... 56
Section 4.5. Taxes........................................... 57
Section 4.6. Limitation on Additional Indebtedness........... 57
Section 4.7. Limitation on Preferred Stock of Restricted
Subsidiaries.................................... 58
Section 4.8. Limitation on Capital Stock of Restricted
Subsidiaries.................................... 58
Section 4.9. Limitation on Restricted Payments............... 59
Section 4.10. Limitation on Certain Asset Sales............... 61
Section 4.11. Limitation on Transactions with Affiliates...... 65
Section 4.12. Limitations on Liens............................ 67
Section 4.13. Limitations on Investments...................... 67
Section 4.14. Limitation on Creation of Subsidiaries.......... 67
Section 4.15. Limitation on Senior Subordinated Debt.......... 68
Section 4.16. Limitation on Sale and Lease-Back Transactions.. 69
Section 4.17. Payments for Consent............................ 69
Section 4.18. Corporate Existence............................. 69
Section 4.19. Change of Control............................... 70
Section 4.20. Maintenance of Office or Agency................. 73
Section 4.21. Maintenance of Properties and Insurance......... 74
Section 4.22. Additional Amounts.............................. 75
ARTICLE 5. SUCCESSOR CORPORATION..................................... 77
Section 5.1. Limitation on Consolidation, Merger and Sale
of Assets....................................... 77
Section 5.2. Successor Person Substituted.................... 78
ARTICLE 6. DEFAULTS AND REMEDIES..................................... 79
Section 6.1. Events of Default............................... 79
Section 6.2. Acceleration.................................... 81
Section 6.3. Other Remedies.................................. 82
ii
Section 6.4. Waiver of Past Defaults and Events of Default... 83
Section 6.5. Control by Majority............................. 83
Section 6.6. Limitation on Suits............................. 83
Section 6.7. Rights of Holders to Receive Payment............ 84
Section 6.8. Collection Suit by Trustee...................... 84
Section 6.9. Trustee May File Proofs of Claim................ 85
Section 6.10. Priorities...................................... 86
Section 6.11. Undertaking for Costs........................... 86
Section 6.12. Restoration of Rights and Remedies.............. 87
ARTICLE 7. TRUSTEE................................................... 87
Section 7.1. Duties of Trustee............................... 87
Section 7.2. Rights of Trustee............................... 89
Section 7.3. Individual Rights of Trustee.................... 90
Section 7.4. Trustee's Disclaimer............................ 90
Section 7.5. Notice of Defaults.............................. 90
Section 7.6. Reports by Trustee to Holders................... 90
Section 7.7. Compensation and Indemnity...................... 91
Section 7.8. Replacement of Trustee.......................... 92
Section 7.9. Successor Trustee by Consolidation, Merger or
Conversion...................................... 94
Section 7.10. Eligibility; Disqualification................... 94
Section 7.11. Preferential Collection of Claims Against Issuer
and Xxxxxx Xxxxx................................ 94
Section 7.12. Paying Agents................................... 95
ARTICLE 8. AMENDMENTS, SUPPLEMENTS AND WAIVERS....................... 95
Section 8.1. Without Consent of Holders...................... 95
Section 8.2. With Consent of Holders......................... 96
Section 8.3. Compliance with Trust Indenture Act............. 98
Section 8.4. Revocation and Effect of Consents............... 98
Section 8.5. Notation on or Exchange of Notes................ 99
Section 8.6. Trustee to Sign Amendments, etc................. 99
iii
ARTICLE 9. DISCHARGE OF INDENTURE; DEFEASANCE............................ 100
Section 9.1. Discharge of Indenture............................. 100
Section 9.2. Legal Defeasance................................... 100
Section 9.3. Covenant Defeasance................................ 101
Section 9.4. Conditions to Defeasance or Covenant Defeasance.... 102
Section 9.5. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous
Provisions......................................... 104
Section 9.6. Reinstatement...................................... 105
Section 9.7. Moneys Held by Paying Agent........................ 105
Section 9.8. Moneys Held in Trust............................... 106
ARTICLE 10. GUARANTEE OF NOTES............................................ 107
Section 10.1. Guarantee.......................................... 107
Section 10.2. Execution and Delivery of Guarantees............... 108
Section 10.3. Limitation of Guarantee............................ 109
Section 10.4. Release of Guarantor............................... 109
Section 10.5. Domestic Guarantee Obligations Subordinated to
Domestic Guarantor Senior Indebtedness............. 110
Section 10.6. Payment Over of Proceeds upon Dissolution,
etc., of a Domestic Guarantor...................... 110
Section 10.7. Suspension of Domestic Guarantee Obligations When
Domestic Guarantor Senior Indebtedness in Default.. 113
Section 10.8. Subrogation to Rights of Holders of Domestic
Guarantor Senior Indebtedness...................... 116
Section 10.9. Domestic Guarantee Subordination Provisions Solely
to Define Relative Rights.......................... 116
Section 10.10. Rights of Trustee as a Holder of Domestic Guarantor
Senior Indebtedness; Preservation of Trustee's
Rights............................................. 118
Section 10.11. Trustee's Relation to Domestic Guarantor Senior
Indebtedness....................................... 118
iv
Section 10.12. Trustee to Effectuate Subordination............... 118
Section 10.13. No Waiver of Subordination Provisions............. 119
Section 10.14. Notice to Trustee................................. 120
Section 10.15. Reliance on Judicial Order or Certificate of
Liquidating Agent................................. 121
Section 10.16. Article Applicable to Paying Agents............... 121
Section 10.17. No Suspension of Remedies......................... 122
Section 10.18. Canadian Guarantee Obligations Senior Ranking..... 122
ARTICLE 11. MISCELLANEOUS................................................ 122
Section 11.1. Trust Indenture Act Controls...................... 122
Section 11.2. Notices........................................... 123
Section 11.3. Communications by Holders with Other Holders...... 124
Section 11.4. Certificate and Opinion as to Conditions Precedent 124
Section 11.5. Statements Required in Certificate and Opinion.... 125
Section 11.6. When Treasury Notes Disregarded................... 125
Section 11.7. Rules by Trustee and Agents....................... 126
Section 11.8. Business Days; Legal Holidays..................... 126
Section 11.9. Governing Law..................................... 126
Section 11.10. No Adverse Interpretation of Other Agreements..... 126
Section 11.11. No Recourse Against Others........................ 127
Section 11.12. Successors........................................ 128
Section 11.13. Multiple Counterparts............................. 128
Section 11.14. Table of Contents, Headings, etc.................. 128
Section 11.15. Separability...................................... 128
v
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
---------------------------------------------------------------------
310 (a)(1)......................................... 7.10
(a)(2)......................................... 7.10
(a)(3)......................................... N.A.
(a)(4)......................................... N.A.
(b)............................................ 7.8;13.2
(b)(1)......................................... 7.10
(b)(9)......................................... 7.10
(c)............................................ N.A.
311 (a)............................................ 7.11
(b)............................................ 7.11
(c)............................................ N.A.
312 (a)............................................ 2.5
(b)............................................ 13.3
(c)............................................ 13.3
313 (a)............................................ 7.6
(b)(1)......................................... 7.6
(b)(2)......................................... 7.6
(c)............................................ 13.2
(d)............................................ 7.6
314 (a)............................................ 4.2;4.4;13.2
(b)............................................ 12.2
(c)(1)......................................... 12.2;13.4;13.5
(c)(2)......................................... 12.2;13.4;13.5
(c)(3)......................................... N.A.
(d)............................................ 12.2
(e)............................................ 12.3;13.5
(f)............................................ N.A.
315 (a)............................................ 7.1;7.2
(b)............................................ 7.5; 13.2
(c)............................................ 7.1
(d)............................................ 6.5;7.1;7.2
(e)............................................ 6.11
316 (a) (last sentence)............................ 13.6
(a)(1)(A)...................................... 6.5
(a)(1)(B)...................................... 6.4
(a)(2)......................................... 8.2
(b)............................................ 6.7
(c)............................................ 8.4
317 (a)(1)......................................... 6.8
(a)(2)......................................... 6.9
(b)............................................ 7.12
318 (a)............................................ 13.1
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
vi
INDENTURE, dated as of April 7, 1998, by and among XXXXXX XXXXX
COMMAND COMPANY, a Nova Scotia unlimited liability company, as Issuer (the
"Issuer"), XXXXXX XXXXX CORP., a Pennsylvania corporation, for itself and as a
Domestic Guarantor ("Xxxxxx Xxxxx"), and THE BANK OF NEW YORK, a New York
banking corporation, 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 Issuer's 8-1/8% Senior
Notes due 2008 (the "Notes").
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
-----------
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or assumed in connection with the acquisition of assets from a
Person.
"Acquisition EBITDA" means, without duplication, (i) EBITDA for the
last four fiscal quarters for which financial statements are available at the
date of determination (the "Acquisition EBITDA Period") with respect to a
business or Person which has been acquired by Xxxxxx Xxxxx or one of its
Restricted Subsidiaries or which is the subject of a binding acquisition
agreement requiring the calculation of EBITDA for purposes of Section 4.6 and,
in each case, with respect to which financial results on a consolidated basis
with Xxxxxx Xxxxx or one of its Restricted Subsidiaries have not been made
available for an entire fiscal quarter; plus (ii) in connection with any such
acquisition, projected quantifiable improvements in operating results due to
cost reductions calculated in good faith, by Xxxxxx Xxxxx or one of its
Restricted Subsidiaries through a Board Resolution certified by an Officers'
Certificate filed with the Trustee (calculated on a pro forma basis for the
Acquisition EBITDA Period as if the
program had been implemented at the beginning of the Acquisition EBITDA Period),
without giving effect to any operating losses of the acquired Person. Each such
Officers' Certificate shall be signed by the Chief Financial Officer and
another officer of Xxxxxx Xxxxx. The Trustee may rely on such Officers'
Certificate (subject to the provisions of Section 7.1 of this Indenture).
Acquisition EBITDA of a business shall be a fixed number determined as of the
date the calculation of EBITDA for purposes of Section 4.6 is first required
with respect to the acquisition of such business (the "Determination Date") and
shall be utilized from the Determination Date through the date financial results
are available for the first full fiscal quarter following the acquisition
(following which the actual EBITDA of such business or Person shall be included
in the EBITDA of Xxxxxx Xxxxx). For purposes of determining Acquisition EBITDA
with respect to the acquisition of a particular business or Person, Acquisition
EBITDA shall include not only the Acquisition EBITDA of such business or Person,
but also the Acquisition EBITDA of any business previously acquired by Xxxxxx
Xxxxx or a Restricted Subsidiary or the subject of a pending acquisition
agreement to the extent that, as of the Determination Date, the financial
results for such business or Person on a consolidated basis with Xxxxxx Xxxxx
for a full fiscal quarter subsequent to its acquisition by Xxxxxx Xxxxx or a
Restricted Subsidiary are not yet available.
"Adjusted EBITDA" means, without duplication, for any Person, the sum
of (a) EBITDA of such Person and its Restricted Subsidiaries for the most recent
fiscal quarter for which internal financial statements are available, multiplied
by four and (b) Acquisition EBITDA.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser
of the amount by which (x) the fair value of the property of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities (including, without limitation, any guarantees of Senior
Indebtedness)), but excluding liabilities under the Guarantee of such Guarantor
at such date and (y) the present fair salable value of the assets of such
Guarantor at such date exceeds the amount
2
that will be required to pay the probable liability of such Guarantor on its
debts (after giving effect to all other fixed and contingent liabilities
(including, without limitation, any guarantees of Senior Indebtedness) and after
giving effect to any collection from any Subsidiary of such Guarantor in respect
of the obligations of such Subsidiary under the Guarantee), excluding
Indebtedness in respect of the Guarantee as they become absolute and matured.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling" "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"Asset Sale" means the sale, transfer or other disposition (other than
to Xxxxxx Xxxxx or any of its Restricted Subsidiaries) in any single transaction
or series of related transactions involving assets with a fair market value in
excess of $500,000 of (a) any Capital Stock of or other equity interest in any
Restricted Subsidiary of Xxxxxx Xxxxx, (b) all or substantially all of the
assets of Xxxxxx Xxxxx or of any Restricted Subsidiary thereof, (c) real
property of Xxxxxx Xxxxx or a Restricted Subsidiary or (d) all or substantially
all of the assets of any business property, or part thereof, owned by Xxxxxx
Xxxxx or any Restricted Subsidiary thereof, or a division, line of business or
comparable business segment of Xxxxxx Xxxxx or any Restricted Subsidiary
thereof; provided that Asset Sales shall not include (i) sales, leases,
--------
conveyances, transfers or other dispositions to Xxxxxx Xxxxx or to a Restricted
Subsidiary or to any other Person if after giving effect to such sale,
lease, conveyance, transfer or other disposition such other Person becomes a
Restricted Sub-
3
sidiary, (ii) transactions complying with Section 5.1 and (iii) transfers or
other distributions of assets which constitute (1) Permitted Investments or (2)
Restricted Payments made in compliance with Section 4.9.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by Xxxxxx Xxxxx or any Restricted Subsidiary from such Asset Sale
(including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale; (b) payment of all brokerage commissions, underwriting and other fees and
expenses related to such Asset Sale, (c) provision for minority interest holders
in any Restricted Subsidiary as a result of such Asset Sale, (d) payments made
to retire Indebtedness secured by the assets subject to such Asset Sale and (e)
deduction of appropriate amounts to be provided by Xxxxxx Xxxxx or a Restricted
Subsidiary as a reserve, in accordance with GAAP, against any liabilities
associated with the assets sold or disposed of in such Asset Sale and retained
by Xxxxxx Xxxxx or a Restricted Subsidiary after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in such Asset Sale,
and (ii) promissory notes and other non-cash consideration received by Xxxxxx
Xxxxx or any Restricted Subsidiary from such Asset Sale or other disposition
upon the liquidation or conversion of such notes or non-cash consideration into
cash.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, as of the time of determination, the greater of (i) the fair
value of the property subject to such arrangement (as determined by the Board of
Directors) and (ii) the present value (discounted at the rate of interest
implicit in such transaction) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale and Lease-
Back Transaction (including any period for which such lease has been extended).
4
"Available Asset Sale Proceeds" means, with respect to any Asset Sale,
the aggregate Asset Sale Proceeds from such Asset Sale that have not been
applied in accordance with clause (iii)(a) or (iii)(b) of Section 4.10(a) and
which have not been the basis for an Excess Proceeds Offer in accordance with
clause (iii)(c) of Section 4.10(a).
"Board of Directors" means the board of directors of the Issuer,
Xxxxxx Xxxxx or a Guarantor, as appropriate, or any committee authorized to act
therefor.
"Board Resolution" means a copy of a resolution certified pursuant to
an Officers' Certificate to have been duly adopted by the Board of Directors of
the Issuer, Xxxxxx Xxxxx or a Guarantor, as appropriate, and to be in full force
and effect, and delivered to the Trustee.
"Canadian Guarantee" means, as the context may require, individually,
a guarantee, or collectively, any and all guarantees of the Obligations of the
Issuer with respect to the Notes by each Canadian Guarantor pursuant to the
terms of Article 10 hereof, substantially in the form set forth as Exhibit F.
"Canadian Guarantor" means, Archivex Limited, a Nova Scotia company,
and each future Subsidiary of Xxxxxx Xxxxx organized under the laws of Canada or
any province thereof, which is not prohibited by the laws of Canada or any
province thereof from acting as a guarantor of the Notes and this Indenture and
which has either assets or shareholders' equity in excess of $5,000, and
"Canadian Guarantors" means such entities collectively.
"Canadian Guarantor Senior Indebtedness," as to any Canadian
Guarantor, means the principal of and premium, if any, and interest (including,
without limitation, interest accruing or that would have accrued but for the
filing of a bankruptcy, reorganization or other insolvency proceeding whether or
not such interest constitutes an allowable claim in such proceeding) on, and any
and all other fees, expense reimbursement obligations, indemnities and other
amounts due pursuant to the terms of all agreements, documents and instruments
providing for, creating,
5
securing or evidencing or otherwise entered into in connection with, (a) such
Canadian Guarantor's direct incurrence of any Indebtedness or its guarantee of
all Indebtedness of the Issuer, Xxxxxx Xxxxx or any Restricted Subsidiaries, in
each case, owed to lenders under or in respect of the Credit Facility, (b) all
obligations of such Canadian Guarantor with respect to any Interest Rate
Agreement or any guarantee thereof, (c) all obligations of such Canadian
Guarantor to reimburse any bank or other person in respect of amounts paid under
letters of credit, acceptances or other similar instruments and all obligations
of such Canadian Guarantor with respect to guarantees of such reimbursement
obligations, (d) all other Indebtedness of such Canadian Guarantor which does
not provide that it is subordinate to the Canadian Guarantees and (e) all
deferrals, renewals, extensions, replacements, refundings, refinancings and
restructurings of, and amendments, modifications and supplements to, any of the
Canadian Guarantor Senior Indebtedness described above. Notwithstanding
anything to the contrary in the foregoing, Canadian Guarantor Senior
Indebtedness will not include (i) Indebtedness of such Canadian Guarantor to any
of its Subsidiaries, (ii) any Indebtedness which by the express terms of the
agreement or instrument creating, evidencing or governing the same is junior or
subordinate in right of payment to any item of Canadian Guarantor Senior
Indebtedness, (iii) any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business or (iv)
Indebtedness (other than that described in clause (a) above) incurred in
violation of this Indenture.
"Capital Stock" means, with respect to any Person, any and all shares
or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebted-
6
ness shall be the capitalized amount of such obligations determined in
accordance with GAAP.
"Change of Control" will be deemed to have occurred at such time as
(i) any Person (including a Person's Affiliates and associates), other than a
Permitted Holder, becomes the beneficial owner (as defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act) of more
than 50% of the total voting power of the Common Stock of Xxxxxx Xxxxx, (ii)
there shall be consummated any consolidation or merger of Xxxxxx Xxxxx in which
Xxxxxx Xxxxx is not the continuing or surviving corporation or pursuant to which
the Common Stock of Xxxxxx Xxxxx would be converted into cash, securities or
other property, other than a merger or consolidation of Xxxxxx Xxxxx in which
the holders of the Common Stock of Xxxxxx Xxxxx outstanding immediately prior to
the consolidation or merger hold, directly or indirectly, at least a majority of
the Common Stock of the surviving corporation immediately after such
consolidation or merger, or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of Xxxxxx Xxxxx (together with any new directors whose election by
such Board of Directors or whose nomination for election by the shareholders of
Xxxxxx Xxxxx has been approved by a majority of the directors then still in
office who either were directors at the beginning of such period or whose
election or recommendation for election was previously so approved) cease to
constitute a majority of the Board of Directors of Xxxxxx Xxxxx.
"Common Stock" of any Person means all Capital Stock of such Person
that is generally entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Consolidated Interest Expense" means, with respect to any Person, for
any period, the aggregate amount of interest which, in conformity with GAAP,
would be set forth opposite the caption "interest expense" or any like caption
on an income statement for such Person and its
7
Subsidiaries on a consolidated basis for such period (including, but not limited
to, Redeemable Dividends, whether paid or accrued, on Preferred Stock of a
Subsidiary, imputed interest included in Capitalized Lease Obligations, all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, the net costs associated with
hedging obligations, the interest portion of any deferred payment obligation,
amortization of discount or premium, if any, and all other non-cash interest
expense (other than interest amortized to cost of sales)) plus, without
duplication, all net capitalized interest for such period and all interest paid
under any guarantee of Indebtedness (including a guarantee of principal,
interest or any combination thereof) of any Person, plus the amount of all
dividends or distributions paid on Disqualified Capital Stock (other than
dividends paid or payable in shares of Capital Stock of Xxxxxx Xxxxx).
"Consolidated Net Income" means, with respect to any Person, for any
period, 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 (a) the Net Income of any Person (the "other Person") in
-------- -------
which the Person in question or any of its Subsidiaries has less than a 99%
interest (which interest does not cause the net income of such other Person to
be consolidated into the net income of the Person in question in accordance with
GAAP) shall be included only to the extent of the amount of dividends or
distributions paid to the Person in question or the Subsidiary, (b) the Net
Income of any Subsidiary of the Person in question, which Subsidiary is subject
to any restriction or limitation on the payment of dividends or the making of
other distributions (other than pursuant to the 1996 Indenture, the 1997
Indenture or this Indenture) shall be excluded to the extent of such restriction
or limitation (provided that if any such restriction or limitation by its terms
takes effect upon the occurrence of a default or event of default, such
exclusion shall become effective only upon the occurrence of such default or
event of default which is continuing), (c)(i) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition and (ii) any net gain (but
8
not loss) resulting from an Asset Sale by the Person in question or any of its
Subsidiaries other than in the ordinary course of business shall be excluded and
(d) extraordinary, unusual and non-recurring gains and losses shall be excluded.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 Xxxxxxx Xxxxxx-00X, Xxx Xxxx, Xxx Xxxx 00000.
"Credit Facility" means the credit agreement or credit agreements in
existence on the date hereof by and among Xxxxxx Xxxxx, any or all of the
Restricted Subsidiaries and any one or more lenders from time to time parties
thereto, as the same may be amended, extended, increased, renewed, restated,
supplemented or otherwise modified (in whole or in part, and without limitation
as to amount, terms, conditions, covenants and other provisions) from time to
time, and any agreement or agreements governing Indebtedness incurred to
refinance, replace, restructure or refund in whole or in part the borrowings and
then maximum commitments under the Credit Facility or such agreement (whether
with the original administrative agent and lenders or other agents and lenders
or otherwise, and whether provided under the original Credit Facility or other
credit agreements or otherwise). Xxxxxx Xxxxx shall promptly notify in writing
by means of an Officers' Certificate the Trustee of any such refunding,
replacement, restructuring or refinancing of the Credit Facility.
"Default" means any event that is, or with the passing of time or
giving of notice or both would be, an Event of Default.
"Depository" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Issuer, which Person must be a clearing agency
registered under the Exchange Act.
"Designated Senior Indebtedness," as to the Issuer, Xxxxxx Xxxxx or
any other Guarantor, as the case
9
may be, means any Senior Indebtedness (a) under the Credit Facility, or (b)
which at the time of determination exceeds $15,000,000 in aggregate principal
amount (or accreted value in the case of Indebtedness issued at a discount)
outstanding or available under a committed facility and (x) unless such
designation is prohibited by the Credit Facility, which is specifically
designated in the instrument evidencing such Senior Indebtedness as "Designated
Senior Indebtedness" by such Person and (y) as to which the Trustee has been
given written notice by means of an Officers' Certificate of such designation.
"Disqualified Capital Stock" means any Capital Stock of Xxxxxx Xxxxx
or a Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, 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 Notes, for cash or securities constituting
Indebtedness. Without limitation of the foregoing, Disqualified Capital Stock
shall be deemed to include (i) any Preferred Stock of a Restricted Subsidiary
of Xxxxxx Xxxxx and (ii) any Preferred Stock of Xxxxxx Xxxxx, with respect to
either of which, under the terms of such Preferred Stock, by agreement or
otherwise, such Restricted Subsidiary or Xxxxxx Xxxxx is obligated to pay
current dividends or distributions in cash during the period prior to the
maturity date of the Notes; provided, however, that Preferred Stock of Xxxxxx
-------- -------
Xxxxx or any Restricted Subsidiary thereof that is issued with the benefit of
provisions requiring a change of control offer to be made for such Preferred
Stock in the event of a Change of Control of Xxxxxx Xxxxx or Restricted
Subsidiary, which provisions have substantially the same effect as the
provisions described in Section 4.19, shall not be deemed to be Disqualified
Capital Stock solely by virtue of such provisions; and provided, further, that
-------- -------
Capital Stock owned by Xxxxxx Xxxxx or a Wholly-Owned Subsidiary shall not
constitute Disqualified Capital Stock.
"Domestic Guarantee" means, as the context may require, individually,
a guarantee, or collectively, any
10
and all guarantees of the Obligations of the Issuer with respect to the Notes
and the Indenture by each Domestic Guarantor pursuant to the terms of Article 10
hereof, substantially in the form set forth as Exhibit E.
"Domestic Guarantor" means, Xxxxxx Xxxxx, Advanced Box, Inc., a
Delaware corporation, Monarch Box, Inc., a Delaware corporation, and each future
Restricted Subsidiary of Xxxxxx Xxxxx organized under the laws of the United
States, any state thereof or the District of Columbia and which has assets or
shareholders' equity in excess of $5,000, and "Domestic Guarantors" means such
entities, collectively.
"Domestic Guarantor Senior Indebtedness," as to any Domestic
Guarantor, means the principal of and premium, if any, and interest (including,
without limitation, interest accruing or that would have accrued but for the
filing of a bankruptcy, reorganization or other insolvency proceeding whether or
not such interest constitutes an allowable claim in such proceeding) on, and any
and all other fees, expense reimbursement obligations, indemnities and other
amounts due pursuant to the terms of all agreements, documents and instruments
providing for, creating, securing or evidencing or otherwise entered into in
connection with, (a) such Domestic Guarantor's direct incurrence of any
Indebtedness or its guarantee of all Indebtedness of the Issuer, Xxxxxx Xxxxx or
any Restricted Subsidiaries, in each case, owed to lenders under or in respect
of the Credit Facility, (b) all obligations of such Domestic Guarantor with
respect to any Interest Rate Agreement or any guarantee thereof, (c) all
obligations of such Domestic Guarantor to reimburse any bank or other person in
respect of amounts paid under letters of credit, acceptances or other similar
instruments and all obligations of such Domestic Guarantor with respect to
guarantees of such reimbursement obligations, (d) all other Indebtedness of
such Domestic Guarantor which does not provide that it is to rank pari passu
---- -----
with or subordinate to the Domestic Guarantees and (e) all deferrals, renewals,
extensions, replacements, refundings, refinancings and restructurings of, and
amendments, modifications and supplements to, any of the Domestic Guarantor
Senior Indebtedness described above. Notwithstanding anything to
11
the contrary in the foregoing, Domestic Guarantor Senior Indebtedness will not
include (i) Indebtedness of such Domestic Guarantor to any of its Subsidiaries,
(ii) Indebtedness represented by the Domestic Guarantees, (iii) any Indebtedness
which by the express terms of the agreement or instrument creating, evidencing
or governing the same is junior or subordinate in right of payment to any item
of Domestic Guarantor Senior Indebtedness, (iv) any trade payable arising from
the purchase of goods or materials or for services obtained in the ordinary
course of business or (v) Indebtedness (other than that described in clause (a)
above) incurred in violation of this Indenture.
"EBITDA" means, for any Person, for any period, an amount equal to (a)
the sum of (i) Consolidated Net Income for such period, plus (ii) the provision
for taxes for such period based on income or profits to the extent such income
or profits were included in computing Consolidated Net Income and any
provision for taxes utilized in computing net loss under clause (i) hereof, plus
(iii) Consolidated Interest Expense for such period (but only including
Redeemable Dividends in the calculation of such Consolidated Interest Expense to
the extent that such Redeemable Dividends have not been excluded in the
calculation of Consolidated Net Income), plus (iv) depreciation for such period
on a consolidated basis, plus (v) amortization of intangibles and other
deferred financing fees for such period on a consolidated basis, plus (vi) any
other non-cash items reducing Consolidated Net Income for such period, plus
(vii) Permitted Tax Distributions, except that with respect to Xxxxxx Xxxxx each
of the foregoing items shall be determined on a consolidated basis with respect
to Xxxxxx Xxxxx and its Restricted Subsidiaries only.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the 8-1/8% Senior Notes due 2008 to be issued
in exchange for the Initial Notes pursuant to the Registration Agreement.
12
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"Guarantee" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the Obligations of the
Issuer with respect to the Notes and this Indenture by each Guarantor, if any,
pursuant to the terms of Article 10 hereof, substantially in the form set forth
in Exhibit E or Exhibit F, as applicable, and which shall include, without
limitation, each Domestic Guarantee and each Canadian Guarantee.
"Guarantor" means Xxxxxx Xxxxx and each Restricted Subsidiary of
Xxxxxx Xxxxx that is or hereafter becomes a Guarantor pursuant to Section 4.14
including, without limitation each Domestic Guarantor and each Canadian
Guarantor, and "Guarantors" means such entities, collectively.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording (other than previously recorded), as required
pursuant to GAAP or otherwise, of any such Indebtedness or other obligation on
the balance sheet of such Person (and "incurrence," "incurred," "incurrable,"
and "incurring" shall have meanings correlative to the foregoing); provided
--------
that a change in GAAP that results in an obligation of such Person that exists
at such time becoming Indebtedness shall not be deemed an incurrence of such
Indebtedness.
"Indebtedness" means, without duplication, with respect to any Person,
any indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the
13
balance deferred and unpaid of the purchase price of any property
(excluding, without limitation, any balances that constitute accounts
payable or trade payables, and other accrued liabilities arising in the ordinary
course of business) if and to the extent any of the foregoing indebtedness would
appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP, and shall also include, to the extent not otherwise included (i) any
Capitalized Lease Obligations, (ii) obligations secured by a Lien to which the
property or assets owned or held by such Person is subject, whether or not the
obligation or obligations secured thereby shall have been assumed (provided,
--------
however, that if such obligation or obligations shall not have been assumed, the
-------
amount of such Indebtedness shall be deemed to be the lesser of the principal
amount of the obligation or the fair market value of the pledged property or
assets), (iii) guarantees of items of other Persons which would be included
within this definition for such other Persons (whether or not such items would
appear upon the balance sheet of the guarantor), (iv) all obligations for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (provided that, in the case of any such letters of
--------
credit, the items for which such letters of credit provide credit support are
those of other Persons which would be included within this definition for such
other Persons), (v) in the case of Xxxxxx Xxxxx, Disqualified Capital Stock of
Xxxxxx Xxxxx or any Restricted Subsidiary thereof, and (vi) obligations of any
such Persons under any Interest Rate Agreement applicable to any of the
foregoing (if and to the extent such Interest Rate Agreement obligations would
appear as a liability upon a balance sheet of such Person prepared in accordance
with GAAP). The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as
described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation,
provided (i) that the amount outstanding at any time of any Indebtedness issued
with original issue discount is the principal amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with GAAP and (ii) that
Indebtedness shall not include any liability for Federal,
14
state, local or other taxes. Notwithstanding any other provision of the
foregoing definition, any trade payable arising from the purchase of goods or
materials or for services obtained in the ordinary course of business or
contingent obligations arising out of customary indemnification agreements with
respect to the sale of assets or securities shall not be deemed to be
"Indebtedness" of Xxxxxx Xxxxx or any Restricted Subsidiaries for purposes of
this definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Indebtedness and Liens securing Indebtedness
otherwise included in the determination of such amount shall not also be
included.
"Indenture" means this Indenture as amended, restated or supplemented
from time to time.
"1996 Indenture" means the indenture dated as of July 16, 0000 xxxxxxx
Xxxxxx Xxxxx xxx Xxxxxx Xxxxxx Trust Company of New York, as Trustee, as
amended, restated or supplemented from time to time.
"1997 Indenture" means the indenture dated as of July 7, 1997 between
Xxxxxx Xxxxx and The Bank of New York, as Trustee, as amended, restated or
supplemented from time to time.
"Initial Notes" means the 8-1/8% Senior Notes due 2008 of the Issuer
issued on the Issue Date for so long as such Notes constitute Restricted
Securities (which interest rate is subject to increase as provided therein).
"Initial Purchasers" means, collectively, Salomon Brothers Inc, CIBC
Xxxxxxxxxxx Corp. and PaineWebber Incorporated.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Interest Rate Agreement" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement or
other similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
15
"Investments" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary course of
business or acquired as part of the assets acquired by Xxxxxx Xxxxx or a
Restricted Subsidiary in connection with an acquisition of assets which is
otherwise permitted by the terms of this Indenture), loan or capital
contribution to (by means of transfers of property to others, payments for
property or services for the account or use of others or otherwise), the
purchase of any stock, bonds, notes, debentures, partnership or joint venture
interests or other securities of, the acquisition, by purchase or otherwise, of
all or substantially all of the business or assets or stock or other evidence of
beneficial ownership of, any Person or the making of any investment in any
Person. Investments shall exclude (i) extensions of trade credit on commercially
reasonable terms in accordance with normal trade practices and (ii) the
repurchases or redemptions of securities of any Person by such Person.
"Issue Date" means the date the Notes are first issued by the Issuer
and authenticated by the Trustee under this Indenture.
"Issuer" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Issuer Request" means any written request signed in the name of the
Issuer by any two of the following: the Chief Executive Officer; the President;
any Vice President; the Chief Financial Officer; the Treasurer; or the Secretary
or any Assistant Secretary (but not both the Secretary and any Assistant
Secretary) of the Issuer.
"Lien" means, with respect to any property or assets of any Person,
any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any Capitalized Lease Obligation, conditional sales, or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
16
"Maturity Date" means May 15, 2008.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Income" means, with respect to any Person for any period, the net
income (loss) of such Person determined in accordance with GAAP minus Permitted
Tax Distributions with respect to such period, and excluding any foreign
currency translation gains or losses added or deducted, as applicable, in the
computation of Net Income.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by
Xxxxxx Xxxxx or a Restricted Subsidiary, the aggregate net proceeds received
by Xxxxxx Xxxxx or a Restricted Subsidiary, after payment of expenses,
commissions and the like incurred in connection therewith, whether such proceeds
are in cash or in property (valued at the fair market value thereof, as
determined in good faith by the Board of Directors, at the time of receipt), (b)
in the case of any exchange, exercise, conversion or surrender of outstanding
securities of any kind for or into shares of Capital Stock of Xxxxxx Xxxxx or a
Restricted Subsidiary which is not Disqualified Capital Stock, the net book
value of such outstanding securities on the date of such exchange, exercise,
conversion or surrender (plus any additional amount required to be paid by the
holder to Xxxxxx Xxxxx or a Restricted Subsidiary upon such exchange, exercise,
conversion or surrender, less any and all payments made to the holders, e.g., on
----
account of fractional shares and less all expenses incurred by Xxxxxx Xxxxx or
any Restricted Subsidiary in connection therewith) and (c) in the case of any
issuance of any Indebtedness by Xxxxxx Xxxxx or a Restricted Subsidiary, the
aggregate net cash proceeds received by such Person after payment of expenses,
commissions, underwriting discounts and the like incurred in connection
therewith.
"1996 Notes" means the 11-1/8% Senior Subordinated Notes of Xxxxxx
Xxxxx due 2006.
17
"1997 Notes" means the 9-1/8% Senior Subordinated Notes of Xxxxxx
Xxxxx due 2007.
"Non-Payment Event of Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"Non-U.S. Person" means a person who is not a U.S. Person, as defined
in Regulation S.
"Notes" means, collectively, the Initial Notes and the Exchange Notes,
that are issued under this Indenture, as amended, restated or supplemented
from time to time pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any principal,
premium, interest, penalties, fees, indemnifications, reimbursements, damages
and other expenses payable under the documentation governing such Indebtedness.
"Officer" means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer, the Controller or the
Secretary of the Issuer, Xxxxxx Xxxxx or a Guarantor, or any other officer
designated by the Board of Directors, as the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and the Chief Financial Officer, the Controller, any Treasurer or any
Secretary or Assistant Secretary of such Person that shall comply with
applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel which
counsel is reasonably acceptable to the Trustee.
"Payment Default" means any default, whether or not any requirement
for the giving of notice, the lapse of time or both, or any other condition to
such default becoming an Event of Default has occurred, in the payment of
principal of (or premium, if any) or interest on or any
18
other amount payable in connection with Designated Senior Indebtedness.
"Permitted Holders" means, collectively, Xxx X. Xxxxxx, Xx., his
children or other lineal descendants (whether adoptive or biological), the
spouses of any of the foregoing and any probate estate of any such individual
and any trust, so long as one or more of the foregoing individuals is the
principal beneficiary of such trust, and any other partnership, corporation or
other entity all of the partners, shareholders, members or owners of which are
any one or more of the foregoing.
"Permitted Indebtedness" means:
(i) Indebtedness of Xxxxxx Xxxxx or any Restricted Subsidiary
arising under or in connection with the Credit Facility in an aggregate
amount at any one time outstanding not to exceed $100 million;
(ii) Indebtedness of the Issuer (and related guarantees) or a Canadian
Guarantor arising under or in connection with the Credit Facility in an
aggregate amount at any one time outstanding not to exceed Cdn. $40
million;
(iii) Indebtedness under the 1997 Notes and the guarantees thereof;
(iv) Indebtedness under the 1996 Notes and the guarantees thereof;
(v) Indebtedness under the Notes and the Guarantees;
(vi) Indebtedness not covered by any other clause of this definition
which is outstanding on the date of this Indenture;
(vii) Indebtedness of Xxxxxx Xxxxx to any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary to Xxxxxx Xxxxx or another
Restricted Subsidiary;
19
(viii) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business which
Indebtedness and Capitalized Lease Obligations do not in the aggregate
exceed 5% of the consolidated total assets of Xxxxxx Xxxxx and its
Subsidiaries;
(ix) Interest Rate Agreements;
(x) additional Indebtedness of Xxxxxx Xxxxx or a Restricted
Subsidiary not to exceed an aggregate of $3,000,000 in principal amount
outstanding at any time; and
(xi) Refinancing Indebtedness.
"Permitted Investments" means, for any Person, Investments made on or
after the date of this Indenture consisting of:
(i) Investments by Xxxxxx Xxxxx, or by a Restricted Subsidiary
thereof, in Xxxxxx Xxxxx or a Restricted Subsidiary;
(ii) Temporary Cash Investments;
(iii) Investments by Xxxxxx Xxxxx, or by a Restricted Subsidiary, in
a Person (or in all or substantially all of the business or assets of a
business or a Person), if as a result of such Investment (a) such Person
becomes a Restricted Subsidiary of Xxxxxx Xxxxx, (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, Xxxxxx Xxxxx or
a Restricted Subsidiary thereof or (c) such business or assets are owned by
Xxxxxx Xxxxx or a Restricted Subsidiary;
(iv) reasonable and customary loans made to employees not to exceed
$500,000 in the aggregate at any one time outstanding, plus any loans which
may be required to be made under Xxxxxx Xxxxx'x Nonqualified Stock Option
Plan in an amount not to exceed $2,000,000;
20
(v) an Investment that is made by Xxxxxx Xxxxx or a Restricted
Subsidiary in the form of any stock, bonds, notes, debentures, partnership
or joint venture interests or other securities that are issued by a third
party to Xxxxxx Xxxxx or Restricted Subsidiary solely as partial
consideration for the consummation of an Asset Sale that is otherwise
permitted by Section 4.10;
(vi) accounts receivable of Xxxxxx Xxxxx and its Restricted
Subsidiaries generated in the ordinary course of business;
(vii) Investments existing on the Issue Date; and
(viii) Investments for any purpose not to exceed $2,000,000.
"Permitted Liens" means (i) Liens on property or assets of, or any
shares of stock of or secured debt of, any Person or business existing at the
time such Person becomes a Restricted Subsidiary of Xxxxxx Xxxxx or at the time
such Person is merged into or consolidated with Xxxxxx Xxxxx or any of its
Restricted Subsidiaries or at the time such business is acquired by Xxxxxx Xxxxx
or a Restricted Subsidiary, provided that such Liens are not incurred in
--------
anticipation of such Person becoming a Restricted Subsidiary of Xxxxxx Xxxxx
or merging into or consolidating with Xxxxxx Xxxxx or any of its Restricted
Subsidiaries or such business being acquired by Xxxxxx Xxxxx or a Restricted
Subsidiary, (ii) Liens securing Refinancing Indebtedness, provided that any such
--------
Lien does not extend to or cover any Property, shares or debt other than the
Property, shares or debt securing the Indebtedness so refunded, refinanced or
extended, (iii) Liens in favor of Xxxxxx Xxxxx or any of its Restricted
Subsidiaries, (iv) Liens securing industrial revenue bonds or mortgages on real
property, (v) Liens to secure Purchase Money Indebtedness that is otherwise
permitted under this Indenture, provided that (a) any such Lien is created
--------
solely for the purpose of securing Indebtedness representing, or incurred to
finance, refinance or refund, the cost (including sales and excise taxes,
installation and delivery charges and other direct costs
21
of, and other direct expenses paid or charged in connection with, such purchase
or construction) of such Property, (b) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such costs, and (c) such Lien does
not extend to or cover any Property other than such item of Property and any
improvements on such item, (vi) statutory liens or landlords', 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, (vii) other Liens securing obligations incurred in the ordinary
course of business which obligations do not exceed $1,000,000 in the aggregate
at any one time outstanding, (viii) Liens for taxes, assessments or
governmental charges that are being contested in good faith by appropriate
proceedings, (ix) Liens securing Capitalized Lease Obligations or mortgage
loans related to real property permitted to be incurred under clause (viii) of
the definition of "Permitted Indebtedness," provided that such Lien does not
--------
extend to any property other than that subject to the underlying lease, (x)
Liens securing Designated Senior Indebtedness, (xi) easements or minor defects
or irregularities in title and other similar charges or encumbrances on
Property not interfering in any material respect with Xxxxxx Xxxxx'x or any
Restricted Subsidiary's use of such Property, (xii) Liens existing on the date
of this Indenture, (xiii) pledges or deposits made in the ordinary course of
business (a) in connection with (1) leases, performance bonds and similar bonds
or (2) workers' compensation, unemployment insurance and other social security
legislation or (b) securing the performance of surety bonds and appeal bonds
required (1) in the ordinary course of business or in connection with the
enforcement of rights or claims of Xxxxxx Xxxxx or a Subsidiary thereof or (2)
in connection with judgments that do not give rise to an Event of Default and
which do not exceed $3,000,000 in the aggregate, (xiv) Liens securing Interest
Rate Agreements entered into with any lender under the Credit Facility or
any Affiliate thereof and any guarantees thereof and (xv) any extensions,
substitutions, replacements or renewals of the foregoing.
22
"Permitted Tax Distributions" means, with respect to any period for
which Xxxxxx Xxxxx was taxed as an S corporation or other pass-through entity
for Federal income tax purposes, distributions to the holders of Capital Stock
of Xxxxxx Xxxxx based on estimates of the highest amount of federal, state and
local income tax per share of Capital Stock that any holder of Capital Stock of
Xxxxxx Xxxxx would be required to pay as a result of Xxxxxx Xxxxx'x being
treated as a pass-through entity for income tax purposes.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government (including any agency or political subdivision thereof).
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the
holders of other Capital Stock issued by such Person.
"Property" of any Person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such Person and its Subsidiaries under
GAAP.
"Public Equity Offering" means a public offering by Xxxxxx Xxxxx of
shares of its Capital Stock and any and all rights, warrants or options to
acquire such Capital Stock.
"Purchase Money Indebtedness" means any Indebtedness incurred in the
ordinary course of business by a Person to finance the cost (including the cost
of construction) of an item of Property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such Person incurred in connection therewith.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
23
"Redeemable Dividend" means, for any dividend or distribution with
regard to Disqualified Capital Stock, the quotient of the dividend or
distribution divided by the difference between one and the maximum statutory
federal income tax rate (expressed as a decimal number between 1 and 0) then
applicable to the issuer of such Disqualified Capital Stock.
"Redemption Date" when used with respect to any Note to be redeemed
means the date fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances, renews, replaces or extends any Indebtedness of Xxxxxx Xxxxx or a
Restricted Subsidiary outstanding on the Issue Date or other Indebtedness
permitted to be incurred by Xxxxxx Xxxxx or its Restricted Subsidiaries pursuant
to the terms of this Indenture, whether involving the same or any other lender
or creditor or group of lenders or creditors, but only to the extent that (i)
the Refinancing Indebtedness is subordinated to the Notes with respect to
Indebtedness of the Issuer and the relevant Guarantee with respect to the
Indebtedness of a Guarantor to at least the same extent as the Indebtedness
being refunded, refinanced or extended, if at all, (ii) the Refinancing
Indebtedness is scheduled to mature either (a) no earlier than the Indebtedness
being refunded, refinanced or extended, or (b) after the maturity date of the
Notes, (iii) the portion, if any, of the Refinancing Indebtedness that is
scheduled to mature on or prior to the maturity date of the Notes has a weighted
average life to maturity at the time such Refinancing Indebtedness is incurred
that is equal to or greater than the weighted average life to maturity of the
portion of the Indebtedness being refunded, refinanced or extended that is
scheduled to mature on or prior to the maturity date of the Notes, (iv) such
Refinancing Indebtedness is in an aggregate principal amount that is equal to
or less than the sum of (a) the aggregate principal amount then outstanding
under the Indebtedness being refunded, refinanced or extended, (b) the amount of
accrued and unpaid interest, if any, and premiums owed, if any, not in excess of
preexisting prepayment provisions on such Indebtedness being refunded,
refinanced or extended and (c) the amount of customary fees, expenses and costs
24
related to the incurrence of such Refinancing Indebtedness, and (v) such
Refinancing Indebtedness is incurred by the same Person that initially incurred
the Indebtedness being refunded, refinanced or extended, except that the Issuer
or any Guarantor may incur Refinancing Indebtedness to refund, refinance or
extend Indebtedness of the Issuer or any Guarantor.
"Registration Agreement" means the Registration Agreement dated the
Issue Date by and among the Issuer, Xxxxxx Xxxxx and Xxxxxxx Xxxxxxxx Inc, as
amended from time to time.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Payment" means any of the following: (i) the declaration
or payment of any dividend or any other distribution or payment on Capital Stock
of Xxxxxx Xxxxx or any Restricted Subsidiary or any payment made to the direct
or indirect holders (in their capacities as such) of Capital Stock of Xxxxxx
Xxxxx or any Restricted Subsidiary (other than (x) dividends or distributions
payable solely in Capital Stock (other than Disqualified Capital Stock) or in
options, warrants or other rights to purchase Capital Stock (other than
Disqualified Capital Stock), and (y) in the case of Restricted Subsidiaries,
dividends or distributions payable to Xxxxxx Xxxxx or to a Wholly-Owned
Subsidiary of Xxxxxx Xxxxx); (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of Xxxxxx Xxxxx or any of its
Restricted Subsidiaries (other than Capital Stock owned by Xxxxxx Xxxxx or a
Wholly-Owned Subsidiary of Xxxxxx Xxxxx, excluding Disqualified Capital
Stock); (iii) the purchase, defeasance, repurchase, redemption or other
acquisition or retirement for value, prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund payment of, or the making of any principal
payment on, any Indebtedness which is subordinated in right of payment to (x)
the Notes with respect to such an action by the Issuer or (y) to the respective
Guarantee with respect to such an action by a Guarantor, in each case, (other
than subordinated Indebtedness acquired in anticipation of satisfying a
scheduled sinking fund obligation, principal installment or final
25
maturity, in each case due within one year of the date of acquisition); (iv) the
making of any Investment or guarantee of any Investment in any Person other than
a Permitted Investment; (v) any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary on the basis of the Investment by Xxxxxx Xxxxx; and (vi)
forgiveness of any Indebtedness of an Affiliate of Xxxxxx Xxxxx (other than a
Restricted Subsidiary) to Xxxxxx Xxxxx or a Restricted Subsidiary. For purposes
of determining the amount expended for Restricted Payments, cash distributed or
invested shall be valued at the face amount thereof and property other than cash
shall be valued at its fair market value in the good faith determination of the
Board of Directors. It is agreed that any payments made to Xxx X. Xxxxxx, Xx. or
his spouse pursuant to a pension obligation of Xxxxxx Xxxxx in the annual amount
of $96,000 shall not constitute a Restricted Payment.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided however that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means a Subsidiary of Xxxxxx Xxxxx having
either assets or shareholders' equity in excess of $5,000 other than an
Unrestricted Subsidiary and includes all of the Subsidiaries of Xxxxxx Xxxxx
existing as of the Issue Date having either assets or shareholders' equity in
excess of $5,000. The Board of Directors of Xxxxxx Xxxxx may designate any
Unrestricted Subsidiary or any Person that is to become a Subsidiary as a
Restricted Subsidiary if immediately after giving effect to such action (and
treating any Acquired Indebtedness as having been incurred at the time of such
action), Xxxxxx Xxxxx or a Restricted Subsidiary could have incurred at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant
to Section 4.6.
"Rule 144A" means Rule 144A under the Securities Act.
26
"Sale and Lease-Back Transaction" means any arrangement with any
Person providing for the leasing by Xxxxxx Xxxxx or any Restricted Subsidiary of
Xxxxxx Xxxxx of any real or tangible personal Property, which Property (i) has
been or is to be sold or transferred by Xxxxxx Xxxxx or such Restricted
Subsidiary to such Person in contemplation of such leasing and (ii) would
constitute an Asset Sale if such property had been sold in an outright sale
thereof.
"S&P" means Standard & Poor's Ratings Group and its successors.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the same
functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of and premium, if any, and
interest (including, without limitation, interest accruing or that would have
accrued but for the filing of a bankruptcy, reorganization or other insolvency
proceeding whether or not such interest constitutes an allowable claim in such
proceeding) on, and any and all other fees, expense reimbursement obligations
and other amounts due pursuant to the terms of all agreements, documents and
instruments providing for, creating, securing or evidencing or otherwise entered
into in connection with (a) all Indebtedness of Xxxxxx Xxxxx or its Restricted
Subsidiaries owed to lenders under or in respect of the Credit Facility, (b) all
obligations of Xxxxxx Xxxxx or its Restricted Subsidiaries with respect to any
Interest Rate Agreement, (c) all obligations of Xxxxxx Xxxxx or its Restricted
Subsidiaries to reimburse any bank or other person in respect of amounts paid
under letters of credit, acceptances or other similar instruments, (d) all other
Indebtedness of Xxxxxx Xxxxx or its Restricted Subsidiaries which does not
provide that (1) with respect to Indebtedness of the Issuer or a Canadian
Guarantor, such Indebtedness is subordinate to the Notes or such Canadian
Guarantee, as applicable, and (2) with respect to Indebtedness of a Domestic
Guarantor, such Indebtedness is to rank pari
----
27
passu with or subordinate to such Domestic Guarantee and (e) all deferrals,
-----
renewals, extensions, replacements, refundings, refinancings and restructurings
of, and amendments, modifications and supplements to, any of the Senior
Indebtedness described above. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness will not include (i) Indebtedness of Xxxxxx
Xxxxx to any of its Subsidiaries, (ii) Indebtedness represented by any Domestic
Guarantees, (iii) Indebtedness represented by the 1996 Notes, the 1997 Notes and
their respective guarantees; (iv) any Indebtedness which by the express terms of
the agreement or instrument creating, evidencing or governing the same is junior
or subordinate in right of payment to any item of Senior Indebtedness, (v) any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business, or (vi) Indebtedness (other than
that described in clause (a) above) incurred in violation of this Indenture.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named Person or
any of its Subsidiaries; or (ii) in the case of a partnership, joint venture,
association or other business entity, with respect to which such first-named
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes.
"Temporary Cash Investments" means (i) Investments in marketable
direct obligations issued or guaranteed by the United States of America, or of
any governmental agency or political subdivision thereof, maturing within 365
days of the date of purchase; (ii) Investments in demand deposits or
certificates of deposit issued by a bank organized under the laws of the United
States of America or any state thereof or the District of Columbia, in each case
28
having capital, surplus and undivided profits totaling more than $500,000,000
and rated at least A by S&P's Rating Group and A-2 by Xxxxx'x, maturing within
365 days of purchase; (iii) Investments not exceeding 365 days in duration in
money market funds that invest substantially all of such funds' assets in the
Investments described in clauses (i) and (ii) above; (iv) any security maturing
not more than 180 days after the date of acquisition, backed by a stand-by or
direct pay letter of credit issued by a bank meeting the qualifications
described in clause (ii) above; or (v) commercial paper, maturing not more than
one year after the date of acquisition, issued by a corporation (other than an
Affiliate or Subsidiary of Xxxxxx Xxxxx) organized and existing under the laws
of the United States of America or any state thereof or the District of Columbia
with a rating, at the time as of which any investment therein is made, of "P-1"
by Xxxxx'x or "A-1" by S&P's Rating Group.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.3 hereof).
"Trust Officer" when used with respect to the Trustee, means any
officer or assistant officer of the Trustee assigned to the Corporate Trust
Administration department or similar department performing corporate trust work
of the Trustee or any successor to such department or, in the case of a
successor-Trustee, any officer of such successor Trustee performing corporate
trust functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
29
"Unrestricted Subsidiary" means (i) any Subsidiary of an
Unrestricted Subsidiary and (ii) any Subsidiary of Xxxxxx Xxxxx which is
classified after the Issue Date as an Unrestricted Subsidiary by a resolution
adopted by the Board of Directors; provided that the Issuer may not be an
---------
Unrestricted Subsidiary; and provided further, however, that a Subsidiary
organized or acquired after the Issue Date may be so classified as an
Unrestricted Subsidiary only if such classification is in compliance with the
covenant set forth in Section 4.9 hereof. The Trustee shall be given prompt
written notice by Xxxxxx Xxxxx of each resolution adopted by the Board of
Directors under this provision, together with a copy of each such resolution
adopted.
"U.S. Government Obligations" means (i) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
--------
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Wholly-Owned Subsidiary" means any Restricted Subsidiary 99% or more
of the outstanding Capital Stock (other than directors' qualifying shares) of
which is owned, directly or indirectly, by Xxxxxx Xxxxx.
30
Section 1.2. Other Definitions.
-----------------
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
-------------------------------------------------------------------------------
"Additional Amounts".................................................... 4.22
"Affiliate Transaction"................................................. 4.11
"Agent Member".......................................................... 2.6
"Bankruptcy Law"........................................................ 6.1
"Business Day".......................................................... 11.8
"Canadian Taxes"........................................................ 4.22
"Certificated Notes".................................................... 2.1
"Change of Control Offer"............................................... 4.19
"Change of Control Payment Date"........................................ 4.19
"Change of Control Purchase Price....................................... 4.19
"Covenant Defeasance"................................................... 9.3
"Custodian"............................................................. 6.1
"Domestic Guarantee Payment Blockage Period"............................ 10.7
"Domestic Guarantor Representative"..................................... 10.7
"Event of Default"...................................................... 6.1
"Excess Proceeds Offer"................................................. 4.10
"Excluded Holder"....................................................... 4.22
"Global Notes".......................................................... 2.1
"Initial Domestic Guarantee Blockage Period"............................ 10.7
"Legal Defeasance"...................................................... 9.2
"Legal Holiday"......................................................... 11.8
"Offer Period".......................................................... 4.10
"Participants".......................................................... 2.6
"Paying Agent".......................................................... 2.3
"Physical Notes"........................................................ 2.1
"Private Placement Legend".............................................. 2.14
"Purchase Date"......................................................... 4.10
"Registrar"............................................................. 2.3
"Registration Default".................................................. Ex. A
"Regulation S Global Note".............................................. 2.1
"Reinvestment Date"..................................................... 4.10
"Restricted Global Note"................................................ 2.1
"Special Interest"...................................................... EX. A
Section 1.3. Incorporation by Reference of Trust
Indenture Act.
-----------------------------------
31
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture shall have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Issuer, the Guarantors
or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
Section 1.4. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
32
(5) words used herein implying any gender shall apply to every gender;
and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article,
Section or Subdivision, unless expressly stated otherwise.
ARTICLE 2.
THE NOTES
Section 2.1. Dating; Incorporation of Form in Indenture.
------------------------------------------
(a) The Initial Notes and the Trustee's certificate of
authentication thereon shall be substantially in the form of Exhibit A which is
hereby incorporated in and expressly made part of this Indenture. The Exchange
Notes and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit B hereto which is incorporated and
expressly made a part of this Indenture. The Notes may have notations, legends
or endorsements required by law, stock exchange rule or usage. The Issuer may
use "CUSIP" numbers in issuing the Notes. The Issuer shall approve the form of
the Notes. Each Note shall be dated the date of its authentication.
The terms and provisions contained in the form of the Initial Notes
annexed hereto as Exhibit A and the Exchange Notes annexed hereto as Exhibit B,
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Issuer, Xxxxxx Xxxxx and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
(b) Global Notes. The certificates representing Initial Notes
------------
offered and sold in reliance on Rule 144A (the "Restricted Global Note") and
Notes offered and sold in reliance on Regulation S (the "Regulation S Global
Note" and, together with the Restricted Global Notes, the "Global Notes") shall
be issued initially in the form of one or
33
more permanent Global Notes in definitive, fully registered form without
interest coupons, in substantially the form of Exhibit A, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, at the Trustee's office in New York City, as custodian for the
Depository, and registered in the name of the Depository or a nominee of the
Depository, duly executed by the Issuer and authenticated by the Trustee as
hereinafter provided and shall bear the legend set forth in Section 2.14. The
aggregate principal amount of the Global Notes may from time to time be
increased (but not beyond the limits set forth in Section 2.2 below) or
decreased by adjustments made on the records of the Trustee and the Depository
or its nominee in the limited circumstances hereinafter provided.
Notes issued in exchange for interests in Global Notes pursuant to
Section 2.6(B) may be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A (the
"Certificated Notes") but only in the circumstances provided for in Section
2.6(B).
Section 2.2. Execution and Authentication.
----------------------------
The aggregate principal amount of Notes which may be authenticated and
delivered under the Indenture is $135,000,000.
The Notes shall be executed on behalf of the Issuer by two Officers of
the Issuer or an Officer and an Assistant Secretary of the Issuer. Such
signatures may be either manual or facsimile. The Issuer's seal shall be
impressed, affixed, imprinted or reproduced on the Notes and may be in facsimile
form.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note or at anytime thereafter, the
Note shall be valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the
34
Note. Such signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee or an authenticating agent shall authenticate Notes for
original issue in the aggregate principal amount of $135,000,000 upon an Issuer
Request. The aggregate principal amount of Notes outstanding at any time may not
exceed such amount except as provided in Section 2.7 hereof. The Trustee shall
authenticate and make available for delivery (i) the Initial Notes for original
issuance in an aggregate principal amount of $135,000,000 and (ii) the Exchange
Notes from time to time for issue only in exchange for a like principal amount
of the Initial Notes, in each case, upon an Issuer Request. Such Issuer Request
shall specify the amount of the Notes to be authenticated, the date on which the
Notes are to be authenticated and, in the case of the Initial Notes, whether
such Initial Notes shall be a Restricted Global Note, a Regulation S Global
Note, or both and the principal amount of each thereof. The Notes shall be
issuable only in registered form without coupons and only in denominations of
$1,000 and integral multiples thereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuer to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. Such authenticating agent shall have the same
right as the Trustee in dealing with the Issuer or an Affiliate.
Section 2.3. Registrar and Paying Agent.
--------------------------
The Issuer shall appoint a registrar, which shall maintain an office
or agency where Notes may be presented for registration of transfer or for
exchange ("Registrar"), and a paying agent, which shall maintain an office or
agency located in the Borough of Manhattan, City of New York, State of New York
where Notes may be presented for payment ("Paying Agent") and shall maintain an
office or agency where notices and demands to or upon the Issuer or Xxxxxx Xxxxx
in respect of the Notes and this Indenture may be served. The Registrar shall
keep a register of the
35
Notes and of their transfer and exchange. The Issuer may appoint one or more
co-registrars and one or more additional paying agents. Neither the Issuer,
Xxxxxx Xxxxx nor any Affiliate thereof may act as Paying Agent. The Issuer may
change any Paying Agent, Registrar or co-registrar without notice to any
Noteholder.
The Issuer shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Issuer shall notify the Trustee of the name and address of any such Agent. If
the Issuer fails to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fail to give the foregoing notice, the Trustee shall
act as such and shall be entitled to appropriate compensation pursuant to
Section 7.7. The Issuer initially appoints the Trustee as Registrar, Paying
Agent and agent for service of notices and demands in connection with the Notes.
Section 2.4. Paying Agent to Hold Money in Trust.
-----------------------------------
On or before each due date of the principal and interest on any Notes,
the Issuer shall deposit with the Paying Agent a sum sufficient to pay such
principal and interest so becoming due. Each Paying Agent shall hold in trust
for the benefit of the Noteholders or the Trustee all money held by the Paying
Agent for the payment of principal of or interest on the Notes (whether such
money has been paid to it by the Issuer or any other obligor on the Notes), and
the Issuer and the Paying Agent shall notify the Trustee of any default by the
Issuer (or any other obligor on the Notes) in making any such payment. Money
held in trust by the Paying Agent need not be segregated except as required by
law and in no event shall the Paying Agent be liable for any interest on any
money received by it hereunder. The Issuer at any time may require a Paying
Agent to pay all money held by it to the Trustee and the Trustee may, at any
time during the continuance of any Payment Default, upon written request to a
Paying Agent, require such Paying Agent to forthwith pay to the Trustee all sums
so held in trust by such Paying Agent together with a complete accounting of
such sums. Upon doing so,
36
the Paying Agent shall have no further liability for
the money delivered to the Trustee.
Section 2.5. Noteholder Lists.
----------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Noteholders. If the Trustee is not the Registrar, the Issuer shall furnish to
the Trustee on or before each May 1 and November 1 in each year, 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
Noteholders, including the aggregate principal amount of Notes held by each such
Noteholder.
Section 2.6. Transfer and Exchange.
---------------------
Subject to Section 2.15, when a Note is presented to the Registrar
with a request to register the transfer thereof, the Registrar shall register
the transfer as requested, when Notes are presented to the Registrar with a
request to exchange them for an equal principal amount of Notes of other
authorized denominations, the Registrar shall make the exchange as requested
provided that every Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed or be accompanied by a written instrument of
transfer in form satisfactory to the Issuer and the Registrar duly executed by
the Holder thereof or his attorney, duly authorized in writing. To permit
registration of transfers and exchanges, upon surrender of any Note for
registration of transfer or exchange at the office or agency maintained pursuant
to Section 2.3 hereof, the Issuer shall issue and execute and the Trustee shall
authenticate and make available for delivery Notes at the Registrar's request in
the name of the transferee or Holder, as the case may be, designated by the
Registrar. Any exchange or transfer shall be without any service charge to the
Noteholder, except that the Issuer may require payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation to a transfer or exchange, but this provision shall not apply to any
exchange pursuant to Section 2.9, 3.6 or 8.5 hereof. The Registrar shall not be
37
required to register transfers of Notes or to exchange Notes for a period of 15
days before the day of mailing of the notice of redemption of any Notes to be
redeemed. The Registrar shall not be required to exchange or register transfers
of any Notes called or being called for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
Prior to the due presentation for registration of transfer of any
Note, the Issuer, the Trustee, the Paying Agent or the Registrar may deem and
treat the person in whose name a Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Issuer, the Trustee, the Paying Agent, the Registrar or
any co-registrar shall be affected by notice to the contrary.
All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture will evidence the same debt and will be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of the beneficial interests in such Global Note may
be effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Global Note shall be required to be reflected in a book entry.
With respect to Global Notes:
(A) Each Global Note authenticated under this Indenture shall (i) be
registered in the name of the Depository designated for such Global Note or a
nominee thereof, (ii) be deposited with such Depository or a nominee thereof or
custodian therefor, (iii) bear legends as set forth in Section 2.14 and (iv)
constitute a single Note for all purposes of this Indenture.
38
(B) Transfers of a Global Note shall be limited to transfers in whole
but not in part to the Depository, its successors or their respective nominees.
A Global Note is exchangeable for Certificated Notes only if (i) the Depository
notifies the Issuer that it is unwilling or unable to continue as a Depository
for such Global Note or if the at any time the Depository ceases to be a
clearing agency registered under the Exchange Act and in either case the Issuer
thereupon fails to appoint a successor Depository within 90 days, (ii) the
Issuer executes and delivers to the Trustee a written notice that such Global
Note shall be issuable and transferable in certificated form or (iii) there
shall have occurred and be continuing an Event of Default or an event which,
with the giving of notice or lapse of time or both, would constitute an Event of
Default with respect to the Notes represented by such Global Note. Any Global
Note that is exchangeable for Certificated Notes pursuant to the preceding
sentence will be transferred to, and registered and exchanged for, Certificated
Notes in authorized denominations, without legends applicable to a Global Note
but with the Private Placement Legend (unless the Issuer determines otherwise in
accordance with applicable law), subject, with respect to such Notes, to the
provisions of such legend, and registered in such names as the Depository
holding such Global Note may direct. Subject to the foregoing, a Global Note is
not exchangeable, except for a Global Note of like denomination to be registered
in the name of the Depository or its nominee. In the event that a Global Note
becomes exchangeable for Certificated Notes, (i) Certificated Notes will be
issued only in fully registered form in denominations of $1,000 or integral
multiples thereof, (ii) payment of principal, any repurchase price, and interest
on the Certificated Notes will be payable, and the transfer of the Certificated
Notes will be registrable, at the office or agency of the Issuer maintained for
such purposes, and (iii) no service charge will be made for any registration or
transfer or exchange of the Certificated Notes, although the Issuer may require
payment of a sum sufficient to cover any tax or governmental charge imposed in
connection therewith.
(C) Notes issued in exchange for a Global Note or any portion thereof
shall have an aggregate principal
39
amount equal to that of such Global Note or portion thereof to be so exchanged,
shall be registered in such names and be in such authorized denominations as the
Depository shall designate and shall bear the applicable legends provided for
herein. Any Global Note to be exchanged in whole shall be surrendered by the
Depository to the Trustee. With respect to any Global Note to be exchanged in
part, either such Global Note shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depository or its nominee with respect to
such Global Note, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the Note issuable on such
exchange to or upon the order of the Depository or an authorized representative
thereof.
(D) Every Note authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Section 2.6, Section 2.7, 2.9 or otherwise,
shall be authenticated and delivered in the form of, and shall be, a Global
Note, unless such Note is registered in the name of a Person other than the
Depository for such Global Note or a nominee thereof. Members of, or
participants in, the Depository ("Participants") shall have no rights under this
Indenture with respect to any Global Note held on their behalf by the Depository
or by the Trustee as the custodian of the Depository or under such Global Note,
and the Depository may be treated by the Issuer, Xxxxxx Xxxxx, the Trustee and
any agent of the Issuer, Xxxxxx Xxxxx or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Issuer, Xxxxxx Xxxxx, the Trustee or any agent
of the Issuer, Xxxxxx Xxxxx or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Participants, the operation of
customary practices of such Depository governing the exercise of the rights of a
holder of a beneficial interest in any Global Note.
40
Neither the Trustee nor the Registrar shall have any duty to monitor
the Issuer's or Xxxxxx Xxxxx'x compliance with or have any responsibility with
respect to the Issuer's or Xxxxxx Xxxxx'x compliance with any Federal or state
securities laws.
Neither the Trustee, the Issuer, Xxxxxx Xxxxx, nor any agent of any
thereof, shall have any responsibility or obligation to any beneficial owner of
a Global Note, a member of ("Agent Member") or a Participant in the Depository
or other person with respect to the accuracy of the records of the Depository or
its nominee or of any Participant or an Agent Member, with respect to any
ownership interest in the Notes or with respect to the delivery to any
Participant, member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption) or the payment of
any amount, under or with respect to such Notes. All notices and communications
to be given to the Holder and all payments to be made to Holders under the Notes
shall be given or made only to or upon the order of the registered Holders
(which shall be the Depository or its nominee in the case of a Global Note). The
rights of beneficial owners in any Global Note shall be exercised only through
the Depository subject to the applicable rules and procedures of the Depository.
The Trustee, the Issuer, Xxxxxx Xxxxx and any such agent may rely and shall be
fully protected in relying upon information furnished by the Depository with
respect to its members, Participants and any beneficial owners.
Neither the Trustee nor the Registrar shall have any obligation or
duty to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under the Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or among
Participants, members or beneficial owners in any Global Note) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of the Indenture, and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
Section 2.7. Replacement Notes.
-----------------
41
If a mutilated Note is surrendered to the Registrar or Trustee or if
the Holder of a Note presents evidence to the satisfaction of the Issuer and the
Trustee that the Note has been lost, destroyed or wrongfully taken and of the
ownership thereof, the Issuer shall issue and the Trustee shall authenticate a
replacement Note if the requirements of Section 8-405 of the Uniform Commercial
Code as in effect on the date of this Indenture are met. An indemnity bond may
be required by the Issuer or the Trustee that is sufficient in the judgment of
the Issuer and the Trustee to protect the Issuer, the Trustee or any Agent from
any loss which any of them may suffer if a Note is replaced. The Issuer and the
Trustee each may charge for its expenses (including reasonable attorneys' fees
and expenses) in replacing a Note. Every replacement Note is an additional
obligation of the Issuer.
Section 2.8. Outstanding Notes.
-----------------
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section 2.8 as not outstanding.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding until the Issuer and the Trustee receive proof satisfactory to each
of them that the replaced Note is held by a bona fide purchaser.
If a Paying Agent holds on a Redemption Date or Maturity Date money
sufficient to pay the principal of, premium, if any, and all accrued interest on
Notes payable on that date and is not prohibited from paying such money to the
Holders thereof pursuant to the terms of this Indenture, then on and after that
date such Notes cease to be outstanding and interest on them ceases to accrue.
Subject to Section 11.6, a Note does not cease to be outstanding
solely because the Issuer, Xxxxxx Xxxxx or an Affiliate thereof holds the Note.
Section 2.9. Temporary Notes.
---------------
42
Until definitive Notes are ready for delivery, the Issuer may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form, and shall carry all rights, benefits and privileges,
of definitive Notes but may have variations that the Issuer considers
appropriate for temporary Notes. Without unreasonable delay, the Issuer shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes presented to it.
Section 2.10. Cancellation.
------------
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee
shall cancel and retain or, upon written request of the Issuer, return to the
Issuer, in accordance with its normal practice, all Notes surrendered for
transfer, exchange, payment or cancellation. Subject to Section 2.7 hereof, the
Issuer may not issue new Notes to replace Notes in respect of which it has
previously paid all principal, premium and interest accrued thereon, or
delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
------------------
If the Issuer defaults in a payment of interest on the Notes, it shall
pay the defaulted amounts, plus (to the extent permitted by law) any interest
payable on defaulted amounts pursuant to Section 4.1 hereof, to the persons who
are Noteholders on a subsequent special record date. The Issuer shall fix the
special record date and payment date in a manner satisfactory to the Trustee and
provide the Trustee at least 20 days notice of the proposed amount of default
interest to be paid and the special payment date. At least 15 days before the
special record date, the Issuer shall mail or cause to be mailed to each
Noteholder at his address as it appears on the Notes register maintained by the
Registrar a notice that states the special record date, the payment date (which
shall be not less than five nor more than ten days after the special record
date), and the amount to be paid. In lieu of the
43
foregoing procedures, the Issuer may pay defaulted interest in any other lawful
manner satisfactory to the Trustee.
Section 2.12. Deposit of Moneys.
-----------------
Prior to 10:00 a.m., New York City time, on each Interest Payment Date
and Maturity Date, the Issuer shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Trustee to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The principal and
interest on Global Notes shall be payable to the Depository or its nominee, as
the case may be, as the sole registered owner and the sole holder of the Global
Notes represented thereby. The principal and interest on Certificated Notes, if
any, shall be payable at the office of the Paying Agent.
Section 2.13. CUSIP Number.
------------
The Issuer in issuing the Notes may use a "CUSIP" number(s), and if
so, the Trustee shall use the CUSIP number(s) in notices of redemption 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(s) printed in the notice or on the Notes, and that reliance may be placed
only on the other identification numbers printed on the Notes. The Issuer will
promptly notify in writing the Trustee of any such CUSIP number used by the
Issuer in connection with the Notes and any change in such CUSIP number.
Section 2.14. Restrictive Legends.
-------------------
Each Initial Note shall bear the following legend (the "Private
Placement Legend") on the face thereof until after the second anniversary of the
later of the Issue Date and the last date on which the Issuer or any Affiliate
of the Issuer was the owner of such security (or any predecessor security) (or
such shorter period of time as permitted by Rule 144(k) under the Securities Act
or any successor provision thereunder) (or such longer period of time as may
44
be required under the Securities Act or applicable state securities laws in the
opinion of counsel for the Issuer, unless otherwise agreed by the Issuer and the
Holder thereof):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES FOR THE BENEFIT OF THE ISSUER AND THE INITIAL PURCHASERS OF THIS NOTE
THAT THIS NOTE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO
THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY
HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF THE ISSUER AT ANY TIME
DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE,
OTHER THAN (1) TO THE ISSUER, (2) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
NOTE), (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE
SECURITIES ACT, AND, IF SUCH TRANSFER IS BEING EFFECTED BY CERTAIN TRANSFERORS
SPECIFIED IN THE INDENTURE (AS DEFINED BELOW) PRIOR TO THE EXPIRATION OF THE "40
DAY RESTRICTED PERIOD" (WITHIN THE MEANING OF RULE 903(c)(3) OF REGULATION S
UNDER THE SECURITIES ACT), A CERTIFICATE WHICH MAY BE OBTAINED FROM THE ISSUER
OR THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE ISSUER AND THE TRUSTEE, (4)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES FOR
THE BENEFIT OF THE ISSUER AND THE INITIAL PURCHASERS THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) A NON-U.S. PERSON
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (o)(2)
45
OR RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. ANY TRANSFEREE OF THIS
NOTE SHALL BE DEEMED TO HAVE REPRESENTED EITHER (x) THAT IT IS NOT USING THE
ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT ("ERISA") OR THE INTERNAL REVENUE CODE (THE "CODE") TO PURCHASE
THIS NOTE OR (y) THAT ITS PURCHASE AND CONTINUED HOLDING OF THE NOTE WILL BE
COVERED BY A U.S. DEPARTMENT OF LABOR CLASS EXEMPTION (WITH RESPECT TO
PROHIBITED TRANSACTIONS UNDER SECTION 406(a) OF ERISA).
Each Global Note shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO AN ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE 2 OF THE INDENTURE.
SECTION 2.15. Special Transfer Provisions; Proxies.
------------------------------------
(a) Transfers to Non-U.S. Persons. The following provisions shall
-----------------------------
apply with respect to the registration
46
of any proposed transfer of an interest in a Restricted Global Note to any Non-
U.S. Person:
(i) the Registrar shall register the transfer of an interest in a
Restricted Global Note whether or not such Note bears the Private Placement
Legend, if the proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit C hereto; and
(ii) if the proposed transferor is a Participant holding a beneficial
interest in the Restricted Global Note, upon receipt by the Registrar of
(x) the certificate, required by paragraph (i) above and (y) written
instructions given in accordance with the Depository's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the Restricted Global
Note in an amount equal to the principal amount of the beneficial interest
in the Restricted Global Note to be transferred and a corresponding
increase in the principal amount of the Regulation S Global Note in an
amount equal to the principal amount of the beneficial interest in the
Restricted Global Note being transferred.
(b) Transfers by Non-U.S. Persons. The following provisions shall
-----------------------------
apply with respect to registration of any proposed transfer of an interest in a
Regulation S Global Note to a QIB:
(i) the Registrar shall register the transfer of an interest in a
Regulation S Global Note if the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit D hereto; and.
(ii) if the proposed transferor is a Participant holding a beneficial
interest in the Regulation S Global Note, upon receipt by the Registrar of
(x) the certificate required by paragraph (i) and (y) written instructions
given in accordance with the Depository's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the date and
an increase in the principal amount of the Restricted
47
Global Note in an amount equal to the principal amount of the beneficial
interest in the Regulation S Global Note to be transferred and a
corresponding decrease in the principal amount of the Regulation S Global
Note in an amount equal to the principal amount of the beneficial interest
in the Regulation S Global Note being transferred.
(c) Certificated Note. The Registrar shall register the transfer of
-----------------
a Certificated Note upon receipt of a properly completed assignment form and any
opinions and certifications referred to therein or contemplated thereby.
(d) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the requested transfer is after the second anniversary of the Issue
Date (provided, however, that neither the Issuer nor any Affiliate of the Issuer
-------- -------
has held any beneficial interest in such Note, or portion thereof, at any time
prior to or on the second anniversary of the Issue Date) as certified to the
Trustee and Registrar, or (ii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Issuer and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(e) General. By its acceptance of any Note bearing the Private
-------
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.6 or this Section 2.15.
The Issuer shall have the right to inspect and make copies of all such letters,
48
notices or other written communications at any reasonable time during the
Registrar's normal business hours upon the giving of reasonable written notice
to the Registrar.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including Participants and persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture, the Notes or the Guarantees.
ARTICLE 3.
REDEMPTION
Section 3.1. Notices to Trustee.
------------------
If the Issuer elects to redeem Notes pursuant to Section 3.7 hereof,
(i) at least 60 days prior to the Redemption Date in the case of a partial
redemption, (ii) at least 45 days prior to the Redemption Date in the case of a
total redemption or (iii) during such other period as the Trustee may agree to
in writing, the Issuer shall notify the Trustee in writing of the Redemption
Date, the principal amount of Notes to be redeemed and the redemption price, and
deliver to the Trustee an Officers' Certificate stating that such redemption
will comply with the conditions contained in Section 3.7 hereof or 3.8 hereof,
as appropriate.
Section 3.2. Selection by Trustee of Notes to Be Redeemed.
--------------------------------------------
In the event that fewer than all of the Notes are to be redeemed, the
Trustee shall select the Notes to be redeemed, if the Notes are listed on a
national securities exchange, in accordance with the rules of such exchange or,
if the Notes are not so listed, on either a pro rata basis or by lot, or in such
other manner as it shall deem fair and appropriate; provided, however, that if a
-------- -------
partial redemption is made with the proceeds of a Public Equity Offering,
selection of the Notes or portion thereof for redemption shall be made by the
Trustee on a pro rata basis, unless such a method is prohibited by law or by the
--- ----
49
rules of such national securities exchange. The Trustee shall promptly notify
the Issuer of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
The Trustee may select for redemption portions of the principal of the Notes
that have denominations larger than $1,000. Notes and portions thereof the
Trustee selects shall be redeemed in amounts of $1,000 or whole multiples of
$1,000. For all purposes of this Indenture unless the context otherwise
requires, provisions of this Indenture that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
Section 3.3. Notice of Redemption.
--------------------
At least 30 days, but no more than 60 days, before a Redemption Date,
the Issuer shall mail, or cause to be mailed, a notice of redemption by first-
class mail to each Holder of Notes to be redeemed at his or her last address as
the same appears on the registry books maintained by the Registrar pursuant to
Section 2.3 hereof.
The notice shall identify the Notes to be redeemed (including the
CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the Redemption Date and upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that unless the Issuer defaults in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date;
50
(7) the paragraph of Section 3.7 hereof pursuant to which the Notes called
for redemption are being redeemed, if appropriate;
(8) that the redemption is pursuant to Section 3.8 hereof, if appropriate;
and
(9) the aggregate principal amount of Notes that are being redeemed.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at the Issuer's sole expense.
Section 3.4. Effect of Notice of Redemption.
------------------------------
Once the notice of redemption described in Section 3.3 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, including any premium, plus interest accrued to the
Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid
at the redemption price, including any premium, plus interest accrued to the
Redemption Date, provided that if the Redemption Date is after a regular
--------
interest payment record date and on or prior to the Interest Payment Date, the
accrued interest shall be payable to the Holder of the redeemed Notes registered
on the relevant record date, and provided, further, that if a Redemption Date is
-------- -------
a Legal Holiday, payment shall be made on the next succeeding Business Day and
no interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
Section 3.5. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 A.M., New York City time, on each Redemption
Date, the Issuer shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of and accrued interest on
all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date which have been delivered by the Issuer to
the Trustee for cancellation.
51
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Notes called for redemption shall
have been made available in accordance with the preceding paragraph and payment
thereof is not prohibited pursuant to the terms of this Indenture, the Notes
called for redemption will cease to accrue interest and the only right of the
Holders of such Notes will be to receive payment of the redemption price of and,
subject to the first proviso in Section 3.4, accrued and unpaid interest on such
Notes to the Redemption Date. If any Note called for redemption shall not be so
paid, interest will be paid, from the Redemption Date until such redemption
payment is made, on the unpaid principal of the Note and any interest not paid
on such unpaid principal, in each case, at the rate and in the manner provided
in the Notes.
Section 3.6. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for a Holder a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.7. Optional Redemption.
-------------------
(a) The Issuer, at its option, may redeem the Notes, in whole or in
part, at any time on or after May 15, 2003 at the following redemption prices
(expressed as a percentage of principal amount), together, in each case, with
accrued and unpaid interest to the Redemption Date, if redeemed during the
twelve-month period beginning on May 15 of each year listed below:
Year Percentage
---- ----------
2003.......................... 104.063%
2004.......................... 102.708%
2005.......................... 101.354%
2006 and thereafter........... 100.000%
(b) Notwithstanding the foregoing, the Issuer, at its option, may
redeem in the aggregate up to 35% of the original principal amount of Notes at
any time and from
52
time to time prior to May 15, 2001 at a redemption price equal to
108-1/8% of the aggregate principal amount so redeemed, plus accrued
interest to the Redemption Date, out of the Net Proceeds of one or more Public
Equity Offerings; provided that at least 65% of the aggregate principal amount
--------
of Notes originally issued remains outstanding immediately after the occurrence
of any such redemption pursuant to a Public Equity Offering and that any such
redemption occurs within 90 days following the closing of any such Public Equity
Offering.
Section 3.8. Redemption for Changes in Canadian Withholding Taxes. The Notes
----------------------------------------------------
will be subject to redemption as a whole, but not in part, at the option of the
Issuer at any time at 100% of the principal amount thereof, plus accrued and
unpaid interest thereon (if any) to but excluding the Redemption Date, in the
event the Issuer has become, or would become, obligated to pay, on the next date
on which any amount would be payable with respect to the Notes, any Additional
Amounts as a result of a change in the laws (including any regulations
promulgated thereunder) of Canada (or any political subdivision or taxing
authority thereof or therein), or any change in any official position regarding
the application or interpretation of such laws or regulations, which change is
announced or becomes effective on or after the Issue Date.
ARTICLE 4.
COVENANTS
Section 4.1. Payment of Notes.
----------------
The Issuer shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes and this Indenture. An
installment of principal or interest shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay such installment.
The Issuer shall pay interest on overdue principal (including post-
petition interest in a proceeding
53
under any Bankruptcy Law) and overdue interest, to the extent lawful, at the
rate specified in the Notes.
Section 4.2. SEC Reports.
-----------
(a) Xxxxxx Xxxxx will file with the SEC all information, documents
and reports to be filed with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, whether or not Xxxxxx Xxxxx is subject to such filing
requirements, so long as the SEC will accept such filings. Xxxxxx Xxxxx (at its
own expense) will file with the Trustee within 15 days after it files them with
the SEC, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the SEC may
by rules and regulations prescribe) which Xxxxxx Xxxxx files with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. Upon qualification of the
Indenture under TIA, the Issuer shall comply with the provisions of TIA (S)
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's or
Xxxxxx Xxxxx'x compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
(b) Xxxxxx Xxxxx will transmit to all Holders, in the manner and to
the extent provided in TIA Section 313(c), within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by Xxxxxx Xxxxx pursuant to paragraph (a) of this
Section as may be required by rules and regulations prescribed from time to time
by the SEC.
Section 4.3. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each of the Issuer and Xxxxxx Xxxxx covenant (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Issuer or
54
Xxxxxx Xxxxx, as the case may be, from paying all or any portion of the
principal of, premium, if any, and/or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) each of the Issuer or Xxxxxx Xxxxx hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 4.4. Compliance Certificate.
----------------------
(a) The Issuer and Xxxxxx Xxxxx shall deliver to the Trustee, within
100 days after the end of each fiscal year and on or before 50 days after the
end of the first, second and third quarters of each fiscal year, an Officers'
Certificate (one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Issuer and Xxxxxx Xxxxx) stating that a review of the activities of Xxxxxx
Xxxxx, the Issuer and their Subsidiaries during such fiscal year or fiscal
quarter, as the case may be, has been made under the supervision of the signing
Officers with a view to determining whether each of the Issuer and Xxxxxx Xxxxx
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 (and without regard to any
period of grace or requirement of notice provided hereunder) each of the Issuer
and Xxxxxx Xxxxx 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 or such Defaults
or Events of Default of which he or she may have knowledge and what action the
Issuer and Xxxxxx Xxxxx is taking 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
interest, if any, on the Notes are prohib-
55
ited or, if such event has occurred, a description of the event and what action
the Issuer and Xxxxxx Xxxxx are taking or propose to take with respect thereto.
(b) So long as (and to the extent) not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.2 above shall be
accompanied by a written statement of Xxxxxx Xxxxx'x independent public
accountants (who shall be a firm of established national reputation) 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 Xxxxxx
Xxxxx and the Issuer have violated any provisions of this Article 4 or Article 5
of this Indenture 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 for any failure to obtain knowledge of any
such violation.
(c) The Issuer and Xxxxxx Xxxxx will, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Issuer and Xxxxxx Xxxxx are
taking or propose to take with respect thereto.
Section 4.5. Taxes.
-----
The Issuer and Xxxxxx Xxxxx shall, and shall cause each of their
Subsidiaries to, pay prior to delinquency all material taxes, assessments, and
governmental levies except as contested in good faith and by appropriate
proceedings.
Section 4.6. Limitation on Additional Indebtedness.
-------------------------------------
Xxxxxx Xxxxx will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness) unless (a) after giving effect to the incurrence of such
Indebtedness and the receipt and application of the proceeds thereof,
56
the ratio of total Indebtedness of Xxxxxx Xxxxx and its Restricted Subsidiaries
to Xxxxxx Xxxxx'x Adjusted EBITDA is less than 6.5 to 1; provided, however, that
-------- -------
if the Indebtedness which is the subject of a determination under this provision
is Acquired Indebtedness, or Indebtedness incurred in connection with the
simultaneous acquisition of any Person, business, property or assets, then such
ratio shall be determined by giving effect (on a pro forma basis, as if the
--- -----
transaction had occurred at the beginning of the four quarter period ending at
the end of the last fiscal quarter of such Person or business for which
financial statements are available) to the incurrence or assumption of such
Acquired Indebtedness or such other Indebtedness by Xxxxxx Xxxxx or a Restricted
Subsidiary; and (b) no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the incurrence of such
Indebtedness.
Notwithstanding the foregoing, Xxxxxx Xxxxx and its Restricted
Subsidiaries may incur Permitted Indebtedness; provided, that no Domestic
--------
Guarantor may incur any Permitted Indebtedness, without meeting the Indebtedness
incurrence provisions of the preceding paragraph, that ranks pari passu or
---- -----
junior in right of payment to the Domestic Guarantees and that has a maturity or
mandatory sinking fund payment prior to the maturity of the Notes.
Section 4.7. Limitation on Preferred Stock of Restricted Subsidiaries.
--------------------------------------------------------
Xxxxxx Xxxxx will not permit any Restricted Subsidiary to issue any
Preferred Stock (except Preferred Stock to Xxxxxx Xxxxx or a Restricted
Subsidiary) or permit any Person (other than Xxxxxx Xxxxx or a Subsidiary) to
hold any such Preferred Stock unless Xxxxxx Xxxxx or such Restricted Subsidiary
would be entitled to incur or assume Indebtedness under Section 4.6 hereof in
the aggregate principal amount equal to the aggregate liquidation value of the
Preferred Stock to be issued; provided, however, that the Issuer and any
-------- -------
Restricted Subsidiary that guarantees the Notes shall be permitted to issue
Preferred Stock that is not Disqualified Capital Stock.
57
Section 4.8. Limitation on Capital Stock of Restricted Subsidiaries.
------------------------------------------------------
Xxxxxx Xxxxx will not (i) sell, pledge, hypothecate or otherwise
convey or dispose of any Capital Stock of a Restricted Subsidiary (other than
under the terms of the Credit Facility, under the terms of any Designated Senior
Indebtedness or as permitted in Section 4.12 hereof) or (ii) permit any of its
Restricted Subsidiaries to issue any Capital Stock, other than to Xxxxxx Xxxxx
or a Wholly-Owned Subsidiary of Xxxxxx Xxxxx. The foregoing restrictions shall
not apply to an Asset Sale made in compliance with Section 4.10 hereof or the
issuance of Preferred Stock in compliance with Section 4.7 hereof.
Section 4.9. Limitation on Restricted Payments.
---------------------------------
Xxxxxx Xxxxx will not make, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make, any Restricted Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(b) immediately after giving pro forma effect to such Restricted
--- -----
Payment, Xxxxxx Xxxxx or a Restricted Subsidiary could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) under Section
4.6 hereof; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared (except to the extent not
made on the payment date) or made after the Issue Date does not exceed the
sum of (1) 50% of the cumulative Consolidated Net Income of Xxxxxx Xxxxx
subsequent to the Issue Date (or minus 100% of any cumulative deficit in
Consolidated Net Income during such period) and (2) 100% of the aggregate
Net Proceeds and the fair market value of securities or other property
received by Xxxxxx Xxxxx or the Issuer from the issue or sale, after the
Issue Date, of Capital Stock (other than Disqualified Capital Stock or
Capital Stock of Xxxxxx
58
Xxxxx or the Issuer issued to any Subsidiary of Xxxxxx Xxxxx) of Xxxxxx
Xxxxx or the Issuer or any Indebtedness or other securities of Xxxxxx Xxxxx
or the Issuer convertible into or exercisable or exchangeable for Capital
Stock (other than Disqualified Capital Stock) of Xxxxxx Xxxxx or the Issuer
which has been so converted or exercised or exchanged, as the case may be,
and (3) $3,000,000. For purposes of determining under this clause (c) the
amount expended for Restricted Payments, cash distributed shall be valued
at the face amount thereof and property other than cash shall be valued at
its fair market value.
Notwithstanding the foregoing, the provisions of this Section 4.9
shall not prohibit (i) the payment of any distribution within 60 days after the
date of declaration thereof, if at such date of declaration such payment would
comply with the provisions of this Indenture, (ii) the retirement of any shares
of Capital Stock of Xxxxxx Xxxxx or the Issuer or subordinated Indebtedness by
conversion into, or by or in exchange for, shares of Capital Stock (other than
Disqualified Capital Stock), or out of, the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of Xxxxxx Xxxxx) of other shares of
Capital Stock of Xxxxxx Xxxxx (other than Disqualified Capital Stock), (iii) the
redemption or retirement of Indebtedness of the Issuer subordinated to the Notes
in the case of the Issuer or of a Guarantor subordinated to its respective
Guarantee in exchange for, by conversion into, or out of the Net Proceeds of, a
substantially concurrent sale or incurrence of Indebtedness (other than any
Indebtedness owed to a Subsidiary) of the Issuer or a Guarantor that is
contractually subordinated in right of payment to the Notes in the case of the
Issuer or such Guarantor's Guarantee, as the case may be, to at least the same
extent as the subordinated Indebtedness being redeemed or retired, (iv) the
retirement of any shares of Disqualified Capital Stock by conversion into, or by
exchange for, shares of Disqualified Capital Stock, or out of the Net Proceeds
of the substantially concurrent sale (other than to a Subsidiary of Xxxxxx
Xxxxx) of other shares of Disqualified Capital Stock, (v) Permitted Tax
Distributions, (vi) payments to employees of Xxxxxx Xxxxx for repurchases of
stock or repurchases pursuant to the Xxxxxx Xxxxx Nonqualified Stock
59
Option Plan; provided, however, that the aggregate amount of all such payments
-------- -------
under this clause (vi) does not exceed $2,000,000 in the aggregate, exclusive of
amounts funded by insurance proceeds; and provided, further, that with respect
-------- -------
to clause (vi) (other than with respect to payments funded by insurance
proceeds) no Default or Event of Default shall have occurred and be continuing
at the time of any such distribution or payment or will occur immediately after
giving effect to any such distribution or payment; and provided, further, that,
-------- -------
in determining the aggregate amount of all Restricted Payments made subsequent
to the Issue Date, all distributions or payments made pursuant to clause (vi)
(exclusive of insurance proceeds) shall be included.
Not later than the date of making any Restricted Payment, Xxxxxx Xxxxx
and the Issuer shall deliver to the Trustee an Officers' Certificate stating
that such Restricted Payment is permitted and setting forth the basis upon
which the calculations required by this Section 4.9 were computed, which
calculations may be based upon Xxxxxx Xxxxx'x latest available financial
statements, and that no Default or Event of Default exists and is continuing and
no Default or Event of Default will occur immediately after giving effect to
such Restricted Payment.
Section 4.10. Limitation on Certain Asset Sales.
---------------------------------
(a) Xxxxxx Xxxxx will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) Xxxxxx Xxxxx or its
Restricted Subsidiaries, as the case may be, receives consideration at the
time of such sale or other disposition at least equal to the fair market value
thereof (as determined for Asset Sales other than eminent domain, condemnation
or similar government proceedings in good faith by Xxxxxx Xxxxx'x Board of
Directors, and evidenced by a board resolution); (ii) not less than 85% of the
consideration received by Xxxxxx Xxxxx or its Subsidiaries, as the case may be,
is in the form of cash or Temporary Cash Investments; and (iii) the Asset Sale
Proceeds received by Xxxxxx Xxxxx or such Restricted Subsidiary are applied (a)
first, to the extent Xxxxxx Xxxxx or such Restricted Subsidiaries elects, or is
required, to prepay, repay or purchase debt under any then
60
existing Senior Indebtedness of Xxxxxx Xxxxx or any Restricted Subsidiary within
180 days following the receipt of the Asset Sale Proceeds from any Asset Sale;
(b) second, to the extent of the balance of Asset Sale Proceeds after
application as described above, to the extent Xxxxxx Xxxxx or such Restricted
Subsidiary elects, to an investment in assets (including Capital Stock or other
securities purchased in connection with the acquisition of Capital Stock or
property of another Person) used or useful in businesses similar or ancillary to
the business of Xxxxxx Xxxxx or a Restricted Subsidiary as conducted at the time
of such Asset Sale, provided that such investment occurs or Xxxxxx Xxxxx or a
Restricted Subsidiary enters into contractual commitments to make such
investment, subject only to customary conditions (other than the obtaining of
financing), on or prior to the 181st day following receipt of such Asset Sale
Proceeds (the "Reinvestment Date") and Asset Sale Proceeds contractually
committed are so applied within 270 days following the receipt of such Asset
Sale Proceeds; and (c) third, if on the Reinvestment Date with respect to any
Asset Sale, the Available Asset Sale Proceeds exceed $10 million, Xxxxxx Xxxxx
or such Restricted Subsidiary, as applicable, shall apply an amount equal to
such Available Asset Sale Proceeds to an offer to repurchase the Notes, or any
Indebtedness ranking pari passu with the Notes with respect to Indebtedness of
---- -----
the Issuer or the relevant Guarantee with respect to Indebtedness of a
Guarantor, which Indebtedness contains similar provisions requiring Xxxxxx Xxxxx
or a Restricted Subsidiary to repurchase such Indebtedness, at a purchase price
in cash equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of repurchase (an "Excess Proceeds Offer");
provided, however, that prior to making any such Excess Proceeds Offer, Xxxxxx
Xxxxx or such Restricted Subsidiary may, to the extent required pursuant to the
terms of Indebtedness outstanding as of the Issue Date, offer to use such
Available Asset Sale Proceeds to repurchase and use all or a portion of such
Available Asset Sale Proceeds to repurchase such Indebtedness. If an Excess
Proceeds Offer is not fully subscribed, Xxxxxx Xxxxx or such Restricted
Subsidiary may retain the portion of the Available Asset Sale Proceeds not
required to repurchase Notes for general corporate purposes. If the aggregate
principal amount of Notes tendered pursuant to such Excess
61
Proceeds Offer is more than the amount of the Available Asset Sale Proceeds, the
Notes tendered will be repurchased on a pro rata basis or by such other method
as the Trustee shall deem fair and appropriate.
(b) If the Issuer is required to make an Excess Proceeds Offer, the
Issuer shall mail, within 30 days following the Reinvestment Date (or within 120
days following the Reinvestment Date if Xxxxxx Xxxxx or a Restricted Subsidiary
is required to make an offer to purchase Indebtedness (other than the Notes)
outstanding as of the Issue Date), a notice to the Holders stating, among other
things: (1) that such Holders have the right to require Xxxxxx Xxxxx to apply,
or cause a Restricted Subsidiary to apply, the Available Asset Sale Proceeds to
repurchase such Notes at a purchase price in cash equal to 100% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase; (2) the purchase date (the "Purchase Date"), which shall be no earlier
than 30 days and not later than 60 days from the date such notice is mailed; (3)
the instructions, determined by the Issuer, that each Holder must follow in
order to have such Notes repurchased; and (4) the calculations used in
determining the amount of Available Asset Sale Proceeds to be applied to the
repurchase of such Notes. The Excess Proceeds Offer shall remain open for a
period of 20 Business Days following its commencement (the "Offer Period").
The notice, which shall govern the terms of the Excess Proceeds Offer, shall
state:
(1) that the Excess Proceeds Offer is being made pursuant to this
Section 4.10 and the length of time the Excess Proceeds Offer will remain
open;
(2) the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will not be
purchased and will continue to accrue interest;
(4) that any Note accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the Purchase
Date so long as
62
payment thereof is not prohibited pursuant to the terms of the Indenture;
(5) that Holders electing to have a Note purchased pursuant to any
Excess Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Issuer, a depositary, if appointed by the Issuer, or a
Paying Agent at the address specified in the notice at least three
Business Days before the Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Issuer, depositary or Paying Agent, as the case may be, receives, not later
than the expiration of the Offer Period, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have the Note purchased;
(7) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Available Asset Sale Proceeds, the Trustee shall select
the Notes to be purchased on a pro rata basis (with such adjustments as may
be deemed appropriate by the Issuer so that only Notes in denominations of
$l,000, or integral multiples thereof, shall be purchased) or by such other
method as the Trustee shall deem fair and appropriate; and
(8) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered.
On or before the Purchase Date, the Issuer shall, to the extent
lawful, accept for payment, on a pro rata basis or by such other method as the
Trustee shall deem fair and appropriate to the extent necessary, Notes or
portions thereof tendered pursuant to the Excess Proceeds Offer, and deposit
with the Paying Agent U.S. legal tender sufficient to pay the purchase price
plus accrued interest,
63
if any, on the Notes to be purchased and deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Issuer in accordance with the terms of this Section 4.10. The
Paying Agent shall promptly (but in any case not later than 5 days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Note tendered by such Holder and accepted by the Issuer
for purchase, and the Issuer shall promptly issue a new Note, and the Trustee
shall authenticate and mail or make available for delivery such new Note to such
Holder equal in principal amount to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Issuer to the Holder thereof. The Issuer will publicly announce the results
of the Excess Proceeds Offer on the Purchase Date; provided, however, that prior
-------- -------
to making any such Excess Proceeds Offer, the Issuer may, to the extent required
pursuant to the terms of Indebtedness outstanding as of the Issue Date, offer to
use such Available Asset Sale Proceeds to repurchase and use all or a portion of
such Available Asset Sale Proceeds to repurchase such Indebtedness. If an Excess
Proceeds Offer is not fully subscribed, Xxxxxx Xxxxx or the relevant Restricted
Subsidiary may retain the portion of the Available Asset Sale Proceeds not
required to repurchase Notes for general corporate purposes.
Section 4.11 Limitation on Transactions with Affiliates.
------------------------------------------
(a) Xxxxxx Xxxxx will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction or series
of related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate
(including entities in which Xxxxxx Xxxxx or any of its Restricted Subsidiaries
own a minority interest) or holder of 10% or more of Xxxxxx Xxxxx'x Common Stock
(an "Affiliate Transaction") or extend, renew, waive or otherwise modify the
terms of any Affiliate Transaction entered into prior to the Issue Date unless
(i) such Affiliate Transaction is between or among Xxxxxx Xxxxx and its Wholly-
Owned Subsidiaries; (ii) such Affiliate Transaction is solely between or among
Wholly-Owned Subsidiaries of Xxxxxx Xxxxx; or (iii) the terms of
64
such Affiliate Transaction are fair and reasonable to Xxxxxx Xxxxx or such
Restricted Subsidiary, as the case may be, and the terms of such Affiliate
Transaction are at least as favorable as the terms which could be obtained by
Xxxxxx Xxxxx or such Restricted Subsidiary, as the case may be, in a comparable
transaction made on an arm's-length basis between unaffiliated parties;
provided, however, that Xxxxxx Xxxxx and its Restricted Subsidiaries may renew
-------- -------
any then existing Affiliate Transaction through either a renewal option or upon
expiration of an arrangement on substantially similar terms to those in effect
immediately preceding such expiration. In any Affiliate Transaction involving an
amount or having a value in excess of $1 million which is not permitted under
clause (i) or (ii) above, Xxxxxx Xxxxx must obtain a resolution of the Board of
Directors certifying that such Affiliate Transaction complies with clause (iii)
above and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors. In transactions with a value in
excess of $3 million which are not permitted under clause (i) or (ii) above,
Xxxxxx Xxxxx must obtain a written opinion as to the fairness from a financial
point of view of such a transaction from an independent investment banking firm
of national standing or real estate firm of national standing (as the case may
be).
(b) The limitations set forth in Section 4.11(a) will not apply to
(i) any Restricted Payment that is not prohibited by Section 4.9 hereof, (ii)
any transaction, approved by the Board of Directors of Xxxxxx Xxxxx in good
faith, with an officer, director, employee or consultant of Xxxxxx Xxxxx or of
any Subsidiary in his or her capacity as an officer, director, employee or
consultant entered into in the ordinary course of business, including
compensation, indemnity and employee benefit arrangements with any officer,
director, employee or consultant of Xxxxxx Xxxxx or of any Subsidiary, or (iii)
customary investment banking, underwriting, placement agent or financial advisor
fees paid in connection with services rendered to Xxxxxx Xxxxx or any
Subsidiary.
Section 4.12 Limitations on Liens.
--------------------
65
Xxxxxx Xxxxx will not, and will not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind (other than Permitted Liens) upon any property
or asset of Xxxxxx Xxxxx or any Restricted Subsidiary or any shares of stock or
debt of any Restricted Subsidiary which owns property or assets, now owned or
hereafter acquired, in any case which secures Indebtedness pari passu with or
---- -----
subordinated to the Notes with respect to the Issuer or a Guarantor's Guarantee
with respect to the respective Guarantor unless (i) if such Lien secures
Indebtedness which is pari passu with the Notes in the case of the Issuer or a
---- -----
Guarantee with respect to the respective Guarantor, then the Notes or such a
Guarantee, as applicable, are secured on an equal and ratable or senior basis
with the obligations so secured until such time as such obligation is no longer
secured by a Lien or (ii) if such Lien secures Indebtedness which is
subordinated to the Notes in the case of the Issuer or a Guarantor's Guarantee
in the case of a Guarantor, any such Lien shall be subordinated to the Lien
granted to the Holders of the Notes in the same collateral to the same extent as
such subordinated Indebtedness is subordinated to the Notes or such Guarantee,
as applicable.
Section 4.13 Limitations on Investments.
--------------------------
Xxxxxx Xxxxx will not, and will not permit any of its Restricted
Subsidiaries to, make any Investment other than (i) a Permitted Investment or
(ii) an Investment that is made as a Restricted Payment in compliance with
Section 4.9 hereof, after the Issue Date.
Section 4.14 Limitation on Creation of Subsidiaries.
--------------------------------------
Xxxxxx Xxxxx shall not create or acquire, nor permit any of its
Restricted Subsidiaries to create or acquire, any Subsidiary other than (i) a
Restricted Subsidiary existing as of the date of this Indenture, (ii) a
Restricted Subsidiary that is acquired or created after the date of this
Indenture, or (iii) an Unrestricted Subsidiary; provided, however, that each
-------- -------
Restricted Subsidiary organized under the laws of the United States or any State
thereof or the District of Columbia acquired or
66
created pursuant to clause (ii) at the time it has either assets or
shareholder's equity in excess of $5,000, and each Restricted Subsidiary
organized under the laws of Canada or any province thereof acquired or created
pursuant to clause (ii) which is not prohibited by the laws of Canada or any
province thereof from acting as a guarantor of the Notes, at the time it has
either assets or shareholders' equity in excess of $5,000, shall execute a
subordinated guarantee in the case of a Domestic Guarantor and a senior
guarantee in the case of a Canadian Guarantor, each in the form attached as
Exhibit E or Exhibit F, as applicable, to this Indenture and reasonably
satisfactory in form and substance to the Trustee (and with such documentation
relating thereto as the Trustee shall require, including, without limitation, a
supplement or amendment to this Indenture and an Opinion of Counsel as to the
enforceability of such Guarantee).
Section 4.15 Limitation on Senior Subordinated Debt.
--------------------------------------
Xxxxxx Xxxxx will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any
Indebtedness (other than the Notes and the Guarantees, as the case may be) that
is both (i) subordinate in right of payment to any Senior Indebtedness of Xxxxxx
Xxxxx or its Restricted Subsidiaries, as the case may be, and (ii) senior in
right of payment to the Notes, with respect to the Issuer, or a Guarantor's
Guarantee with respect to such Guarantor, as the case may be. For purposes of
this Section 4.15, Indebtedness is deemed to be senior in right of payment to
a Domestic Guarantee if it is not explicitly subordinate in right of payment to
Senior Indebtedness at least to the same extent as the Domestic Guarantees are
subordinate to Senior Indebtedness.
Section 4.16 Limitation on Sale and Lease-Back Transactions.
-----------------------------------------------
Xxxxxx Xxxxx will not, and will not permit any Restricted Subsidiary
to, enter into any Sale and Lease-Back Transaction unless (i) the consideration
received in such Sale and Lease-Back Transaction is at least equal to the fair
market value of the property sold, as determined
67
by a Board Resolution of Xxxxxx Xxxxx, and (ii) Xxxxxx Xxxxx or a Restricted
Subsidiary could incur the Attributable Indebtedness in respect of such Sale and
Lease-Back Transaction in compliance with Section 4.6.
Section 4.17 Payments for Consent.
--------------------
Neither Xxxxxx Xxxxx nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be paid to all Holders of the Notes which so consent, waive or agree to amend
in the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
Section 4.18 Corporate Existence.
-------------------
Subject to Article 5 hereof, each of the Issuer and Xxxxxx Xxxxx shall
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 Restricted Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Restricted Subsidiary and the rights (charter and statutory), licenses and
franchises of Xxxxxx Xxxxx and its Restricted Subsidiaries; provided, however,
-------- -------
that Xxxxxx Xxxxx and the Issuer shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Restricted Subsidiaries, if the Board of Directors of Xxxxxx Xxxxx
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of Xxxxxx Xxxxx and its Restricted Subsidiaries, taken
as a whole, and that the loss thereof is not adverse in any material respect to
the Holders.
68
Section 4.19 Change of Control.
-----------------
(a) Within 30 days of the occurrence of a Change of Control of Xxxxxx
Xxxxx, the Issuer shall notify the Trustee in writing of such occurrence and
shall make an offer to purchase (the "Change of Control Offer") the outstanding
Notes at a purchase price equal to 101% of the principal amount thereof plus any
accrued and unpaid interest thereon to the Change of Control Payment Date (as
hereinafter defined) (such applicable purchase price being hereinafter referred
to as the "Change of Control Purchase Price") in accordance with the procedures
set forth in this Section 4.19.
If the Credit Facility is in effect, or any amounts are owing
thereunder or in respect thereof, at the time of the occurrence of a Change of
Control, prior to the mailing of the notice to Holders described in paragraph
(b) below, but in any event within 30 days following any Change of Control,
Xxxxxx Xxxxx and the Issuer covenant to (i) repay in full all obligations under
or in respect of the Credit Facility or offer to repay in full all obligations
under or in respect of the Credit Facility and repay the obligations under or in
respect of the Credit Facility of each lender who has accepted such offer or
(ii) obtain the requisite consent under Credit Facility to permit the repurchase
of the Notes pursuant to this Section 4.19. Xxxxxx Xxxxx and the Issuer must
first comply with the covenant described in the preceding sentence before it
shall be required to purchase Notes in the event of a Change of Control;
provided that Xxxxxx Xxxxx'x or the Issuer's failure to comply with the covenant
---------
described in the preceding sentence constitutes an Event of Default described in
clause (3) under Section 6.1 hereof if not cured within 60 days after the notice
required by such clause.
(b) Within 30 days of the occurrence of a Change of Control, the
Issuer also shall (i) cause a notice of the Change of Control Offer to be sent
at least once to the Dow Xxxxx News Service or similar business news service in
the United States and (ii) send by first-class mail, postage prepaid, to the
Trustee and to each Holder of the Notes, at
69
the address appearing in the register maintained by the Registrar of the Notes,
a notice stating:
(i) that the Change of Control Offer is being made pursuant to this
Section 4.19 and that all Notes tendered will be accepted for payment, and
otherwise subject to the terms and conditions set forth herein;
(ii) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 20 Business Days and no later than
60 Business Days from the date such notice is mailed (the "Change of
Control Payment Date"));
(iii) that any Note not tendered will not be purchased and will
continue to accrue interest;
(iv) that, unless the Issuer defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(v) that Holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the Business Day preceding
the Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have such Notes purchased;
(vii) that Holders whose Notes are being pur chased only in part will
be issued new Notes equal in
70
principal amount to the unpurchased portion of the Notes surrendered,
provided that each Note purchased and each such new Note issued shall be in
an original principal amount in denominations of $1,000 and integral
multiples thereof;
(viii) any other procedures that a Holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance; and
(ix) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Issuer shall, to the extent
lawful, (i) accept for payment Notes or portions thereof or beneficial interests
under a Global Note properly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent money sufficient to pay the Change of Control
Purchase Price of all Notes or portions thereof or beneficial interests so
tendered and (iii) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Issuer. The Paying Agent shall as promptly as
practicable (1) mail to each holder of Notes so accepted and (2) cause to be
credited to the respective accounts of the Holders under a Global Note of
beneficial interest so accepted payment in an amount equal to the Change of
Control Purchase Price for such Notes, and the Issuer shall execute and issue,
and the Trustee shall promptly authenticate and mail to each such Holder, a new
Note equal in principal amount to any unpurchased portion of the Notes
surrendered and shall issue a Global Note equal in principal amount to any
unpurchased portion of beneficial interest so surrendered; provided that each
--------
such new Note shall be issued in an original principal amount in denominations
of $1,000 and integral multiples thereof.
(c) (i) If Xxxxxx Xxxxx or any Subsidiary thereof has issued any
outstanding (A) Indebtedness that is subordinated in right of payment to the
Notes in the case of the Issuer or a Guarantee in the case of a Guarantor making
such Guarantee or (B) Preferred Stock, and Xxxxxx Xxxxx or such Subsidiary is
required to make a change of control offer or to make a distribution with
respect to
71
such subordinated Indebtedness or Preferred Stock in the event of a
Change of Control, Xxxxxx Xxxxx or such Subsidiary, as the case may be, shall
not consummate any such offer or distribution with respect to such subordinated
Indebtedness or Preferred Stock until such time as the Issuer shall have paid
the Change of Control Purchase Price in full to the holders of Notes that have
accepted the Change of Control Offer and shall otherwise have consummated the
Change of Control Offer made to holders of the Notes and (ii) the Issuer and the
Guarantors will not issue Indebtedness that is subordinated in right of payment
to the Notes in the case of the Issuer or a Guarantee in the case of a Guarantor
making such Guarantee or Preferred Stock with change of control provisions
requiring the payment of such Indebtedness or Preferred Stock prior to the
payment of the Notes or such Guarantee, as the case may be, in the event of a
Change of Control under this Indenture.
In the event that a Change of Control occurs and the Holders of Notes
exercise their right to require the Issuer to purchase Notes, if such purchase
constitutes a "tender offer" for purposes of Rule 14e-1 under the Exchange Act
at that time, the Issuer will comply with the requirements of Rule 14e-1 as then
in effect with respect to such repurchase.
Section 4.20 Maintenance of Office or Agency.
-------------------------------
The Issuer and Xxxxxx Xxxxx shall maintain an office or agency where
Notes may be surrendered for registration or transfer or exchange or for
presentation for payment and where notices and demands to or upon the Issuer and
Xxxxxx Xxxxx in respect of the Notes and this Indenture may be served. The
Issuer and Xxxxxx Xxxxx shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer or Xxxxxx Xxxxx shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee as set forth in Section 11.2.
72
The Issuer and Xxxxxx Xxxxx may also from time to time designate one
or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations. The Issuer and Xxxxxx Xxxxx shall give prompt written notice to
the Trustee of such designation or rescission and of any change in the location
of any such other office or agency.
The Issuer and Xxxxxx Xxxxx hereby initially designate the Corporate
Trust Office of the Trustee set forth in Section 11.2 as such office of the
Issuer and Xxxxxx Xxxxx.
Section 4.21 Maintenance of Properties and Insurance.
---------------------------------------
(a) Each of the Issuer and Xxxxxx Xxxxx shall cause all material
properties used or useful to the conduct of its business or the business of any
of its Subsidiaries to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
equipment deemed necessary in the good faith judgment of the Officers of the
Issuer and Xxxxxx Xxxxx and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of Xxxxxx Xxxxx and its Subsidiaries, taken as a whole; provided,
--------
however, that nothing in this Section 4.21 shall prevent the Issuer, Xxxxxx
-------
Xxxxx or any Subsidiary from discontinuing the operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is in the good faith judgment of the Board of Directors of Xxxxxx Xxxxx
or the Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Issuer, Xxxxxx Xxxxx or such Subsidiary, as the case may be,
and is not adverse in any material respect to the Holders.
73
(b) Each of the Issuer and Xxxxxx Xxxxx shall provide or cause to be
provided, for itself and each of its Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of the Issuer and Xxxxxx Xxxxx are adequate and
appropriate for the conduct of the business of the Issuer, Xxxxxx Xxxxx and such
Subsidiaries in a prudent manner, with reputable insurers or with the government
of the United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Issuer and Xxxxxx Xxxxx, for corporations
similarly situated in the industry, unless the failure to provide such insurance
(together with all other such failures) would not have a material adverse effect
on the financial condition or results of operations of Xxxxxx Xxxxx and its
Subsidiaries, taken as a whole.
Section 4.22 Additional Amounts.
------------------
(a) All payments made by the Issuer under or with respect to the Notes
will be made free and clear of, and without withholding or deduction for or on
account of, any present or future tax, duty, levy, impost, assessment or other
governmental charge imposed or levied by or on behalf of the government of
Canada or of any province or territory thereof or by any authority or agency
therein or thereof having power to tax ("Canadian Taxes"), unless the Issuer is
required to withhold or deduct Canadian Taxes by law or by the interpretation or
administration thereof by the relevant governmental authority or agency. If the
Issuer is so required to withhold or deduct any amount for or on account of
Canadian Taxes from any payment made under or with respect to the Notes, the
Issuer will pay such additional amounts ("Additional Amounts") as may be
necessary so that the net amount received by each Holder (including Additional
Amounts) after such withholding or deduction will not be less than the amount
the Holder would have received if such Canadian Taxes had not been withheld or
deducted; provided, that no Additional Amounts will be payable with respect to a
payment made to a Holder (an "Excluded Holder") (i) with which the Issuer does
not deal at arm's length (within the meaning of the Income Tax Act (Canada)) at
the time of making such payment, or (ii) which
74
is subject to such Canadian Taxes by reason of its being connected with Canada
or any province or territory thereof otherwise than by the mere acquisition,
holding or disposi tion of Notes or the receipt of payments thereunder. The
Issuer will also (i) make such withholding or deduction and (ii) remit the full
amount deducted or withheld to the relevant governmental authority in accordance
with applicable law. The Issuer will furnish to the Holders (other than an
Excluded Holder), within 30 days after the date the payment of any Canadian
Taxes is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by the Issuer. The Issuer will indemnify and hold
harmless each Holder (other than an Excluded Holder) and upon written request
reimburse each such Holder for the amount of (i) any Canadian Taxes so levied or
imposed and paid by such Holder as a result of payments made under or with
respect to the Notes, (ii) any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, and (iii) any Canadian
Taxes imposed with respect to any reimbursement under (i) or (ii), but excluding
any such Canadian Taxes on such Holder's net income.
(b) At least 30 days prior to each date on which any payment under or
with respect to the Notes is due and payable, if the Issuer will be obligated to
pay Additional Amounts with respect to such payment, the Issuer will deliver to
the Trustee an Officers' Certificate stating the fact that such Additional
Amounts will be payable, the amounts so payable and will set forth such other
information necessary to enable the Trustee to pay such Additional Amounts to
Holders (other than an Excluded Holder) on the payment date. Whenever in this
Indenture there is mentioned in any context the payment of principal (and
premium, if any), redemption price, interest or any other amount payable under
or with respect to any Note, such mention shall be deemed to include mention of
the payment of Additional Amounts to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof.
ARTICLE 5.
SUCCESSOR CORPORATION
75
Section 5.1. Limitation on Consolidation,
Merger and Sale of Assets.
----------------------------
(a) Xxxxxx Xxxxx and the Issuer will not and will not permit any
Guarantor to consolidate with, merge with or into, or transfer all or
substantially all of its assets (as an entirety or substantially as an entirety
in one transaction or a series of related transactions), to any Person unless:
(i) Xxxxxx Xxxxx, the Issuer or the Guarantor, as the case may be, shall be the
continuing Person, or the Person (if other than Xxxxxx Xxxxx, the Issuer or the
Guarantor) formed by such consolidation or into which Xxxxxx Xxxxx, the Issuer
or the Guarantor, as the case may be, is merged or to which the properties and
assets of Xxxxxx Xxxxx, the Issuer or the Guarantor, as the case may be, are
transferred shall be a corporation organized and existing under the laws of the
United States or any State thereof or the District of Columbia (and in the case
of the Issuer or a Canadian Guarantor, a corporation organized and existing
under the laws of Canada or any province thereof) and shall expressly assume, by
a supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of Xxxxxx Xxxxx, the Issuer
or the Guarantor, as the case may be, under the Notes and this Indenture, and
the obligations under this Indenture shall remain in full force and effect; (ii)
immediately before and immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and (iii)
immediately after giving effect to such transaction on a pro forma basis Xxxxxx
Xxxxx, a Restricted Subsidiary or such Person could incur at least $1.00
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.6 hereof, provided, however, that (a) a Guarantor other than Xxxxxx Xxxxx may
-------- -------
merge into the Issuer, Xxxxxx Xxxxx or another Guarantor, (b) the Issuer may
merge into a Canadian Guarantor or another corporation or limited liability
company organized and existing under the laws of Canada or any province thereof
for the purpose of converting into a limited liability company or to change the
Issuer's jurisdiction of incorporation, and (c) the Issuer or a Canadian
Guarantor can transfer a portion of its assets to the Issuer or another Canadian
Guarantor, in the case of (a), (b) or (c), without complying with this clause
(iii).
76
(b) In connection with any consolidation, merger or transfer of
assets contemplated by this Section 5.1, Xxxxxx Xxxxx and the Issuer shall
deliver, or cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger or transfer and the
supplemental indenture in respect thereto comply with this Section 5.1 and that
all conditions precedent herein provided for relating to such transaction or
transactions have been complied with.
Section 5.2. Successor Person Substituted.
----------------------------
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of Xxxxxx Xxxxx, the Issuer or any Guarantor in
accordance with Section 5.1 above, the successor corporation formed by such
consolidation or into which Xxxxxx Xxxxx, the Issuer or such Guarantor is
merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, Xxxxxx Xxxxx, the Issuer or such
Guarantor, as applicable, under this Indenture with the same effect as if such
successor corporation had been named as Xxxxxx Xxxxx, the Issuer or such
Guarantor herein, and thereafter the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
-----------------
An "Event of Default" occurs if
(1) there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise, whether or not such
payment is prohibited by the provisions of Article 10 hereof;
77
(2) there is a default in the payment of any interest on any Note
when the same becomes due and payable and the Default continues for a
period of 30 days, whether or not such payment is prohibited by the
provisions of Article 10 hereof;
(3) the Issuer, Xxxxxx Xxxxx or any other Guarantor defaults in the
observance or performance of any other covenant in the Notes or this
Indenture for 60 days after written notice from the Trustee to the Issuer
and Xxxxxx Xxxxx or written notice from the Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding to the Issuer,
Xxxxxx Xxxxx and the Trustee;
(4) there is a default in the payment at final maturity of principal
in an aggregate amount of $3,000,000 or more with respect to any
Indebtedness of Xxxxxx Xxxxx or any Restricted Subsidiary thereof which
default shall not be cured, waived or postponed pursuant to an agreement
with the holders of such Indebtedness within 60 days after written notice,
or the acceleration of any such Indebtedness aggregating $3,000,000 or more
which acceleration shall not be rescinded or annulled within 20 days after
written notice to the Issuer and Xxxxxx Xxxxx of such Default by the
Trustee or to the Issuer and Xxxxxx Xxxxx and the Trustee by any Holder;
(5) a court of competent jurisdiction enters a final judgment or
judgments which can no longer be appealed for the payment of money in
excess of $3,000,000 (which are not paid or covered by third party
insurance by financially sound insurers that have not disclaimed coverage)
against Xxxxxx Xxxxx or any Restricted Subsidiary thereof and such judgment
remains undischarged, for a period of 60 consecutive days during which a
stay of enforcement of such judgment shall not be in effect;
(6) Xxxxxx Xxxxx, the Issuer or any other Restricted Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
78
(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,
(D) makes a general assignment for the benefit of its creditors,
or
(E) generally is not paying its debts as they become due; or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against Xxxxxx Xxxxx, the Issuer or any other
Restricted Subsidiary in an involuntary case,
(B) appoints a Custodian of Xxxxxx Xxxxx, the Issuer or any
other Restricted Subsidiary or for all or substantially all of the
property of Xxxxxx Xxxxx, the Issuer or any other Restricted
Subsidiary, or
(C) orders the liquidation of Xxxxxx Xxxxx, the Issuer or any
other Restricted Subsidiary,
and, in each case, the order or decree remains unstayed and in effect
for 60 consecutive days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law (and in the case of the Issuer or a Canadian Guarantor
shall also include any similar law of Canada or any province thereof) for the
relief of debtors. The term "Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
Subject to the provisions of Sections 7.1 and 7.2, the Trustee shall
not be charged with knowledge of any
79
Default or Event of Default unless written notice thereof shall have been given
to a Trust Officer at the Corporate Trust Office by the Issuer, Xxxxxx Xxxxx or
any other Person.
Section 6.2. Acceleration.
------------
If an Event of Default (other than an Event of Default arising under
Section 6.1(6) or (7) with respect to Xxxxxx Xxxxx or the Issuer) occurs and is
continuing, the Trustee by notice to Xxxxxx Xxxxx or the Issuer, or the Holders
of not less than 25% in aggregate principal amount of the Notes then outstanding
by written notice to the Issuer, Xxxxxx Xxxxx and the Trustee, may declare to be
immediately due and payable the entire principal amount of all the Notes then
outstanding plus premium, if any, and accrued but unpaid interest to the date of
acceleration and (i) such amounts shall become immediately due and payable or
(ii) if there are any amounts outstanding under or in respect of the Credit
Facility, such amounts shall become due and payable upon the first to occur of
an acceleration of amounts outstanding under or in respect of the Credit
Facility or five Business Days after receipt by Xxxxxx Xxxxx or the Issuer and
the Representative of notice of the acceleration of the Notes; provided,
--------
however, that after such acceleration but before a judgment or decree based on
-------
such acceleration is obtained by the Trustee, the Holders of a majority in
aggregate principal amount of the outstanding Notes may rescind and annul such
acceleration and its consequences if all existing Events of Default, other than
the nonpayment of accelerated principal, premium, if any, or interest that has
become due solely because of the acceleration, have been cured or waived and if
the rescission would not conflict with any judgment or decree. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto. In case an Event of Default specified in Section 6.1 (6) or (7) with
respect to Xxxxxx Xxxxx or the Issuer occurs, the principal, premium, if any,
and interest amount with respect to all of the Notes shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Notes.
Section 6.3. Other Remedies.
--------------
80
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.4. Waiver of Past Defaults and
Events of Default.
---------------------------
Subject to Sections 6.2, 6.7 and 8.2 hereof, the Holders of a majority
in principal amount of the Notes then outstanding have the right to waive any
existing Default or Event of Default or compliance with any provision of this
Indenture or the Notes. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 6.5. Control by Majority.
-------------------
The Holders of a majority in principal amount of the Notes then
outstanding 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 the Trustee by this Indenture. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another Noteholder
not taking part in such direction, and the Trustee shall have
81
the right to decline to follow any such direction if the Trustee, being advised
by counsel, determines that the action so directed may not lawfully be taken or
if the Trustee in good faith shall, by a Trust Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
--------
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.6. Limitation on Suits.
-------------------
Subject to Section 6.7 below, a Noteholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer, and if requested, provide to the
Trustee indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a majority
in aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
82
Section 6.7. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of, or premium, if any, and
interest of the Note on or after the respective due dates expressed in the Note,
or to bring suit for the enforcement of any such payment on or after such
respective dates, is absolute and unconditional and shall not be impaired or
affected without the consent of the Holder.
Section 6.8. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal, premium or interest
specified in Section 6.1(1) or (2) hereof occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Issuer or the Guarantors (or any other obligor on the Notes) for the whole
amount of unpaid principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the
rate then borne by the Notes, and such further amounts 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, including all sums due and owing to the Trustee pursuant to Section
7.7.
Section 6.9. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Issuer or the
Guarantors (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same
after deduction of its reasonable charges and expenses to the extent that any
such
83
charges and expenses are not paid out of the estate in any such proceedings
and any custodian in any such judicial proceeding is hereby authorized by each
Noteholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such proceedings.
Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest as to each, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes;
and
THIRD: to the Issuer or, to the extent the Trustee collects any amount
from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10. The Trustee shall give the Issuer
and Xxxxxx Xxxxx prior notice of any such record date and payment date;
provided, however, that the failure to give any such notice shall not affect the
-------- -------
establishment of such record
84
date or payment date or any payment to Noteholders pursuant to this Section
6.10.
Section 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
Section 6.12. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuer, Xxxxxx Xxxxx, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
ARTICLE 7.
TRUSTEE
Section 7.1. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent man
85
would exercise or use under the same circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) 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.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture but,
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.1.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.2 and 6.5 hereof.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or other-
86
wise incur any financial liability in the performance of any of its rights
or powers if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs (a),
(b), (c), (e) and (f) of this Section 7.1 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity reasonably satisfactory to it against any
loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer or any
Guarantor. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by the law.
Section 7.2. Rights of Trustee.
-----------------
Subject to Section 7.1 hereof:
(1) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document reasonably believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 11.5 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(3) The Trustee may act through agents and attorneys and shall not be
responsible for the miscon-
87
duct or negligence of any agent or attorney (other than the negligence or
willful misconduct of an agent who is an employee of the Trustee) appointed
by it with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers; provided that the Trustee's conduct does not
--------
constitute negligence or bad faith.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
Section 7.3. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the Issuer, Xxxxxx Xxxxx or any other
Guarantor, or any Affiliates thereof, with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, shall be subject to Sections 7.10 and 7.11 hereof.
Section 7.4. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Issuer's use of
the proceeds from the sale of Notes or any money paid to the Issuer pursuant to
the terms of this Indenture and it shall not be responsible for any statement in
the Notes or any document used in connection with the sale of the Notes other
than its certificate of authentication.
Section 7.5. Notice of Defaults.
------------------
88
If a Default occurs and is continuing and if it is actually known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
the principal of, or premium, if any, or interest on any Note, the Trustee may
withhold the notice if and so long as the board of directors of the Trustee, the
executive committee or any trust committee of such board and/or its Trust
Officers in good faith determine(s) that withholding the notice is in the
interests of the Noteholders.
Section 7.6. Reports by Trustee to Holders.
-----------------------------
If required by TIA (S) 313(a), within 60 days after April 1 of any
year, commencing April 1, 1999, the Trustee shall mail to each Noteholder a
brief report dated as of such March 1 that complies with TIA (S) 313(a);
provided that no such report need be transmitted if no such events listed in TIA
--------
(S) 313(a) have occurred within such period. The Trustee also shall comply with
TIA (S) 313(b)(2). The Trustee shall also transmit by mail all reports as
required by TIA (S) 313(c) and TIA (S) 313(d).
A copy of each report at the time of its mailing to Noteholders shall
be filed with the SEC and each stock exchange on which the Notes are listed.
The Issuer shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
Section 7.7. Compensation and Indemnity.
--------------------------
The Issuer and Xxxxxx Xxxxx shall pay, and Xxxxxx Xxxxx shall cause
the other Guarantors to pay, to the Trustee from time to time such reasonable
compensation as shall be agreed in writing between the Issuer, Xxxxxx Xxxxx and
the Trustee for its services hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust). The Issuer, Xxxxxx Xxxxx and the other Guarantors shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it in connection with its duties under this
Indenture, including the reasonable compensation, disbursements and expenses of
the Trustee's agents and counsel.
89
The Issuer and Xxxxxx Xxxxx shall indemnify, and Xxxxxx Xxxxx shall
cause the other Guarantors to indemnify, each of the Trustee and any predecessor
Trustee for, and hold it harmless against, any and all loss, damage, claim,
liability, reasonable expense (including but not limited to reasonable
attorneys' fees and expenses) or taxes (other than taxes based on the income of
the Trustee) incurred by it in connection with the acceptance or performance of
its duties under this Indenture including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder (including, without
limitation, settlement costs). The Trustee shall notify the Issuer, Xxxxxx
Xxxxx and the other Guarantors in writing promptly of any claim asserted against
the Trustee for which it may seek indemnity. However, the failure by the
Trustee to so notify the Issuer, Xxxxxx Xxxxx and the other Guarantors shall not
relieve the Issuer, Xxxxxx Xxxxx or the other Guarantors of their obligations
hereunder.
Notwithstanding the foregoing, the Issuer, Xxxxxx Xxxxx and the other
Guarantors need not reimburse the Trustee for any expense or indemnify it
against any loss or liability incurred by the Trustee through its negligence or
bad faith. To secure the payment obligations of the Issuer, Xxxxxx Xxxxx and
the other Guarantors in this Section 7.7, the Trustee shall have a lien prior to
the Notes on all money or property held or collected by the Trustee in its
capacity as such, except such money or property held in trust to pay principal
of and interest on particular Notes. The obligations of the Issuer, Xxxxxx
Xxxxx and the other Guarantors under this Section 7.7 to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall be joint and several liabilities of the Issuer, Xxxxxx Xxxxx and each of
the other Guarantors and shall survive the satisfaction and discharge of this
Indenture, including the termination or rejection hereof in any bankruptcy
proceeding to the extent permitted by law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(6) or (7) hereof occurs, the expenses and the
compen-
90
sation for the services are intended to constitute expenses of administration
under any Bankruptcy Law.
For purposes of this Section 7.7, the term "Trustee" shall include any
trustee appointed pursuant to Article 9.
Section 7.8. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Issuer, Xxxxxx Xxxxx and
the other Guarantors in writing, such resignation to become effective upon the
appointment of a successor Trustee. The Holders of a majority in principal
amount of the outstanding Notes may remove the Trustee by notifying the removed
Trustee in writing and may appoint a successor Trustee with the Issuer's and
Xxxxxx Xxxxx'x written consent which consent shall not be unreasonably
withheld. The Issuer and Xxxxxx Xxxxx may remove the Trustee at their election
if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuer and Xxxxxx Xxxxx shall promptly
appoint a successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, Xxxxxx
Xxxxx or the Holders of a majority in principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
91
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder 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 Issuer and Xxxxxx Xxxxx.
Immediately following such delivery, the retiring Trustee shall, subject to its
rights under Section 7.7 hereof, transfer all property held by it as Trustee to
the successor Trustee, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Noteholder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Issuer's and Xxxxxx Xxxxx'x
obligations under Section 7.7 hereof shall continue for the benefit of the
retiring Trustee.
Section 7.9. Successor Trustee by Consolidation,
Merger or Conversion.
--------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation or national banking association, subject to Section 7.10 hereof, the
successor corporation or national banking association without any further act
shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1) and (2) in every respect. The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
(S) TIA (S) 310(b), including the provision in (S) 310(b)(1); provided that
--------
there shall be excluded from the operation of TIA (S) 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Issuer, Xxxxxx Xxxxx or the other
Guarantors
92
are outstanding if the requirements for exclusion set forth in TIA (S) 310(b)(1)
are met.
Section 7.11. Preferential Collection of
Claims Against Issuer and Xxxxxx Xxxxx.
--------------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
Section 7.12. Paying Agents.
-------------
The Issuer and Xxxxxx Xxxxx shall cause each Paying Agent other than
the Trustee to execute and deliver to them and the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section 7.12:
(A) that it will hold all sums held by it as agent for the payment of
principal of, or premium, if any, or interest on, the Notes (whether such
sums have been paid to it by the Issuer, a Guarantor or by any other
obligor on the Notes) in trust for the benefit of Holders of the Notes or
the Trustee;
(B) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Issuer (or by any obligor on the Notes)
in the payment of any installment of the principal of, premium, if any, or
interest on, the Notes when the same shall be due and payable.
93
ARTICLE 8.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.1. Without Consent of Holders.
--------------------------
The Issuer, Xxxxxx Xxxxx and the other Guarantors when authorized by a
Board Resolution of each of them, and the Trustee may modify, waive, amend,
restate or supplement this Indenture or the Notes without notice to or consent
of any Noteholder:
(1) to comply with Section 5.1 hereof;
(2) to provide for uncertificated Notes in addition to or in place of
Certificated Notes;
(3) to comply with any requirements of the SEC under the TIA;
(4) to cure any ambiguity, defect or inconsistency, or to make any
other change that does not materially and adversely affect the rights of
any Noteholder; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes.
The Trustee is hereby authorized to join with the Issuer and Xxxxxx
Xxxxx in the execution of any supplemental indenture authorized or permitted
by the terms of this Indenture and to make any further appropriate agreements
and stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which adversely affects
its own rights, duties or immunities under this Indenture.
Section 8.2. With Consent of Holders.
-----------------------
The Issuer, Xxxxxx Xxxxx, the other Guarantors and the Trustee may
modify, amend, waive or supplement this Indenture or the Notes with the written
consent of the Holders of not less than a majority in aggregate principal
94
amount of the outstanding Notes without notice to any Noteholder. The Holders of
not less than a majority in aggregate principal amount of the outstanding Notes
may waive compliance in a particular instance by the Issuer or Xxxxxx Xxxxx with
any provision of this Indenture or the Notes without notice to any Noteholder.
Subject to Section 8.4, without the consent of each Noteholder affected,
however, an amendment, supplement or waiver, including a waiver pursuant to
Section 6.4, may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment, modification, supplement or waiver to this Indenture or the
Notes;
(2) reduce the rate of or change the time for payment of interest on
any Note;
(3) reduce the principal of or premium on or change the stated
maturity of any Note;
(4) make any Note payable in money other than that stated in the Note
or change the place of payment from New York, New York;
(5) change the amount or time of any payment required by the Notes
or reduce the premium payable upon any redemption of the Notes in
accordance with Section 3.7 hereof, or change the time before which no such
redemption may be made;
(6) waive a default in the payment of the principal of, or interest
on, or redemption payment with respect to, any Note (including any
obligation to make a Change of Control Offer or, after the Issuer's
obligation to purchase Notes arises thereunder, an Excess Proceeds Offer or
modify any of the provisions or definitions with respect to such offers);
(7) make any changes in Sections 6.4 or 6.7 hereof or this sentence
of Section 8.2; or
(8) affect the ranking of the Notes in a manner adverse to the
Holders.
95
After a modification, amendment, supplement or waiver under this
Section 8.2 becomes effective, the Issuer shall mail to the Holders a notice
briefly describing the modification, amendment, supplement or waiver. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such modification,
amendment, supplement or waiver.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, modification,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.3. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
Section 8.4. Revocation and Effect of Consents.
---------------------------------
Until a modification, amendment, supplement, waiver or other action
becomes effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may
revoke the consent as to his Note or portion of a Note, if the Trustee receives
the notice of revocation before the date the modification, amendment,
supplement, waiver or other action becomes effective.
The Issuer and Xxxxxx Xxxxx may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent to
any modification, amendment, supplement, or waiver. If a record date is fixed,
then, notwithstanding the preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent to such modification, amendment,
96
supplement, or waiver or to revoke any consent previously given, whether or not
such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date unless
the consent of the requisite number of Holders has been obtained.
After a modification, amendment, supplement, waiver or other action
becomes effective, it shall bind every Noteholder, unless it makes a change
described in any of clauses (1) through (8) of Section 8.2 hereof. In that
case, the modification, amendment, supplement, waiver or other action shall bind
each Holder of a Note who has consented to it and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note.
Section 8.5. Notation on or Exchange of Notes.
--------------------------------
If a modification, amendment, supplement or waiver changes the terms
of a Note, the Trustee may request the Holder of the Note to deliver it to the
Trustee. In such case, the Trustee shall place an appropriate notation on the
Note about the changed terms and return it to the Holder. Alternatively, if the
Issuer or the Trustee so determines, the Issuer in exchange for the Note shall
issue and the Trustee shall authenticate and make available for delivery a new
security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Note shall not affect the validity and effect of such
modification, amendment, supplement or waiver.
Section 8.6. Trustee to Sign Amendments, etc.
--------------------------------
The Trustee shall sign any modification, amendment, supplement or
waiver authorized pursuant to this Article 8 if the modification, amendment,
supplement or waiver 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 or refusing to sign such modification, amendment, supplement or
waiver, the Trustee shall be entitled to receive and, subject to Section 7.1
hereof, shall be fully protected in relying upon an Officers' Certificate and an
Opinion of Counsel
97
stating that such modification, amendment, supplement or waiver is authorized or
permitted by this Indenture and such supplemental indenture constitutes the
legal, valid and binding obligation of the Issuer and Xxxxxx Xxxxx enforceable
against each of them in accordance with its terms (subject to customary
exceptions). The Issuer and Xxxxxx Xxxxx may not sign a modification, amendment
or supplement until the Board of Directors of the Issuer and Xxxxxx Xxxxx
approves it.
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.1. Discharge of Indenture.
----------------------
The Issuer, Xxxxxx Xxxxx and the Guarantors may terminate their
obligations under the Notes, the Guarantees and this Indenture, except the
obligations referred to in the last paragraph of this Section 9.1, if there
shall have been cancelled by the Trustee or delivered to the Trustee for
cancellation all Notes theretofore authenticated and delivered (other than any
Notes that are asserted to have been destroyed, lost or stolen and that shall
have been replaced as provided in Section 2.7 hereof) and the Issuer has paid
all sums payable by it hereunder or deposited all required sums with the
Trustee.
After such delivery the Trustee upon request shall acknowledge in
writing the discharge of the Issuer's, Xxxxxx Xxxxx'x and the Guarantors'
obligations under the Notes, the Guarantees and this Indenture except for those
surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer and Xxxxxx Xxxxx in Sections 2.7, 7.7, 9.5, 9.6 and
9.8 hereof shall survive.
Section 9.2. Legal Defeasance.
----------------
98
The Issuer may at its option, by Board Resolution, be discharged
from its obligations with respect to the Notes and the Guarantors, if any,
discharged from their obligations under the Guarantees, if any, on the date the
conditions set forth in Section 9.4 below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Issuer
shall be deemed to have paid and discharged the entire indebtedness represented
by the Notes and to have satisfied all its other obligations under such Notes
and this Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Issuer, shall, subject to Section 9.6 hereof, execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of outstanding Notes to receive solely from the trust funds described in
Section 9.4 hereof and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest on such Notes when
such payments are due, (B) the Issuer's and Xxxxxx Xxxxx'x obligations with
respect to such Notes under Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8 and 4.20
hereof, (C) the rights, powers, trusts, duties, and immunities of the Trustee
hereunder (including claims of, or payments to, the Trustee under or pursuant to
Section 7.7 hereof) and (D) this Article 9. Subject to compliance with this
Article 9, the Issuer may exercise its option under this Section 9.2 with
respect to the Notes notwithstanding the prior exercise of its option under
Section 9.3 below with respect to the Notes.
Section 9.3. Covenant Defeasance.
-------------------
At the option of the Issuer pursuant to a Board Resolution, the
Issuer, Xxxxxx Xxxxx and the other Guarantors shall be released from their
respective obligations under Sections 4.2 through 4.19 and Section 4.21 hereof,
inclusive, and clause (a) (iii) of Section 5.1 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 9.4
hereof are satisfied (hereinafter, "Covenant Defeasance") and the Notes shall
thereafter be deemed to not be outstanding for purposes of any direction,
waiver, consent, declaration or act of the Holders (and the consequences
thereof) in connection with
99
such covenants but shall continue to be outstanding for all other purposes
hereunder. For this purpose, such Covenant Defeasance means that the Issuer,
Xxxxxx Xxxxx and the other Guarantors, if any, may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section or portion thereof, whether directly or indirectly by
reason of any reference elsewhere herein to any such specified Section or
portion thereof or by reason of any reference in any such specified Section or
portion thereof to any other provision herein or in any other document, but the
remainder of this Indenture and the Notes shall be unaffected thereby.
Section 9.4. Conditions to Defeasance or Covenant
Defeasance.
------------------------------------
The following shall be the conditions to application of Section 9.2
or Section 9.3 hereof to the outstanding Notes:
(1) the Issuer shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 7.10
hereof who shall agree to comply with the provisions of this Article 9
applicable to it) as funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Notes, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, the principal
of, premium, if any, and accrued interest on the outstanding Notes at the
maturity date of such principal, premium, if any, or interest, or on dates for
payment and redemption of such principal, premium, if any, and interest selected
in accordance with the terms of this Indenture and of the Notes;
100
(2) no Event of Default or Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit, or shall have occurred
and be continuing at any time during the period ending on the 91st day after the
date of such deposit or, if longer, ending on the day following the expiration
of the longest preference period under any Bankruptcy Law applicable to the
Issuer or Xxxxxx Xxxxx in respect of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute default under any other agreement or
instrument to which the Issuer or Xxxxxx Xxxxx is a party or by which it is
bound;
(4) the Issuer shall have delivered to the Trustee an Opinion of Counsel
stating that, as a result of such Legal Defeasance or Covenant Defeasance,
neither the trust nor the Trustee will be required to register as an investment
company under the Investment Company Act of 1940, as amended;
(5) in the case of an election under Section 9.2 above, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer
has received from, or there has been published by, the Internal Revenue Service
a ruling to the effect that or (ii) there has been a change in any applicable
Federal income tax law with the effect that, and such opinion shall confirm
that, the Holders of the outstanding Notes or persons in their positions will
not recognize income, gain or loss for U.S. federal income tax purposes solely
as a result of such Legal Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner, including as a result of
prepayment, and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(6) in the case of an election under Section 9.3 hereof, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the outstanding Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such
101
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;
(7) the Issuer shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for relating to either the Legal Defeasance under Section 9.2 above or the
Covenant Defeasance under Section 9.3 hereof (as the case may be) have been
complied with; and
(8) the Issuer shall have delivered to the Trustee an Officers' Certificate
stating that the deposit under clause (1) was not made by the Issuer with the
intent of defeating, hindering, delaying or defrauding any creditors of the
Issuer or others.
Section 9.5. Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
-----------------------------------
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.4 hereof in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Notes, of all sums due and to become due thereon in respect of
principal, premium, if any, and accrued interest, but such money need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no duty to invest such money or U.S. Government Obligations.
The Issuer, Xxxxxx Xxxxx and the other Guarantors shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.4 hereof or the principal, premium, if any, and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
102
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request
any money or U.S. Government Obligations held by it as provided in Section 9.4
hereof which, in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 9.6. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.1, 9.2 or 9.3 hereof 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 obligations of the Issuer, Xxxxxx Xxxxx and any Guarantor
under this Indenture, the Notes and the Guarantees, if any, shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 9.1 hereof; provided,
--------
however, that if the Issuer, Xxxxxx Xxxxx or any other Guarantors have made any
-------
payment of, principal of, premium, if any, or accrued interest on any Notes
because of the reinstatement of their obligations, the Issuer, Xxxxxx Xxxxx or
such other Guarantors, as the case may be, shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
Section 9.7. Moneys Held by Paying Agent.
---------------------------
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Issuer, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.4 hereof, to the Issuer (or, if
such moneys had been deposited by any Guarantors, to such Guarantors), and
thereupon such Paying
103
Agent shall be released from all further liability with respect to such moneys.
Section 9.8. Moneys Held in Trust.
--------------------
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Issuer or any Guarantors in trust for the payment of the principal of, or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be paid to the Issuer or, if
appropriate, the Guarantors, upon Issuer Request, or if such moneys are then
held by the Issuer or any Guarantors in trust, such moneys shall be released
from such trust; and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that the
-------- -------
Trustee or any such Paying Agent, before being required to make any such
repayment, may, at the expense of the Issuer and the Guarantors, if any, either
mail to each Noteholder affected, at the address shown in the register of the
Notes maintained by the Registrar pursuant to Section 2.3 hereof, or cause to
be published once a week for two successive weeks, in a newspaper published in
the English language, customarily published each Business Day and of general
circulation in The City of New York, New York, a notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing or publication, any unclaimed balance of
such moneys then remaining will be repaid to the Issuer. After payment to the
Issuer or the Guarantors, if any, or the release of any money held in trust by
the Issuer or any Guarantors, as the case may be, Noteholders entitled to the
money must look only to the Issuer and any Guarantors for payment as general
creditors unless applicable abandoned property law designates another person.
104
ARTICLE 10.
GUARANTEE OF NOTES
Section 10.1. Guarantee.
---------
Subject to the provisions of this Article 10, each Guarantor, by
execution of the Guarantee (and in the case of Xxxxxx Xxxxx execution of this
Indenture shall be deemed execution of its Guarantee for any and all purposes),
will jointly and severally unconditionally guarantee to each Holder
and to the Trustee, on behalf of the Holders, (i) the due and punctual payment
of the principal of, and premium, if any, and interest on each Note, when and as
the same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal of,
and premium, if any, and interest on the Notes, to the extent lawful, and the
due and punctual performance of all other Obligations of the Issuer to the
Holders or the Trustee all in accordance with the terms of such Note and this
Indenture, and (ii) in the case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, at stated maturity, by acceleration or otherwise. Each Guarantor,
by execution of the Guarantee, will agree that its obligations thereunder and
hereunder shall be absolute and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any such
Note or this Indenture, any failure to enforce the provisions of any such Note
or this Indenture, any waiver, modification or indulgence granted to the Issuer
with respect thereto by the Holder of such Note or the Trustee, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or such Guarantor.
Each Guarantor, by execution of the Guarantee, will waive diligence,
presentment, filing of claims with a court in the event of merger or bankruptcy
of the Issuer, any right to require a proceeding first against the Issuer,
protest or notice with respect to any such Note or the Indebtedness evidenced
thereby and all demands whatsoever,
105
and will covenant that the Guarantee will not be discharged as to any such Note
except by payment in full of the principal thereof, premium if any, and interest
thereon and as provided in Section 9.1 hereof. Each Guarantor, by execution of
the Guarantee, will further agree that, as between such Guarantor, on the one
hand, and the Holders and the Trustee, on the other hand, (i) the maturity of
the Obligations guaranteed by the Guarantee may be accelerated as provided in
Article 6 hereof for the purposes of the Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Obligations guaranteed thereby, and (ii in the event of any declaration of
acceleration of such Obligations as provided in Article 6 hereof, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of the Guarantee. In addition, without
limiting the foregoing provisions, upon the effectiveness of an acceleration
under Article 6 hereof, the Trustee shall promptly make a demand for payment on
the Notes under the Guarantee provided for in this Article 10 and not
discharged. Failure to make such demand shall not affect the validity or
enforceability of the Guarantee upon any Guarantor.
A Guarantee shall not be valid or become obligatory for any purpose
with respect to a Note unless the certificate of authentication on such Note
shall have been signed by or on behalf of the Trustee.
Section 10.2. Execution and Delivery of Guarantees.
------------------------------------
A Guarantee shall be executed on behalf of a Guarantor by the manual
or facsimile signature of an Officer of such Guarantor. A guarantee need not be
affixed to a Note, and the validity and enforceability of any Guarantee shall
not be affected by the fact that it is not so affixed.
If an Officer of a Guarantor whose signature is on the Guarantee no
longer holds that office, such Guarantee shall be valid nevertheless.
106
Section 10.3. Limitation of Guarantee.
-----------------------
The obligations of each Domestic Guarantor will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Domestic Guarantor (including, without limitation, any
guarantees of Senior Indebtedness) and after giving effect to any collections
from or payments made by or on behalf of any other Domestic Guarantor in respect
of the obligations of such other Domestic Guarantor under its Domestic Guarantee
or pursuant to its contribution obligations under this Indenture, result in the
obligations of such Domestic Guarantor under the Domestic Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under Federal or
state law. Each Domestic Guarantor that makes a payment or distribution under a
Domestic Guarantee shall be entitled to a contribution from each other
Domestic Guarantor in a pro rata amount based on the Adjusted Net Assets of each
Domestic Guarantor. The obligations of each Canadian Guarantor under each
Canadian Guarantee will be to the fullest extent permitted by applicable law,
including financial assistance restrictions imposed by corporate legislation.
Section 10.4. Release of Guarantor.
--------------------
A Guarantor (other than Xxxxxx Xxxxx) shall be released from all of
its obligations under its Guarantee if:
(i) such Guarantor has sold all or substantially all of its assets or
Xxxxxx Xxxxx and its Restricted Subsidiaries have sold all of the Capital
Stock of such Guarantor owned by them, in each case in a transaction in
compliance with Sections 4.10 and 5.1 hereof to the extent applicable; or
(ii) such Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, Xxxxxx Xxxxx or
another Guarantor in a transaction in compliance with Section 5.1 hereof;
and in each such case, Xxxxxx Xxxxx and the Issuer have delivered to the Trustee
an Officers' Certificate and an
107
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to such transactions have been complied with.
Section 10.5. Domestic Guarantee Obligations Subordinated to Domestic Guarantor
Senior Indebtedness.
-----------------------------------------------------------------
Each Domestic Guarantor, by execution of the Domestic Guarantee, will
covenant and agree, and each Holder of Notes, by its acceptance thereof,
likewise covenants and agrees, that to the extent and in the manner hereinafter
set forth in this Article 10, the Indebtedness represented by the Domestic
Guarantees, including, without limitation, Xxxxxx Xxxxx'x, and the payment of
any Obligations pursuant to the Domestic Guarantees by such Domestic
Guarantors are hereby expressly made subordinate and subject in right of payment
as provided in this Article 10 to the prior indefeasible payment and
satisfaction in full in cash or, as acceptable to the holders of Domestic
Guarantor Senior Indebtedness of such Domestic Guarantor, in any other manner,
of all existing and future Domestic Guarantor Senior Indebtedness of such
Domestic Guarantor.
This Section 10.5 and the following Sections 10.6 through 10.17 shall
constitute a continuing offer to all Persons who, in reliance upon such
provisions, become holders of or continue to hold Domestic Guarantor Senior
Indebtedness of any Domestic Guarantor; and such provisions are made for the
benefit of the holders of Domestic Guarantor Senior Indebtedness of each
Domestic Guarantor; and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
Section 10.6. Payment Over of Proceeds upon Dissolution, etc., of a Domestic
Guarantor.
--------------------------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any Domestic Guarantor or to its
creditors, as such, or to its assets, whether voluntary or involuntary, or (b)
any liquidation, dissolution or other winding-up of any Domestic Guarantor,
whether voluntary or involuntary and whether or not
108
involving insolvency or bankruptcy or (c) any general assignment for the benefit
of creditors or any other marshaling of assets or liabilities of any Domestic
Guarantor (except in connection with the merger or consolidation of a Domestic
Guarantor or its liquidation or dissolution following the transfer of
substantially all of its assets, upon the terms and conditions permitted under
the circumstances described under Section 5.1 hereof), then and in any such
event:
(1) the holders of all Domestic Guarantor Senior Indebtedness of such
Domestic Guarantor shall be entitled to receive payment and satisfaction in
full in cash or, as acceptable to the holders of such Domestic Guarantor
Senior Indebtedness, in any other manner, of all amounts due on or in
respect of all such Domestic Guarantor Senior Indebtedness, before the
Holders of the Notes are entitled to receive or retain, pursuant to the
Domestic Guarantee of such Domestic Guarantor, any payment or distribution
of any kind or character by such Domestic Guarantor on account of any of
its Obligations on its Domestic Guarantee; and
(2) any payment or distribution of assets of such Domestic Guarantor
of any kind or character, whether in cash, property or securities, by set-
off or otherwise, to which the Holders or the Trustee would be entitled but
for the subordination provisions of this Article 10 shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Domestic Guarantor Senior
Indebtedness of such Domestic Guarantor or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Domestic Guarantor Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Domestic Guarantor Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full in cash or, as acceptable to the holders of such Domestic
Guarantor Senior Indebtedness
109
of such Domestic Guarantor, in any other manner, of all such Domestic
Guarantor Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Domestic
Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 10.6, the Trustee or the Holder of any Note shall have
received any payment or distribution of assets of such Domestic Guarantor
of any kind or character, whether in cash, property or securities,
including, without limitation, by way of set-off or otherwise, in respect
of any of its Obligations on its Domestic Guarantee before all Domestic
Guarantor Senior Indebtedness of such Domestic Guarantor is paid and
satisfied in full in cash or such payment and satisfaction thereof in cash
is provided for, then and in such event such payment or distribution upon
written notice to the Trustee or the Holder of such Note, as the case may
be, shall be held by the Trustee or the Holder of such Note, as the case
may be, in trust for the benefit of the holders of such Domestic Guarantor
Senior Indebtedness and shall be immediately paid over or delivered
forthwith to the liquidating trustee or agent or other Person making
payment or distribution of assets of such Domestic Guarantor for
application to the payment of all such Domestic Guarantor Senior
Indebtedness remaining unpaid, to the extent necessary to pay all of such
Domestic Guarantor Senior Indebtedness in full in cash or, as acceptable to
the holders of such Domestic Guarantor Senior Indebtedness, any other
manner, after giving effect to any concurrent payment or distribution to
or for the holders of such Domestic Guarantor Senior Indebtedness.
The consolidation of a Domestic Guarantor with, or the merger of a
Domestic Guarantor with or into, another Person or the liquidation or
dissolution of a Domestic Guarantor following the transfer of all of its assets
(as an entirety or substantially as an entirety) to another Person upon the
terms and conditions set forth in Article 5 hereof shall not be deemed a
dissolution, winding-up, liquidation, reorganization, assignment for the benefit
of
110
creditors or marshaling of assets and liabilities of such Domestic Guarantor
for the purposes of this Article 10 if the Person formed by such consolidation
or the surviving entity of such merger or the Person which acquires by transfer
such assets (as an entirety or substantially as an entirety) shall, as a part of
such consolidation, merger or transfer comply with the conditions set forth in
such Article 5 hereof.
Section 10.7. Suspension of Domestic Guarantee Obligations When Domestic
Guarantor Senior Indebtedness in Default.
----------------------------------------------------------
(a) Unless Section 10.6 hereof shall be applicable, after the
occurrence of a Payment Default, no payment or distribution of any assets or
securities of a Domestic Guarantor of any kind or character (including, without
limitation, cash, property and any payment or distribution which may be payable
or deliverable by reason of the payment of any other Indebtedness of such
Domestic Guarantor being subordinated to its Obligations on its Domestic
Guarantee) may be made by or on behalf of such Domestic Guarantor, including,
without limitation, by way of set-off or otherwise, for or on account of its
Obligations on its Domestic Guarantee, and neither the Trustee nor any holder or
owner of any Notes shall take or receive from any Domestic Guarantor, directly
or indirectly in any manner, payment in respect of all or any portion of its
Obligations on its Domestic Guarantee following the delivery by the
representative of the holders of Domestic Guarantor Senior Indebtedness (the
"Domestic Guarantor Representative") to the Trustee of written notice of (i) the
occurrence of a Payment Default on Designated Senior Indebtedness which
constitutes Domestic Guarantor Senior Indebtedness or (ii the occurrence of a
Non-Payment Event of Default on Designated Senior Indebtedness which constitutes
Domestic Guarantor Senior Indebtedness and the acceleration of the maturity of
such Designated Senior Indebtedness in accordance with its terms, and in any
such event, such prohibition shall continue until such Payment Default is
cured, waived in writing or ceases to exist or such acceleration has been
rescinded or otherwise cured. At such time as the prohibition set forth in the
preceding sentence shall no longer be in effect, subject to the provisions of
the
111
following paragraph (b), such Domestic Guarantor shall, if applicable,
resume making any and all required payments in respect of its Obligations under
its Domestic Guarantee.
(b) Unless Section 10.6 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness
which constitutes Domestic Guarantor Senior Indebtedness of any Domestic
Guarantor, no payment or distribution of any assets or securities of such
Domestic Guarantor of any kind or character (including, without limitation,
cash, property and any payment or distribution which may be payable or
deliverable by reason of the payment of any other Indebtedness of such
Domestic Guarantor being subordinated to its Obligations on its Domestic
Guarantee) shall be made by such Domestic Guarantor, including, without
limitation, by way of set-off or otherwise, for or on account of any of its
Obligations on its Domestic Guarantee, and neither the Trustee nor any holder or
owner of any Notes shall take or receive from any Domestic Guarantor (or any
U.S. Restricted Subsidiary or U.S. Subsidiary of such Domestic Guarantor),
directly or indirectly in any manner, payment in respect of all or any portion
of its Obligations on its Domestic Guarantee for a period (a "Domestic Guarantee
Payment Blockage Period") commencing on the date of receipt by the Trustee of
written notice from the Domestic Guarantor Representative of such Non-Payment
Event of Default, unless and until (subject to any blockage of payments that may
then be in effect under the preceding paragraph (a)) the earliest to occur of
the following events: (x) more than 179 days shall have elapsed since the date
of receipt of such written notice by the Trustee, (y) such Non-Payment Event of
Default shall have been cured or waived in writing or shall have ceased to exist
or such Designated Senior Indebtedness shall have been paid in full in cash and
the Trustee has been so notified either by the Domestic Guarantor Representative
or such Domestic Guarantor or (z) such Domestic Guarantee Payment Blockage
Period shall have been terminated by written notice to such Domestic Guarantor
or the Trustee from the Domestic Guarantor Representative, after which, in the
case of clause (x), (y) or (z), such Domestic Guarantor shall resume making any
and all required payments in respect of its Obligations on its Domestic
Guarantee, including, if applicable, any missed
112
payments. Notwithstanding any other provisions of this Indenture, no event of
default with respect to Designated Senior Indebtedness which constitutes
Domestic Guarantor Senior Indebtedness (other than a Payment Default) which
existed or was continuing on the date of the commencement of any Domestic
Guarantee Payment Blockage Period initiated by the Domestic Guarantor
Representative shall be, or be made, the basis for the commencement of a second
Domestic Guarantee Payment Blockage Period initiated by the Domestic Guarantor
Representative unless such event of default shall have been cured or waived for
a period of not less than 90 consecutive days. In no event shall a Domestic
Guarantee Payment Blockage Period extend beyond 179 days from the date of the
receipt by the Trustee of the notice referred to in this Section 10.7(b)(the
"Initial Domestic Guarantee Blockage Period"). Any number of additional Domestic
Guarantee Payment Blockage Periods may be commenced during the Initial Domestic
Guarantee Blockage Period; provided, however, that no such additional Domestic
-------- -------
Guarantee Payment Blockage Period shall extend beyond the Initial Domestic
Guarantee Blockage Period. After the expiration of the Initial Domestic
Guarantee Blockage Period, no Domestic Guarantee Payment Blockage Period may be
commenced under this Section 10.7(b) hereof until at least 180 consecutive days
have elapsed from the last day of the Initial Domestic Guarantee Blockage
Period.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Note shall have received any payment from a Domestic Guarantor
prohibited by the foregoing provisions of this Section 10.7, then and in such
event such payment shall be paid over and delivered forthwith to the Domestic
Guarantor Representative initiating the Domestic Guarantee Payment Blockage
Period, in trust for distribution to the holders of Domestic Guarantor Senior
Indebtedness or, if no amounts are then due in respect of Domestic Guarantor
Senior Indebtedness, promptly returned to the Domestic Guarantor, or as a court
of competent jurisdiction shall direct.
Section 10.8. Subrogation to Rights of Holders of Domestic Guarantor Senior
Indebtedness.
-------------------------------------------------------------
113
Upon the payment in full of all amounts payable under or in respect of
all Domestic Guarantor Senior Indebtedness of a Domestic Guarantor, the Holders
shall be subrogated to the rights of the holders of such Domestic Guarantor
Senior Indebtedness to receive payments and distributions of cash, property and
securities of such Domestic Guarantor made on such Domestic Guarantor Senior
Indebtedness until all amounts due to be paid under the Domestic Guarantee shall
be paid in full. For the purposes of such subrogation, no payments or
distributions to holders of Domestic Guarantor Senior Indebtedness of any cash,
property or securities to which Holders of the Notes or the Trustee would be
entitled except for the provisions of this Article 10, and no payments over
pursuant to the provisions of this Article 10 to holders of Domestic Guarantor
Senior Indebtedness by Holders of the Notes or the Trustee, shall, as among each
Domestic Guarantor, its creditors other than holders of Domestic Guarantor
Senior Indebtedness and the Holders of the Notes, be deemed to be a payment or
distribution by such Domestic Guarantor to or on account of such Domestic
Guarantor Senior Indebtedness.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 10 shall have been
applied, pursuant to the provisions of this Article 10, to the payment of all
amounts payable under Domestic Guarantor Senior Indebtedness, then and in such
case, the Holders shall be entitled to receive from the holders of such Domestic
Guarantor Senior Indebtedness at the time outstanding any payments or
distributions received by such holders of Domestic Guarantor Senior Indebtedness
in excess of the amount sufficient to indefeasibly pay all amounts payable under
or in respect of such Domestic Guarantor Senior Indebtedness in full in cash.
Section 10.9. Domestic Guarantee Subordination Provisions Solely to Define
Relative Rights.
------------------------------------------------------------
The subordination provisions of this Article 10 are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Notes on the one hand and the holders of Domestic Guarantor Senior Indebtedness
on the other hand. Nothing contained in this Article 10 or
114
elsewhere in this Indenture or in the Notes is intended to or shall (a) impair,
as among each Domestic Guarantor, its creditors other than holders of its
Domestic Guarantor Senior Indebtedness and the Holders of the Notes, the
obligation of such Domestic Guarantor, which is absolute and unconditional, to
make payments to the Holders in respect of its Obligations on its Domestic
Guarantee in accordance with its terms; or (b) affect the relative rights
against such Domestic Guarantor of the Holders of the Notes and creditors of
such Domestic Guarantor other than the holders of the Domestic Guarantor Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon a Default or
an Event of Default under this Indenture, subject to the rights, if any, under
this Article 10 of the holders of Domestic Guarantor Senior Indebtedness (1) in
any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, arrangement, reorganization or other similar case or proceeding in
connection therewith or any liquidation, dissolution or other winding-up, or any
assignment for the benefit of creditors or other marshaling of assets and
liabilities referred to in Section 10.6 hereof, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder, or (2) under the conditions specified
in Section 10.7 hereof, to prevent any payment prohibited by such Section or
enforce their rights pursuant to Section 10.7(c) hereof.
The failure by any Domestic Guarantor to make a payment in respect of
its obligations on its Domestic Guarantee by reason of any provision of this
Article 10 shall not be construed as preventing the occurrence of a Default or
an Event of Default hereunder.
Section 10.10. Rights of Trustee as a Holder of Domestic Guarantor Senior
Indebtedness; Preservation of Trustee's Rights.
----------------------------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 10 with respect to any Domestic Guarantor
Senior Indebtedness
115
which may at any time be held by it, to the same extent as any other holder of
Domestic Guarantor Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this Article
10 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.7 hereof.
Section 10.11. Trustee's Relation to Domestic Guarantor Senior Indebtedness.
-------------------------------------------------------------
With respect to the holders of Domestic Guarantor Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 10, and no implied
covenants or obligations with respect to the holders of Domestic Guarantor
Senior Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Domestic
Guarantor Senior Indebtedness and the Trustee shall not be liable to any holder
of Domestic Guarantor Senior Indebtedness if it shall mistakenly pay over or
deliver to Holders, the Issuer or any other Person moneys or assets to which any
holder of Domestic Guarantor Senior Indebtedness shall be entitled by virtue of
this Article 10 or otherwise.
Section 10.12. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of a
Domestic Guarantor whether in bankruptcy, insolvency, receivership proceedings,
or otherwise, the timely filing of a claim for the unpaid balance of the
indebtedness of such Domestic Guarantor owing to such Holder pursuant to a
Domestic Guarantee in the form required in such proceedings and the causing of
such claim to be approved. If the Trustee does not file such a claim prior to
30 days before the expiration of the time to file such a claim, the holders of
Domestic Guarantor Senior Indebtedness, or any Domestic
116
Guarantor Representative, may file such a claim on behalf of Holders of the
Notes.
Section 10.13. No Waiver of Subordination Provisions.
-------------------------------------
(a) No right of any present or future holder of any Domestic Guarantor
Senior Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Issuer or a Domestic Guarantor or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by the Issuer or a
Domestic Guarantor with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without limiting the generality of subsection (a) of this Section
10.13, the holders of Domestic Guarantor Senior Indebtedness may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders of the Notes, without incurring responsibility to the Holders of the
Notes and without impairing or releasing the subordination provided in this
Article 10 or the obligations hereunder of the Holders of the Notes to the
holders of Domestic Guarantor Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Domestic Guarantor Senior Indebtedness or any
instrument evidencing the same (or any agreement under which Domestic Guarantor
Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Domestic
Guarantor Senior Indebtedness; (3) release any Person liable in any manner for
the collection or payment of Domestic Guarantor Senior Indebtedness; and (4)
exercise or refrain from exercising any rights against a Domestic Guarantor and
any other Person; provided, however, that in no event shall any such actions
-------- -------
limit the right of the Holders of the Notes to take any action to accelerate the
maturity of the Notes pursuant to Article 6 hereof or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Indenture.
117
Section 10.14. Notice to Trustee.
-----------------
(a) The Issuer and the Domestic Guarantors shall give prompt written
notice to the Trustee of any fact known to the Issuer or such Domestic Guarantor
which would prohibit the making of any payment to or by the Trustee at its
Corporate Trust Office in respect of a Guarantee. Notwithstanding the provisions
of this Article 10 or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of a Domestic
Guarantee, unless and until the Trustee shall have received written notice
thereof from the Issuer, a Domestic Guarantor or a holder of Domestic Guarantor
Senior Indebtedness or from any trustee, fiduciary or agent therefor; and, prior
to the receipt of any such written notice, the Trustee, subject to the
provisions of this Section 10.14, shall be entitled in all respects to assume
that no such facts exist.
(b) Subject to the provisions of Section 7.1 hereof, the Trustee shall
be entitled to rely on the delivery to it of a written notice to the Trustee,
the Issuer and a Domestic Guarantor by a Person representing itself to be a
holder of Domestic Guarantor Senior Indebtedness (or a trustee, fiduciary or
agent therefor) to establish that such notice has been given by a holder of
Domestic Guarantor Senior Indebtedness (or a trustee, fiduciary or agent
therefor); provided, however, that failure to give such notice to the Issuer or
-------- -------
a Domestic Guarantor shall not affect in any way the ability of the Trustee to
rely on such notice. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of any Person as a
holder of Domestic Guarantor Senior Indebtedness to participate in any payment
or distribution pursuant to this Article 10, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Domestic Guarantor Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article
10, and if such evidence is not furnished, the Trustee may defer any payment
to such Person
118
pending judicial determination as to the right of such Person to receive such
payment.
Section 10.15. Reliance on Judicial Order or
Certificate of Liquidating Agent.
--------------------------------
Upon any payment or distribution of assets of the Issuer or a
Guarantor referred to in this Article 10, the Trustee, subject to the provisions
of Section 7.1 hereof, and the Holders shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness, Domestic Guarantor
Senior Indebtedness, Canadian Guarantor Senior Indebtedness and other
Indebtedness of the Issuer or a Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article 10.
Section 10.16. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Issuer and be then acting hereunder, the term "Trustee" as
used in this Article 10 shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article 10 in addition to or in place of the Trustee.
Section 10.17. No Suspension of Remedies.
-------------------------
Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Article 6 or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any,
119
under this Article 10 of the holders, from time to time, of Domestic Guarantor
Senior Indebtedness.
Section 10.18. Canadian Guarantee Obligations Senior Ranking.
----------------------------------------------
Each Canadian Guarantor, by execution of a Canadian Guarantee, will
covenant and agree, and each Holder of Notes, by its acceptance thereof likewise
covenants and agrees that the Indebtedness represented by the Canadian Guarantee
and the payment of any obligations pursuant to the Canadian Guarantee will rank
pari passu with all Canadian Guarantor Senior Indebtedness.
---- -----
ARTICLE 11.
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 11.2. Notices.
-------
Any notice or communication shall be given in writing and delivered in
person, sent by facsimile, delivered by commercial courier service or mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Issuer, Xxxxxx Xxxxx
or any other Guarantor:
Xxxxxx Xxxxx Corp.
000 Xxxx Xxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
Fax Number: (000) 000-0000
Copy to:
120
Cozen and X'Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax Number: (000) 000-0000
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx - 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Fax Number: (000) 000-0000
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Issuer, Xxxxxx Xxxxx, any other Guarantor or the Trustee by
written notice to the others may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar. If a notice or communication to a Noteholder is mailed
in the manner provided above, it shall be deemed duly given on the date so
deposited in the mail, whether or not the addressee receives it.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 11.3. Communications by Holders with Other Holders.
--------------------------------------------
121
Noteholders may communicate pursuant to TIA (S)312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Issuer, Xxxxxx Xxxxx, the other Guarantors, the Trustee, the Registrar and
anyone else shall have the protection of TIA (S) 312(c).
Section 11.4. Certificate and Opinion as to Conditions
Precedent.
----------------------------------------
Upon any request or application by the Issuer, Xxxxxx Xxxxx or any
other Guarantor to the Trustee to take any action under this Indenture, the
Issuer and Xxxxxx Xxxxx shall furnish to the Trustee at the request of the
Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 11.5 below) in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 11.5 below) in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 11.5. Statements Required in Certificate
and Opinion.
----------------------------------
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(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;
122
(3) a statement that, in the opinion of such Person, it or he has made
such examination or investigation as is necessary to enable it or him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
Section 11.6. When Treasury Notes Disregarded.
-------------------------------
In determining whether the Holders of the required aggregate principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Issuer, Xxxxxx Xxxxx, any other Guarantor or any other obligor on the
Notes or by any Affiliate of any of them shall be disregarded as though they
were not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes which the Trustee actually knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Notes and that the pledgee is not
the Issuer, Xxxxxx Xxxxx, any other Guarantor or any other obligor upon the
Notes or any Affiliate of any of them.
Section 11.7. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
Section 11.8. Business Days; Legal Holidays.
-----------------------------
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next
123
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
Section 11.9. Governing Law.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AND ANY GUARANTOR AGREES TO SUBMIT
TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 11.10. No Adverse Interpretation of
Other Agreements.
---------------------------
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Issuer, Xxxxxx Xxxxx or any Subsidiary
thereof. No such indenture, loan, security or debt agreement may be used to
interpret this Indenture.
Section 11.11. No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of or premium, if any, or
interest on any of the Notes, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Issuer, Xxxxxx Xxxxx or any other Guarantor in this Indenture
or in any supplemental indenture, or in any of the Notes, or because of the
creation of any Indebtedness represented thereby, shall be had against any
shareholder, officer, director, partner, affiliate, beneficiary or employee, as
such, past, present or future, of the Issuer, Xxxxxx Xxxxx or any other
Guarantor of any successor corporation or against the property or assets of any
such shareholder, officer, employee, partner, affiliate, beneficiary or
director, either directly or through the Issuer, Xxxxxx Xxxxx or any other
Guarantor, or any successor corporation thereof, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being
124
expressly understood that this Indenture and the Notes are solely obligations of
the Issuer and any Guarantors, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, any shareholder, officer,
employee, partner, affiliate, beneficiary or director of the Issuer or any
Guarantor, or any successor corporation thereof, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or the Notes or implied
therefrom, and that any and all such personal liability of, and any and all
claims against every shareholder, officer, employee, partner, affiliate,
beneficiary and director, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Notes. It is understood that this limitation on recourse is
made expressly for the benefit of any such shareholder, employee, officer,
partner, affiliate, beneficiary or director and may be enforced by any one or
all of them.
Section 11.12. Successors.
----------
All agreements of the Issuer, Xxxxxx Xxxxx and the other Guarantors in
this Indenture and the Notes shall bind their respective successors. All
agreements of the Trustee, any additional trustee and any Paying Agents in this
Indenture shall bind its successor.
Section 11.13. Multiple Counterparts.
---------------------
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.14. Table of Contents, Headings, etc.
---------------------------------
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.15. Separability.
------------
125
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes 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.
126
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, and the Issuer's and Xxxxxx Xxxxx'x corporate seals to be hereunto
affixed and attested, all as of the date and year first written above.
XXXXXX XXXXX COMMAND COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ATTEST:
/s/ Xxxx X. Xxxxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Asst. Secretary
XXXXXX XXXXX CORP., for itself and
as a Domestic Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ATTEST:
/s/ Xxxx X. Xxxxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Asst. Secretary
The Bank of New York,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
127
EXHIBIT A
---------
(FACE OF NOTE)
FACE OF NOTE
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 TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE 2 OF THE INDENTURE.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES FOR THE BENEFIT OF THE ISSUER AND THE INITIAL PURCHASERS OF THIS NOTE
THAT THIS NOTE MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO
THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY
HERETO) OR (Y) BY ANY HOLDER THAT WAS AN AFFILIATE OF THE ISSUER AT ANY TIME
DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE,
OTHER THAN (1) TO THE ISSUER, (2)
A-1
SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE
OF TRANSFER ON THE REVERSE OF THIS NOTE), (3) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, AND, IF SUCH TRANSFER IS
BEING EFFECTED BY CERTAIN TRANSFERORS SPECIFIED IN THE INDENTURE PRIOR TO THE
EXPIRATION OF THE "40 DAY RESTRICTED PERIOD" (WITHIN THE MEANING OF RULE
903(c)(3) OF REGULATION S UNDER THE SECURITIES ACT), A CERTIFICATE WHICH MAY BE
OBTAINED FROM THE ISSUER OR THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE
ISSUER AND THE TRUSTEE, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT, OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE ISSUER AND THE INITIAL PURCHASERS THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) A NON-U.S.
PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING
THE REQUIREMENTS OF PARAGRAPH (o)(2) OF RULE 902 UNDER) REGULATION S UNDER THE
SECURITIES ACT. ANY TRANSFEREE OF THIS NOTE SHALL BE DEEMED TO HAVE REPRESENTED
EITHER (X) THAT IT IS NOT USING THE ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT ("ERISA") OR THE INTERNAL REVENUE
CODE (THE "CODE") TO PURCHASE THIS NOTE OR (Y) THAT ITS PURCHASE AND CONTINUED
HOLDING OF THE NOTE WILL BE COVERED BY A U.S. DEPARTMENT OF LABOR CLASS
EXEMPTION (WITH RESPECT TO PROHIBITED TRANSACTIONS UNDER SECTION 406(a) OF
ERISA).
A-2
CUSIP:
Number:
XXXXXX XXXXX COMMAND COMPANY
8-1/8% SENIOR NOTE DUE 2008
Xxxxxx Xxxxx Command Company, a Nova Scotia unlimited liability
company (the "Issuer", which term includes any successor corporation), for value
received promises to pay to _______________ or registered assigns the principal
sum of ______________ Dollars, on May 15, 2008.
Interest Payment Dates: May 15 and November 15, commencing November 15,
1998
Record Dates: May 1 and November 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
A-3
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
XXXXXX XXXXX COMMAND COMPANY
By: ___________________________
By: ___________________________
[SEAL]
CERTIFICATE OF AUTHENTICATION:
This is one of the 8-1/8% Senior Notes due 2008 referred to in the within
mentioned Indenture
Dated:
The Bank of New York,
as Trustee
By: _____________________________
Authorized Signatory
A-4
(REVERSE SIDE)
XXXXXX XXXXX COMMAND COMPANY
8-1/8% SENIOR NOTE DUE 2008
I. INTEREST.
Xxxxxx Xxxxx Command Company, a Nova Scotia unlimited liability
company (the "Issuer"), promises to pay interest on the principal amount of this
Note semiannually on May 15 and November 15 of each year (each an "Interest
Payment Date"), commencing on November 15, 1998, at the rate of 8-1/8% per
annum. Interest will be computed on the basis of a 360-day year of twelve 30-
day months. Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
the original issuance of the Notes.
The Issuer shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at the rate equal
to 1% per annum in excess of the rate borne by the Notes. Interest on the Notes
is subject to increase as provided herein in Paragraph VIII.
II. METHOD OF PAYMENT.
The Issuer will pay interest on this Note provided for in Paragraph I
above (except defaulted interest) to the person who is the registered Holder
of this Note at the close of business on May 1 or November 1 preceding the
Interest Payment Date (whether or not such day is a Business Day). The Holder
must surrender this Note to a Paying Agent to collect principal payments. The
Issuer will pay principal, premium, if any, and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts; provided, however, that the Issuer may pay principal, premium, if
-------- -------
any, and interest by check payable in such money. It may mail an interest check
to the Holder's registered address.
A-5
III. PAYING AGENT AND REGISTRAR.
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent and Registrar. The Issuer may change any
Paying Agent or Registrar without notice to the Holders of the Notes. Neither
the Issuer, Xxxxxx Xxxxx Corp., a Pennsylvania corporation ("Xxxxxx Xxxxx"),
nor any of their Subsidiaries or Affiliates may act as Paying Agent but may act
as registrar or co-registrar.
IV. INDENTURE; RESTRICTIVE COVENANTS.
The Issuer issued this Note under an Indenture dated as of April 7,
1998 (the "Indenture") by and among the Issuer, Xxxxxx Xxxxx and the Trustee.
The terms of this Note include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
(S)(S) 77aaa-77bbbb) as in effect on the date of the Indenture. This Note is
subject to all such terms, and the Holder of this Note is referred to the
Indenture and said Trust Indenture Act for a statement of them. All
capitalized terms in this Note, unless otherwise defined, have the meanings
assigned to them by the Indenture.
The Notes are general unsecured obligations of the Issuer limited to
$135,000,000 aggregate principal amount. The Indenture imposes certain
restrictions on, among other things, the incurrence of indebtedness, the
incurrence of liens and the issuance of preferred stock by the Issuer, Xxxxxx
Xxxxx and their subsidiaries, mergers and sale of assets, the payments of
dividends on, or the repurchase of, capital stock of the Issuer, Xxxxxx Xxxxx
and their subsidiaries, certain other restricted payments by the Issuer, Xxxxxx
Xxxxx and their subsidiaries, certain transactions with, and investments in,
their affiliates, certain sale and lease-back transactions and a provision
regarding change-of-control of Xxxxxx Xxxxx transactions. The restrictions are
subject to a number of important qualifications and exceptions.
A-6
V. OPTIONAL REDEMPTION.
The Issuer, at its option, may redeem the Notes, in whole or in part,
at any time on or after May 15, 2003 at the redemption prices set forth in
Section 3.7 of the Indenture, together, in each case, with accrued and unpaid
interest to the redemption date.
In addition, the Issuer, at its option, may redeem Notes out of the
Net Proceeds of one or more Public Equity Offerings at the redemption price, in
the amount and under the terms set forth in the Indenture.
In addition, the Issuer, at its option, may redeem the Notes as a
whole, but not in part, in the event the Issuer has become or would become
obligated to pay any Additional Amounts under the terms set forth in the
Indenture.
VI. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 30
days but not more than 60 days prior to the redemption date to each Holder of
Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after any Redemption
Date, interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Issuer shall fail to redeem any such Note or portion
thereof.
VII. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be used,
subject to further limitations contained therein, to make an offer to purchase
certain amounts of Notes in accordance with the procedures set forth in the
Indenture. The Issuer is also required to make an offer to purchase Notes upon
occurrence of a Change of Control of Xxxxxx Xxxxx in accordance with procedures
set forth in the Indenture.
A-7
VIII. THE REGISTRATION AGREEMENT.
The Holder of this Note is entitled to the benefits of a Registration
Agreement, dated as of April 2, 1998 among the Issuer, Xxxxxx Xxxxx and Salomon
Brothers Inc (as such may be amended from time to time, the "Registration
Agreement"). Capitalized terms used in this subsection but not defined herein
have the meanings assigned to them in the Registration Agreement.
In the event that (i) neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been filed with the
Commission within 90 days after the Issue Date, (ii) within 180 days after the
Issue Date, neither the Exchange Offer Registration Statement nor the Shelf
Registration Statement has been declared effective, (iii) within 210 days of the
Issue Date, neither the Registered Exchange Offer has been consummated with
respect to all Notes validly tendered in accordance with the terms of the
Registered Exchange Offer nor the Shelf Registration Statement has been declared
effective, or (iv) after either the Exchange Offer Registration Statement or the
Shelf Registration Statement has been declared effective, such Registration
Statement thereafter ceases to be effective or usable in connection with resales
of the Notes or the Exchange Notes at any time that the Issuer is obligated to
maintain the effectiveness thereof pursuant to the Registration Agreement
(each such event referred to in clauses (i) through (iv) above being referred to
herein as a "Registration Default"), the sole remedy available to holders of
Registrable Securities is that interest ("Special Interest") will accrue on
such Notes and Exchange Notes during the time that they constitute Registrable
Securities (in addition to the interest described above) from and including the
date on which any Registration Default shall occur to but excluding the date on
which all such Registration Defaults have been cured or with respect to any Note
or Exchange Note, it ceases to be a Registrable Security. Special Interest
shall accrue at a rate of 0.25% per annum during the 90-day period immediately
following the occurrence of any Registration Default and shall increase by 0.25%
per annum at the end of each subsequent 90-day period, but in no event shall
such Special Interest exceed 1.00% per annum in the aggregate above the interest
A-8
rate stated on the face of the Notes regardless of the number or duration of
Registration Defaults.
There shall not be deemed to exist a Registration Default (a) with
respect to any delay in meeting the time periods set forth in clauses (i) -
(iii) above or keeping a Registratioln Statement continuously effective under
clause (iv) above during any period when the reason for such delay or lack of
continuous effectiveness is that a holder of Registrable Securities has failed
to provide the Issuer the information required to be provided to the Issuer by
such holder in the Registration Agreement following a request by the Issuer to
each such holder of Registrable Securities for such required information or (b)
with respect to clause (iv) above, during any period the Issuer has not kept the
Registration Statement continuously effective because it has determined in good
faith and for valid business reasons (not including avoidance of the Issuer's
obligations under the Registration Agreement), including without limitation the
acquisition or divestiture of assets, to take action which would cause the
continuous effectiveness of such Registration Statement not to be maintained,
provided the Issuer promptly thereafter complies with the requirements of
Section 4(k) of the Registration Agreement, if applicable.
IX. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. A Holder may register the transfer or
exchange of Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Note
selected for redemption for a period of 15 days before the day of mailing of the
notice of redemption of any such Notes to be redeemed or any Note after it is
called for redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
X. PERSONS DEEMED OWNERS.
A-9
The registered Holder of this Note may be treated as the owner of it
for all purposes.
XI. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any Note
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Issuer at its request. After that, Holders entitled to money must
look only to the Issuer for payment as general creditors unless an "abandoned
property" law designates another person.
XII. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Issuer, Xxxxxx Xxxxx, any other
Guarantors, and the Trustee with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding and any existing
default or compliance with any provision may be waived in a particular instance
with the consent of the Holders of a majority in principal amount of the Notes
then outstanding. Without the consent of Holders, the Issuer, Xxxxxx Xxxxx, any
other Guarantors and the Trustee may amend the Indenture or the Notes or
supplement the Indenture for certain specified purposes including providing
for uncertificated Notes in addition to certificated Notes, and curing any
ambiguity, defect or inconsistency, or making any other change that does not
materially and adversely affect the rights of any Holder.
XIII. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation will be released from those obligations.
XIV. DEFAULTS AND REMEDIES.
A-10
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Section 6.1(6) or (7) of the
Indenture with respect to the Issuer or Xxxxxx Xxxxx) occurs and is continuing,
the Trustee by notice to Xxxxxx Xxxxx or the Issuer, or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding by written
notice to the Issuer, Xxxxxx Xxxxx and the Trustee, may declare to be
immediately due and payable the entire principal amount of all the Notes then
outstanding plus accrued but unpaid interest to the date of acceleration and (i)
such amounts shall become immediately due and payable or (ii) if there are any
amounts outstanding under or in respect of the Credit Facility, such amounts
shall become due and payable upon the first to occur of an acceleration of
amounts outstanding under or in respect of the Credit Facility or five Business
Days after receipt by the Issuer or Xxxxxx Xxxxx and the Representative of
notice of the acceleration of the Notes; provided, however, that after such
-------- -------
acceleration but before judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the outstanding Notes may rescind and annul such acceleration and its
consequences if all existing Events of Default, other than the nonpayment of
principal, premium or interest that has become due solely because of the
acceleration, have been cured or waived and if the rescission would not conflict
with any judgment or decree. No such rescission shall affect any subsequent
Default or impair any right consequent thereto. In case an Event of Default
specified in Section 6.1(6) or (7) of the Indenture with respect to the Issuer
or Xxxxxx Xxxxx occurs, such principal amount, together with premium, if any,
and interest with respect to all of the Notes, shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Notes. The Trustee may withhold from Holders notice of any
continuing default (except a default in payment of principal, premium, if any,
or interest) if it determines that withholding notice is in their interests.
XV. TRUSTEE DEALINGS WITH THE ISSUER.
A-11
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Issuer, any Guarantor or their Affiliates, and may otherwise deal with the
Issuer, any Guarantor or their Affiliates, as if it were not Trustee.
XVI. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee, partner, affiliate, beneficiary or shareholder, as such, of the
Issuer, Xxxxxx Xxxxx or any other Guarantor shall not have any liability for any
obligations of the Issuer or any Guarantor under the Notes or the Indenture or
for any claim based on, in respect or by reason of, such obligations or their
creation. The Holder of this Note by accepting this Note waives and releases
all such liability. The waiver and release are part of the consideration or the
issuance of this Note.
XVII. GUARANTEES.
This Note will be entitled to the benefits of certain Guarantees, if
any, made for the benefit of the Holders. Reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Domestic Guarantors and the Canadian
Guarantors, the Trustee and the Holders.
XVIIII. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Issuer with certain conditions set forth in the
Indenture.
XIX. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not
A-12
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
XX. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Issuer 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 of the Notes. 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.
XXI. GOVERNING LAW.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AND EACH GUARANTOR, IF ANY, AGREE
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THIS NOTE.
THE ISSUER WILL FURNISH TO ANY HOLDER OF THIS NOTE UPON WRITTEN
REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
XXXXXX XXXXX COMMAND COMPANY, c/o XXXXXX XXXXX CORP., 000 XXXX XXXXXX, XXXX XX
XXXXXXX, XXXXXXXXXXXX 00000, ATTENTION: CHIEF FINANCIAL OFFICER.
XXII. AUTHENTICATION.
This Note shall not be valid until the Trustee manually signs the
Certificate of Authentication on the other side of this Note.
A-13
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint __________________ agent to transfer this Note on the
books of the Issuer. 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: _______________________
(Signature must be guaranteed)
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the second anniversary of the issuance of the Note (or any
predecessor Note), the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer:
[Check one]
-----------
(1) [_] to the Issuer, Xxxxxx Xxxxx Corp. or a subsidiary thereof;
or
A-14
(2) [_] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
(3) [_] outside the United States to a "foreign person" in
compliance with Rule 904 of Regulation S under the
Securities Act of 1933, as amended; or
(4) [_] pursuant to the exemption from registration provided by
Rule 144 under the Securities Act of 1933, as amended; or
(5) [_] pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) [_] pursuant to another available exemption from the
registration requirements of the Securities Act of 1933,
as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Issuer as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
[_] The transferee is an Affiliate of the Issuer.
Unless one of the items is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if item
-------- -------
(3), (4), or (6) is checked, the Issuer or the Trustee may require, prior to
registering any such transfer of the Notes, in their sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3)) and other information as the Trustee or the Issuer has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in
A-15
a transaction not subject to, the registration requirements of the Securities
Act of 1933, as amended.
If none of the foregoing items are checked, the Trustee or Registrar shall
not be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Article 2 of the Indenture shall have been
satisfied.
Dated: _______________________ Signed: ___________________________________
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee: _______________________________________________________
A-16
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: ________________ ______________________________________________
NOTICE: To be executed by an executive officer
A-17
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Issuer pursuant to Section 4.10 or Section 4.19 of the Indenture, check the
appropriate box:
[_] Section 4.10 [_] Section 4.19
If you want to have only part of the Note purchased by the Issuer
pursuant to Section 4.10 or Section 4.19 of the Indenture, state the amount you
elect to have purchased:
$ _______________________
(multiple of $1,000)
Date: ___________________
Your Signature: ___________________________________________
(Sign exactly as your name appears on the face of this Note)
__________________________
Signature Guaranteed
A-18
EXHIBIT B
---------
FORM OF LEGEND FOR GLOBAL NOTES
FACE OF NOTE
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 TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE 2 OF THE INDENTURE.
B-1
CUSIP:
Number:
XXXXXX XXXXX COMMAND COMPANY
8-1/8% SENIOR NOTE DUE 2008
Xxxxxx Xxxxx Command Company, a Nova Scotia unlimited liability
company (the "Issuer", which term includes any successor corporation), for value
received promises to pay to _______________ or registered assigns the principal
sum of ______________ Dollars, on May 15, 2008.
Interest Payment Dates: May 15 and November 15, commencing November 15,
1998
Record Dates: May 1 and November 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
B-2
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
XXXXXX XXXXX COMMAND COMPANY
By: ________________________________
By: ________________________________
[SEAL]
CERTIFICATE OF AUTHENTICATION:
This is one of the 8-1/8% Senior Notes due 2008 referred to in the within
mentioned Indenture
Dated:
The Bank of New York,
as Trustee
By: _________________________
Authorized Signatory
B-3
(REVERSE SIDE)
XXXXXX XXXXX COMMAND COMPANY
8-1/8% SENIOR NOTE DUE 2008
I. INTEREST.
Xxxxxx Xxxxx Command Company, a Nova Scotia unlimited liability
company (the "Issuer"), promises to pay interest on the principal amount of this
Note semiannually on May 15 and November 15 of each year (each an "Interest
Payment Date"), commencing on November 15, 1998, at the rate of 8-1/8% per
annum. Interest will be computed on the basis of a 360-day year of twelve 30-
day months. Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
the original issuance of the Notes.
The Issuer shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at the rate equal
to 1% per annum in excess of the rate borne by the Notes.
II. METHOD OF PAYMENT.
The Issuer will pay interest on this Note provided for in Paragraph I
above (except defaulted interest) to the person who is the registered Holder
of this Note at the close of business on May 1 or November 1 preceding the
Interest Payment Date (whether or not such day is a Business Day). The Holder
must surrender this Note to a Paying Agent to collect principal payments. The
Issuer will pay principal, premium, if any, and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts; provided, however, that the Issuer may pay principal, premium, if
-------- -------
any, and interest by check payable in such money. It may mail an interest check
to the Holder's registered address.
B-4
III. PAYING AGENT AND REGISTRAR.
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent and Registrar. The Issuer may change any
Paying Agent or Registrar without notice to the Holders of the Notes. Neither
the Issuer, Xxxxxx Xxxxx Corp., a Pennsylvania corporation ("Xxxxxx Xxxxx"),
nor any of their Subsidiaries or Affiliates may act as Paying Agent but may act
as registrar or co-registrar.
IV. INDENTURE; RESTRICTIVE COVENANTS.
The Issuer issued this Note under an Indenture dated as of April 7,
1998 (the "Indenture") by and among the Issuer, Xxxxxx Xxxxx and the Trustee.
The terms of this Note include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
(S)(S) 77aaa-77bbbb) as in effect on the date of the Indenture. This Note is
subject to all such terms, and the Holder of this Note is referred to the
Indenture and said Trust Indenture Act for a statement of them. All
capitalized terms in this Note, unless otherwise defined, have the meanings
assigned to them by the Indenture.
The Notes are general unsecured obligations of the Issuer limited to
$135,000,000 aggregate principal amount. The Indenture imposes certain
restrictions on, among other things, the incurrence of indebtedness, the
incurrence of liens and the issuance of preferred stock by the Issuer, Xxxxxx
Xxxxx and their subsidiaries, mergers and sale of assets, the payments of
dividends on, or the repurchase of, capital stock of the Issuer, Xxxxxx Xxxxx
and their subsidiaries, certain other restricted payments by the Issuer, Xxxxxx
Xxxxx and their subsidiaries, certain transactions with, and investments in,
their affiliates, certain sale and lease-back transactions and a provision
regarding change-of-control of Xxxxxx Xxxxx transactions. The restrictions are
subject to a number of important qualifications and exceptions.
B-5
V. OPTIONAL REDEMPTION.
The Issuer, at its option, may redeem the Notes, in whole or in part,
at any time on or after May 15, 2003 at the redemption prices set forth in
Section 3.7 of the Indenture, together, in each case, with accrued and unpaid
interest to the redemption date.
In addition, the Issuer, at its option, may redeem Notes out of the
Net Proceeds of one or more Public Equity Offerings at the redemption price, in
the amount and under the terms set forth in the Indenture.
In addition, the Issuer, at its option, may redeem the Notes as a
whole, but not in part, in the event the Issuer has become or would become
obligated to pay any Additional Amounts, in the amount and under the terms set
forth in the Indenture.
VI. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 30
days but not more than 60 days prior to the redemption date to each Holder of
Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after any Redemption
Date, interest will cease to accrue on the Notes or portions thereof called for
redemption unless the Issuer shall fail to redeem any such Note or portion
thereof.
VII. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be used,
subject to further limitations contained therein, to make an offer to purchase
certain amounts of Notes in accordance with the procedures set forth in the
Indenture. The Issuer is also required to make an offer to purchase Notes upon
occurrence of a Change of Control of Xxxxxx Xxxxx in accordance with procedures
set forth in the Indenture.
VIII. DENOMINATIONS, TRANSFER, EXCHANGE.
B-6
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. A Holder may register the transfer or
exchange of Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Note
selected for redemption for a period of 15 days before the day of mailing of the
notice of redemption of any such Notes to be redeemed or any Note after it is
called for redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
IX. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it
for all purposes.
X. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any Note
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Issuer at its request. After that, Holders entitled to money must
look only to the Issuer for payment as general creditors unless an "abandoned
property" law designates another person.
XI. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Issuer, Xxxxxx Xxxxx, any other
Guarantors, and the Trustee with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding and any existing
default or compliance with any provision may be waived in a particular instance
with the consent of the Holders of a majority in principal amount of the Notes
then outstanding. Without the consent of Holders, the Issuer, Xxxxxx Xxxxx, any
other Guarantors, and the Trustee may amend the Indenture or the Notes or
supplement the Indenture for certain specified purposes including providing
for uncertificated Notes in addition to certificated Notes, and
B-7
curing any ambiguity, defect or inconsistency, or making any other change that
does not materially and adversely affect the rights of any Holder.
XII. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation will be released from those obligations.
XIII. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Section 6.1(6) or (7) of the
Indenture with respect to the Issuer or Xxxxxx Xxxxx) occurs and is continuing,
the Trustee by notice to Xxxxxx Xxxxx or the Issuer, or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding by written
notice to the Issuer, Xxxxxx Xxxxx and the Trustee, may declare to be
immediately due and payable the entire principal amount of all the Notes then
outstanding plus accrued but unpaid interest to the date of acceleration and (i)
such amounts shall become immediately due and payable or (ii) if there are any
amounts outstanding under or in respect of the Credit Facility, such amounts
shall become due and payable upon the first to occur of an acceleration of
amounts outstanding under or in respect of the Credit Facility or five Business
Days after receipt by the Issuer or Xxxxxx Xxxxx and the Representative of
notice of the acceleration of the Notes; provided, however, that after such
-------- -------
acceleration but before judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the outstanding Notes may rescind and annul such acceleration and its
consequences if all existing Events of Default, other than the nonpayment of
principal, premium or interest that has become due solely because of the
acceleration, have been cured or waived and if the rescission would not conflict
with any judgment or decree. No such rescission shall affect any subsequent
Default or impair any right
B-8
consequent thereto. In case an Event of Default specified in Section 6.1(6) or
(7) of the Indenture with respect to the Issuer or Xxxxxx Xxxxx occurs, such
principal amount, together with premium, if any, and interest with respect to
all of the Notes, shall be due and payable immediately without any declaration
or other act on the part of the Trustee or the Holders of the Notes. The Trustee
may withhold from Holders notice of any continuing default (except a default in
payment of principal, premium, if any, or interest) if it determines that
withholding notice is in their interests.
XIV. TRUSTEE DEALINGS WITH THE ISSUER.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Issuer, any Domestic Guarantor or their Affiliates, and may otherwise deal with
the Issuer, any Domestic Guarantor or their Affiliates, as if it were not
Trustee.
XV. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee, partner, affiliate, beneficiary or shareholder, as such, of the
Issuer, Xxxxxx Xxxxx or any other Guarantor shall not have any liability for any
obligations of the Issuer or any Domestic Guarantor under the Notes or the
Indenture or for any claim based on, in respect or by reason of, such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration or the issuance of this Note.
XVI. GUARANTEES.
This Note will be entitled to the benefits of certain Guarantees, if
any, made for the benefit of the Holders. Reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Domestic Guarantors and the Canadian
Guarantors, the Trustee and the Holders.
B-9
XVII. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Issuer with certain conditions set forth in the
Indenture.
XVIII. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
XIX. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Issuer 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 of the Notes. 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.
XX. GOVERNING LAW.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AND EACH GUARANTOR, IF ANY, AGREE
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THIS NOTE.
THE ISSUER WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: XXXXXX
XXXXX COMMAND
B-10
COMPANY, c/o XXXXXX XXXXX CORP., 000 XXXX XXXXXX, XXXX XX XXXXXXX, XXXXXXXXXXXX
00000, ATTENTION: CHIEF FINANCIAL OFFICER.
XXI. AUTHENTICATION.
This Note shall not be valid until the Trustee manually signs the
Certificate of Authentication on the other side of this Note.
B-11
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint _____________ agent to transfer this Note on the books
of the Issuer. 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: _____________________________
(Signature must be guaranteed)
B-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.10 or 4.19 of the Indenture, check the box: [_]
If you want to elect to have only part of this Note purchased by
the Issuer pursuant to Section 4.10 or 4.19 of the Indenture, state the
amount: $
Date: ________________ Your Signature: ______________________________
(Sign exactly as your name appears on the other
side of the Note)
Signature Guarantee: ________________________________________________
(Signature must be guaranteed)
B-13
EXHIBIT C
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
------------------------
[ ], [ ]
[ ]
[ ]
[ ]
Re: Xxxxxx Xxxxx Command Company (the "Issuer") 8-1/8% Senior
Notes due 2008 (the "Notes")
---------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $______ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements
C-1
of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You, the Issuer and counsel for the Issuer are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: __________________________
Authorized Signature
C-2
EXHIBIT D
---------
Form of Certificate To Be Delivered
in Connection with Certain Transfers
Pursuant to Rule 144A
---------------------
[ ], [ ]
[ ]
[ ]
[ ]
Re: Xxxxxx Xxxxx Command Company (the "Issuer") 8-1/8% Senior
Notes due 2008 (the "Notes")
---------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $______ aggregate principal
amount of the Notes, we hereby certify that such transfer is being effected
pursuant to and in accordance with Rule 144A under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we hereby certify
that the Notes are being transferred to a person that we reasonably believe is
purchasing the Notes for its own account or an account with respect to which it
exercises sole investment discretion and such person and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, in a transaction meeting the requirements of Rule 144A and such
Notes are being transferred in compliance with any applicable blue sky
securities laws of any such state of the United States.
D-1
You, the Issuer and counsel for the Issuer are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By: _________________________________
Authorized Signature
D-2
EXHIBIT E
---------
FORM OF DOMESTIC GUARANTEE
The undersigned (the "Domestic Guarantor") hereby unconditionally
guarantees, on a senior subordinated basis, jointly and severally with all other
domestic guarantors under the Indenture dated as of April 7, 1998 by and among
Xxxxxx Xxxxx Command Company, a Nova Scotia unlimited liability company (the
"Issuer"), Xxxxxx Xxxxx Corp., a Pennsylvania corporation, for itself and as a
Domestic Guarantor, and The Bank of New York, as trustee (as amended, restated
or supplemented from time to time, the "Indenture"), to the extent set forth
in the Indenture and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of, and premium, if any, and interest on the
Notes, when and as the same shall become due and payable, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on
overdue principal, and premium, if any, and, to the extent permitted by law,
interest, and the due and punctual performance of all other obligations of the
Issuer to the Noteholders or the Trustee, all in accordance with the terms set
forth in Article 10 of the Indenture, and (b) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
The obligations of the Domestic Guarantor to the Noteholders and to
the Trustee pursuant to this Domestic Guarantee and the Indenture are expressly
set forth in Article 10 of the Indenture and reference is hereby made to the
Indenture for the precise terms and limitations of this Domestic Guarantee.
Dated:
E-1
IN WITNESS WHEREOF, the undersigned has caused this Domestic Guarantee
to be duly executed as of the date written above.
Domestic Guarantor:
By: _____________________________
Name:
Title:
E-2
EXHIBIT F
---------
FORM OF CANADIAN GUARANTEE
The undersigned (the "Canadian Guarantor") hereby unconditionally
guarantees, on a senior basis, jointly and severally with all other Canadian
guarantors under the Indenture dated as of April 7, 1998 by and among Xxxxxx
Xxxxx Command Company, a Nova Scotia unlimited liability company (the "Issuer"),
Xxxxxx Xxxxx Corp., a Pennsylvania corporation, for itself and as a Domestic
Guarantor, and The Bank of New York, as trustee (as amended, restated or
supplemented from time to time, the "Indenture"), to the extent set forth in the
Indenture and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of, and premium, if any, and interest on the
Notes, when and as the same shall become due and payable, whether at maturity,
by acceleration or otherwise, the due and punctual payment of interest on
overdue principal, and premium, if any, and, to the extent permitted by law,
interest, and the due and punctual performance of all other obligations of the
Issuer to the Noteholders or the Trustee, all in accordance with the terms set
forth in Article 10 of the Indenture, and (b) in case of any extension of time
of payment or renewal of any Notes or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
The obligations of the Canadian Guarantor to the Noteholders and to
the Trustee pursuant to this Canadian Guarantee and the Indenture are expressly
set forth in Article 10 of the Indenture and reference is hereby made to the
Indenture for the precise terms and limitations of this Canadian Guarantee.
Dated:
F-1
IN WITNESS WHEREOF, the undersigned has caused this Canadian Guarantee
to be duly executed as of the date written above.
Canadian Guarantor:
By: _____________________________
Name:
Title:
F-2
