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RENAISSANCE COSMETICS, INC.,
as Issuer,
RENAISSANCE GUARANTOR, INC.,
as Guarantor,
and
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
-----------------------------
INDENTURE
Dated as of February 7, 1997
----------------------------
$200,000,000
11 3/4% Senior Notes due 2004
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
----------- -----------------
ss.310(a)(1) ............................................. 7.10; 11.1
(a)(2) .............................................. 7.10; 11.1
(a)(3) .............................................. N.A.
(a)(4) .............................................. N.A.
(b) ................................................. 7.8; 7.10; 11.2
(c) ................................................. N.A.
ss.311(a) ................................................ 7.11
(b) ................................................. 7.11
(c) ................................................. N.A.
ss.312(a) ................................................ 2.6
(b) ................................................. 11.3
(c) ................................................. 11.3
ss.313(a) ................................................ 7.6
(b)(1) .............................................. 7.6
(b)(2) .............................................. 7.6
(c) ................................................. 7.6; 11.2
(d) ................................................. 7.6
ss.314(a) ................................................ 4.6; 4.7(a); 11.2
(b) ................................................. 10.7
(c)(1) .................................................. 11.4
(c)(2) .............................................. 11.4
(c)(3) .............................................. 11.4
(d) ................................................. 10.8; 10.9
(e) ................................................. 11.5
(f) ................................................. N.A.
ss.315(a) ................................................ 7.1(b)
(b) ................................................. 7.5; 11.2
(c) ................................................. 7.1(a)
(d) ................................................. 7.1(c)
(e) ................................................. 6.11
ss.316(a) (last sentence) ................................ 2.10
(a)(1)(A) ........................................... 6.5
(a)(1)(B) ........................................... 6.4
(a)(2) .............................................. N.A.
(b) ................................................. 6.7
(c) ................................................ 9.4
ss. 317(a)(1) ............................................ 6.8
(a)(2) .............................................. 6.9
(b) ................................................. 2.5
ss. 318(a) ............................................... 11.1
--------------------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be
deemed to be a part of this Indenture.
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
1.1 Definitions................................................. 1
1.2 Incorporation by Reference of Trust
Indenture Act............................................
1.3 Rules of Construction.......................................
ARTICLE II
THE NOTES
2.1 Amount of Notes.............................................
2.2 Form and Dating.............................................
2.3 Execution and Authentication................................
2.4 Registrar and Paying Agent..................................
2.5 Paying Agent To Hold Money in Trust.........................
2.6 Noteholder Lists............................................
2.7 Transfer and Exchange.......................................
2.8 Replacement Notes...........................................
2.9 Outstanding Notes...........................................
2.10 Treasury Notes..............................................
2.11 Temporary Notes.............................................
2.12 Cancellation................................................
2.13 Defaulted Interest..........................................
2.14 CUSIP Number................................................
2.15 Deposit of Moneys...........................................
2.16 Book-Entry Provisions for Global Notes......................
2.17 Special Transfer Provisions.................................
2.18 Computation of Interest.....................................
ARTICLE III
REDEMPTION
3.1 Election To Redeem; Notices to Trustee......................
3.2 Selection of Notes To Be Redeemed...........................
3.3 Notice of Redemption........................................
3.4 Effect of Notice of Redemption..............................
3.5 Deposit of Redemption Price.................................
3.6 Notes Redeemed in Part......................................
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Section Page
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ARTICLE IV
COVENANTS
4.1 Payment of Notes............................................
4.2 Maintenance of Office or Agency.............................
4.3 Corporate Existence.........................................
4.4 Payment of Taxes and Other Claims...........................
4.5 Maintenance of Properties; Insurance;
Books and Records; Compliance with Law...................
4.6 Compliance Certificates.....................................
4.7 SEC Reports.................................................
4.8 Limitation on Additional Indebtedness.......................
4.9 Limitation on Restricted Payments...........................
4.10 Limitation on Investments...................................
4.11 Limitation on Liens.........................................
4.12 Limitation on Dividends and Other
Payment Restrictions Affecting
Restricted Subsidiaries..................................
4.13 Limitation on Certain Asset Sales...........................
4.14 Limitation on Transactions with Affiliates..................
4.15 Change of Control...........................................
4.16 Limitation on Creation of Subsidiaries......................
4.17 Limitation on Preferred Stock of
Subsidiaries.............................................
4.18 Limitation on Capital Stock of
Subsidiaries.............................................
4.19 Limitation on Sale and Lease-Back
Transactions.............................................
4.20 Financing of Certain Acquisitions...........................
4.21 Waiver of Stay, Extension or Usury Laws.....................
4.22 Further Assurance to the Trustee............................
4.23 Disbursement of Funds; Escrow Account.......................
4.24 Payments for Consent........................................
4.25 Guarantor...................................................
ARTICLE V
SUCCESSOR CORPORATION
5.1 Merger, Consolidation or Sale of Assets.....................
5.2 Successor Entity Substituted................................
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Section Page
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ARTICLE VI
DEFAULT AND REMEDIES
6.1 Events of Default...........................................
6.2 Acceleration................................................
6.3 Other Remedies..............................................
6.4 Waiver of Past Default......................................
6.5 Control by Majority.........................................
6.6 Limitation on Suits.........................................
6.7 Rights of Holders To Receive Payment........................
6.8 Collection Suit by Trustee..................................
6.9 Trustee May File Proofs of Claim............................
6.10 Priorities..................................................
6.11 Undertaking for Costs.......................................
6.12 Restoration of Rights and Remedies..........................
ARTICLE VII
TRUSTEE
7.1 Duties of Trustee...........................................
7.2 Rights of Trustee...........................................
7.3 Individual Rights of Trustee................................
7.4 Trustee's Disclaimer........................................
7.5 Notice of Defaults..........................................
7.6 Reports by Trustee to Holders...............................
7.7 Compensation and Indemnity..................................
7.8 Replacement of Trustee......................................
7.9 Successor Trustee by Merger, Etc............................
7.10 Eligibility; Disqualification...............................
7.11 Preferential Collection of Claims
Against Company..........................................
7.12 Paying Agents...............................................
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
8.1 Termination of Company's Obligations........................
8.2 Legal Defeasance and Covenant Defeasance....................
8.3 Application of Trust Money..................................
8.4 Repayment to Company........................................
8.5 Reinstatement...............................................
8.6 Moneys Held by Paying Agent.................................
8.7 Moneys Held by Trustee......................................
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Section Page
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.1 Without Consent of Holders..................................
9.2 With Consent of Holders.....................................
9.3 Compliance with Trust Indenture Act.........................
9.4 Revocation and Effect of Amendments and
Consents.................................................
9.5 Notation on or Exchange of Notes............................
9.6 Trustee To Sign Amendments, Etc.............................
ARTICLE X
GUARANTEE OF NOTES;
COLLATERAL AND SECURITY
10.1 Guarantee...................................................
10.2 Execution and Delivery of Guarantee.........................
10.3 Limitation of Guarantee.....................................
10.4 Release of Guarantee........................................
10.5 Payments....................................................
10.6 Escrow Agreement............................................
10.7 Recording and Opinions......................................
10.8 Release of Collateral.......................................
10.9 Certificates of the Company and
Opinion of Counsel.......................................
10.10 Authorization of Actions To Be Taken
by the Trustee Under the Escrow Agreement................
10.11 Authorization of Receipt of Funds by
the Trustee Under the Escrow Agreement...................
10.12 Termination of Security Interest............................
ARTICLE XI
MISCELLANEOUS
11.1 Trust Indenture Act Controls................................
11.2 Notices.....................................................
11.3 Communications by Holders with Other
Holders..................................................
11.4 Certificate and Opinion of Counsel as
to Conditions Precedent..................................
11.5 Statements Required in Certificate
and Opinion of Counsel...................................
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Section Page
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11.6 Rules by Trustee, Paying Agent, Registrar...................
11.7 Legal Holidays..............................................
11.8 Governing Law...............................................
11.9 No Recourse Against Others..................................
11.10 Successors..................................................
11.11 Duplicate Originals.........................................
11.12 Separability................................................
11.13 No Adverse Interpretation of Other
Agreements...............................................
11.14 Table of Contents, Headings, Etc............................
SIGNATURES .........................................................
EXHIBIT A - Form of Note
EXHIBIT B - Form of Legend and Assignment for 144A Note
EXHIBIT C - Form of Legend and Assignment for Regulation S Note
EXHIBIT D - Form of Legend for Global Note
EXHIBIT E - Form of Certificate to Be Delivered in Connection
with Transfers to Non-QIB Accredited Investors
EXHIBIT F - Form of Certificate to Be Delivered in Connection
with Transfers Pursuant to Regulation S
EXHIBIT G - Form of Guarantee
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INDENTURE dated as of February 7, 1997 among RENAISSANCE COSMETICS,
INC., a Delaware corporation, as issuer (the "Company"), RENAISSANCE GUARANTOR,
INC., a Delaware corporation, as guarantor (the "Guarantor"), and UNITED STATES
TRUST COMPANY OF NEW YORK, as trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of $200.0 million aggregate principal
amount of 11 3/4% Senior Notes due 2004 of the Company (the "Notes") to be
issued as provided for in this Indenture.
The parties hereto agree as follows for the benefit of each other
and for the equal and ratable benefit of the holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person existing at
the time such Person becomes a Subsidiary or assumed in connection with the
acquisition of assets from such Person.
"Acquisition EBITDA" means, without duplication, (i) EBITDA for the
last four fiscal quarters for which internal financial statements are available
at the Determination Date (the "Acquisition EBITDA Period") with respect to a
business or Person which has been acquired by the Company or one of its
Subsidiaries or which is the subject of a binding acquisition agreement
requiring the calculation of EBITDA for purposes of Section 4.8 and, in each
case, with respect to which financial results on a consolidated basis with the
Company have not been made available for all or any portion of the related
Reference Period; plus (ii) in connection with any such acquisition, projected
quantifiable improvements in operating results due to an established program of
cost reductions (reasonably consistent with the cost reductions actually
achieved by the Company in connection with prior acquisitions) adopted, in good
faith, by the Company or one of its 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. Such Officers'
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Certificate shall confirm that any such anticipated cost reductions in excess of
$4.0 million have been reviewed for reasonableness and consistency with past
practice by an independent nationally-recognized investment banking firm or one
of the "Big Six" firms of independent public accountants and such firm shall not
have raised any material objections thereto. Each such Officers' Certificate
shall be signed by the Chief Financial Officer of the Company and another
Officer of the Company. Acquisition EBITDA of a business shall be a fixed number
determined as of the date the calculation of EBITDA for purposes of Section 4.8
is first required with respect to the acquisition of such business (the "First
Determination Date") and shall be utilized from the First Determination Date
through the date financial results are available for the four full fiscal
quarters following the acquisition (except to the extent that the EBITDA of such
acquired Person or business shall have been included for one or more full fiscal
quarters in the calculation of the Company's EBITDA, in which case the actual
EBITDA of such business or Person shall be included in the EBITDA of the Company
for such period). 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 the Company or the
subject of a pending acquisition agreement to the extent that, as of the First
Determination Date, the financial results for such business or Person have not
been included in the calculation of the Company's EBITDA for the entire
Reference Period.
"Acquisition EBITDA Period" has the meaning provided in
the definition of "Acquisition EBITDA."
"Acquisition Indebtedness" means Indebtedness incurred by the
Company or by any of its Subsidiaries the proceeds of which are used for the
acquisition of a mass-market fragrance or cosmetics business and related
facilities and assets.
"Additional Interest" means additional interest on the Notes payable
by the Company pursuant to the Registration Rights Agreement.
"Adjusted EBITDA" means the sum, without duplication, of (a) (i)
from the Issue Date until (but not including) the date on which internal
financial statements are first available for the second quarter of the Company's
fiscal year ending March 31, 1998 ("Fiscal 1997"), actual EBITDA of the Company
for the four fiscal quarters ending with the most recent fiscal quarter for
which internal financial statements are available; (ii) beginning on the date on
which the internal financial statements referred
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to in clause (i) are first available until (but not including) the date on which
internal financial statements for the third quarter of Fiscal 1997 are first
available, an amount equal to the greater of (A) actual EBITDA of the Company
for the four fiscal quarters ending with the most recent fiscal quarter for
which internal financial statements are available or (B) if the actual EBITDA of
the Company for the two most recently completed fiscal quarters equals or
exceeds $17.0 million, $34.0 million; (iii) beginning on the date on which the
internal financial statements referred to in clause (ii) are first available
until (but not including) the date on which internal financial statements for
the fourth quarter of Fiscal 1997 are first available, an amount equal to the
greater of (x) actual EBITDA of the Company for the four fiscal quarters ending
with the most recent fiscal quarter for which internal financial statements are
available or (y) if the actual EBITDA of the Company for the three most recently
completed fiscal quarters equals or exceeds $25.5 million, $34.0 million; and
(iv) thereafter, actual EBITDA of the Company for the four fiscal quarters
ending with the most recent fiscal quarter for which internal financial
statements are available, plus (b) Acquisition EBITDA.
"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.
"Affiliate Transaction" has the meaning provided in Section 4.14.
"Agent" means any Registrar or Paying Agent.
"Agent Members" has the meaning provided in Section 2.16(a).
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"Asset Sale" means the sale, transfer or other disposition (other
than to the Company or any of its Subsidiaries) in any single transaction or
series of related transactions having a fair market value in excess of $1.0
million of (a) any Capital Stock of or other equity interest in any Subsidiary,
(b) all or substantially all of the assets of the Company or of any Subsidiary,
(c) real property; provided, that any sale, transfer or other disposition of
real estate should not be deemed an "Asset Sale" if and for so long as the
proceeds thereof are used by the Company and its Subsidiaries to purchase, make
improvements to or commence operations on any real property owned or acquired by
the Company and its Subsidiaries promptly but in any event no later than 90 days
after such sale, transfer or other disposition, or (d) all or substantially all
of the assets of any business owned by the Company or any Subsidiary, or a
division, line of business or comparable business segment of the Company or any
Subsidiary thereof; provided, that Asset Sales shall not include sales, leases,
conveyances, transfers or other dispositions to the Company, to a Subsidiary, to
a Permitted Joint Venture or to any other Person if after giving effect to such
sale, lease, conveyance, transfer or other disposition such other Person becomes
a Subsidiary or a Permitted Joint Venture.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i)
cash received by the Company or any of its Subsidiaries 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 (including, without limitation, fees, disbursements and other charges
of attorneys, accountants and appraisers) related to such Asset Sale, (c)
provision for minority interest holders in any Subsidiary of the Company as a
result of such Asset Sale and (d) deduction of appropriate amounts to be
provided by the Company or such 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 the Company or such 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 the Company or any of its Subsidiaries from such Asset Sale or other
-5-
disposition upon the liquidation or conversion of such notes or non-cash
consideration into cash.
"Attributable Indebtedness" means, in respect of a Sale and
Lease-Back Transaction, as at 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 according to GAAP at
the cost of indebtedness implied in the lease) 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).
"Available Asset Sale Proceeds" means, with respect to an Asset
Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have not yet
been applied in accordance with clauses (iii)(a) or (iii)(b), and which have not
yet been the basis for an Available Proceeds Offer in accordance with clause
(iii)(c), of the first paragraph of Section 4.13.
"Available Proceeds Offer" has the meaning provided in Section 4.13.
"Bankruptcy Law" means (i) Title 11 of the U.S. Code or (ii) any
other United States Federal, any state law or the law of any other jurisdiction
relating to bankruptcy, insolvency, winding up, liquidation, reorganization or
relief of debtors.
"Bankruptcy Order" has the meaning provided in Section
6.1(b).
"Board of Directors" means the board of directors of the Company or
any duly constituted committee thereof which is authorized to make
determinations under this Indenture.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day except a Saturday, a Sunday or any day
on which banking institutions in New York, New York or the city in which the
-6-
principal corporate trust office of the Trustee are required or authorized by
law or other governmental action to be closed.
"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 Indebtedness shall be the capitalized amount of
such obligations determined in accordance with GAAP.
"CEDEL" has the meaning provided in Section 2.16(a).
"Change of Control" means the occurrence of one or more of the
following events: (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 50% or more of the total voting power of the Company's
Common Stock; (ii) prior to a Public Equity Offering, the Permitted Holders
collectively shall dispose of more than 50% of the shares of the Company's
Common Stock owned by the Permitted Holders in the aggregate as of the Issue
Date (excluding dispositions made to another Permitted Holder); (iii) any Person
(including a Person's Affiliates and associates), other than a Permitted Holder,
becomes the beneficial owner of more than 35% of the total voting power of the
Company's Common Stock, and the Permitted Holders together with the officers and
employees of the Company beneficially own, in the aggregate, a lesser percentage
of the total voting power of the Company's Common Stock than such other Person
and do not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the board of directors of the
Company; (iv) there shall be consummated any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation or
pursuant to which the Company's Common Stock would be converted into cash,
securities or other property, other than a merger or consolidation of the
Company in which the holders of the Company's Common Stock outstanding
immediately prior to the consolidation or merger hold, directly or indirectly,
-7-
at least a majority of the Common Stock of the surviving corporation immediately
after such consolidation or merger; or (v) subsequent to a Public Equity
Offering, during any period of two consecutive years, individuals who at the
beginning of such period constituted the board of directors of the Company
(together with any new directors whose election by such board of directors or
whose nomination for election by the stockholders of the Company has been
approved by 66 2/3% 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 the Company. For the purposes of this definition, an
"associate" of a Person means any other Person which would be included in a
"group" (as defined under Rule 13d-5 or any successor rule or regulation
promulgated under the Exchange Act) with such Person.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section
4.15.
"Change of Control Purchase Price" has the meaning provided in
Section 4.15.
"Collateral" has the meaning ascribed to such term in the Escrow
Agreement.
"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.
"Company" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and,
thereafter, means the successor.
"Company Request" means any written request signed in the name of
the Company 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 Company.
-8-
"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 Subsidiaries on a consolidated
basis, 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
incurred or 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 the
Company); provided, however, that, solely for purposes of the calculation of 1.6
times the Company's Cumulative Consolidated Interest Expense in Sec tion 4.9(c),
Consolidated Interest Expense shall exclude the amortization of deferred
financing costs.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate of the Net Income (before preferred stock dividends) 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 100% 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
the distribution of which for the relevant period was restricted by any Payment
Restriction shall be excluded to the extent of such Payment Restriction, (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 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 gains and losses shall be excluded.
-9-
"Consolidated Total Assets" of any Person means the consolidated
total assets of such Person, determined on a consolidated basis in accordance
with GAAP.
"Cumulative Consolidated Interest Expense" means, as of any date of
determination, Consolidated Interest Expense of the Company from January 1, 1997
to the end of the Company's most recently ended full fiscal quarter prior to
such date, taken as a single accounting period.
"Cumulative EBITDA" means, as of any date of determination, EBITDA
of the Company from January 1, 1997 to the end of the Company's most recently
ended full fiscal quarter prior to such date, taken as a single accounting
period.
"Custodian" has the meaning provided in Section 6.1(b).
"Default" means any event that is, or after notice or passage of
time 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 Company, which Person must be a clearing agency
registered under the Exchange Act.
"Determination Date" has the meaning provided in Section 4.8.
"Disqualified Capital Stock" means any Capital Stock of the Company
or any of its Subsidiaries 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 (other than an event which
constitutes a Change of Control), (i) matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole
option of the holder thereof (except upon the occurrence of a Change of
Control), in whole or in part, on or prior to the maturity date of the Notes, or
(ii) is convertible into or exchangeable for (at the sole option of the holder
thereof) (a) debt securities or (b) any Capital Stock referred to in (i) above,
in each case at any time prior to the final maturity of the Notes; provided,
that only the portion of Capital Stock which so matures or is mandatorily
redeemable, is so convertible or exchangeable or is so redeemable at the option
of the holder thereof prior to such final maturity date shall be deemed to be
-10-
Disqualified Capital Stock; provided, however, that Preferred Stock of the
Company 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 the Company, which provisions have substantially the same effect as
the provisions of Section 4.15, shall not be deemed to be Disqualified Capital
Stock solely by virtue of such provisions.
"EBITDA" means, for any Person, for any period, an amount equal to
(a) the sum of, without duplication, (i) Xxxxxxx dated 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, plus (iv) depreciation for such period on a consolidated basis, plus (v)
amortization of intangible and other assets for such period on a consolidated
basis, plus (vi) any other non-cash items reducing Consolidated Net Income for
such period, minus (b) all non-cash items increasing Consolidated Net Income for
such period, all for such Person and its Subsidiaries determined in accordance
with GAAP; provided, however, that, for purposes of calculating EBITDA during
any fiscal quarter, cash income from a particular Investment of such Person
(other than Investments in Subsidiaries of such Person or Investments in
Permitted Joint Ventures) shall be included only (x) to the extent cash income
has been received by such Person with respect to such Investment, or (y) if the
cash income derived from such Investment is attributable to Temporary Cash
Investments.
"Equity Market Capitalization" of any Person means the aggregate
market value of the outstanding Capital Stock (other than Preferred Stock and
excluding any Capital Stock held in treasury by such Person) of such Person of a
class that is listed or admitted to unlisted trading privileges on a United
States national securities exchange or included for trading on the Nasdaq
National Market System. For purposes of this definition the "market value" of
any such Capital Stock shall be the average of the high and low sale prices, or
if no sales are reported, the average of the high and low bid prices, as
reported on the principal national securities exchange on which such Capital
Stock is listed or admitted to trading or, if such Capital Stock is not listed
or admitted to trading on a national securities exchange, as reported by Nasdaq,
for each trading day in a 20 consecutive trading day period ending not more than
-11-
45 days prior to the date such Person commits to make an investment in the
Capital Stock of the Company.
"Escrow Account" means an escrow account for the deposit of
approximately $15.5 million of the net proceeds from the sale of the Notes (the
"Initial Escrow Amount") under the Escrow Agreement.
"Escrow Agent" means United States Trust Company of New
York, as Escrow Agent under the Escrow Agreement.
"Escrow Agreement" means the Escrow and Disbursement Agreement,
dated as of the Issue Date, by and among the Escrow Agent, the Trustee, the
Guarantor and the Company, governing the disbursement of funds from the Escrow
Account.
"Euroclear" has the meaning provided in Sec tion 2.16(a).
"Event of Default" has the meaning provided in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" has the meaning provided in the Registration Rights
Agreement.
"Existing Preferred Stock" means (i) all shares of the Company's
Cumulative Exchangeable Redeemable Preferred Stock, Series B, par value $.01 per
share, and 14% Senior Redeemable Preferred Stock, Series B and C, par value $.01
per share, outstanding on the Issue Date, (ii) all shares of 14% Senior
Redeemable Preferred Stock, Series C, par value $.01 per share, issued in
exchange for shares of 14% Senior Redeemable Preferred Stock, Series B, after
the Issue Date and (iii) any shares thereof issued thereafter as payment of
dividends on such outstanding shares.
"First Determination Date" has the meaning provided in the
definition of "Acquisition EBITDA."
"Fiscal 1997" has the meaning provided in the definition of
"Adjusted EBITDA."
-12-
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"Global Notes" has the meaning provided in Sec tion 2.16(a).
"Guarantor" means Renaissance Guarantor, Inc., a Delaware
corporation.
"Holder" or "Noteholder" means, in the case of any Note, the Person
in whose name such 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, 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 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, (iii) guarantees of items of other Persons which would be
included within this definition for such other Persons (whether or not such
-13-
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, (v) in the case of the
Company, Disqualified Capital Stock of the Company or any of its Subsidiaries,
and (vi) obligations of any such Person 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 obligations; provided, that (i) 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) Indebtedness shall not include any liability for federal,
state, local or other taxes. Notwithstanding any other provision of the
foregoing definition, (a) any trade payable arising from the purchase of goods
or materials or for services obtained in the ordinary course of business shall
not be deemed to be "Indebtedness" of the Company or any of its Subsidiaries
for purposes of this definition and (b) guarantees of (or obligations with
respect to letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Indenture" means this Indenture as amended or supplemented from
time to time pursuant to the terms hereof.
"Initial Escrow Amount" has the meaning provided in the
definition of "Escrow Account."
"Initial Purchaser" means CIBC Wood Gundy Securities Corp.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
promulgated under the Securities Act.
"Interest Payment Date," when used with respect to any Note, means
the stated maturity of an installment of interest specified in such Note.
-14-
"Interest Portion" has the meaning provided in Section 10.5.
"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.
"Investments" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary course of
business), 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, or 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. Investments shall exclude
extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices. The amount of an Investment shall be equal to the
original cost thereof plus the cost of all additions thereto less the sum of all
amounts received as a return on such Investment.
"Issue Date" means the date the Notes are first issued by the
Company and authenticated by the Trustee under this Indenture.
"Legal Holiday" means any day other than a Business Day.
"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).
"Maturity Date" means, with respect to any Note, the date specified
in such Note as the fixed date on which principal of such Note is due and
payable.
-15-
"Net Income" means, with respect to any Person for any period, the
net income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by
the Company, the aggregate net proceeds received by the Company, 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) and (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 the
Company 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 the
Company 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 the Company in connection therewith).
"New Revolving Credit Facility" means a revolving credit facility to
be entered into between one or more Subsidiaries of the Company (other than the
Guarantor) and an institutional lender or lenders as the same may be amended,
extended, renewed, restated, supplemented, replaced, refinanced or otherwise
modified from time to time.
"Notes" means the $200.0 million aggregate principal amount of 11
3/4% Senior Notes due 2004 issued by the Company on the Issue Date 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, with respect to any Person (other than the
Trustee), the Chief Executive Officer, the President, the Chief Financial
Officer, any Vice President, the Treasurer, the Secretary, or the Controller of
such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
-16-
President and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion reasonably satisfactory
in form and substance to, from legal counsel who is acceptable to, the Trustee,
which may include an individual employed as counsel to the Company, and
delivered to the Trustee.
"Other Notes" has the meaning provided in Section 2.2.
"Paying Agent" has the meaning provided in Section 2.4.
"Payment Restriction" has the meaning provided in Section 4.12.
"Peak Amount" of acquired accounts receivable or inventory, as the
case may be, means the amount thereof shown on the quarterly financial
statements of the acquired entity (or the entity from which such assets were
acquired) on which the accounts receivable and inventory reflected thereon from
among the financial statements for the four most recent fiscal quarters of such
entity prior to such acquisition would result in the highest level of
availability under the New Revolving Credit Facility.
"Permitted Asset Swap" means any transfer of properties or assets in
which 90% of the consideration received by the transferor consists of properties
or assets (other than cash) that will be used in the business of the transferor;
provided, that (i) the aggregate fair market value (as determined in good
faith by the Board of Directors) of the property or assets being transferred by
the Company or such Subsidiary is not greater than the aggregate fair market
value (as determined in good faith by the Board of Directors) of the property or
assets received by the Company or such Subsidiary in such exchange and (ii) the
aggregate fair market value (as determined in good faith by the Board of
Directors) of all property or assets transferred by the Company and any of its
Subsidiaries in connection with exchanges in any period of twelve consecutive
months shall not exceed $5.0 million.
"Permitted Holders" means (i) Xxxx Xxxx Equity Partners, L.P. or
Xxxxxx X. Xxxxxx, (ii) the heirs, executors, administrators, testamentary
trustees, legatees or beneficiaries of Xxxx Xxxx Equity Partners, L.P. or Xxxxxx
-17-
X. Xxxxxx or of any Person described in this clause (ii), (iii) a trust the
beneficiaries of which include only persons described in clauses (i) and (ii)
above and their respective spouses and lineal descendants, (iv) the general
partner and each limited partner of Xxxx Xxxx Equity Partners, L.P. and (v) any
Subsidiary of either Xxxx Xxxx Equity Partners, L.P. or Xxxxxx X. Xxxxxx or both
of them jointly.
"Permitted Indebtedness" means any:
(i) Indebtedness of the Company or any of its Subsidiaries pursuant
to the New Revolving Credit Facility in an amount not to exceed (a) until
such time as Sec tion 4.20 is by its terms of no further force and effect,
$75.0 million (less any mandatory prepayments actually made thereunder to
the extent the corresponding commitments thereunder have been permanently
reduced); provided, that such amount shall be increased in the event that
the Company or any of its Subsidiaries consummates an acquisition
including inventory and receivables by an amount equal to the sum of (1)
the product of the Peak Amount of accounts receivable acquired in such
acquisition times the advance rate provided in the New Revolving Credit
Facility applicable to accounts receivable in effect at the time of such
acquisition plus (2) the product of the Peak Amount of inventory acquired
in such acquisition times the advance rate provided in the New Revolving
Credit Facility applicable to inventory in effect at the time of such
acquisition; and provided, further, that until such time as Section 4.20
is by its terms of no further force and effect, Indebtedness pursuant to
the New Revolving Credit Facility incurred for the purpose of acquisition
financing shall not be deemed Permitted Indebtedness; and (b) thereafter,
the greater of (1) $75.0 million (less any mandatory prepayments actually
made thereunder to the extent the corresponding commitments thereunder
have been permanently reduced) or (2) the sum of (x) 85% of gross eligible
accounts receivable of the Company and its Subsidiaries and (y) 75% of
gross eligible inventory (valued at the lower of cost (first-in,
first-out) or market) of the Company and its Subsidiaries, in either case
less reserves;
(ii) Indebtedness under the Notes and the Subsidiary
Guarantee;
-18-
(iii) Indebtedness not covered by any other clause of this
definition which is outstanding on the Issue Date;
(iv) Indebtedness of the Company to any Wholly-Owned Subsidiary and
Indebtedness of any Subsidiary of the Company to the Company or another
Subsidiary of the Company;
(v) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business and
additional Indebtedness of foreign Subsidiaries of the Company for working
capital purposes, which Purchase Money Indebtedness, Capitalized Lease
Obligations and additional Indebtedness do not in the aggregate at any one
time outstanding exceed 5% of the Company's Consolidated Total Assets as
of the end of the last preceding fiscal quarter for which internal
financial statements are available;
(vi) Interest Rate Agreements;
(vii) commercial documentary letters of credit issued for the account
of the Company or any of its Subsidiaries in the ordinary course of
business in an aggregate amount not to exceed the greater of $5.0 million
or 1.5% of the Company's Consolidated Total Assets as of the end of the
last preceding fiscal quarter for which internal financial statements are
available, in either case at any one time outstanding;
(viii) additional Indebtedness of the Company or any of
its Subsidiaries not to exceed $2.0 million in aggregate
principal amount outstanding at any time;
(ix) any guarantees by the Company or its Subsidiaries
of otherwise Permitted Indebtedness or Ratio Indebtedness;
and
(x) Refinancing Indebtedness.
"Permitted Investments" means, for any Person, Investments made on
or after the Issue Date consisting of:
(a) Investments by the Company or by a Subsidiary of
the Company in (i) the Company or a Subsidiary of the
Company or (ii) Permitted Joint Ventures;
(b) Temporary Cash Investments;
-19-
(c) Investments by the Company or by any of its Subsidiaries in a
Person (or in all or substantially all of the business or assets of such
Person), if as a result of such Investment (i) such Person becomes a
Subsidiary of the Company or a Permitted Joint Venture, (ii) such Person
is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the
Company or a Subsidiary or (iii) such business or assets are owned by the
Company or a Subsidiary of the Company;
(d) reasonable and customary loans made to employees not to exceed
$1.0 million in the aggregate at any one time outstanding;
(e) an Investment that is made by the Company or any of its
Subsidiaries 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 the Company or such Subsidiary solely as partial
consideration for the consummation of an Asset Sale that is otherwise
permitted under Section 4.13;
(f) accounts receivable of the Company and its Subsidiaries
generated in the ordinary course of business;
(g) miscellaneous Investments made in the ordinary course of
business in an aggregate amount not to exceed $1.0 million at any one time
outstanding; and
(h) Investments existing on the Issue Date.
"Permitted Joint Venture" means a Person (other than an individual
or government) that is not a Subsidiary of the Company and a majority of whose
revenues are derived or will, as a consequence of the Company's or one of its
Subsidiaries' Investment therein, be derived from the operation of any line of
business engaged in or reasonably related to a line of business engaged in by
the Company and its Subsidiaries as of the Issue Date; provided, that the
aggregate amount of the Company's and its Subsidiaries' Investments in Permitted
Joint Ventures (including transfers of tangible assets otherwise excluded from
the definition of Asset Sale) at any one time outstanding shall not exceed: (i)
until the first anniversary of the Issue Date, 4% of the Company's Consolidated
Total Assets as of the end of the last preceding fiscal quarter for which
internal financial statements are available; (ii) until the second anniversary
-20-
of the Issue Date, 5% of the Company's Consolidated Total Assets as of the end
of the last preceding fiscal quarter for which internal financial statements are
available; and (iii) thereafter, 6% of the Company's Consolidated Total Assets
as of the end of the last preceding fiscal quarter for which internal financial
statements are available.
"Permitted Liens" means: (i) Liens existing on the Issue Date; (ii)
Liens on property or assets of, or any shares of stock of or secured debt of,
any corporation existing at the time such corporation becomes a Subsidiary of
the Company or at the time such corporation is merged into the Company or any of
its Subsidiaries; provided, that such Liens are not incurred in connection with,
or in contemplation of, such corporation becoming a Subsidiary of the Company or
merging into the Company or any of its Subsidiaries; (iii) Liens securing
Permitted Indebtedness or Ratio Indebtedness; (iv) Liens in favor of the Company
or any of its Subsidiaries; (v) statutory liens or landlords', carriers',
warehousemen's, mechanics', suppliers', materialmen's, repairmen's or other like
Liens arising in the ordinary course of business which do not secure any
Indebtedness and with respect to amounts not yet delinquent or being contested
in good faith by appropriate proceedings, if a reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor; (vi) other Liens securing obligations incurred in the ordinary
course of business which obligations do not exceed $500,000 in the aggregate at
any one time outstanding; (vii) Liens for taxes, assessments or governmental
charges that are being contested in good faith by appropriate proceedings;
(viii) easements or minor defects or irregularities in title and other similar
charges or encumbrances on property not interfering in any material respect with
the Company's or any of its Subsidiaries' use of such property and (ix) Liens
for the benefit of the Holders created by the Escrow Agreement. Notwithstanding
the foregoing, Permitted Liens may not extend to the Escrow Account or the
Escrow Agreement.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
"Physical Notes" means certificated Notes in registered form in
substantially the form set forth in Exhibit A.
-21-
"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.
"Private Exchange" has the meaning provided in the Registration
Rights Agreement.
"Private Exchange Notes" has the meaning provided in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set forth on
the Rule 144A Notes in the form set forth in Exhibit B.
"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 the Company of
shares of its Common Stock (however designated and whether voting or non-voting)
and any and all rights, warrants or options to acquire such common stock
pursuant to a registration statement registered pursuant to the Securities Act.
"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.
"Ratio Indebtedness" means Indebtedness of the Company or any of its
Subsidiaries (other than Permitted Indebtedness) incurred in compliance with
Section 4.8.
"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
-22-
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" means, with respect to any Note, the Maturity Date
of such Note or the date on which such Note is to be redeemed by the Company
pursuant to the terms of the Notes.
"Reference Period" has the meaning set forth in Section 4.8.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends (a) any Indebtedness of the Company or its Subsidiaries
outstanding on the Issue Date or (b) any other Indebtedness permitted to be
incurred by the Company or its Subsidiaries pursuant to the terms of this
Indenture, but only to the extent that: (i) the Refinancing Indebtedness is
subordinated to the Notes to at least the same extent that the Indebtedness
being refunded, refinanced or extended is so subordinated, 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 (x) the aggregate principal amount then outstanding under
the Indebtedness being refunded, refinanced or extended (or, in the case of a
credit or other facility represented by commitments (such as, but not limited
to, the New Revolving Credit Facility), the sum of the outstanding principal
amount plus the maximum amount of the unused commitments thereunder), (y) 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 (z) the amount of
customary fees, expenses and costs related to the incurrence of such Refinancing
Indebtedness; and (v) such Refinancing Indebtedness is not incurred by a
Subsidiary to refinance Indebtedness of the Company. Refinancing Indebtedness
shall not include any Indebtedness permitted to be incurred under any other
provision of this Indenture.
-23-
"Registrar" has the meaning provided in Section 2.4.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date by and between the Company and the Initial
Purchaser.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Notes" has the meaning provided in Section
2.16(a).
"Regulation S Notes" has the meaning provided in Section 2.2.
"Reinvestment Date" has the meaning provided in Section 4.13.
"Restricted Global Note" has the meaning provided in Section
2.16(a).
"Restricted Note" has the same meaning as "restricted security" set
forth in Rule 144(a)(3) promulgated under the Securities Act; provided, that the
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Note is a Restricted Note.
"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 the Company or any of its Subsidiaries or any payment made to the direct or
indirect holders (in their capacities as such) of Capital Stock of the Company
or any such 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), (y) dividends on shares of the Company's preferred stock outstanding on
the Issue Date payable solely in shares of preferred stock of the same series
(whether or not Disqualified Capital Stock) and dividends on such additional
dividend shares, and (z) in the case of Subsidiaries of the Company, dividends
or distributions payable to the Company or to a Wholly-Owned Subsidiary); (ii)
the purchase, redemption or other acquisition or retirement for value of any
Capital Stock of the Company or any of its Subsidiaries (other than Capital
Stock owned by the Company or a Wholly-Owned Subsidiary, excluding Disqualified
Capital Stock); (iii) the making of any principal payment on, or the purchase,
-00-
xxxxxxxxxx, xxxxxxxxxx, redemption or other acquisition or retirement for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any Subordinated Indebtedness (other than Subordinated Indebtedness
acquired in anticipation of satisfying a scheduled sinking fund obligation,
principal installment or final 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; and (v) forgiveness
of any Indebtedness of an Affiliate of the Company to the Company or any of its
Subsidiaries. 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,
as determined in good faith by the Board of Directors.
"Restricted Period" has the meaning provided in Section 2.16(f).
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Notes" has the meaning provided in Sec tion 2.2.
"Sale and Lease-Back Transaction" means any arrangement with any
Person providing for the leasing by the Company or any of its Subsidiaries of
any real or tangible personal property, which property has been or is to be sold
or transferred by the Company or such Subsidiary to such Person in contemplation
of such leasing.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means any Subsidiary which would be a
"significant subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act and the Exchange Act, as in effect on the
Issue Date.
"Strategic Equity Investment" means the issuance and sale of Capital
Stock (other than Disqualified Capital Stock) of the Company to a Person
substantially engaged in the business of manufacturing or marketing fragrances
-25-
or cosmetics through the mass-market distribution channel or any other business
reasonably related to the Company's business that has an Equity Market
Capitalization of at least $200.0 million.
"Subordinated Indebtedness" means any Indebtedness of the Company
which is expressly subordinated in right of payment to the Notes.
"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.
"Subsidiary Guarantee" means the limited guarantee of the
Obligations of the Company with respect to the Notes by the Guarantor pursuant
to the terms of Article X hereof.
"Taxes" means any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto) imposed or levied by or on behalf of a Taxing Authority.
"Taxing Authority" means any government or any political subdivision
or territory or possession of any government or any authority or agency therein
or thereof having power to tax.
"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, or securities
representing any portion thereof, maturing within 740 days of the date of
purchase; (ii) Investments in 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 having capital, surplus and undivided profits
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totaling more than $500.0 million and rated at least A by Standard & Poor's
Corporation and A-2 by Xxxxx'x Investors Service, Inc., maturing within 365 days
of purchase; or (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 the preceding clauses (i) and (ii).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 9.3).
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means an officer or assistant officer of the Trustee
assigned to the Corporate Trust Department (or any successor group) of the
Trustee, or any successor to such department or, in the case of a successor
trustee, an officer or assistant officer assigned to the department, division or
group performing the corporate trust work of such successor.
"U.S. Government Obligations" has the meaning provided
in Section 8.1(b).
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
to vote under ordinary circumstances in the election of members of the board of
directors or other governing body of such Person.
"Wholly-Owned Subsidiary" means any Subsidiary, all of the
outstanding voting securities (other than directors' qualifying shares or an
immaterial number of shares required to be owned by other Persons pursuant to
applicable law) of which are owned, directly or indirectly, by the Company.
SECTION 1.2 Incorporation by Reference
of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision shall be deemed incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
(a) "Commission" means the SEC;
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(b) "indenture securities" means the Notes;
(c) "indenture security holder" means a Holder or
Noteholder;
(d) "indenture to be qualified" means this Indenture;
(e) "indenture trustee" or "institutional trustee"
means the Trustee; and
(f) "obligor" on the indenture securities means the
Company or any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings so assigned to them therein.
SECTION 1.3 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and
words in the plural include the singular;
(d) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other Subsection;
(e) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP as in effect from time to time,
applied on a basis consistent with the most recent audited consolidated
financial statements of the Company; and
(f) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Note, such mention shall be
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deemed to include mention of the payment of Additional Interest to the
extent that, in such context, Additional Interest is, was or would be
payable in respect thereof.
ARTICLE II
THE NOTES
SECTION 2.1 Amount of Notes.
The Trustee shall authenticate Notes for original issue on the Issue
Date in the aggregate principal amount of $200.0 million. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.8 hereof.
Upon receipt of a Company Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer specified
in the Registration Rights Agreement is effective and that the conditions
precedent to a private exchange thereunder have been met, the Trustee shall
authenticate an additional series of Notes in an aggregate principal amount not
to exceed $200.0 million for issuance in exchange for the Notes tendered for
exchange pursuant to such exchange offer registered under the Securities Act or
pursuant to a Private Exchange. Exchange Notes or Private Exchange Notes may
have such distinctive series designations and such changes in the form thereof
as are specified in the Company Request referred to in the preceding sentence.
SECTION 2.2 Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto shall be substantially in the form set forth in Exhibit A, which
is incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Company is subject. Without limiting the generality of the foregoing, Notes
offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
("Rule 144A Notes") shall bear the legend and include the form of assignment set
forth in Exhibit B, Notes offered and sold in offshore transactions in reliance
on Regulation S ("Regulation S Notes") shall bear the legend and include the
form of assignment set forth in Exhibit C, and Notes sold to Institutional
Accredited Investors in transactions exempt from registration under the
Securities Act not made in reliance on Rule 144A or Regulation S ("Other Notes")
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may be represented by the Restricted Global Note or, if such an investor may not
hold an interest in the Restricted Global Note, a Physical Note bearing the
Private Placement Legend. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the Notes shall constitute,
and are expressly made, a part of this Indenture and, to the extent applicable,
the Company, the Guarantor and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and agree to be
bound thereby.
The Notes may be presented for registration of transfer and exchange
at the offices of the Registrar.
SECTION 2.3 Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one Officer
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Note shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Note to the Trustee
for cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Notes. Unless otherwise provided
in the appointment, an authenticating agent may authenticate the Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
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Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company and Affiliates of the
Company. Each Paying Agent is designated as an authenticating agent for purposes
of this Indenture.
The Notes shall be issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
SECTION 2.4 Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), and an office or agency where Notes may be presented for payment
(the "Paying Agent") and an office or agency where notices and demands to or
upon the Company, if any, in respect of the Notes and this Indenture may be
served. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may have one or more additional Paying Agents. The
term "Paying Agent" includes any additional Paying Agent. Neither the Company
nor any Affiliate thereof may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the provisions
of the TIA. The agreement shall implement the provisions of this Indenture that
relate to such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.7.
The Company initially appoints the corporate trust office of the
Trustee located at the address set forth in Section 4.2 as Registrar, Paying
Agent and agent for service of notices and demands in connection with the Notes
and this Indenture.
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SECTION 2.5 Paying Agent To Hold Money in Trust.
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 premium or or interest on the Notes (whether such money has been
paid to it by the Company or any other obligor on the Notes or the Guarantor),
and the Company and the Paying Agent shall notify the Trustee of any default by
the Company (or any other obligor on the Notes) in
making any such payment. 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 Company at
any time may require the Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed and the Trustee may at any time during the
continuance of any Event of Default specified in Section 6.1(a)(i) or (ii), upon
written request to the Paying Agent, require such Paying Agent to pay forthwith
all money so held by it to the Trustee and to account for any funds disbursed.
Upon making such payment, the Paying Agent shall have no further liability for
the money delivered to the Trustee.
SECTION 2.6 Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Noteholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date,
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Noteholders.
SECTION 2.7 Transfer and Exchange.
Subject to Section 2.17, when Notes are presented to the Registrar
with a request from the Holder of such Notes to register a transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer as requested. 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 Company and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and execute and the Trustee
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shall authenticate new Notes (and the Guarantor shall execute the guarantee
thereon) evidencing such transfer or exchange at the Registrar's request. No
service charge shall be made to the Noteholder for any registration of transfer
or exchange. The Company may require from the Noteholder payment of a sum
sufficient to cover any transfer taxes 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 2.11, 3.6, 4.13, 4.15 or 9.5 (in which
events the Company shall be responsible for the payment of such taxes). The
Registrar shall not be required to exchange or register a transfer of any Note
for a period of 15 days immediately preceding the mailing of notice of
redemption of Notes to be redeemed or of any Note selected, called or being
called for redemption except the unredeemed portion of any Note being redeemed
in part.
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.
Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this Indenture
and/or applicable U.S. Federal or state securities law.
Except as expressly provided herein, neither the Trustee nor the
Registrar shall have any duty to monitor the Company's compliance with or have
any responsibility with respect to the Company's compliance with any Federal or
state securities laws.
SECTION 2.8 Replacement Notes.
If a mutilated Note is surrendered to the Registrar or the Trustee,
or if the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Note (and the Guarantor shall execute the guarantee thereon) if the
Holder of such Note furnishes to the Company and the Trustee evidence reasonably
acceptable to them of the ownership and the destruction, loss or theft of such
Note and if the requirements of Section 8-405 of the New York Uniform Commercial
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Code as in effect on the date of this Indenture are met. If required by the
Trustee or the Company, an indemnity bond shall be posted, sufficient in the
judgment of both to protect the Company, the Trustee or any Paying Agent from
any loss that any of them may suffer if such Note is replaced. The Company may
charge such Holder for the Company's exceptional out-of-pocket expenses in
replacing such Note and the Trustee may charge the Company for the Trustee's
expenses (including, without limitation, attorneys' fees and disbursements) in
replacing such Note. Every replacement Note shall constitute a contractual
obligation of the Company.
SECTION 2.9 Outstanding Notes.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those cancelled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 8.1
and 8.2, on or after the date on which the conditions set forth in Section 8.1
or 8.2 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.9 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because the Company or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.8, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any Maturity
Date or on any optional redemption date, money sufficient to pay all accrued
interest and principal with respect to such Notes payable on that date and is
not prohibited from paying such money to the Holders thereof pursuant to the
terms of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.10 Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any declaration of acceleration or notice of default
or direction, waiver or consent or any amendment, modification or other change
to this Indenture, Notes owned by the Company or any other Affiliate of the
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Company 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 or any amendment, modification
or other change to this Indenture, only Notes as to which a Trust Officer of the
Trustee has received an Officer's Certificate stating that such Notes are so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee established 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 Company or any other Affiliate.
SECTION 2.11 Temporary Notes.
Until definitive Notes are prepared and ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.12 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall (subject to the
record-retention requirements of the Exchange Act) destroy cancelled Notes and
deliver a certificate of destruction thereof to the Company. The Company may not
reissue or resell, or issue new Notes to replace, Notes that the Company has
redeemed or paid, or that have been delivered to the Trustee for cancellation.
SECTION 2.13 Defaulted Interest.
If the Company defaults on a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
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to the Persons who are Noteholders on a subsequent special record date, which
date shall be at least five Business Days prior to the payment date. The Company
shall fix such special record date and payment date in a manner satisfactory to
the Trustee. At least 15 days before such special record date, the Company shall
mail to each Noteholder a notice that states the special record date, the
payment date and the amount of defaulted interest, and interest payable on
defaulted interest, if any, to be paid. The Company may make payment of any
defaulted interest in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Notes may
be listed and, upon such notice as may be required by such exchange, if, after
written notice given by the Company to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by
the Trustee.
SECTION 2.14 CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and if
so, such CUSIP number shall be included 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
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Notes and of any change in the CUSIP number.
SECTION 2.15 Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest Payment
Date and Maturity Date, the Company shall have deposited with the Paying Agent
in immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date 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 Physical Notes shall be
payable at the office of the Paying Agent.
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SECTION 2.16 Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes and Other Notes which may be held in global
form, other than Regulation S Notes, initially shall be represented by one or
more notes in registered, global form without interest coupons (collectively,
the "Restricted Global Note"). Regulation S Notes initially shall be represented
by one or more notes in registered, global form without interest coupons
(collectively, the "Regulation S Global Note," and, together with the Restricted
Global Note and any other global notes representing Notes, the "Global Notes").
The Global Notes initially shall (i) be registered in the name of the Depository
or the nominee of such Depository, in each case for credit to an account of an
Agent Member (or, in the case of the Regulation S Global Notes, of Euroclear
System ("Euroclear") and Cedel Bank, S.A. ("CEDEL")), (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit D.
Members of, or direct or indirect participants in, the Depository
("Agent Members") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Notes, and the Depository may be treated by the
Company, the Trustee and any agent of the Company, or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of Global Notes shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.17. In addition, a Global Note shall
be exchangeable for Physical Notes if (i) the Depository (x) notifies the
Company that it is unwilling or unable to continue as depository for such Global
Note and the Company thereupon fails to appoint a successor depository or (y)
has ceased to be a clearing agency registered under the Exchange Act, (ii) the
Company, at its option, notifies the Trustee in writing that it elects to cause
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the issuance of such Physical Notes or (iii) there shall have occurred and be
continuing a Default or an Event of Default with respect to the Notes. In all
cases, Physical Notes delivered in exchange for any Global Note or beneficial
interests therein shall be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depository (in accordance with
its customary procedures).
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall upon receipt of
a written order from the Company authenticate and make available for delivery,
one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety
to beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in writing in exchange for its beneficial
interest in the Global Notes, an equal aggregate principal amount of Physical
Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b), (c) or (d)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section
2.17, bear the Private Placement Legend or, in the case of the Regulation S
Global Note, the legend set forth in Exhibit C, in each case, unless the Company
determines otherwise in compliance with applicable law.
(f) On or prior to the 40th-day after the later of the commencement
of the offering of the Notes represented by the Regulation S Global Note and the
issue date of such Notes (such period through and including such 40th day, the
"Restricted Period"), a beneficial interest in a Regulation S Global Note may be
transferred to a person who takes delivery in the form of an interest in the
corresponding Restricted Global Note only upon receipt by the Trustee of a
written certification from the transferor to the effect that such transfer is
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being made (i)(a) to a person whom the transferor reasonably believes is a
Qualified Institutional Buyer in a transaction meeting the requirements of Rule
144A or (b) pursuant to another exemption from the registration requirements
under the Securities Act which is accompanied by an opinion of counsel regarding
the availability of such exemption and (ii) in accordance with all applicable
securities laws of any state of the United States or any other jurisdiction.
(g) Beneficial interests in the Restricted Global Note may be
transferred to a person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance
with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if
such transfer occurs prior to the expiration of the Restricted Period, the
interest transferred will be held immediately thereafter through Euroclear or
CEDEL.
(h) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.17 Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted Note
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note, whether or not such Note bears the Private
Placement Legend, if (x) the requested transfer is after February 7, 2000
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or (y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially in
the form of Exhibit E hereto or (2) in the case of a transfer to a
Non-U.S. Person (including a QIB), the proposed transferor has delivered
to the Registrar a certificate substantially in the form of Exhibit F
hereto; provided, that in the case of a transfer of a Note bearing the
Private Placement Legend for a Note not bearing the Private Placement
Legend, the Registrar has received an Officers' Certificate authorizing
such transfer; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of (x)
the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the Registrar's
procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and make available for delivery one or more Physical Notes of like
tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Note to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for
on the form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
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reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing representations in
order to claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Global Note, upon receipt by the Registrar
of instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Note in an amount equal to the principal amount of the Physical Notes to
be transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(c) 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) it has received the Officers' Certificate required by paragraph
(a)(i)(y) of this Section 2.17, (ii) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the
effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (iii) such Note has been sold pursuant to an effective registration
statement under the Securities Act and the Registrar has received an Officers'
Certificate from the Company to such effect.
(d) 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 2.16 or this Section 2.17.
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The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable notice to the Registrar.
SECTION 2.18. Computation of Interest. Interest on the Notes shall
be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE III
REDEMPTION
SECTION 3.1 Election To Redeem; Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 5 of the
Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of Notes to be redeemed.
The Company shall give each notice provided for in this Section 3.1
at least 45 days before the Redemption Date (unless a shorter notice shall be
agreed to by the Trustee in writing) but not more than 65 days before the
Redemption Date, together with an Officers' Certificate stating that such
redemption will comply with the conditions contained herein and in the Notes.
SECTION 3.2 Selection of Notes To Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes being
redeemed are listed or, if the Notes are not listed on a national securities
exchange, on a pro rata basis, by lot or by such other method as the Trustee
shall deem fair and equitable; provided, however, that if a partial redemption
is made with the Net Proceeds of a Public Equity Offering or Strategic Equity
Investment, selection of Notes for redemption shall be made on a pro rata basis
unless such method is otherwise prohibited. In any proration, the Trustee shall
make such adjustments, reallocations and eliminations as it shall deem proper to
the end that the principal amount of each Note so prorated shall be equal to an
authorized denomination, by increasing or decreasing or eliminating the amount
which would be allocable to any Note on the basis of exact proportion by an
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amount not exceeding $1,000. The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption. The Trustee shall promptly
notify the Company in writing of such Notes selected for redemption and, in the
case of Notes selected for partial redemption, the principal amount to be
redeemed. The Trustee may select for redemption portions of the principal amount
of Notes that have denominations equal to or larger than $1,000 principal
amount. Notes and portions thereof that the Trustee selects shall be in amounts
of $1,000 principal amount or integral multiples thereof. Provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
SECTION 3.3 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause the mailing of a notice of redemption by
first-class mail to each Holder of Notes to be redeemed at such Holder's last
address as it shall appear on the register maintained by the Registrar and the
Trustee and any Paying Agent.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the paragraph of the Notes pursuant to which the
Notes are being redeemed;
(c) the redemption price and the amount of accrued
interest if any, to be paid;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price and accrued interest, if any;
(f) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders of
such Notes is to receive payment of the redemption price upon surrender to
the Paying Agent of the Notes redeemed;
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(g) if any Note is to be redeemed in part, the portion of the
principal amount (equal to $1,000 or any integral multiple thereof) of
such Note to be redeemed and that, on or after the Redemption Date, upon
surrender of such Note, a new Note or Notes in aggregate principal amount
equal to the unredeemed portion thereof will be issued without charge to
the Noteholder;
(h) if less than all of the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes estimated to be
outstanding after such partial redemption; and
(i) the CUSIP number, if any, pursuant to Section
2.14.
At the Company's written request made at least 5 Business Days (or
15 Business Days, in the case of any partial redemption) prior to the date on
which notice is to be given, the Trustee shall give the notice of redemption in
the Company's name and at the Company's expense.
SECTION 3.4 Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption
become due and payable on the Redemption Date and at the redemption price. Upon
surrender to the Paying Agent, such Notes shall be paid at the redemption price
plus accrued interest, if any, to the Redemption Date, but interest
installments whose maturity is on or prior to such Redemption Date will be
payable on the relevant Interest Payment Dates to the Holders of record at the
close of business on the relevant record dates referred to in the Notes.
SECTION 3.5 Deposit of Redemption Price.
Prior to 10:00 A.M., New York City time, on the Redemption Date, the
Company shall deposit with the Paying Agent in immediately available funds money
sufficient to pay the redemption price of and accrued interest, if any, on all
Notes or portions thereof to be redeemed on that date.
If any Note surrendered for redemption in the manner provided in the
Notes shall not be so paid on the Redemption Date due to the failure of the
Company to deposit sufficient funds in United States dollars with the Paying
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Agent, the principal and accrued and unpaid interest thereon shall, until paid
or duly provided for, bear interest, if any, as provided in Section 4.1 with
respect to any payment default.
SECTION 3.6 Notes Redeemed in Part.
Upon the surrender to the Paying Agent of a Note that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for the
Holder a new Note equal in principal amount to the principal amount of the
unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes.
The Company shall pay the principal of, premium, if any, and
interest (including all Additional Interest, if any, which shall be deemed to be
included in the term "interest" for purposes of this Indenture and the Notes) on
the Notes on the dates and in the manner provided in the Notes and this
Indenture.
An installment of principal, premium or interest shall be considered
paid on the date due if the Trustee or the Paying Agent holds on such date
immediately available funds designated for and sufficient to pay such
installment.
The Company shall pay interest on overdue principal and (to the
extent permitted by law) on overdue installments of interest at the rate set
forth in the Notes.
SECTION 4.2 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency, where Notes may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
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presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in this Section 4.2.
The Company 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; provided,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby initially designates the corporate trust office
of the Trustee set forth in Section 11.2 as an agency of the Company with
respect to the Notes in accordance with Section 2.4.
SECTION 4.3 Corporate Existence.
Subject to Article V, the Company shall do or cause to be done, at
its own cost and expense, all things necessary to preserve and keep in full
force and effect the corporate or partnership existence and rights (charter and
statutory), licenses and/or franchises of the Company and its Subsidiaries;
provided, that the Company shall not be required to preserve any such rights,
licenses or franchises or the existence of any Subsidiary (other than the
Guarantor) if such rights, licenses or franchises will be replaced or if the
maintenance or preservation thereof is, in the opinion of the Company, no longer
desirable in the conduct of the business of the Company and its Subsidiaries
taken as a whole (as determined in good faith by the Board of Directors, whose
determination shall be evidenced by a Board Resolution); and provided, further,
that any Subsidiary (other
than the Guarantor) may consolidate with, merge into or sell, convey, transfer,
lease or otherwise dispose of all or part of its property and assets to the
Company or any Wholly-Owned Subsidiary or engage in any Asset Sale in accordance
with Section 4.13.
SECTION 4.4 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon income, profits or
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property of it or any of its Subsidiaries and (b) all material lawful claims for
labor, materials and supplies which, if unpaid, might by law become a Lien upon
property of the Company or any of its Subsidiaries; provided, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate negotiations or proceedings and for
which disputed amounts any reserves required in accordance with GAAP have been
made.
SECTION 4.5 Maintenance of Properties; Insurance; Books and
Records; Compliance with Law.
(a) The Company shall at all times cause all properties used or
useful in 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 necessary equipment,
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereto; provided, however, that nothing in this
Section 4.5 shall prevent the Company or any such Subsidiary from discontinuing
the use, 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 or the board of directors of the Subsidiary having
managerial responsibility for any such property, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be.
(b) The Company shall maintain or cause to be maintained, for itself
and each of its Subsidiaries, insurance (which may include self-insurance) in
such amounts and covering such risks as are usually and customarily carried by
corporations similarly situated with respect to similar facilities according to
their respective locations, except where the failure to do so could not
reasonably be expected, in the good faith judgment of
the Board of Directors, to have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or prospects of the Company
and its Subsidiaries, taken as a whole.
(c) The Company shall, and shall cause each of its Subsidiaries to,
keep proper books of record and account in which full and correct entries shall
be made of all financial transactions and the assets and business of the Company
and each Subsidiary of the Company, in accordance with GAAP consistently applied
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to the Company and its Subsidiaries, taken as a whole.
(d) The Company shall, and shall cause each of its Subsidiaries to,
comply with all statutes, laws, ordinances, or government rules and regulations
to which it is subject, non-compliance with which would materially adversely
affect the business, prospects, earnings, properties, assets or financial
condition of the Company and its Subsidiaries, taken as a whole.
SECTION 4.6 Compliance Certificates.
(a) The Company shall deliver to the Trustee, within 50 days after
the end of each of the first three quarters of the Company's fiscal year, and
within 100 days after the end of such fiscal year, Officers' Certificates of the
Company (one of the signatories to which shall be either the chief operating
officer, chief financial officer or chief accounting officer of the Company)
stating (i) that a review of the activities of the Company during the preceding
fiscal quarter or year, as the case may be, has been made under the supervision
of the signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture and the
Escrow Agreement (if it has not yet terminated), and (ii) that, to the best
knowledge of each Officer signing such certificate, the Company has kept,
observed, performed and fulfilled each and every covenant and condition
contained in this Indenture and the Escrow Agreement (if it has not yet
terminated) and is not in default in the performance or observance of any of the
terms, provisions, conditions and covenants of either of such agreements (or, if
a Default or Event of Default or a default under the Escrow Agreement shall have
occurred, describing all such Defaults or Events of Default or defaults under
the Escrow Agreement of which such Officers may have knowledge, their status and
what action the Company is taking or proposes to take with respect thereto).
(b) The annual financial statements delivered pursuant to Section
4.7 shall be accompanied by a written statement of the Company's independent
public accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such annual financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of this Indenture as they relate to
accounting matters, or, if any such violation has occurred, specifying the
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nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, as soon as practicable after any Officer of the Company
becomes aware of (i) any Default or Event of Default or (ii) any default under
the Escrow Agreement, an Officers' Certificate specifying such Default, Event of
Default or default and what action the Company is taking or proposes to take
with respect thereto.
(d) The Company's fiscal year currently ends on March 31. The
Company shall provide notice to the Trustee of any change in its fiscal year.
SECTION 4.7 SEC Reports.
(a) The Company shall 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 the Company is subject to such filing requirements,
so long as the SEC will accept such filings. The Company (at its own expense)
shall file with the Trustee within 100 days after the end of each fiscal year of
the Company, or within 50 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, as the case may be, copies of the
annual reports or unaudited quarterly consolidated financial statements, as the
case may be, and 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 the Company files with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. Upon qualification of this Indenture under the TIA, the
Company shall also comply with the provisions of TIA ss. 314(a).
(b) At the Company's expense, regardless of whether the Company is
required to furnish such reports and other information referred to in paragraph
(a) above to its stockholders pursuant to the Exchange Act, the Company shall
cause such reports and other information to be mailed to the Holders at their
addresses appearing in the register of Notes maintained by the Registrar within
100 days after the end of each fiscal year of the Company, or within 50 days
after the end of each of the first three fiscal quarters of each fiscal year of
the Company, as the case may be.
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(c) The Company shall, upon request, provide to any Holder of Notes
or any prospective transferee of any such Holder any information concerning the
Company (including financial statements) necessary in order to permit such
Holder to sell or transfer Notes in compliance with Rule 144A under the
Securities Act; provided, however, that the Company shall not be required to
furnish such information in connection with any request made on or after the
date which is three years from the later of (i) the date such Note (or any
predecessor Note) was acquired from the Company or (ii) the date such Note (or
any predecessor Note) was last acquired from an "affiliate" of the Company
within the meaning of Rule 144 under the Securities Act.
SECTION 4.8 Limitation on Additional Indebtedness.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness), other than Permitted Indebtedness, unless: (a) after giving
effect to the incurrence of such Indebtedness and the receipt and application of
the proceeds thereof, the ratio of total Indebtedness (which, for purposes of
determining this ratio only, shall not include any shares of the Existing
Preferred Stock) of the Company and its Subsidiaries as of the date of any
determination (the "Determination Date") to the Company's Adjusted EBITDA
(including Acquisition EBITDA) for the four fiscal quarters ended immediately
prior to the Determination Date (the "Reference Period") is less than (i) 6.00
to 1 if the Indebtedness is incurred prior to February 15, 1998; (ii) 5.75 to 1
if the Indebtedness is incurred on or after February 15, 1998 and prior to
February 15, 2000; and (iii) 5.50 to 1 if the Indebtedness is incurred
thereafter; 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 used to make such calculation) to the
incurrence or assumption of such Acquired Indebtedness or such other
Indebtedness by the Company or one of its Subsidiaries; 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. In determining the
Company's total Indebtedness for purposes of this Section 4.8, borrowings under
the New Revolving Credit Facility shall be computed based on the lowest amount
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outstanding during a period of 30 consecutive days during the four quarter
period used to make the calculations referred to in this paragraph.
The Company shall not, directly or indirectly, incur any
Indebtedness that is expressly subordinated to any other Indebtedness of the
Company unless such Indebtedness is also expressly subordinated to the Notes to
the same extent and in the same manner as such Indebtedness is subordinated to
such other Indebtedness of the Company.
SECTION 4.9 Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its 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, the Company could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 4.8; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) 100% of the Company's Cumulative EBITDA
minus 1.6 times the Company's Cumulative Consolidated Interest Expense,
plus (2) 100% of the aggregate Net Proceeds and the fair market value of
securities or other property received by the Company from the issue or
sale, after the Issue Date, of Capital Stock (other than Disqualified
Capital Stock or Capital Stock of the Company issued to any Subsidiary of
the Company) of the Company or any Indebtedness or other securities of the
Company convertible into or exercisable or exchangeable for Capital Stock
(other than Disqualified Capital Stock) of the Company which has been so
converted or exercised or exchanged, as the case may be, plus (3) $1.0
million.
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
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payment would comply with the provisions of this Indenture; (ii) the acquisition
and cancellation or retirement of any shares of Capital Stock of the Company 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 the
Company) of shares of Capital Stock of the Company (other than Disqualified
Capital Stock); (iii) the redemption or retirement of Subordinated Indebtedness
of the Company 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 Company) of the Company that is
contractually subordinated in right of payment to the Notes 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 the Company)
of other shares of Disqualified Capital Stock; (v) the purchase, redemption or
other acquisition for value of shares of Capital Stock of the Company (other
than Disqualified Capital Stock) or options on such shares held by the Company's
or its Subsidiaries' officers or employees or former officers or employees (or
their estates or beneficiaries under their estates) upon the death, disability,
retirement or termination of employment of such current or former officers or
employees pursuant to the terms of an employee benefit plan or any other
agreement pursuant to which such shares of Capital Stock or options were issued
or pursuant to a severance, buy-sell or right of first refusal agreement with
such current or former officer or employee; provided, that the aggregate cash
consideration paid, or distributions made, pursuant to this clause (v) shall not
in any one fiscal year exceed $1.0 million; and (vi) so long as no Default or
Event of Default shall have occurred and be continuing at the time of or
immediately after giving effect to such payment, the payment of management and
advisory fees to Xxxx Xxxx Equity Partners, L.P. and its Affiliates and
successors and assigns that, when taken together with all previous amounts paid
in respect thereof since April 15, 1994, does not exceed an average annual
amount of $675,000 per year.
Not later than the date of any Restricted Payment, the Company 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
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the Company's 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 any Restricted Payments.
SECTION 4.10 Limitation on Investments.
The Company shall not, and shall not permit any of its 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,
after the Issue Date.
SECTION 4.11 Limitation on Liens.
The Company shall not, and shall not permit any of its 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 of the Company
or any such Subsidiary or any shares of stock or debt of any such Subsidiary
which owns Property, now owned or hereafter acquired, unless (i) if such Lien
secures Indebtedness which is pari passu with the Notes, then the Notes are
secured on an equal and ratable basis with the obligations so secured until such
time as such obligation is no longer secured by a Lien or (ii) if such Lien
secures Subordinated Indebtedness, any such Lien shall be subordinated to a Lien
granted to the Noteholders in the same collateral as that securing such Lien to
the same extent as such Subordinated Indebtedness is subordinated to the Notes.
SECTION 4.12 Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Subsidiary to (a)(i) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (A) on its Capital Stock or (B) with respect
to any other interest or participation in, or measured by, its profits, or (ii)
pay any Indebtedness owed to the Company or any of its Subsidiaries or (b) make
loans or advances or capital contributions to the Company or any of its
Subsidiaries or (c) transfer any of its properties or assets to the Company or
any of its Subsidiaries (any such restriction or encumbrance, other than those
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excepted in clauses (i) through (ix) below, a "Payment Restriction"), except for
such encumbrances or restrictions existing under or by reason of: (i)
encumbrances or restrictions existing on the Issue Date; (ii) any instruments
governing Ratio Indebtedness or Permitted Indebtedness, in either case other
than Subordinated Indebtedness; provided, that such encumbrance or restriction
is as described in the agreement creating the New Revolving Credit Facility;
(iii) this Indenture and the Notes; (iv) applicable law; (v) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company or
any of its Subsidiaries or of any Person that becomes a Subsidiary of the
Company as in effect at the time of such acquisition or such Person becoming
such a Subsidiary, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person (including any Subsidiary of the Person), so
acquired; provided, that the EBITDA of such Person is not taken into account (to
the extent of such restriction) in determining whether any financing or
Restricted Payment in connection with such acquisition was permitted by the
terms of this Indenture; (vi) customary non-assignment provisions in leases or
other agreements entered into in the ordinary course of business and consistent
with past practice; (vii) Refinancing Indebtedness; provided, that such
restrictions are not materially less favorable, taken as a whole, to the
Noteholders than those contained in the agreements governing the Indebtedness
being amended, extended, refinanced, renewed, replaced, defeased or refunded;
(viii) customary restrictions in security agreements or mortgages securing
Indebtedness of the Company or any of its Subsidiaries to the extent such
restrictions restrict the transfer of the property subject to such security
agreements and mortgages; or (ix) customary covenants to maintain a minimum net
worth or ratio of net worth to other financial measures contained in leases and
other agreements entered into in the ordinary course of business.
SECTION 4.13 Limitation on Certain Asset Sales.
The Company shall not, and shall not permit any of its Subsidiaries
to, consummate an Asset Sale unless (i) the Company or such Subsidiary, 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 in
good faith by the Board of Directors, and evidenced by a Board Resolution); (ii)
not less than 80% of the consideration received by the Company or such
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Subsidiary, as the case may be, is in the form of cash or cash equivalents
(meaning those equivalents allowed as Temporary Cash Investments); provided,
however, that the amount of (x) any liabilities of the Company or any of its
Subsidiaries that are assumed by the transferee of such assets, including any
Indebtedness of such a Subsidiary whose stock is purchased by the transferee and
(y) any notes or other securities received by the Company or any such Subsidiary
which are converted into cash within 180 days of such Asset Sale (to the extent
of cash received) shall be deemed to be cash for purposes of this provision;
provided, further, that the Company or such Subsidiary will not be required to
comply with this clause (ii) with respect to a Permitted Asset Swap; and (iii)
an amount at least equal to the Asset Sale Proceeds received by the Company or
such Subsidiary are applied (a) first, to the extent the Company is required to
prepay, repay or purchase Indebtedness (other than Subordinated Indebtedness) of
the Company or any of its Subsidiaries, or elects to prepay, repay or purchase
other senior Indebtedness of the Company, within 180 days following the receipt
of the Asset Sale Proceeds from any Asset Sale, to the prepayment, repayment or
purchase of such Indebtedness; provided, that any such repayment shall result in
a permanent reduction of the commitments thereunder in an amount at least equal
to the principal amount so repaid; and, provided, further, that in the event no
Indebtedness under the New Revolving Credit Facility is outstanding at the time
of such Asset Sale, or to the extent the Asset Sale Proceeds exceed the amount
of Indebtedness outstanding under the New Revolving Credit Facility, a permanent
reduction in the commitments thereunder will constitute a repayment for purposes
hereof; (b) second, to the extent of the balance of Asset Sale Proceeds after
application as described above, to the extent the Company 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 the Company
and its Subsidiaries as conducted at the time of such Asset Sale; provided, that
such investment occurs or the Company or one of its Subsidiaries 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 $5.0 million, the Company shall apply an amount equal to such
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Available Asset Sale Proceeds to an offer to purchase the Notes, at a purchase
price in cash equal to 100% of the principal amount thereof plus accrued and
unpaid interest thereon to the purchase date (an "Available Proceeds Offer"). If
an Available Proceeds Offer is not fully subscribed, the Company may retain the
portion of the Available Asset Sale Proceeds not required to purchase Notes, and
such amount shall not be considered in the calculation of Available Asset Sale
Proceeds with respect to any subsequent offer to purchase Notes.
If the Company is required to make an Available Proceeds Offer, the
Company shall mail, within 30 days following the Reinvestment Date, a notice to
the Holders, which shall govern the terms of the Available Proceeds Offer,
stating:
(1) that such Holders have the right to require the Company to apply
the Available Asset Sale Proceeds to purchase 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 purchase date;
(2) that the Available Proceeds Offer is being made pursuant to this
Section 4.13 and will remain open for a period of 20 Business Days
following its commencement (the "Offer Period");
(3) the purchase price and the purchase date, which shall be a
Business Day no less than 30 days and no more than 60 days after the
notice is mailed;
(4) that any Note not tendered or accepted for payment
will continue to accrue interest;
(5) that any Note accepted for payment pursuant to the Available
Proceeds Offer shall cease to accrue interest on and after the purchase
date and the deposit of the purchase price with the Trustee;
(6) that Holders electing to have a Note purchased pursuant to any
Available 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 Company, a depository, if appointed by the Company,
or the Paying Agent at the address specified in the notice prior to the
close of business on the Business Day preceding the purchase date;
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(7) that Holders will be entitled to withdraw their election if the
Company, depository 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;
(8) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Available Asset Sale Proceeds, the
Company shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000, or integral multiples thereof, shall be
purchased);
(9) 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; and
(10) the calculations used in determining the amount of Available
Asset Sale Proceeds to be applied to the purchase of such Notes.
On or before the purchase date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, Notes
or portions thereof validly tendered pursuant to the Available Proceeds Offer,
deposit with the Paying Agent U.S. legal tender sufficient to pay the purchase
price plus accrued interest, 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 Company in accordance with the terms of this
Section 4.13. 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 Company for purchase, and the Company 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 Company to the Holder thereof. The Company will publicly announce the
results of the Available Proceeds Offer on the purchase date by sending a press
release to the Dow Xxxxx News Service or similar business news service in the
United States.
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SECTION 4.14 Limitation on Transactions with
Affiliates.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, enter into or suffer to exist any transaction or
series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with any Affiliate
(including entities in which the Company or any of its Subsidiaries own a
minority interest) or holder of 10% or more of
the Company's Common Stock (each of the foregoing, an "Affiliate Transaction")
(other than Affiliate Transactions entered into prior to the Issue Date) 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 the Company and/or Wholly-Owned Subsidiaries; or (ii) the terms
of such Affiliate Transaction are fair and reasonable (as determined by the
Board of Directors in good faith) to the Company or such Subsidiaries, 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 the Company or such
Subsidiary, as the case may be, in a comparable transaction made on an
arm's-length basis between unaffiliated parties. In any Affiliate Transaction
involving an amount or having a value less than $1.0 million which is not
permitted under clause (i) above, the Company shall obtain a resolution of the
Board of Directors approved by a majority of the members of the Board of
Directors (and a majority of the disinterested members of the Board of
Directors) certifying that such Affiliate Transaction complies with clause (ii)
above. In Affiliate Transactions with a value of $1.0 million or more which are
not permitted under clause (i) above, the Company shall obtain a written opinion
as to the fairness to the Company or such Subsidiary from a financial point of
view of such a transaction from an independent investment banking firm of
nationally-recognized standing.
The foregoing provisions will not apply to: (i) any Restricted
Payment that is not prohibited by Section 4.9; (ii) any transaction, approved by
the Board of Directors or the board of directors of the Subsidiary party
thereto, as the case may be, with an officer or director of the Company or of
any Subsidiary of the Company in his or her capacity as officer or director
entered into in the ordinary course of business, including, without limitation,
compensation, employee benefit and indemnification agreements and arrangements
with any officer or director of the Company or of any such Subsidiary; or (iii)
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the payment of management and advisory fees to Xxxx Xxxx Equity Partners, L.P.
and its Affiliates and successors and assigns permitted by Section 4.9.
SECTION 4.15 Change of Control.
Within 30 days of the occurrence of a Change of Control, the Company
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 4.15.
Within 30 days of the occurrence of a Change of Control, the Company
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 services in the
United States and (ii) send by first-class mail, postage prepaid, to the Trustee
and to each Holder of the Notes, at the address appearing in the register
maintained by the Registrar of the Notes, a notice stating:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered will be accepted for payment, and
otherwise subject to the terms and conditions set forth herein;
(2) the Change of Control Purchase Price and the purchase date
(which shall be a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed (the "Change of Control Payment
Date"));
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company 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;
(5) that Holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
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Notes 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;
(6) 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
telegram, telex, 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;
(7) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in 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;
(8) any other procedures that a Holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company 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
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 Company. The Paying Agent shall promptly (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 interests so accepted
payment in an amount equal to the purchase price for such Notes, and the Company
shall execute and issue, and the Trustee shall promptly authenticate and mail to
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 the Notes so surrendered; provided, that each such
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new Note shall be issued in an original principal amount in denominations of
$1,000 and integral multiples thereof.
If the Company or any of its Subsidiaries has issued any outstanding
Indebtedness that is subordinated in right of payment to the Notes or the
Company has issued any Preferred Stock, and the Company or such Subsidiary is
required to make a Change of Control Offer or to make a distribution with
respect to such subordinated Indebtedness or Preferred Stock in the event of a
Change of Control, the Company or such Subsidiary shall not consummate any such
offer or distribution with respect to such subordinated Indebtedness or
Preferred Stock until such time as the Company shall have paid the Change of
Control Purchase Price in full to the Noteholders that have accepted the
Company's Change of Control Offer and shall otherwise have consummated the
Change of Control Offer made to Noteholders. In addition, except for shares of
Existing Preferred Stock issued in accordance with the terms thereof (including
as dividends) as in effect on the Issue Date, the Company or any of its
Subsidiaries will not issue Indebtedness that is subordinated in right of
payment to the Notes and the Company shall not issue Preferred Stock with change
of control provisions requiring the payment of such Indebtedness or Preferred
Stock prior to the payment of the Notes in the event of a Change of Control.
In the event that a Change of Control occurs and the Noteholders
exercise their right to require the Company to purchase Notes, if such purchase
constitutes a "tender offer" for purposes of Rule 14e-1 under the Exchange Act
at that time, the Company shall comply with the requirements of Rule 14e-1 as
then in effect with respect to such purchase.
SECTION 4.16 Limitation on Creation of
Subsidiaries.
The Company shall not create or acquire, or permit any of its
Subsidiaries to create or acquire, any Subsidiary other than (i) a Subsidiary
existing as of the Issue Date, or (ii) a Subsidiary conducting a business
similar or reasonably related, ancillary or incidental to the business of the
Company and its Subsidiaries as conducted on the Issue Date.
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SECTION 4.17 Limitation on Preferred Stock of
Subsidiaries.
The Company shall not permit any of its Subsidiaries to issue any
Preferred Stock (except to the Company or a Subsidiary of the Company) or permit
any Person (other than the Company or a Subsidiary of the Company) to hold any
such Preferred Stock unless the Company or such Subsidiary would be entitled to
incur or assume Indebtedness under Section 4.8 in the aggregate principal amount
equal to the aggregate liquidation value of the Preferred Stock to be issued.
SECTION 4.18 Limitation on Capital Stock of
Subsidiaries.
The Company shall not (i) sell, pledge, hypothecate or otherwise
convey or dispose of any Capital Stock of a Subsidiary of the Company or (ii)
permit any Subsidiary to issue any Capital Stock, other than to the Company or a
Wholly-Owned Subsidiary. The foregoing restrictions shall not apply to (i) an
Asset Sale made in compliance with Section 4.13; (ii) the issuance of Preferred
Stock in compliance with Section 4.17; or (iii) Liens securing Permitted
Indebtedness or Ratio Indebtedness.
SECTION 4.19 Limitation on Sale and Lease-Back
Transactions.
The Company shall not, and shall not permit any of its Subsidiaries
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 by the Board of Directors in
good faith, and (ii) the Company could incur the Attributable Indebtedness in
respect of such Sale and Lease-Back Transaction in compliance with Section 4.8.
SECTION 4.20 Financing of Certain Acquisitions.
The Company shall not, and shall not permit any of its Subsidiaries
to, use either proceeds from Indebtedness incurred under the New Revolving
Credit Facility or cash (whether alone, together or in combination with other
Indebtedness) to finance acquisitions unless the amount of such Indebtedness or
cash, as the case may be, could be incurred (in the case of cash, as if the
amount of such cash were Indebtedness) as Ratio Indebtedness; provided, that
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this Section 4.20 shall be of no further force or effect at such time as the
Company's actual EBITDA (without giving effect to any EBITDA generated by the
acquired entities or assets subsequent to the acquisition thereof for
acquisitions consummated after the Issue Date) for the last four quarters for
which internal financial statements are available equals or exceeds $34.0
million as determined in good faith by the Board of Directors, as evidenced by a
Board Resolution certified by an Officers' Certificate filed with the Trustee
and accompanied by a certificate of the Chief Financial Officer of the Company
to the effect that such actual EBITDA was calculated without giving effect to
any EBITDA generated by the acquired entities or assets and that the resulting
adjustments were reasonable in the circumstances; and provided, further, that
this Section 4.20 shall not apply to cash constituting the Net Proceeds of an
issuance by the Company of its Capital Stock (other than Disqualified Capital
Stock) after the Issue Date.
SECTION 4.21 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent permitted by law) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company from paying all or any portion of
the principal of or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture; and (to the extent permitted by law) the
Company hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but (to the extent permitted by law) shall suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.22 Further Assurance to the Trustee.
The Company and the Guarantor shall, upon request of the Trustee,
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the provisions of
this Indenture.
SECTION 4.23 Disbursement of Funds; Escrow Account.
The Guarantor and the Company shall, on the Issue Date, enter into
the Escrow Agreement and, pursuant thereto, shall place the Initial Escrow
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Amount in the Escrow Account held by the Escrow Agent for the benefit of the
Holders of the Notes and the Trustee (in its capacity as such).
SECTION 4.24 Payments for Consent.
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration whether by
way of interest, fee or otherwise, to any Noteholder 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 Noteholders 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 4.25 Guarantor.
Until the Subsidiary Guarantee shall be released in accordance with
the terms of Article X, (a) the Guarantor shall be a direct, Wholly-Owned
Subsidiary of the Company, (b) neither the Company nor the Guarantor shall,
directly or indirectly, amend, modify or change in any manner the certificate of
incorporation of the Guarantor or its by-laws or enter into any agreement with
respect to the Capital Stock of the Guarantor and
(c) the Company shall observe and abide by all of the terms and provisions of
the Guarantor's certificate of incorporation (including, without limitation, the
restrictions on the Guarantor's activities) and by-laws and shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, through any
action or inaction, cause or permit any violation of any terms or provisions of
the Guarantor's certificate of incorporation and by-laws.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 Merger, Consolidation or Sale of
Assets.
The Company shall not 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, and the Company shall not permit any Subsidiary to enter into any such
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transaction or series of related transactions if such transaction or
series of related transactions would result in a transfer of all or
substantially all of the assets of the Company and its Subsidiaries, taken as a
whole, to another Person, unless: (i) the Company or such Subsidiary, as the
case may be, shall be the continuing Person, or the Person (if other than the
Company or such Subsidiary) formed by such consolidation or into which the
Company or such Subsidiary, as the case may be, is merged or to which the
properties and assets of the Company or such Subsidiary, as the case may be, are
transferred shall be a corporation, partnership, limited liability company,
joint-stock company or business trust organized and existing under the laws of
the United States or any State thereof or the District of Columbia 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 the
Company or such Subsidiary, as the case may be, under the Notes and this
Indenture, and the obligations under the Notes and this Indenture shall remain
in full force and effect; provided, that at any time the Company or its
successor is a partnership, limited liability company, joint-stock company or
business trust, there shall be a co-issuer of the Notes that is a corporation;
(ii) immediately before and immediately after giving effect to such transaction
and the assumption contemplated by clause (i) above (including, without
limitation, giving effect to any Indebtedness and Acquired Indebtedness incurred
or anticipated to be incurred and any Lien granted in connection with the
transaction), no Default or Event of Default shall have occurred and be
continuing; and (iii) immediately after giving effect to such transaction and
the assumption contemplated by clause (i) above (including, without limitation,
giving effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with the transaction), the Company or
the continuing Person, as the case may be, could incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.8.
Notwithstanding clause (ii) above, the Company may merge with an
Affiliate incorporated for the purpose of reincorporating the Company in another
jurisdiction to realize tax or other benefits.
In connection with any consolidation, merger or transfer of assets
contemplated by this provision, the Company 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
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such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this provision and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
SECTION 5.2 Successor Entity Substituted.
Upon any consolidation, combination, merger or any transfer of all
or substantially all of the assets of the Company in accordance with Section
5.1, the surviving entity formed by such consolidation or combination or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such surviving entity had been
named as the Company herein, and thereafter, the predecessor company (except in
the case of a lease) shall be released from all obligations and covenants under
this Indenture and the Notes.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default.
(a) Each of the following constitutes an "Event of Default":
(i) default in payment of any principal of, or premium, if any, on
the Notes;
(ii) default for 30 days in payment of any interest, including
Additional Interest, if any, on the Notes;
(iii) default by the Company in the observance or performance of any
other covenant in the Notes, this Indenture or the Escrow Agreement for 60
days after written notice from the Trustee or the Holders of not less than
25% in aggregate principal amount of the Notes then outstanding;
(iv) default in the payment at final maturity of principal in an
aggregate amount of $5.0 million or more with respect to any Indebtedness
of the Company or any of its Subsidiaries 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 by the Trustee or
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any Holder, or the acceleration of any such Indebtedness aggregating $5.0
million or more which acceleration shall not be rescinded or annulled
within 20 days after written notice to the Company by the Trustee or any
Holder;
(v) any final judgment or judgments which can no longer be appealed
for the payment of money in excess of $5.0 million (which are not paid or
covered by third party insurance by financially sound insurers that have
not disclaimed coverage) shall be rendered against the Company or any of
its Subsidiaries thereof, and shall not be discharged for any period of 60
consecutive days during which a stay of enforcement shall not be in
effect;
(vi) the Company or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding or otherwise
files a petition in bankruptcy or answer or consent seeking
reorganization or relief,
(B) consents to the entry of a Bankruptcy Order
for relief against it in an involuntary case or
proceeding,
(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 files a proposal or scheme of arrangement involving the
rescheduling or composition of its indebtedness,
(E) consents to the filing against it of a
petition in bankruptcy or the appointment of or taking
possession by a Custodian, or
(F) shall generally not pay its debts when such debts become
due or shall admit in writing its inability to pay its debts
generally;
(vii) a court of competent jurisdiction enters a Bankruptcy Order
under any Bankruptcy Law that:
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(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case or
proceeding,
(B) appoints a Custodian of the Company or any
Significant Subsidiary for all or substantially all of
its properties, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and in each case the order or decree remains unstayed and in
effect for 60 days;
(viii) repudiation by the Company of its obligations
under the Escrow Agreement for any reason; and
(ix) repudiation by the Guarantor of its obligations
under, or the unenforceability of, the Subsidiary Guarantee.
(b) For purposes of this Article VI: the term "Custodian" means any
receiver, interim receiver, receiver and manager, trustee, assignee, liquidator,
sequestrator or similar official charged with maintaining possession or control
over property for one or more creditors, whether under any Bankruptcy Law or
otherwise. The term "Bankruptcy Order" means any court order made in a
proceeding pursuant to or within the meaning of any Bankruptcy Law, containing
an adjudication of bankruptcy or insolvency, or providing for liquidation,
winding up, dissolution or reorganization, or appointing a custodian of a debtor
or of
all or any substantial part of a debtor's property, or providing for the
staying, arrangement, adjustment or composition of indebtedness or other relief
of a debtor.
(c) Subject to the provisions of Sections 7.1 and 7.2, the Trustee
shall not be charged with knowledge of any Default, Event of Default, Change of
Control or Asset Sale unless written notice thereof shall have been given to a
Trust Officer at the corporate trust office of the Trustee by the Company or any
other Person.
SECTION 6.2 Acceleration.
If an Event of Default (other than an Event of Default arising under
Section 6.1(a)(vi) or (vii) with respect to the Company) shall have occurred and
be continuing, then the Trustee or the Holders of not less than 25% in aggregate
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principal amount of the Notes then outstanding may declare to be immediately due
and payable the entire principal amount of all the Notes then outstanding plus
accrued interest to the date of acceleration; provided, however, that after such
acceleration but before a judgment or decree based on acceleration is obtained
by the Trustee, the Holders of a majority in aggregate principal amount of
outstanding Notes may rescind and annul such acceleration if all Events of
Default, other than nonpayment of accelerated principal, premium or interest
that has become due solely because of the acceleration, have been cured or
waived as provided in this Indenture and if the rescission would not conflict
with any judgment or decree. In case an Event of Default arising under Section
6.1(a)(vi) or (vii) shall occur with respect to the Company, the principal,
premium 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.
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 interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
All rights of action and claims under this Indenture or the Notes
may be enforced by the Trustee even if the Trustee 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 Default.
Subject to Sections 6.2, 6.7 and 9.2, the Holders of, in the
aggregate, a majority in principal amount of the outstanding Notes, by notice to
the Trustee, may waive an 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
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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 at least a majority in principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it; provided, that the Trustee may refuse to follow any
direction that (i) conflicts with law or this Indenture, (ii) the Trustee
determines may be unduly prejudicial to the rights of another Noteholder, or
(iii) may involve the Trustee in personal liability unless the Trustee has
indemnification satisfactory to it in its sole discretion against any loss or
expense caused by its following such direction; and provided, further, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 6.6 Limitation on Suits.
Subject to Section 6.7 below, a Noteholder may not pursue any remedy
with respect to this Indenture or the Notes unless:
(a) the Holder gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of the
outstanding Notes make a written request to the Trustee to pursue a
remedy;
(c) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the outstanding Notes do not give the Trustee a direction
inconsistent with the request.
The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal of or accrued interest on
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the Notes on or after the respective due dates set forth or provided for in the
Notes.
A Noteholder may not use this Indenture to obtain a preference or
priority over any other Noteholder.
SECTION 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Note (including
any Additional Interest), on or after the respective due dates expressed or
provided for 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 such Holder.
SECTION 6.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a)(i) or (ii) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or any other obligor on the
Notes for the whole amount of principal and accrued interest remaining unpaid,
together with interest overdue on principal and, to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the interest rate borne by the Notes and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.9 Trustee May File Proofs of Claim.
The Trustee shall be entitled and empowered to 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 Company or the Subsidiaries of the Company (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, and any Custodian in any such judicial
proceedings 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
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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 agent and counsel, and any other amounts due the Trustee under
Section 7.7. To the extent that payment of such reasonable compensation,
expenses, disbursements, advances, counsel fees and other amounts out of the
estate in any such proceeding shall be denied for any reason, payment of the
same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities and other property which the
Noteholders may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article X, it
shall pay out such money in the following order:
FIRST: to the Trustee for amounts due under
Section 7.7;
SECOND: to Holders for interest (including any
Additional Interest) accrued on the Notes, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Notes for interest;
THIRD: to Holders for principal amounts owing under
the Notes, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes
for principal; and
FOURTH: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Noteholders pursuant to this
Section 6.10.
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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, or a suit by Holders of more than 10% in aggregate
principal amount of the outstanding Notes.
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 Company, the Guarantor, 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 VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default actually known to a Trust
Officer of the Trustee 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 would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of
Default actually known to the Trustee:
(i) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no others and no implied covenants or
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obligations shall be read into this Indenture against the Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine such certificates and opinions to determine
whether or not they conform to the requirements of this Indenture but need
not verify the contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(ii) In the absence of bad faith on its part, 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.
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.2, 6.4 or 6.5.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d), (f) and (g) of this Section
7.1.
(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 Company or
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the Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) The Trustee may refuse to perform any duty or exercise any right
or power unless it is provided adequate funds to enable it to do so and it
receives indemnity satisfactory to it in its sole discretion against any loss,
liability, fee or expense.
SECTION 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, upon reasonable prior notice
to the Company, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting with respect to
any matter contemplated by this Indenture, it may require an Officers'
Certificate or an Opinion of Counsel, which shall conform to the
provisions of Section 11.5. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such certificate or
opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent (other
than the negligence or willful misconduct of an agent who is an employee
of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
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to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel 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.
(f) Subject to clause (a) of Section 7.1 hereof, the Trustee shall
be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any Holder pursuant to
this Indenture, unless such Holder shall have offered to the Trustee
security or indemnity satisfactory to it in its sole discretion against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
SECTION 7.3 Individual Rights of Trustee.
The Trustee in its individual capacity or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company, or
its Subsidiaries and Affiliates with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the issuance of the Notes
and it shall not be responsible for any statement of the Company in this
Indenture or any document issued in connection with the sale of Notes or any
statement in the Notes other than the Trustee's certificate of authentication.
SECTION 7.5 Notice of Defaults.
If a Default or an Event of Default with respect to the Notes occurs
and is continuing and is known to the Trustee, the Trustee shall give notice of
the Default or Event of Default within 90 days after the occurrence thereof to
all Holders of Notes as their names and addresses appear on the Register unless
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in each case, such Default shall have been cured or waived before the mailing or
publication of such notice. Except in the case of a Default or an Event of
Default in payment of principal of or interest on any Note, the Trustee may
withhold the notice to the Noteholders if a committee of its Trust Officers in
good faith determines that withholding the notice is in the interest of
Noteholders.
SECTION 7.6 Reports by Trustee to Holders.
To the extent required by TIA ss. 313(a), within 60 days after
August 15 of each year commencing with 1997 and for as long as there are Notes
outstanding hereunder, the Trustee shall mail to each Noteholder the Trustee's
brief report dated as of such date that complies with TIA ss. 313(a). The
Trustee also shall comply with TIA ss. 313(b) and TIA ss. 313(c) and (d).
A copy of each report at the time of its mailing to Noteholders
shall be filed by the Trustee with the SEC and each stock exchange, if any, on
which the Notes are listed. The Company shall notify the Trustee when the Notes
are listed on any stock exchange.
SECTION 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee, the Paying Agent and the
Registrar from time to time reasonable compensation for their respective
services rendered hereunder as may be agreed in writing from time to time. The
Trustee's, the Paying Agent's and the Registrar's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee, the Paying Agent and the Registrar upon request
(after receipt by the Company of a reasonably detailed itemization of such
expenses) for all reasonable out-of-pocket disbursements, expenses and advances
(including reasonable fees and expenses of counsel) incurred or made by each of
them in addition to the compensation for their respective services. Such
expenses shall include the reasonable compensation, out-of-pocket disbursements
and expenses of the Trustee's, the Paying Agent's and the Registrar's agents and
counsel.
The Company shall indemnify the Trustee, the Paying Agent and the
Registrar for, and hold each of them harmless against, any claim, demand,
expense (including but not limited to reasonable attorneys' fees and expenses),
loss or liability incurred by each of them arising out of or in connection with
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the administration of this Indenture, the Notes or the Escrow Agreement and
their respective duties hereunder or thereunder. Each of the Trustee, the Paying
Agent and the Registrar shall notify the Company promptly of any claim asserted
against it for which it may seek indemnity. However, failure by the Trustee, the
Paying Agent or the Registrar to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee, the Paying
Agent or the Registrar through the Trustee's, the Paying Agent's or the
Registrar's, as the case may be, own willful misconduct, negligence or bad
faith.
To secure the Company's payment obligations in this Section 7.7 and
in Section 6.9 (insofar as the Trustee is concerned), each of the Trustee, the
Paying Agent and the Registrar shall have a lien prior to the Notes on all money
or property held or collected by it, in its capacity as Trustee, Paying Agent or
Registrar, as the case may be, except money or property held in trust to pay
principal of or interest on particular Notes. Such lien and indemnity shall
survive the satisfaction, discharge and termination of this Indenture, including
any termination or rejection hereof under Bankruptcy Law.
Subject to any other rights available to the Trustee, the Registrar
and the Paying Agent under any Bankruptcy Law, when any of the Trustee, the
Paying Agent and the Registrar incurs expenses or renders services after an
Event of Default specified in Section 6.1(a)(vi) or (vii) with respect to the
Company occurs, the parties hereto and the Noteholders, by acceptance of the
Notes, hereby agree that the expenses and the compensation for the services are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company and
the Guarantor in writing, such resignation to be 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 so notifying the Trustee in
writing and may appoint a successor Trustee with the Company's consent, which
consent shall not be unreasonably withheld. The Company may remove the Trustee
if:
(a) the Trustee fails to comply with Section 7.10;
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(b) the Trustee is adjudged a bankrupt or an
insolvent;
(c) a receiver or other public officer takes charge of
the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the Notes may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee (subject to the lien provided in Section 7.7), the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 25% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
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SECTION 7.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee provided such corporation shall be otherwise
qualified and eligible under this Article VII.
SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1) and (2). The Trustee shall have a combined
capital and surplus of at least $50.0 million as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss.
310(b) subject to its rights to apply for a stay of its duty to resign under the
penultimate paragraph of TIA ss. 310(b); provided, that there shall be excluded
from the operation of TIA ss. 310(b)(1) any indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Company are outstanding if the requirements for such
exclusion set forth in TIA ss. 310(b)(1) are met. The provisions of TIA ss. 310
shall refer to the Company as obligor in respect of the Notes.
SECTION 7.11 Preferential Collection
of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein. The
provisions of TIA ss. 311 shall refer to the Company as obligor in respect of
the Notes.
SECTION 7.12 Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it 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 shall hold all sums held by it as agent for the payment
of principal of, or premium, if any, or interest on, the Notes (whether
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such sums have been paid to it by the Company or by any obligor on the
Notes) in trust for the benefit of Noteholders or the Trustee;
(b) that it shall 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 shall give the Trustee written notice within three (3)
Business Days of any failure of the Company (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.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1 Termination of Company's Obligations.
The Company may terminate its obligations under the Notes and this
Indenture if all Notes previously authenticated and delivered (other than
destroyed, lost or stolen Notes which have been replaced or paid) have been
delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder, or if:
(a) pursuant to Article III, the Company shall have given notice to
the Trustee and mailed a notice of redemption to each Holder of the
redemption of all of the Notes under arrangements satisfactory to the
Trustee for the giving of such notice; and
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, United States dollars sufficient
or direct non-callable obligations of, or non-callable obligations
guaranteed by, the United States of America for the payment of which
guarantee or obligation the full faith and credit of the United States is
pledged ("U.S. Government Obligations") maturing as to principal and
interest in such amounts and at such times as are sufficient, without
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consideration of any reinvestment of such principal or interest or a
combination thereof sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certificate thereof delivered to the Trustee, to pay when due principal
of, premium, if any, and interest and Additional Interest, if any, on the
outstanding Notes to redemption, provided that the Trustee shall have been
irrevocably instructed to apply such United States dollars or the proceeds
of such U.S. Government Obligations to the payment of said principal and
interest with respect to the Notes; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's obligations under
the Notes and this Indenture have been complied with.
After such delivery or irrevocable deposit the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes and this Indenture except for those surviving obligations specified
below.
Notwithstanding the foregoing paragraph, (i) the Company's
obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 4.2, 7.7, 7.8, 8.3,
8.4 and 8.5 and (ii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder shall survive until the Notes are no longer outstanding. After
the Notes are no longer outstanding, the Company's obligations in Sections 7.7,
8.4 and 8.5 shall survive.
SECTION 8.2 Legal Defeasance and Covenant
Defeasance.
(a) The Company may, at its option by Board Resolution, at any time,
with respect to the Notes, elect to have either paragraph (b) or paragraph (c)
below be applied to the outstanding Notes upon compliance with the conditions
set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"legal defeasance"). For this purpose, such legal defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
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represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of paragraph (e) below and the other
Sections of and matters under this Indenture referred to in (i) and (ii) below,
and to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Notes to receive solely from
the trust fund described in paragraph (d) below and as more fully set forth in
such paragraph, payments in respect of the principal of, premium, if any, and
interest on such Notes when such payments are due, (ii) the Company's
obligations with respect to such Notes under Sections 2.3, 2.4, 2.6, 2.7, 2.8
and 4.2, (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (iv) this Section 8.2 and Sections 8.3, 8.4 and 8.5. Subject to
compliance with this Section 8.2, the Company may exercise its option under this
paragraph (b) notwithstanding the prior exercise of its option under paragraph
(c) below with respect to the Notes.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article V and in Sections
4.5 and 4.7 through 4.20 (except for obligations mandated by the TIA) and
Section 4.23 with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
and the Notes shall thereafter be deemed to be not "outstanding" for the purpose
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the outstanding
Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.1(a)(iii),
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby.
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(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 who shall agree to comply with the provisions of this
Section 8.2 applicable to it) as trust 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 such Notes, (x) United
States dollars in an amount or (y) U.S. Government Obligations maturing as
to principal, premium, if any, and interest in such amounts of money and
at such times as are sufficient without consideration of any reinvestment
of such principal, premium or interest, or (z) 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, when due,
principal of, premium, if any, on the outstanding Notes on or before the
Maturity Date or Redemption Date or otherwise in accordance with the terms
of this Indenture and of such Notes; provided, that the Trustee (or other
qualifying trustee) shall have received an irrevocable written order from
the Company instructing the Trustee (or other qualifying trustee) to apply
such United States dollars or the proceeds of such U.S. Government
Obligations to said payments with respect to the Notes;
(ii) no Default or Event of Default or event which with notice or
lapse of time or both would become a Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit or,
insofar as Sections 6.1(a)(vi) and (vii) are concerned, at any time during
the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default under, this Indenture
or any other agreement or instrument to which the Company is a party or by
which it is bound;
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(iv) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States stating that (x) neither the trust nor the Trustee will be
required to register as an investment company under the Investment Company
Act of 1940, as amended, (y) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (z) since the
Issue Date, there has been a change in the applicable United States
Federal income tax law, in each case to the effect that, and based thereon
such opinion shall confirm that, the Holders of the outstanding Notes will
not recognize income, gain or loss for United States Federal income tax
purposes as a result of such legal defeasance and will be subject to
United States Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such legal defeasance
had not occurred;
(v) in the case of an election under paragraph (c) above, the
Company 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 United States Federal income tax purposes as a
result of such covenant defeasance and will be subject to United States
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;
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election under paragraph (b) or (c) of this Section 8.2 was not made by
the Company with the intent of preferring the Holders over other creditors
of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others;
(vii) in the case of an election under either paragraph (b) or (c)
above, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (x) the trust funds will not be subject to any
rights of any other holders of Indebtedness of the Company, and (y) at the
end of the sixth month following the deposit, the trust funds will not be
subject to the effect of any applicable Bankruptcy Law; and
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(viii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (to the extent matters of law are
involved), each stating that all conditions precedent herein provided for
relating to either the legal defeasance under paragraph (b) above or the
covenant defeasance under paragraph (c) above, as the case may be, have
been complied with and (y) if any other Indebtedness of the Company shall
then be outstanding or committed, such legal defeasance or covenant
defeasance will not violate the provisions of the agreements or
instruments evidencing such Indebtedness.
(e) All United States dollars and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this paragraph (e), the "Trustee")
pursuant to paragraph (d) above 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 and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the United States dollars or U.S.
Government Obligations deposited pursuant to paragraph (d) above 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.
Anything in this Section 8.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in paragraph (d) above 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.
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SECTION 8.3 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 8.1 and 8.2, and shall apply the
deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Notes. The Trustee shall be under no obligation to invest such
trust money or U.S. Government Obligations except as it may agree with the
Company in writing. The Trustee shall not be liable for any losses incurred in
connection with such investments.
SECTION 8.4 Repayment to Company.
Subject to Sections 7.7, 8.1 and 8.2, the Trustee and the Paying
Agent shall promptly pay to the Company, upon receipt
by the Trustee and the Paying Agent of an Officers' Certificate stating the
amount to which the Company is entitled, any excess money, determined in
accordance with Section 8.2(e), held by it at any time. The Trustee and the
Paying Agent shall pay to the Company upon receipt by the Trustee or the Paying
Agent, as the case may be, of an Officers' Certificate stating the amount to
which the Company is entitled, any money held by it for the payment of
principal, premium, if any, or interest that remains unclaimed for two years
after payment to the Holders is required; provided, however, that the Trustee
and the Paying Agent before being required to make any payment may, but need
not, at the expense of the Company in respect of the Notes, mail by first-class
mail to each Holder of a Note entitled to such money at such Holder's address as
set forth on the Register. After payment to the Company, Noteholders entitled to
money must look solely to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 8.5 Reinstatement.
With respect to the circumstances referred to in Section 8.1 and
8.2, if the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture 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, then
and only then the Company's obligations under this Indenture and the Notes shall
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be revived and reinstated as though no deposit had been made pursuant to this
Indenture until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with this Indenture;
provided, that if the Company has made any payment of principal of, premium, if
any, or interest on any Notes because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
SECTION 8.6 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 Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 8.2(d) hereof, to the Company,
and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
SECTION 8.7 Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then
held by the Company 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 repaid to the Company upon Company Request, or if such moneys
are then held by the Company in trust, such moneys shall be released from such
trust; and the Holder of such Note entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof, 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 Company either mail to each Holder
affected, at the address shown in the register of the Notes maintained by the
Registrar pursuant to Section 2.4 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
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remaining will be repaid to the Company. After payment to the Company or the
release of any money held in trust by the Company, Holders entitled to the money
must look only to the Company for payment as general creditors unless applicable
abandoned property law designates another person.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders.
The Company and the Guarantor, when authorized by a Board Resolution
of each of them, and the Trustee may amend, waive or supplement this Indenture,
the Notes and the Escrow Agreement without notice to or consent of any
Noteholder:
(a) to cure any ambiguity, defect or inconsistency, provided that
such amendment or supplement does not materially and adversely affect the
rights of any Holder;
(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(c) to comply with any requirements of the SEC under the TIA;
(d) to evidence the succession in accordance with Article V hereof
of another Person to the Company and the assumption by any such successor
of the covenants of the Company herein and in the Notes;
(e) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the Notes;
(f) to enable the Trustee to retain a first priority perfected
security interest in the Collateral at such time as the Temporary Cash
Investments in the Escrow Account include the type of obligations or
securities provided for in clause (i) of the definition of Temporary Cash
Investments; or
(g) to make any change that does not materially and adversely
affect the rights of any Holder.
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SECTION 9.2 With Consent of Holders.
Subject to Section 6.7 and the provisions of this Section 9.2, the
Company and the Guarantor, when authorized by a Board Resolution of each of
them, and the Trustee may amend or supplement this Indenture, the Notes or the
Escrow Agreement in any respect with the written consent of the Holders of not
less than a majority in aggregate principal amount of the Notes then
outstanding. Subject to Section 6.7 and the provisions of this Section 9.2, the
Holders of, in the aggregate, at least a majority in aggregate principal amount
of the outstanding Notes affected may waive compliance by the Company or the
Guarantor with any provision of this Indenture, the Notes or the Escrow
Agreement without notice to any other Noteholder.
Notwithstanding the foregoing, without the consent of each
Noteholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4, may not:
(a) reduce the amount of Notes the Holders of which must consent to
an amendment, supplement or waiver of any provision of this Indenture or
the Notes;
(b) reduce the rate of, change the method of
calculation of, or change the time for, payment of interest
on any Note;
(c) reduce the principal of or premium on or change
the stated maturity of any Note;
(d) make any Note payable in money other than that stated in the
Note or change the place of payment from New York, New York;
(e) change the amount or time of any payment required by the Notes
or reduce the premium payable upon any redemption of the Notes, or change
the time before which no such redemption may be made;
(f) waive a default in the payment of the principal of, interest
(including any Additional Interest) on, redemption payment or an offer to
purchase required hereunder with respect to, any Note;
(g) amend, alter, change or modify the obligation of the Company to
make and consummate a Change of Control Offer in the event of a Change of
Control or make and consummate an Available Proceeds Offer after such
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obligation has arisen, or waive any of the provisions or definitions with
respect to any such offers;
(h) affect the ranking of the Notes in a manner adverse to the
Holders;
(i) make any change that would result in the Company being required
to make any withholding or deduction from payments made under or with
respect to the Notes;
(j) impair the right to institute suit for the enforcement of any
payment on or with respect to the Notes;
(k) directly or indirectly release Liens on all or
substantially all of the Collateral except as permitted by
the Escrow Agreement; or
(l) modify this Section 9.2 or Section 6.4.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or waiver under Section 9.1 or this Section 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amendment or waiver.
Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
9.2, the Trustee shall give notice thereof, at the expense of the Company, to
the Holders of then outstanding Notes, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
books of the Registrar.
SECTION 9.3 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.
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SECTION 9.4 Revocation and Effect of Amendments and Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Note or portion of that Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. Prior to
becoming effective, however, any such Holder or subsequent Holder may revoke the
consent as to his Note or portion of a Note. Such revocation shall be effective
only if the Trustee receives the written notice of revocation before the date
the amendment, supplement or waiver becomes effective. Notwithstanding the
above, nothing in this paragraph shall impair the right of any Noteholder under
ss. 316(b) of the TIA.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders of Notes entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the second and third sentences of the immediately preceding paragraph, those
Persons who were Holders of Notes at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders of Registered Notes after
such record date. Such consent shall be effective only for actions taken within
90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Noteholder (and every subsequent Noteholder), unless it makes a
change described in any of clauses (a) through (l) of Section 9.2; if it makes
such a change, the amendment, supplement or waiver shall bind every Holder
consenting thereto and every subsequent Holder of a Note or portion of a Note
that evidences the same debt as the consenting Holder's Note.
SECTION 9.5 Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note,
the Trustee shall (in accordance with the specific written direction of the
Company and at the expense of the Company) request the Holder of the Note to
deliver it to the Trustee. The Trustee shall (in accordance with the specific
direction of the Company) place an appropriate notation on the Note about the
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changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note shall issue and the
Trustee shall authenticate a new Note that reflects the changed terms. Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
SECTION 9.6 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article IX if the amendment, supplement or waiver
does not adversely affect the rights, duties or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive, if requested, an
indemnity satisfactory to it in its sole discretion and to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver authorized pursuant to this
Article IX is authorized or permitted by this Indenture and is a legal valid and
binding obligation of the Company enforceable against the Company, in accordance
with its terms (subject to customary exceptions). Neither the Company nor the
Guarantor may sign an amendment until their respective Boards of Directors
approves it.
ARTICLE X
GUARANTEE OF NOTES; COLLATERAL AND SECURITY
SECTION 10.1 Guarantee.
Subject to the provisions of this Article X, the Guarantor hereby
unconditionally guarantees to each Holder and to the Trustee (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 (including
Additional 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 Company 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
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stated maturity, by acceleration or otherwise. The Guarantor hereby agrees that
its obligations 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 Company 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 the Guarantor. Without limiting the foregoing, the
Guarantor agrees that it shall be liable for the payment of interest on the
Notes in accordance with this Indenture notwithstanding the suspension of the
accrual of such interest against the Company during a proceeding with respect to
the Company under a Bankruptcy Law.
The Guarantor hereby waives diligence, presentment, demand for
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company,
protest or notice with respect to any such Note or the Indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Subsidiary Guarantee
will not be discharged as to any such Note except either (a) by payment in full
of the principal thereof, premium if any, and interest thereon and as provided
in Section 8.1 hereof or (b) by the application of the entire proceeds of the
Escrow Account to the satisfaction of the Guarantor's obligations under this
Indenture by the payment of such proceeds to or for the benefit of the Trustee
or the Noteholders. The Guarantor further agrees that, as between the Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the Obligations guaranteed hereby may be accelerated as provided in
Article VI hereof for the purposes of this Subsidiary Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in
respect of the Obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of such Obligations as provided in Article VI
hereof, such Obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantor for the purpose of this Subsidiary Guarantee.
In addition, without limiting the foregoing provisions, upon the effectiveness
of an acceleration under Article VI hereof, the Trustee shall promptly make a
demand for payment on the Notes under the Subsidiary Guarantee provided for in
this Article X and not discharged.
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The Subsidiary Guarantee set forth in this Section 10.1 shall not be
valid or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee by its manual signature.
SECTION 10.2 Execution and Delivery of Guarantee.
To evidence the Subsidiary Guarantee set forth in this Article X,
the Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form included in Exhibit G hereto shall be placed on each
Note authenticated and made available for delivery by the Trustee and that this
Subsidiary Guarantee shall be executed on behalf of the Guarantor by the manual
or facsimile signature of an Officer of the Guarantor.
The Guarantor hereby agrees that the Subsidiary Guarantee set forth
in Section 10.1 shall remain in full force and effect notwithstanding any
failure to execute on each Note a notation of such Subsidiary Guarantee.
If an Officer of the Guarantor whose signature is on the Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which the Subsidiary Guarantee is executed, the Subsidiary Guarantee
shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set
forth in this Indenture on behalf of the Guarantor.
SECTION 10.3 Limitation of Guarantee.
Notwithstanding any other provision of this Article X or the
Subsidiary Guarantee to the contrary, the obligations of the Guarantor under
this Indenture are limited in amount to the value of the property held from time
to time in the Escrow Account or proceeds of such property.
SECTION 10.4 Release of Guarantor.
The Guarantor shall be released from all of its obligations under
the Subsidiary Guarantee when all funds in the Escrow Account have been properly
disbursed, either to the Trustee or the Company, in accordance with the terms of
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the Escrow Agreement and, in such case, the Guarantor shall deliver to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to such transactions have
been complied with.
SECTION 10.5 Payments.
So long as no Default or Event of Default has occurred and is
continuing, the Guarantor shall pay to the Trustee for the benefit of the
holders of the Notes, on each interest payment date on the Notes, an amount
equal to the amount of interest then due on $79.0 million aggregate principal
amount of the Notes (such amount, the "Interest Portion"); provided, that if
less than $79.0 million aggregate principal amount of the Notes are outstanding,
that portion of the Interest Portion representing the interest payment then due
on the amount by which $79.0 million exceeds the outstanding aggregate principal
of the Notes may be paid to the Company. Upon the occurrence and during the
continuation of a Default or an Event of Default, the Guarantor shall pay the
full amount of interest on the Notes at the regular, pre-default rate, as the
same becomes due and payable, unless paid from another source. The proceeds of
the Escrow Account shall be applied first to the payment of interest on the
Notes so long as interest thereon is due or will become due under the Notes and
shall be applied to principal or premium, if any, only in the event that
interest is no longer due and will not become due (whether because the full
principal amount of the Notes is to be repaid or otherwise).
SECTION 10.6 Escrow Agreement.
The obligations of the Guarantor under the Subsidiary Guarantee and
the Indenture shall be secured as and to the extent provided in the Escrow
Agreement which the Guarantor, the Escrow Agent and the Trustee have entered
into simultaneously with the execution of this Indenture. Each Holder of Notes,
by its acceptance thereof, consents and agrees to the terms of the Escrow
Agreement (including, without limitation, the provisions providing for
foreclosure and disbursement of Collateral) as the same may be in effect or may
be amended from time to time in accordance with its terms and authorizes and
directs the Escrow Agent and the Trustee to enter into the Escrow Agreement and
to perform its obligations and exercise its rights thereunder in accordance
therewith. The Guarantor shall deliver to the Trustee copies of the Escrow
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Agreement, and shall do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the provisions of the Escrow
Agreement, to assure and confirm to the Trustee the security interest in the
Collateral contemplated by the Escrow Agreement or any part thereof, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture with respect to, and of, the obligations of the
Guarantor under the Subsidiary Guarantee, according to the intent and purposes
expressed in the Escrow Agreement. The Guarantor shall take any and all actions
reasonably required to cause the Escrow Agreement to create and maintain (to the
extent possible under applicable law), as security for the obligations of the
Guarantor hereunder, a valid and enforceable perfected first priority Lien in
and on all the Collateral, in favor of the Trustee for the benefit of the
Holders of the Notes, superior to and prior to the rights of all third Persons
and subject to no other Liens, subject to the rights of the Company to the
release of such Collateral in the manner and to the full extent set forth in the
Escrow Agreement.
SECTION 10.7 Recording and Opinions.
(a) The Guarantor shall furnish to the Trustee simultaneously with
the execution and delivery of this Indenture an Opinion of Counsel either (i)
stating that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture, financing
statements or other instruments necessary to make effective the Lien intended to
be created by the Escrow Agreement, and reciting with respect to the security
interests in the Collateral, the details of such action, or (ii) stating that,
in the opinion of such counsel, no such action is necessary to make such Lien
effective.
(b) The Guarantor shall furnish to the Escrow Agent and the Trustee
on February 15, 1998, and on each February 15 thereafter until the date upon
which the balance of Available Funds (as defined in the Escrow Agreement) shall
have been reduced to zero, an Opinion of Counsel, dated as of such date, either
(i) stating that (A) in the opinion of such counsel, action has been taken with
respect to the recording, registering, filing, re-recording, re-registering and
refiling of all supplemental indentures, financing statements, continuation
statements or other instruments of further assurance as is necessary to maintain
the Lien of the Escrow Agreement and reciting with respect to the security
interests in the Collateral the details of such action or referring to prior
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Opinions of Counsel in which such details are given and (B) based on relevant
laws as in effect on the date of such Opinion of Counsel, all financing
statements and continuation statements have been executed and filed that are
necessary as of such date and during the succeeding 12 months fully to preserve
and protect, to the extent such protection and preservation are possible by
filing, the rights of the Holders of the Notes and the Trustee hereunder and
under the Escrow Agreement with respect to the security interests in the
Collateral or (ii) stating that, in the opinion of such counsel, no such action
is necessary to maintain such Lien and assignment.
SECTION 10.8 Release of Collateral.
(a) Subject to subsections (b), (c) and (d) of this Section 10.8,
Collateral may be released from the Lien and security interest created by the
Escrow Agreement only in accordance with the provisions of the Escrow Agreement.
(b) Except to the extent that any Lien on proceeds of Collateral is
automatically released by operation of Section 9- 306 of the Uniform Commercial
Code or other similar law, no Collateral shall be released from the Lien and
security interest created by the Escrow Agreement pursuant to the provisions of
the Escrow Agreement, other than pursuant to the terms thereof, unless there
shall have been delivered to the Trustee the certificate required by Section
10.8(d) and Section 10.9.
(c) At any time when an Event of Default shall have occurred and be
continuing and the maturity of any Notes shall have been accelerated (whether by
declaration or otherwise), no Collateral shall be released pursuant to the
provisions of the Escrow Agreement, and no release of Collateral in
contravention of this Section 10.8(c) shall be effective as against the Holders
of the Notes, except for the disbursement of all Available Funds (as defined in
the Escrow Agreement) to the Trustee pursuant to Section 6(b) of the Escrow
Agreement.
(d) The release of any Collateral from the Liens and security
interests created by this Indenture and the Escrow Agreement shall not be deemed
to impair the security under this Indenture in contravention of the provisions
hereof if and to the extent the Collateral is released pursuant to the terms
hereof or, subject to complying with the requirements of this Section 10.8,
pursuant to the terms of the Escrow Agreement. To the extent applicable, the
Guarantor shall cause TIA ss. 314(d) relating to the release of property or
securities from the Lien and security interest of the Escrow Agreement to be
complied with. Any certificate or opinion required by TIA ss. 314(d) may be made
by an Officer of the Guarantor except in cases where TIA ss. 314(d) requires
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that such certificate or opinion be made by an independent Person, which Person
shall be an independent engineer, appraiser or other expert selected or approved
by the Trustee in the exercise of reasonable care.
SECTION 10.9 Certificates of the Guarantor
and Opinion of Counsel.
The Guarantor shall furnish to the Trustee, prior to any proposed
release of Collateral other than pursuant to the express terms of the Escrow
Agreement, (i) all documents required by Section 314(d) of the TIA and (ii) an
Opinion of Counsel, which may be rendered by internal counsel to the Guarantor,
to the effect that such accompanying documents constitute all documents required
by Section 314(d) of the TIA. The Trustee may, to the extent permitted by
Sections 7.1 and 7.2, accept as conclusive evidence of compliance with the
foregoing provisions the appropriate statements contained in such documents and
such Opinion of Counsel.
SECTION 10.10 Authorization of Actions to Be
Taken by the Trustee Under
the Escrow Agreement.
Subject to the provisions of Sections 7.1 and 7.2, the Trustee may,
without the consent of the Holders of the Notes, on behalf of the Holders of the
Notes, take all actions it deems necessary or appropriate in order to (a)
enforce any of the terms of the Escrow Agreement and (b) collect and receive any
and all amounts payable in respect of the Obligations of the Guarantor
hereunder. The Trustee shall have the power to institute and maintain such suits
and proceedings as it may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Escrow
Agreement or this Indenture, and such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and the interests of the
Holders of the Notes in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
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prejudicial to the interests of the Holders of the Notes or of the Trustee).
SECTION 10.11 Authorization of Receipt of
Funds by the Trustee Under
the Escrow Agreement.
The Trustee is authorized to receive any funds for the benefit of
the Holders of the Notes disbursed under the Escrow Agreement, and to make
further distributions of such funds to the Holders of the Notes according to the
provisions of this Indenture.
SECTION 10.12 Termination of Security Interest.
Upon the earliest to occur of (i) ten days following disbursement of
all funds remaining in the Escrow Account (including Temporary Cash
Investments), (ii) the payment in full of all obligations of the Company under
this Indenture and the Notes, (iii) Legal Defeasance or Covenant Defeasance
pursuant to Section 8.2, the Trustee shall, at the written request of the
Company, release the Liens pursuant to this Indenture and the Escrow Agreement
upon the Company's compliance with the provisions of the TIA pertaining to
release of collateral.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls.
If and to the extent that any provision of this Indenture limits,
qualifies, or conflicts with the duties imposed by, or with another provision
(an "incorporated provision") included in this Indenture by operation of,
Sections 310 to 318, inclusive, of the TIA, such imposed duties or incorporated
provision shall control.
SECTION 11.2 Notices.
Except for notice or communication to a Holder, any notice or
communication shall be deemed given if in writing and delivered in person,
transmitted by telecopy, delivered by a reputable overnight carrier or mailed by
first-class mail, addressed or transmitted, as the case may be, as follows, and
received by the addressee:
-100-
(a) if to the Company:
RENAISSANCE COSMETICS, INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 000-000-0000
Attention: Xxxxxx X.X. Kaung
(b) if to the Trustee:
UNITED STATES TRUST COMPANY OF NEW YORK
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier: 212-852-1625
Attention: Corporate Trust Department
Notice to the Company shall constitute notice to the Guarantor.
The Company and the Trustee by notice to the other may designate
additional or different addresses or telecopy transmission numbers for
subsequent notices or communications.
Any notice or communication mailed to a Holder of a Note, including
any notice delivered in connection with TIA ss. 310(b), TIA ss. 313(c), TIA ss.
314(a) and TIA ss. 315(b), shall be mailed to him, first-class postage prepaid,
at his address as it appears on the registration books of the Registrar and
shall be deemed given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
Except for a notice to the Trustee or the Company, which is deemed given only
when received, if a notice or communication is sent in the manner provided
above, it is duly given, whether or not the addressee receives it.
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.
-101-
SECTION 11.3 Communications by Holders with Other
Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantor, the Trustee, the Registrar and any other Person shall
have the protection of TIA ss. 312(c).
SECTION 11.4 Certificate and Opinion of Counsel
as to Conditions Precedent.
Upon any request or application by the Company to the Trustee or the
Escrow Agent to take any action under this Indenture, the Company, shall furnish
to the Trustee or the Escrow Agent, as the case may be, (a) an Officers'
Certificate in form and substance satisfactory to the Trustee stating that, in
the opinion of the signers, all conditions precedent, if any, provided for in
this Indenture and the Escrow Agreement relating to the proposed action have
been complied with, (b) an Opinion of Counsel in form and substance satisfactory
to the Trustee stating that, in the opinion of counsel, all such conditions have
been complied with and (c) where applicable, a certificate or opinion by an
accountant that complies with TIA ss. 314(c).
SECTION 11.5 Statements Required in Certificate
and Opinion of Counsel.
Each certificate and Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture and the Escrow
Agreement shall include:
(a) a statement that the Person making such
certificate or Opinion of Counsel has read such covenant or
condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements contained in such certificate
or Opinion of Counsel are based;
(c) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
-102-
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual
matters on an Officer's Certificate or on certificates of public officials.
SECTION 11.6 Rules by Trustee, Paying Agent,
Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Noteholders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.7 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.8 Governing Law.
The internal laws of the State of New York shall govern this
Indenture and the Notes without giving effect to principles of conflicts of
laws. The Trustee, the Company, the Guarantor and the Holders 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 this Indenture or the Notes.
SECTION 11.9 No Recourse Against Others.
A trustee, director, officer, employee, stockholder or incorporator,
as such, of the Company or the Guarantor shall not have any liability for any
obligations of the Company under the Notes, this Indenture or any Notes or for
any claim based on, in respect of or by reason of such obligations or their
creation, either directly or through the Company or any successor Person or by
virtue of any statute or other rule of law. Each Noteholder by accepting a Note
waives and releases all such liability.
-103-
SECTION 11.10 Successors.
All agreements of the Company in this Indenture, the Notes and the
Escrow Agreement shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.11 Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.12 Separability.
In case any provision in this Indenture, the Notes or the Escrow
Agreement 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, and a Holder shall have no claim therefor against any party
hereto.
SECTION 11.13 No Adverse Interpretation
of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
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, and are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
RENAISSANCE COSMETICS, INC.,
as issuer
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ATTEST:
/s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, General Counsel
RENAISSANCE GUARANTOR, INC.,
as guarantor
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ATTEST:
/s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, General Counsel
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UNITED STATES TRUST COMPANY OF
NEW YORK, as trustee
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: XXXXXX X. XXXXX
Title: SR VICE PRESIDENT
ATTEST:
/s/ Xxxxxxxx X. Xxxxxxxxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxxxx
Title: Assistant Vice President
EXHIBIT A
[FORM OF FACE OF NOTE]
CUSIP 759664-AG-0
RENAISSANCE COSMETICS, INC.
Number US$
11 3/4% SENIOR NOTE DUE 2004
RENAISSANCE COSMETICS, INC., a Delaware corporation
(the "Company"), for value received, promises to pay to
or registered assigns the principal sum of $ United States dollars
on February 15, 2004.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 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.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
RENAISSANCE COSMETICS, INC.
By:
--------------------------------
Title:
By:
--------------------------------
Title:
Dated:
Certificate of Authentication
This is one of the 11 3/4% Senior Notes due 2004 referred to in the
within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
--------------------------------
Authorized Signatory
A-2
[FORM OF REVERSE OF NOTE]
RENAISSANCE COSMETICS, INC.
11 3/4% SENIOR NOTE DUE 2004
1. Interest. Renaissance Cosmetics, Inc., a Delaware corporation (the
"Company"), promises to pay, until the principal hereof is paid or made
available for payment, interest on the principal amount set forth on the face
hereof at a rate of 11 3/4% per annum. Interest hereon will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including February 7, 1997 to but excluding the
date on which interest is paid. Interest shall be payable in arrears on each
February 15 and August 15 commencing August 15, 1997. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. The Company shall pay
interest on overdue principal and on overdue interest (to the full extent
permitted by law) at a rate of 13 3/4% per annum.
2. Method of Payment. The Company will pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on February 1 or August 1 next preceding the interest payment date
(whether or not a Business Day). Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Interest may be paid by check
mailed to the Holder entitled thereto at the address indicated on the register
maintained by the Registrar for the Notes.
3. Paying Agent and Registrar. Initially, United States Trust Company of
New York (the "Trustee") will act as a Paying Agent and Registrar. The Company
may change any Paying Agent or Registrar without notice. Neither the Company nor
any of its Affiliates may act as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture dated as of
February 7, 1997 (the "Indenture") among the Company (as defined in the
Indenture) and the Trustee. This is one of the Notes of the Company issued under
the Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code xx.xx. 77aaa-77bbbb), as amended from time to time. The Notes are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of them. Capitalized and certain other terms used herein and
A-3
not otherwise defined have the meanings set forth in the Indenture. The Notes
are obligations of the Company limited in aggregate principal amount to $200.0
million. The Indenture limits, among other things, the ability of the Company
and its Subsidiaries to: (i) incur additional Indebtedness; (ii) pay dividends
and make distributions; (iii) make certain investments; (iv) create liens; (v)
enter into transactions with affiliates; (vi) issue stock of its Subsidiaries;
(vii) enter into agreements restricting the ability of such Subsidiaries to pay
dividends and make distributions; (viii) enter into sale and leaseback
transactions; (ix) merge or consolidate the Company; (x) transfer or sell
assets; and (xi) finance certain acquisitions. These covenants are subject to a
number of important exceptions. The Company must report to the Trustee quarterly
in compliance with the limitations contained in the Indenture.
5. Optional Redemption. The Company, at its option, may redeem the Notes,
in whole or in part, at any time on or after February 15, 2002 upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount), set forth below, together, in each case, with
accrued and unpaid interest to the Redemption Date, if redeemed during the
twelve month period beginning on February 15 of each year listed below:
Year Redemption Price
2002..................................... 103.358%
2003..................................... 101.679%
Notwithstanding the foregoing, the Company may redeem in the aggregate up
to 35% of the original principal amount of Notes at any time and from time to
time on or prior to February 15, 2000 at a redemption price equal to 111.75% of
the aggregate principal amount thereof, plus accrued and unpaid interest thereon
to the Redemption Date with the Net Proceeds of one or more Public Equity
Offerings or Strategic Equity Investments; provided, that at least $130.0
million of the principal amount of Notes originally issued remains outstanding
immediately after the occurrence of any such redemption and that any such
redemption occurs within 90 days following the closing of any such Public Equity
Offering or Strategic Equity Investment.
6. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at his registered address. On and after the Redemption
Date, unless the Company defaults in making the redemption payment, interest
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ceases to accrue on Notes or portions thereof called for redemption.
7. Offers to Purchase. The Indenture provides that upon the occurrence of
a Change of Control or an Asset Sale and subject to further limitations
contained therein, the Company shall make an offer to purchase outstanding Notes
in accordance with the procedures set forth in the Indenture.
8. Registration Rights. Pursuant to a Registration Rights Agreement
between the Company and CIBC Wood Gundy Securities Corp., as initial purchaser
of the Notes, the Company will be obligated to consummate an exchange offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note for notes of a separate series issued under the Indenture (or a trust
indenture substantially identical to the Indenture in accordance with the terms
of the Registration Rights Agreement) which have been registered under the
Securities Act, in like principal amount and having substantially identical
terms as the Notes. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
9. Disbursement of Funds; Escrow Account. The Company has transferred
approximately $17.5 million of the net proceeds from the offering of the Notes
to the Guarantor in exchange for the Subsidiary Guarantee. The Guarantor has
placed such amount into an Escrow Account for the benefit of the holders of the
Notes. Until disbursed in accordance with the Escrow Agreement and the
Indenture, the Escrow Account is designed to provide security for a portion of
the Company's obligations under the Notes for the first two years after the
Issue Date. In addition, the Indenture provides that, (i) so long as no Default
or Event of Default has occurred and is continuing, the Guarantor is obligated
to pay to the Trustee for the benefit of the holders of the Notes, on each
interest payment date, an amount equal to the amount of interest then due on
$79.0 million aggregate principal amount of the Notes (such amount, the
"Interest Portion") and (ii) upon the occurrence and during the continuation of
a Default or an Event of Default, the Guarantor must pay the full amount of
interest on the Notes at the regular, pre-default rate, as the same becomes due
and payable, unless paid from another source. The Escrow Agreement provides,
among other things, that funds will be disbursed from the Escrow Account (i) on
any interest payment date, to pay the Interest Portion and (ii) upon a Default
or an Event of Default, to pay the full amount due on the Notes under the
Subsidiary Guarantee. Pending such disbursement, the Company will cause all the
A-5
funds contained in the Escrow Account to be invested in Temporary Cash
Investments. Interest earned on these Temporary Cash Investments will be added
to the Escrow Account. The Indenture provides that the proceeds of the Escrow
Account will be applied first to the payment of interest on the Notes so long as
interest thereon is due or will become due under the Notes and that only in the
event that interest is no longer due and will not become due (whether because
the full principal amount of the Notes is to be repaid or otherwise) will the
proceeds of the Escrow Account be applied to principal or premium, if any.
10. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. The Registrar need not transfer or
exchange any Notes or portion of a Note selected for redemption, or transfer or
exchange any Notes for a period of 15 days before a mailing of notice of
redemption.
11. Persons Deemed Owners. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
12. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee will pay the money back to the
Company at its written request. After that, Holders entitled to the money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another Person.
13. Amendment, Supplement, Waiver, Etc. The Company, the Guarantor and the
Trustee (if a party thereto) may, without the consent of the Holders of any
outstanding Notes, amend, waive or supplement the Indenture or the Notes for
certain specified purposes, including, among other things, curing ambiguities,
defects or inconsistencies, maintaining the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, and making any change that does not
materially and adversely affect the rights of any Holder. Other amendments and
modifications of the Indenture or the Notes may be made by the Company, the
Guarantor and the Trustee with the consent of the Holders of not less than a
majority of the aggregate principal amount of the outstanding Notes, subject to
certain exceptions requiring the consent of the Holders of the particular Notes
to be affected.
A-6
14. Successor Corporation. When a successor corporation assumes all the
obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article V of the Indenture, the
predecessor corporation will, except as provided in Article V, be released from
those obligations.
15. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.1(a)(vi) or (vii)
of the Indenture with respect to the Company) occurs and is continuing, the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes may, by written notice to the Trustee and the Company, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the outstanding Notes shall, declare all principal of and
accrued interest on all Notes to be immediately due and payable. If an Event of
Default specified in Section 6.1(a)(vi) or (vii) of the Indenture occurs with
respect to the Company, the principal amount of and interest on, all Notes shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal amount
of the then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company must furnish an
annual compliance certificate to the Trustee.
16. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not Trustee.
17. No Recourse Against Others. A trustee, director, officer, employee,
stockholder or incorporator, as such, of the Company or the Guarantor shall not
have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation, either directly or through the Company or any
successor Person or by virtue of any statute or other rule of law. Each Holder,
A-7
by accepting a Note, waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Notes.
18. Discharge. The Company's obligations pursuant to the Indenture will be
discharged, except for obligations pursuant to certain sections thereof, subject
to the terms of the Indenture, upon the payment of all the Notes or upon the
irrevocable deposit with the Trustee of United States dollars or U.S. Government
Obligations sufficient to pay when due principal of and interest on the Notes to
maturity or redemption, as the case may be.
19. Guarantee; Security. The Note is initially entitled to the benefits of
the Subsidiary Guarantee of the Guarantor. Upon the terms and subject to the
conditions set forth in the Indenture, the Guarantor has unconditionally
guaranteed that the principal of, and premium, if any, interest and Additional
Interest, if any, on and any additional amounts, if any, with respect to the
Notes will be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on overdue principal, premium, if any,
and (to the extent permitted by law) interest on any interest or Additional
Interest, if any, on the Notes and all other Obligations of the Company to the
Holders under the Notes or the Indenture (including fees, expenses or other
Obligations) will be promptly paid in full or performed. The Subsidiary
Guarantee constitutes a limited guarantee by the Guarantor of all sums due under
the Notes limited in amount to the value of the property held in the Escrow
Account. The Guarantor shall be released from the Subsidiary Guarantee upon the
terms and subject to the conditions set forth in the Indenture. Reference is
hereby made to Article X of the Indenture and to Exhibit G to the Indenture for
the terms of the Subsidiary Guarantee. The Guarantor's obligations under the
Subsidiary Guarantee are secured by a first priority security interest in the
Escrow Account and the Temporary Cash Investments held therein.
20. Authentication. This Note shall not be valid until the
Trustee signs the certificate of authentication on the other side
of this Note.
21. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN
THIS SENIOR NOTE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. The Trustee,
the Company, the Guarantor and the Holders 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 this Indenture or the Notes.
22. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants
A-8
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).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
RENAISSANCE COSMETICS, INC.
000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
A-9
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.13 or Section 4.15 of the Indenture, check
the appropriate box:
[ ] Section 4.13 [ ] Section 4.15
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.13 or Section 4.15 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-11
EXHIBIT B
[FORM OF LEGEND FOR 144A NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)
OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT
WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, (C) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X
XXXXX XXX XXX, (X) XXXXXX XXX XXXXXX XXXXXX TO AN ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT OR (F)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT
(IF AVAILABLE) (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE WITHIN THREE YEARS AFTER ORIGINAL ISSUANCE OF
THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS
OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE ACT.
B-1
[FORM OF ASSIGNMENT FOR 144A NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.17 of the Indenture shall have been satisfied.
Date: Your Signature:
------------------ -----------------------------
--------------------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
--------------------------------------------------
B-2
TO BE COMPLETED BY PURCHASER IF (a) 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
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
----------------------- -----------------------------------------
NOTICE: To be executed by
an executive officer
B-3
EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS UNLESS REGISTERED UNDER THE SECURITIES
ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
C-1
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
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(Print or type name, address and zip code of assignee)
and irrevocably appoint:
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Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.17 of the Indenture shall have been satisfied.
Date: Your Signature:
--------------------- ----------------------------
-------------------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:
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C-2
TO BE COMPLETED BY PURCHASER IF (a) 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
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ------------------ ----------------------------------
NOTICE: To be executed by
an executive officer
C-3
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
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 IN SUCH OTHER NAME
AS IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR 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.
D-1
EXHIBIT E
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
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Attention:
Re: Renaissance Cosmetics, Inc.
(the "Company")
11 3/4% Senior Notes
due 2004 (the "Notes")
----------------------
Dear Sirs:
In connection with our proposed purchase of Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
dated as of , 1997 relating to the Notes and we agree to be bound by, and
not to resell, pledge or otherwise transfer the Notes except in compliance
with, such restrictions and conditions and the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that the Notes have not been registered under the
Securities Act, and that the Notes may not be offered, sold, pledged or
otherwise transferred except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell any Notes, we will do
so only (i) to the Company or any subsidiary thereof, (ii) pursuant to an
effective registration statement under the Securities Act, (iii) in
accordance with Rule 144A under the Securities Act to a "qualified
E-1
institutional buyer" (as defined in Rule 144A), (iv) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you
a signed letter containing certain representations and agreements relating
to the restrictions on transfer of the Notes, (v) outside the United
States to persons other than U.S. persons in offshore transactions meeting
the requirements of Rule 904 of Regulation S under the Securities Act, or
(vi) pursuant to any other exemption from registration under the
Securities Act (if available), and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such
purchaser that resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting each are able to
bear the economic risk of our or their investment, as the case may be.
5. We are acquiring the Notes purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
E-2
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-----------------------------
Authorized Signature
E-3
EXHIBIT F
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
------------------------
----------, ----
Attention:
Re: Renaissance Cosmetics, Inc.
(the "Company")
11 3/4% Senior Notes
due 2004 (the "Notes")
----------------------
Dear Sirs:
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 U.S.
person or to a person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
F-1
(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 and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-----------------------------
Authorized Signature
F-2
EXHIBIT G
[FORM OF GUARANTEE]
The undersigned (the "Guarantor") hereby unconditionally guarantees,
to the extent set forth in the Indenture dated as of February 7, 1997 by and
among Renaissance Cosmetics, Inc., as issuer, the Guarantor, as guarantor, and
United States Trust Company of New York, as Trustee (as amended, restated or
supplemented from time to time the "Indenture"), and subject to the provisions
of the Indenture, (a) the due and punctual payment of the principal of and
interest on the Notes, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on overdue principal, and, to the extent
permitted by law, interest, and the due and punctual performance of all other
obligations of the Company to the Noteholders or the Trustee, all in accordance
with the terms set forth in Article X 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 Guarantor to the Noteholders and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article X of the Indenture and reference is hereby made to the
Indenture for the precise terms and limitations of this Subsidiary Guarantee.
RENAISSANCE GUARANTOR, INC.
By:
--------------------------------
Name:
Title:
G-1
