1
EXHIBIT 4
INDENTURE
Dated as of April 28, 1998
among
TALON AUTOMOTIVE GROUP, INC.,
as Issuer,
VS HOLDINGS, INC.,
XXXXXX HOLDINGS USA, INC.
and
XXXXXX METAL PRODUCTS CO.,
as Guarantors,
and
U.S. Bank Trust National Association,
as Trustee
________________
up to $170,000,000
9.625% Senior Subordinated Notes due 2008, Series A
9.625% Senior Subordinated Notes due 2008, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------------ ---------
310(a)(1) .............................................. 7.10
(a)(2) .............................................. 7.10
(a)(3) .............................................. N.A.
(a)(4) .............................................. N.A.
(a)(5) .............................................. 7.10
(b) ................................................. 7.08; 7.10
(c) ................................................. N.A.
311(a) ................................................. 7.11
(b) ................................................. 7.11
(c) ................................................. N.A.
312(a) ................................................. 2.05
(b) ................................................. 11.03
(c) ................................................. 11.03
313(a) ................................................. 7.06
(b)(1) .............................................. 7.06
(b)(2) .............................................. 7.06; 7.07
(c) ................................................. 7.05; 7.06; 11.02
(d) ................................................. 7.06
314(a) ................................................. 4.08; 4.10; 11.02
(b) ................................................. N.A.
(c)(1) .............................................. 4.08; 11.04
(c)(2) .............................................. 11.04
(c)(3)............................................... 4.08; 11.04
(d) ................................................. N.A.
(e) ................................................. 11.05
(f) ................................................. N.A.
315(a) ................................................. 7.01(b)
(b) ................................................. 7.05; 11.02
(c) ................................................. 7.01(a)
(d) ................................................. 7.01(c)
(e) ................................................. 6.11
316(a)(last sentence) .................................. 2.09
(a)(1)(A) ........................................... 6.05
(a)(1)(B) ........................................... 6.04
(a)(2) .............................................. N.A.
(b) ................................................. 6.07; 9.04
(c) ................................................. 9.04
317(a)(1) .............................................. 6.08
(a)(2) .............................................. 6.09
(b) ................................................. 2.04
318(a) ................................................. 11.01
(c) ................................................. 11.01
_______________
"N.A." means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.................................... 1
SECTION 1.02. Incorporation by Reference of TIA..............28
SECTION 1.03. Rules of Construction..........................28
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating................................29
SECTION 2.02. Execution and Authentication...................30
SECTION 2.03. Registrar and Paying Agent.....................31
SECTION 2.04. Paying Agent To Hold Assets in Trust...........31
SECTION 2.05. Securityholder Lists...........................32
SECTION 2.06. Transfer and Exchange..........................32
SECTION 2.07. Replacement Securities.........................33
SECTION 2.08. Outstanding Securities.........................33
SECTION 2.09. Treasury Securities............................34
SECTION 2.10. Temporary Securities...........................34
SECTION 2.11. Cancellation...................................34
SECTION 2.12. Defaulted Interest.............................35
SECTION 2.13. CUSIP Number...................................35
SECTION 2.14. Deposit of Moneys..............................35
SECTION 2.15. Book-Entry Provisions for Global Securities....35
SECTION 2.16. Registration of Transfers and Exchanges........37
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.............................42
SECTION 3.02. Selection of Securities To Be Redeemed.........42
SECTION 3.03. Notice of Redemption...........................42
SECTION 3.04. Effect of Notice of Redemption.................43
SECTION 3.05. Deposit of Redemption Price....................44
SECTION 3.06. Securities Redeemed in Part....................44
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities..........................44
SECTION 4.02. Maintenance of Office or Agency................45
SECTION 4.03. Limitation on Incurrence of Additional
Indebtedness...................................45
SECTION 4.04. Limitation on Restricted Payments..............46
SECTION 4.05. Corporate Existence............................48
SECTION 4.06. Payment of Taxes and Other Claims..............48
SECTION 4.07. Maintenance of Properties and Insurance........48
SECTION 4.08. Compliance Certificate; Notice of Default......49
SECTION 4.09. Compliance with Laws...........................50
SECTION 4.10. SEC Reports....................................50
SECTION 4.11. Waiver of Stay, Extension or Usury Laws........51
SECTION 4.12. Limitation on Asset Sales......................51
SECTION 4.13. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries...................................54
SECTION 4.14. Limitation on Preferred Stock of Restricted
Subsidiaries...................................55
SECTION 4.15. Limitation on Liens............................55
SECTION 4.16. [Intentionally Omitted]........................56
SECTION 4.17. Prohibition on Incurrence of Senior
Subordinated Debt..............................56
SECTION 4.18. Limitations on Transactions with Affiliates....56
SECTION 4.19. Issuance of Subsidiary Guarantees..............57
SECTION 4.20. [Intentionally Omitted]........................58
SECTION 4.21. Lines of Business..............................58
SECTION 4.22. Payments for Consent...........................58
SECTION 4.23. Limitation on Designations of Unrestricted.....58
Subsidiaries.
SECTION 4.24. Change of Control..............................64
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations and Sales of Assets....62
SECTION 5.02. Successor Corporation Substituted..............74
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default..............................65
SECTION 6.02. Acceleration...................................67
SECTION 6.03. Other Remedies.................................68
SECTION 6.04. Waiver of Past Defaults........................68
SECTION 6.05. Control by Majority............................69
SECTION 6.06. Limitation on Suits............................69
SECTION 6.07. Rights of Holders To Receive Payment...........70
SECTION 6.08. Collection Suit by Trustee.....................70
SECTION 6.09. Trustee May File Proofs of Claim...............70
SECTION 6.10. Priorities.....................................71
SECTION 6.11. Undertaking for Costs..........................71
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee..............................72
SECTION 7.02. Rights of Trustee..............................73
SECTION 7.03. Individual Rights of Trustee...................74
SECTION 7.04. Trustee's Disclaimer...........................75
SECTION 7.05. Notice of Default..............................75
SECTION 7.06. Reports by Trustee to Holders..................75
SECTION 7.07. Compensation and Indemnity.....................76
SECTION 7.08. Replacement of Trustee.........................77
SECTION 7.09. Successor Trustee by Merger, Etc...............78
SECTION 7.10. Eligibility; Disqualification..................79
SECTION 7.11. Preferential Collection of
Claims Against Company.........................79
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.......79
SECTION 8.02. Satisfaction and Discharge.....................83
SECTION 8.03. Survival of Certain Obligations................84
SECTION 8.04. Acknowledgment of Discharge by Trustee.........85
SECTION 8.05. Application of Trust Assets....................85
SECTION 8.06. Repayment to the Company or Guarantors;
Unclaimed Money................................85
SECTION 8.07. Reinstatement..................................86
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders..................... 86
SECTION 9.02. With Consent of Holders........................ 87
SECTION 9.03. Compliance with TIA............................ 89
SECTION 9.04. Revocation and Effect of Consents.............. 89
SECTION 9.05. Notation on or Exchange of Securities.......... 90
SECTION 9.06. Trustee To Sign Amendments, Etc................ 90
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee....................... 90
SECTION 10.02. Severability.................................. 92
SECTION 10.03. Release of a Guarantor........................ 92
SECTION 10.04. Limitation of a Guarantor's Liability......... 92
SECTION 10.05. Contribution.................................. 93
SECTION 10.06. Waiver of Subrogation......................... 93
SECTION 10.07. Execution of Guarantees....................... 94
SECTION 10.08. Waiver of Stay, Extension or Usury Laws....... 94
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.................................. 95
SECTION 11.02. Notices....................................... 95
SECTION 11.03. Communications by Holders with Other
Holders....................................... 96
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent..................................... 97
SECTION 11.05. Statements Required in Certificate or
Opinion....................................... 97
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar..... 98
SECTION 11.07. Legal Holidays................................ 98
SECTION 11.08. Governing Law................................. 98
SECTION 11.09. No Adverse Interpretation of Other
Agreements.................................... 98
SECTION 11.10. No Recourse Against Others.................... 98
SECTION 11.11. Successors.................................... 98
SECTION 11.12. Duplicate Originals........................... 99
SECTION 11.13. Severability.................................. 99
SECTION 11.14. Table of Contents, Headings, Etc.............. 99
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ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Securities Subordinated to Senior Debt;
Guarantees Subordinated to Guarantor
Senior Debt................................... 99
SECTION 12.02. No Payment on Securities in Certain
Circumstances.................................100
SECTION 12.03. Payment Over of Proceeds upon Dissolution,
Etc...........................................102
SECTION 12.04. Payments May Be Paid Prior to Dissolution.....104
SECTION 12.05. Subrogation...................................104
SECTION 12.06. Obligations of the Company Unconditional......105
SECTION 12.07. Notice to Trustee.............................105
SECTION 12.08. Reliance on Judicial Order or Certificate of
Liquidating Agent.............................106
SECTION 12.09. Trustee's Relation to Senior Debt or Guarantor
Senior Debt...................................106
SECTION 12.10. Subordination Rights Not Impaired by Acts or
Omissions of the Company or a Guarantor or
Holders of Senior Debt........................107
SECTION 12.11. Holders Authorize Trustee To Effectuate
Subordination of Securities...................108
SECTION 12.12. This Article Twelve Not To Prevent Events of
Default.......................................109
SECTION 12.13. Trustee's Compensation Not Prejudiced.........109
SIGNATURES....................................................110
Exhibit A - Form of Series A Security
Exhibit B - Form of Series B Security
Exhibit C - Form of Legend for Global Securities
Exhibit D - Transfer Certificate
Exhibit E - Transferee Certificate for Institutional Accredited
Investors
Exhibit F - Transferee Certificate for Regulation S Transfers
Exhibit G - Form of Guarantee
Note: This Table of Contents shall not, for any purpose, be
deemed to be a part of the Indenture.
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INDENTURE dated as of April 28, 1998, among TALON AUTOMOTIVE GROUP, INC.,
a Michigan corporation (the "Company"), as Issuer, VS HOLDINGS, INC., a
Michigan corporation, XXXXXX HOLDINGS USA, INC., an Indiana corporation, and
XXXXXX METAL PRODUCTS CO., a Nova Scotia unlimited liability company, as
Guarantors, and U.S. Bank Trust National Association, as Trustee (the
"Trustee").
The Company has duly authorized the issue of 9.625% Senior Subordinated
Notes due 2008, Series A (the "Series A Securities"), and 9.625% Senior
Subordinated Notes due 2008, Series B (the "Series B Securities"), to be issued
in exchange for the Series A Securities, pursuant to the Registration Rights
Agreement and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. All things necessary to make the
Securities, when duly issued and executed by the Company and authenticated and
delivered hereunder, the valid and binding obligations of the Company, and to
make this Indenture a valid and binding agreement of the Company, have been
done.
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary
or at the time it merges or consolidates with the Company or any of the
Restricted Subsidiaries or assumed in connection with the acquisition of assets
from such Person and in each case not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary or such acquisition, merger or consolidation.
"Adjusted Net Assets" has the meaning provided in Section 10.05.
"Affiliate" means, with respect to any specified Person, any other Person
who directly or indirectly through one or
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more intermediaries controls, or is controlled by, or is under common control
with, such specified Person. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative of the foregoing.
"Affiliate Transaction" has the meaning provided in Section 4.18.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person shall
become a Restricted Subsidiary, or shall be merged with or into the Company or
any Restricted Subsidiary, or (b) the acquisition by the Company or any
Restricted Subsidiary of the assets of any Person (other than a Restricted
Subsidiary) which constitute all or substantially all of the assets of such
Person or comprises any division or line of business of such Person or any
other properties or assets of such Person other than in the ordinary course of
business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary
course of business), assignment or other transfer for value by the Company or
any of the Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Restricted Subsidiary of
(a) any Capital Stock of any Restricted Subsidiary; or (b) any other property
or assets of the Company or any Restricted Subsidiary other than in the
ordinary course of business; provided, however, that Asset Sales shall not
include (i) a transaction or series of related transactions for which the
Company or the Restricted Subsidiaries receive aggregate consideration of less
than $1.0 million and (ii) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as permitted
by Article Five hereof.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal, state
or foreign law for the relief of debtors.
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"Blockage Period" has the meaning provided in Section 12.02.
"Board of Directors" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in the City of New York or the City of
Detroit are required or authorized by law or other governmental action to be
closed.
"Capitalized Lease Obligation" means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Cash Equivalents" means (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation ("S&P") or Xxxxx'x
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation
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thereof and, at the time of acquisition, having a rating of at least A-1 from
S&P or at least P-1 from Moody's; (iv) certificates of deposit or bankers'
acceptances maturing within one year from the date of acquisition thereof
issued by any bank organized under the laws of the United States of America or
any state thereof or the District of Columbia or any U.S. branch of a foreign
bank having at the date of acquisition thereof combined capital and surplus of
not less than $250,000,000; (v) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in clause
(iv) above; and (vi) investments in money market funds which invest
substantially all their assets in securities of the types described in clauses
(i) through (v) above.
"Change of Control" means the occurrence of one or more of the following
events: (i) any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all of the assets of
the Company to any Person or group of related Persons for purposes of Section
13(d) of the Exchange Act (a "Group"), together with any Affiliates thereof
(whether or not otherwise in compliance with the provisions of this Indenture);
(ii) the approval by the holders of Capital Stock of the Company of any plan or
proposal for the liquidation or dissolution of the Company (whether or not
otherwise in compliance with the provisions of this Indenture); or (iii) any
Person or Group (other than the Permitted Holder(s)) shall become the
beneficial owner, directly or indirectly, of shares representing more than 50%
of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of the Company.
"Change of Control Offer" has the meaning provided in Section 4.24.
"Change of Control Payment Date" has the meaning provided in Section 4.24.
"Commission" means the Securities and Exchange Commission.
"Common Stock" of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person's common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
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"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated EBITDA" means, with respect to the Company, for any period,
the sum (without duplication) of (i) Consolidated Net Income and (ii) to the
extent Consolidated Net Income has been reduced thereby, (A) all income taxes
and tax expense under the Michigan Single Business Tax of the Company and the
Restricted Subsidiaries paid or accrued in accordance with GAAP for such period
(other than income taxes attributable to extraordinary, unusual or nonrecurring
gains or losses or taxes attributable to sale or dispositions outside the
ordinary course of business), (B) Consolidated Interest Expense, (C)
Consolidated Non-cash Charges, (D) the amount of Permitted Tax Payments made
during such period and (E) compensation expense of the Company during fiscal
1998 under the Company's deferred compensation agreements not to exceed $1.4
million, less any non-cash items increasing Consolidated Net Income for such
period, all as determined on a consolidated basis for the Company and the
Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to the
Company, the ratio of Consolidated EBITDA of the Company during the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
the Company for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to (i) the incurrence or
repayment of any Indebtedness of the Company or any of the Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other
Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities, occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter period and
(ii) any Asset Sales or other dispositions or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make
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such calculation as a result of the Company or one of the Restricted
Subsidiaries (including any person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Indebtedness and also including any Consolidated EBITDA (provided
that such Consolidated EBITDA shall be included only to the extent includable
pursuant to the definition of "Consolidated Net Income" attributable to the
assets which are the subject of the Asset Acquisition or Asset Sale or other
disposition during the Four Quarter Period) occurring during the Four Quarter
Period or at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date as if such Asset Sale or other disposition
or Asset Acquisition (including the incurrence, assumption or liability for any
such Acquired Indebtedness) occurred on the first day of the Four Quarter
Period. For purposes of clause (ii) of the immediately preceding sentence, in
calculating the effect of any such Asset Acquisition or Asset Sale or other
disposition, the Company may include in any such calculation reasonable cost
savings which the Company believes in good faith will be achieved as a result
of any such Asset Acquisition, Asset Sale or other disposition. If the Company
or any of the Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the second preceding sentence shall give effect
to the incurrence of such guaranteed Indebtedness as if the Company or any
Restricted Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness. Furthermore, in calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the numerator) of
this "Consolidated Fixed Charge Coverage Ratio," (1) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, or other rates, then the interest rate
in effect on the Transaction Date will be deemed to have been in effect during
the Four Quarter Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
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"Consolidated Fixed Charges" means, with respect to the Company for any
period, the sum, without duplication, of (i) Consolidated Interest Expense,
plus (ii) the product of (x) the amount of all dividend payments on any series
of Preferred Stock of the Company (other than dividends paid in Qualified
Capital Stock) paid, accrued or scheduled to be paid or accrued during such
period times (y) a fraction, the numerator of which is one and the denominator
of which is one minus the then current effective consolidated federal, state
and local income tax rate of the Company, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to the Company for any
period, the sum of, without duplication: (i) the aggregate of the interest
expense of the Company and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including without
limitation, (a) any amortization of debt discount (other than any such
amortization relating to Indebtedness repaid on the Issue Date), (b) the net
costs under Interest Swap Obligations, (c) all capitalized interest and (d) the
interest portion of any deferred payment obligation; and (ii) the interest
component of Capitalized Lease Obligations paid, accrued and/or scheduled to be
paid or accrued by the Company and the Restricted Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to the Company, for any
period, the aggregate net income (or loss) of the Company and the Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom (a) after-tax gains
and losses from Asset Sales or abandonments or reserves relating thereto, (b)
extraordinary or nonrecurring gains, (c) the net income of any Person acquired
in a "pooling of interests" transaction accrued prior to the date it becomes a
Restricted Subsidiary or is merged or consolidated with the Company or any
Restricted Subsidiary, (d) the net income (but not loss) of any Restricted
Subsidiary to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is restricted by a
contract, operation of law or otherwise, (e) the net income of any Person,
other than a Restricted Subsidiary, except to the extent of cash dividends or
distributions paid to the Company or to a Restricted Subsidiary by such person,
(f) any restoration to income of any contingency reserve, except to the extent
that provision for such reserve was made out of Consolidated Net Income accrued
at any time following the Issue Date or to the extent that all such
restorations after the Issue Date do not ex-
15
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ceed $250,000 in the aggregate, (g) income or loss attributable to discontinued
operations (including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued), (h) the
amount of Permitted Tax Payments made during such period, (i) non-cash expenses
relating to a conversion of the Company to a subchapter C corporation for U.S.
federal income tax purposes not to exceed $4.0 million and (j) in the case of a
successor to the Company by consolidation or merger or as a transferee of the
Company's assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets.
"Consolidated Non-cash Charges" means, with respect to the Company, for
any period, the aggregate depreciation, amortization and other non-cash
expenses of the Company and the Restricted Subsidiaries reducing Consolidated
Net Income of the Company for such period, determined on a consolidated basis
in accordance with GAAP (excluding any such charge which requires an accrual of
or a reserve for cash charges for any future period).
"Covenant Defeasance" has the meaning provided in Section 8.01.
"Credit Agreement" means the Credit Agreement dated as of the Issue Date,
among the Company, the Guarantors, the lenders party thereto in their
capacities as lenders thereunder and Comerica Bank, as agent, together with the
related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder (provided that such
increase in borrowings is permitted by Section 4.03 hereof) or adding
Restricted Subsidiaries as additional borrowers or guarantors thereunder) all
or any portion of the Indebtedness under such agreement or any successor or
replacement agreement and whether by the same or any other agent, lender or
group of lenders.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary against fluctuations in currency values.
16
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"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or with
the lapse of time or the giving of notice or both would be, an Event of
Default.
"Default Notice" has the meaning provided in Section 12.02.
"Depository" means, with respect to the Securities issued in the form of
one or more Global Securities, The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Senior Debt" means (i) Indebtedness under or in respect of the
Credit Agreement and (ii) any other Indebtedness constituting Senior Debt
which, at the time of determination, has an aggregate principal amount of at
least $10,000,000 and is specifically designated in the instrument evidencing
such Senior Debt as "Designated Senior Debt" by the Company.
"Designation" has the meaning provided in Section 4.23.
"Designation Amount" has the meaning provided in Section 4.23.
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is mandatorily exchangeable for Indebtedness, or is
redeemable, or exchangeable for Indebtedness, at the sole option of the holder
thereof on or prior to the final maturity date of the Securities.
"Domestic Wholly Owned Restricted Subsidiary" means a Wholly Owned
Restricted Subsidiary incorporated or otherwise organized or existing under the
laws of the United States, any state thereof or any territory or possession of
the United States.
17
-10-
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute or statutes thereto.
"Existing Agreements" means the following agreements as amended and in
effect on the Issue Date: (i) Agreement dated July 1, 1997 between the Company
and Talon L.L.C. pursuant to which Talon L.L.C. provides certain administrative
and consulting services to the Company in exchange for an annual fee equal to
$500,000; (ii) Agreement dated the Issue Date pursuant to which the Company
provides certain administrative and consulting services to G&L Industries,
Inc.; (iii) Leases between the Company and Dude Investments L.L.C. and Dude
Investments dated September 30, 1996, as amended; (iv) Leases between the
Company and Xxxxx Xxxxxx dated August 1, 1994, as amended, and July 1, 1993, as
amended, including Option to Purchase dated November 8, 1996; (v) Stock
Purchase Agreement dated November 8, 1996 among Xxxxxx Metal Products Co., the
Company's subsidiary, and Xxxxxxx Xxxxxx, individually and as trustee u/a/d
December 17, 1992, and Xxxxx Xxxxxx, and all documents executed pursuant
thereto, including, without limitation, that certain Subordination Agreement,
Memorandum of Agreement, Agreements Not to Compete, Security Agreements,
General Security Agreements, Debentures, Promissory Note by Xxxxxx Metal
Products Co. in the amount of $658,325 in favor of Xxxxxxx Xxxxxx,
Unconditional Guaranty by Xxxxxx Holdings USA, Inc.; and (vi) Purchase
Agreement dated September 30, 1996 among the Company, T&R Manufacturing, Inc.,
Xxxxx X. Xxxxxxxx and Xxxxxxxx X. Xxxxxxxx, and all documents executed pursuant
thereto.
"Fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of
whom is under undue pressure or compulsion to complete the transaction. Fair
market value shall be determined by the Board of Directors of the Company
acting reasonably and in good faith and shall be evidenced by a Board
Resolution of the Board of Directors of the Company delivered to the Trustee.
"Final Maturity Date" means May 1, 2008.
"Four Quarter Period" has the meaning provided in the definition of
"Consolidated Fixed Charge Coverage Ratio" above.
18
-11-
"Funding Guarantor" has the meaning provided in Section 10.05.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accounts and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting profession
of the United States, which are in effect as of the Issue Date.
"Global Security" means a security evidencing all or a part of the
Securities issued to the Depository in accordance with Section 2.01 and bearing
the legend prescribed in Exhibit C.
"Guarantee" has the meaning provided in Section 4.19.
"Guarantor" means (i) each Subsidiary of the Company as of the Issue Date
and (ii) each other Person that in the future executes a Guarantee pursuant to
Section 4.19 hereof or otherwise; provided that any Person constituting a
Guarantor as described above shall cease to constitute a Guarantor when its
Guarantee is released in accordance with the terms of this Indenture.
"Guarantor Senior Debt" means, with respect to any Guarantor, (i) the
principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for
in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on any Indebtedness of such Guarantor,
whether outstanding on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Guarantee of such Guarantor. Without limiting the generality of
the foregoing, "Guarantor Senior Debt" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law) on, and all other amounts owing in respect of, (x)
all Interest Swap Obligations, (y) all obligations under Currency Agreements
and (z) Xxxxxx Indebtedness, in each case whether outstanding on the Issue Date
or
19
-12-
thereafter incurred. Notwithstanding the foregoing (except will respect to
Xxxxxx Indebtedness), "Guarantor Senior Debt" shall not include (i) any
Indebtedness of such Guarantor owing to a Subsidiary of such Guarantor or any
Affiliate of such Guarantor or any of such Affiliate's Subsidiaries, (ii)
Indebtedness to, or guaranteed on behalf of, any shareholder, director, officer
or employee of such Guarantor or any Subsidiary of such Guarantor (including,
without limitation, amounts owed for compensation), (iii) Indebtedness to trade
creditors and other amounts incurred in connection with obtaining goods,
materials or services, (iv) Indebtedness represented by Disqualified Capital
Stock, (v) any liability for federal, state, local or other taxes owed or owing
by such Guarantor, (vi) Indebtedness incurred in violation Section 4.03 hereof,
(vii) Indebtedness which, when incurred and without respect to any election
under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is without recourse to
such Guarantor and (viii) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of such Guarantor.
"Holder" or "Securityholder" means a Person in whose name a Security is
registered on the Registrar's books.
"incur" has the meaning provided in Section 4.03.
"Indebtedness" means, with respect to any Person, without duplication, (i)
all Obligations of such Person for borrowed money, (ii) all Obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Capitalized Lease Obligations of such Person, (iv) all Obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business that are not overdue by 90 days or
more or are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted), (v) all Obligations for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (i) through (v) above and clause (viii)
below, (vii) all Obligations of any other Person of the type referred to in
clauses (i) through (vi) which are secured by any Lien on any property or asset
of such Person, the amount of such Obligation being deemed to be the lesser of
the fair market value of such property or asset or the amount of the Obligation
so secured, (viii) all Obligations under currency agreements and interest
20
-13-
swap agreements of such Person and (ix) all Disqualified Capital Stock issued
by such Person with the amount of Indebtedness represented by such Disqualified
Capital Stock being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but excluding
accrued dividends, if any. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock. "Indebtedness" shall not be deemed to
include customary indemnity obligations of the Company or a Restricted
Subsidiary incurred in connection with an Asset Sale.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"Independent" when used with respect to any specified Person means such a
Person who (a) is in fact independent; (b) does not have any direct financial
interest or any material indirect financial interest in the Company or any of
its Subsidiaries, or in any Affiliate of the Company or any of its
Subsidiaries; and (c) is not an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions for the
Company or any of its Subsidiaries. Whenever it is provided in this Indenture
that any Independent Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be appointed by the Company, and such opinion or
certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning hereof.
"Independent Financial Advisor" means a firm (i) which does not, and whose
directors, officers and employees and Affiliates do not, have a direct or
indirect financial interest in the Company and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified
to perform the task for which it is to be engaged.
"Initial Purchasers" means Salomon Brothers Inc and Credit Suisse First
Boston Corporation.
21
-14-
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person pursuant
to any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated
by applying a fixed or a floating rate of interest on the same notional amount
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements.
"Investment" means, with respect to any Person, (i) any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person. "Investment" shall exclude extensions of trade credit
by the Company and the Restricted Subsidiaries on commercially reasonable terms
in accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be. If the Company or any Restricted Subsidiary
sells or otherwise disposes of any Capital Stock of any Restricted Subsidiary
(the "Referent Subsidiary") such that, after giving effect to any such sale or
disposition the Referent Subsidiary shall cease to be a Restricted Subsidiary,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Capital Stock of the
Referent Subsidiary not sold or disposed of.
"Issue Date" means the date of original issuance of the Securities.
"Legal Defeasance" has the meaning provided in Section 8.01.
"Lien" means any lien, mortgage, deed of trust, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other
title retention agree-
22
-15-
ment, any lease in the nature thereof and any agreement to give any security
interest).
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds in
the form of cash or Cash Equivalents, including payments in respect of deferred
payment obligations, when received in the form of cash or Cash Equivalents
(other than the portion of any such deferred payment constituting interest)
received by the Company or any of the Restricted Subsidiaries from such Asset
Sale net of (a) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions), (b) taxes paid or payable after taking
into account any reduction in consolidated tax liability due to available tax
credits or deductions and any tax sharing arrangements, (c) repayments of
Indebtedness secured by the property or assets subject to such Asset Sale that
is required to be repaid in connection with such Asset Sale and (d) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.
"Net Proceeds Offer" has the meaning provided in Section 4.12.
"Net Proceeds Offer Amount" has the meaning provided in Section 4.12.
"Net Proceeds Offer Payment Date" has the meaning provided in Section
4.12.
"Net Proceeds Offer Trigger Date" has the meaning provided in Section
4.12.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the Presi-
23
-16-
dent, any Vice President, the Chief Financial Officer, the Controller, or the
Secretary of such Person.
"Officers' Certificate" means a certificate signed by two Officers of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel which and
who are acceptable to the Trustee.
"Participants" has the meaning provided in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Holders" means (i) Xxxxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxx X.
Xxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx,
Xxxxxxx T.O. Xxxxxx, Xxxxx X. Xxxxx or Xxxxxx X. Xxxxx, (ii) any relative,
family member or any Person controlled by any of the persons listed in
subparagraph (i) above, (iii) any trust, including, without limitation, a
charitable remainder trust, created by or for the benefit of any of the persons
listed in subparagraphs (i) or (ii) above and (iv) any private foundation
created by any of the persons listed in subparagraphs (i) or (ii) above.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under the Securities, this Indenture and any
Guarantees not to exceed $120,000,000 in the aggregate;
(ii) Indebtedness incurred pursuant to the Credit Agreement in an
aggregate principal amount at any time outstanding not to exceed the
greater of (x) $100,000,000, reduced by any required permanent repayments
with the proceeds of Asset Sales (which are accompanied by a
corresponding permanent commitment reduction) thereunder and (y) the sum
of (a) 85% of the net book value of accounts receivable of the Company
and the Restricted Subsidiaries, (b) 50% of the net book value of the
inventory of the Company and the Restricted Subsidiaries, (c) 75% of the
fair market value of real estate and of the orderly liquidation value
shown in appraisals for fixed assets of the Company and the Restricted
Subsidiaries for which appraisals exist and (d) 65% of the net book value
of fixed assets of the
24
-17-
Company and the Restricted Subsidiaries for which no appraisals exist;
(iii) other Indebtedness of the Company and the Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually
paid or permanent reductions thereon;
(iv) Interest Swap Obligations of the Company covering Indebtedness
of the Company or any Guarantor and Interest Swap Obligations of any
Restricted Subsidiary covering Indebtedness of such Restricted
Subsidiary; provided, however, that such Interest Swap Obligations are
entered into to protect the Company and the Restricted Subsidiaries from
fluctuations in interest rates on Indebtedness incurred in accordance
with this Indenture to the extent the notional principal amount of such
Interest Swap Obligations does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligations relates;
(v) Indebtedness under Currency Agreements; provided that in the
case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Company and the
Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(vi) Indebtedness of a Restricted Subsidiary to the Company, a
Guarantor or an Unleveraged Restricted Subsidiary for so long as such
Indebtedness is held by the Company, a Guarantor or an Unleveraged
Restricted Subsidiary, in each case subject to no Lien held by a Person
other than the Company, a Guarantor or an Unleveraged Restricted
Subsidiary; provided that if as of any date any Person other than the
Company, a Guarantor or an Unleveraged Restricted Subsidiary owns or
holds any such Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness
not constituting Permitted Indebtedness by the issuer of such
Indebtedness.
(vii) Indebtedness of the Company to a Guarantor or an Unleveraged
Restricted Subsidiary for so long as such Indebtedness is held by a
Guarantor or an Unleveraged Restricted Subsidiary, in each case subject
to no Lien; pro-
25
-18-
vided that (a) any Indebtedness of the Company to any Guarantor or
Unleveraged Restricted Subsidiary is unsecured and subordinated, pursuant
to a written agreement, to the Company's obligations under this Indenture
and the Securities and (b) if as of any date any person other than a
Guarantor or Unleveraged Restricted Subsidiary owns or holds any such
Indebtedness or any Person holds a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by the Company;
(viii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within five business days of
incurrence;
(ix) Indebtedness of the Company or any of the Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment obligations in
connection with self-insurance or similar requirements in the ordinary
course of business;
(x) Refinancing Indebtedness;
(xi) Tooling Indebtedness;
(xii) Xxxxxx Indebtedness (and any Indebtedness incurred to
Refinance any Xxxxxx Indebtedness) not to exceed $15.0 million at any one
time outstanding;
(xiii) additional Indebtedness of the Company and the Guarantors in
an aggregate principal amount not to exceed $10.0 million at any one time
outstanding;
(xiv) Purchase Money Indebtedness and Capitalized Lease Obligations
(and any Indebtedness incurred to Refinance such Purchase Money
Indebtedness or Capitalized Lease Obligations) not to exceed $15.0
million at any one time outstanding; and
(xv) Indebtedness of Restricted Subsidiaries that are not Guarantors
in an aggregate principal amount not to exceed $5.0 million at any one
time outstanding.
26
-19-
"Permitted Investments" means (i) Investments by the Company or any
Restricted Subsidiary in any Person that is or will become immediately after
such Investment a Guarantor or an Unleveraged Restricted Subsidiary or that
will merge or consolidate into the Company or a Guarantor or an Unleveraged
Restricted Subsidiary; (ii) investments in the Company by any Restricted
Subsidiary; provided that any Indebtedness evidencing such Investment is
unsecured and subordinated, pursuant to a written agreement, to the Company's
obligations under the Securities and this Indenture; (iii) investments in cash
and Cash Equivalents; (iv) loans and advances to employees and officers of the
Company and the Restricted Subsidiaries in the ordinary course of business for
bona fide business purposes not in excess of $1.0 million at any time
outstanding; (v) Currency Agreements and Interest Swap Obligations entered into
in the ordinary course of the Company's or a Restricted Subsidiary's businesses
and otherwise in compliance with this Indenture; (vi) Investments in Restricted
Subsidiaries that are not Guarantors or Unleveraged Restricted Subsidiaries not
to exceed $5.0 million at any one time outstanding; (vii) Investments in
securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers; (viii) Investments made by the Company or the
Restricted Subsidiaries as a result of consideration received in connection
with an Asset Sale made in compliance with Section 4.12 hereof; and (ix)
Investments in Persons, including, without limitation, Unrestricted
Subsidiaries and joint ventures, engaged in a business similar or related to
the businesses in which the Company and the Restricted Subsidiaries are engaged
on the Issue Date not to exceed $10.0 million at any one time outstanding.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or the Restricted Subsidiaries
shall have set aside on its books such reserves as may be required
pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for sums
not yet delinquent or being contested in good faith, if such reserve or
other appropriate provision, if any, as shall be required by GAAP shall
have been made in respect thereof;
27
-20-
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, including any Lien securing letters
of credit issued in the ordinary course of business consistent with past
practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(iv) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal proceeds
which may have been duly initiated for the review of such judgment shall
not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in
any material respect with the ordinary conduct of the business of the
Company or any of the Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property or
assets which is not leased property subject to such Capitalized Lease
Obligation;
(vii) purchase money Liens securing Indebtedness to finance property
or assets of the Company or any Restricted Subsidiary acquired in the
ordinary course of business, and Liens securing Indebtedness which
Refinances any such Indebtedness; provided, however, that (A) the related
purchase money Indebtedness (or Refinancing Indebtedness) shall not
exceed the cost of such property or assets and shall not be secured by
any property assets of the Company or any Restricted Subsidiary other
than the property and assets so acquired and (B) the Lien securing the
purchase money Indebtedness shall be created within 90 days of such
acquisition;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the
28
-21-
purchase, shipment or storage of such inventory or other goods;
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements of the
Company or any of the Restricted Subsidiaries, including rights of offset
and set-off;
(xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations related to Indebtedness that is otherwise permitted under
this Indenture;
(xii) Liens securing Indebtedness under Currency Agreement; and
(xiii) Liens securing Acquired Indebtedness (and any Indebtedness
which Refinances such Acquired Indebtedness) incurred in accordance with
Section 4.03; provided that (A) such Liens secured the Acquired
Indebtedness at the time of and prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary and were not
granted in connection with, or in anticipation of the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary and (B)
such Liens do not extend to or cover any property or assets of the
Company or of any of the Restricted Subsidiaries other than the property
or assets that secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company or a Restricted
Subsidiary.
"Permitted Tax Payments" means distributions to the stockholders of the
Company to reimburse them for federal and state income taxes at the maximum
applicable individual tax rate attributable to the income of the Company for
any tax period during which the Company is not a taxable entity for federal or
state, as the case may be, income tax purposes.
"Person" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
29
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"Physical Securities" has the meaning provided in Section 2.01.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth on Exhibit A.
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms of this Indenture, a calculation in accordance with
Article 11 of Regulation S-X under the Securities Act as interpreted by the
Company's Board of Directors in consultation with its independent certified
public accountants.
"Public Equity Offering" has the meaning provided in Paragraph 6 of the
Securities.
"Purchase Agreement" means the purchase agreement dated as of April 23,
1998 by and among the Company, the Guarantors and the Initial Purchasers.
"Purchase Money Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiary incurred for the purpose of financing all or any part of
the purchase price or the cost of construction or improvement of any property,
provided that the aggregate principal amount of such Indebtedness does not
exceed the lesser of the fair market value of such property or such purchase
price or cost.
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
in Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the Securities; provided
that if any such date is not a Business Day, the Record Date shall be the first
day immediately preceding such specified day that is a Business Day.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Securities.
30
-23-
"Redemption Price," when used with respect to any Security to be redeemed,
means the price fixed for such redemption, payable in immediately available
funds, pursuant to this Indenture and the Securities.
"Reference Date" has the meaning provided in Section 4.04.
"Refinance" means in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or any
Restricted Subsidiary of Indebtedness incurred in accordance with Section 4.03
hereof (other than pursuant to clause (ii), (iv), (v), (vi), (vii), (viii),
(ix), (xi), (xii), (xiii), (xiv) or (xv) of the definition of Permitted
Indebtedness), in each case that does not (1) result in an increase in the
aggregated principal amount of any Indebtedness of such Person as of the date
of such proposed Refinancing (plus the amount of any premium required to be
paid under the terms of the instrument governing such Indebtedness and plus the
amount of reasonable expenses incurred by the Company in connection with such
Refinancing) or (2) create Indebtedness with (A) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided that if such
Indebtedness being Refinanced is Indebtedness of the Company or a Guarantor,
then such Refinancing Indebtedness shall be Indebtedness solely of the Company
and/or Guarantors.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of the Issue Date among the Company, the Guarantors and the Initial
Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Representative" means the indenture trustee or other trustee, agent or
representative in respect of any Designated Senior Debt; provided that if, and
for so long as, any Designated Senior Debt lacks such a representative, then-
the Repre-
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sentative for such Designated Senior Debt shall at all times constitute the
stockholders of a majority in outstanding principal amount of such Designated
Senior Debt in respect of any Designated Senior Debt.
"Responsible Officer" shall mean, when used with respect to the Trustee,
any officer in the Corporate Trust Department of the Trustee including any vice
president, assistant vice president or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, and to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Payment" has the meaning provided in Section 4.04.
"Restricted Security" has the meaning set forth in Rule 144(a)(3) 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
Security is a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company that has not
been designated by the Board of Directors of the Company, by a Board Resolution
delivered to the Trustee, as an Unrestricted Subsidiary pursuant to and in
compliance with Section 4.23 hereof. Any such Designation may be revoked by a
Board Resolution of the Company delivered to the Trustee, subject to the
provisions of such covenant.
"Revocation" has the meaning provided in Section 4.23.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any such Person is a party, providing for the
leasing to the Company or a Restricted Subsidiary of any property, whether
owned by the Company or any Restricted Subsidiary at the Issue Date or later
acquired, which has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such
Property.
"SEC" means the Securities and Exchange Commission.
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"Securities" means the Series A Securities and the Series B Securities
treated as a single class of securities, as amended or supplemented from time
to time in accordance with the terms hereof, that are issued pursuant to this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Senior Debt" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable law) on any
Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Securities. Without limiting the
generality of the foregoing, "Senior Debt" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
claim under applicable law) on, and all other amounts owing in respect of, (w)
all monetary obligations of every nature of the Company under the Credit
Agreement, including, without limitation, obligations to pay principal and
interest reimbursement obligations under letters of credit, fees, expenses and
indemnities, (x) all Interest Swap Obligations, (y) all obligations under
Currency Agreements and (z) the Xxxxxx Indebtedness, in each case whether
outstanding on the Issue Date or thereafter incurred. Notwithstanding the
foregoing (except with respect to Xxxxxx Indebtedness), "Senior Debt" shall not
include (i) any Indebtedness of the Company to a Restricted Subsidiary or any
Affiliate of the Company or any of such Affiliate's Subsidiaries, (ii)
Indebtedness to, or guaranteed on behalf of, any shareholder, director, officer
or employee of the Company or any Restricted Subsidiary (including without
limitation, amounts owed for compensation), (iii) Indebtedness to trade
creditors and other amounts incurred in connection with obtaining goods,
materials or services, (iv) Indebtedness represented by Disqualified Capital
Stock, (v) any liability for federal, state, local or other taxes owned by the
Company, (vi) Indebtedness incurred in violation of Section 4.03, (vii)
Indebtedness which, when incurred and without respect to any election under
Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code, is with-
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out recourse to the Company and (viii) any Indebtedness which is, by its
express terms, subordinated in right of payment to any other Indebtedness of
the Company.
"Series A Securities" means the 9.625% Senior Subordinated Notes due 2008,
Series A, of the Company issued pursuant to this Indenture and sold pursuant to
the Purchase Agreement.
"Series B Securities" means the 9.625% Senior Subordinated Notes due 2008,
Series B, of the Company to be issued in exchange for the Series A Securities
pursuant to the Registered Exchange Offer and the Registration Rights
Agreement.
"Subsidiary", with respect to any Person, means (a) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (b) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Surviving Entity" has the meaning provided in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date of the execution of this
Indenture until such time as this Indenture is qualified under the TIA, and
thereafter as in effect on the date on which this Indenture is qualified under
the TIA, except as otherwise provided in Section 9.03.
"Tooling Indebtedness" means all present and future Indebtedness of the
Company and any Restricted Subsidiary the proceeds of which are utilized to
finance dies, molds, tooling and similar items (collectively, "Tooling") for
which sales of such Tooling are covered under specific written purchase orders
or agreements between the Company or any Restricted Subsidiary and the
purchaser of such Tooling.
"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.
"Unleveraged Restricted Subsidiary" means a Restricted Subsidiary that has
no Indebtedness outstanding (other
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than Indebtedness owed to the Company, a Guarantor or another Unleveraged
Restricted Subsidiary).
"Unrestricted Subsidiary" means any Subsidiary of the Company designated
as such pursuant to and in compliance with Section 4.23. Any such designation
may be revoked by a Board Resolution of the Company delivered to the Trustee,
subject to the provisions of such covenant.
"U.S. Government Obligations" shall have the meaning provided in Section
8.01.
"U.S. Legal Tender" means such coin or currency in immediately available
funds of the United States of America as at the time of payment shall be legal
tender for the payment of public and private debts.
"U.S. Physical Securities" shall have the meaning set forth in Section
2.01.
"Xxxxxx Indebtedness" means Indebtedness owing to Xxxxxxx Xxxxxx,
individually and/or as trustee u/a/d December 17, 1992, pursuant to (a) that
certain Stock Purchase Agreement dated November 8, 1996, (b) that certain
Employment Agreement dated November 8, 1996, (c) that certain Promissory Note
dated November 8, 1996 in the amount of $658,325, and (d) those certain
Security Agreements, General Security Agreements and Debentures dated November
8, 1996, all as amended through the Issue Date.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other requirement
payment of principal, including payment at final maturity, in respect thereof,
by (ii) the number of years (calculated to the nearest one-twelfth) which will
elapse between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of the Company means any Restricted
Subsidiary of which all the outstanding voting securities (other than in the
case of a foreign Restricted Subsidiary, directors' qualifying shares or an
immaterial amount of shares required to be owned by other Persons pursuant to
applicable law) are owned by the Company or any Wholly Owned Restricted
Subsidiary.
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SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in, and made a part of, this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, any Guarantor and
any other obligor on the Securities.
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 assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
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ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Series A Securities and the Trustee's certificate of authentication
thereof shall be substantially in the form of Exhibit A annexed hereto, which
is hereby incorporated in and expressly made a part of this Indenture. The
Series B Securities and the Trustee's certificate of authentication thereof
shall be substantially in the form of Exhibit B annexed hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities
may have notations, legends or endorsements (including notations relating to
any Guarantees, stock exchange rule or usage). The Company and the Trustee
shall approve the form of the Securities and any notation, legend or
endorsement (including notations relating to any Guarantees) on them. Each
Security shall be dated the date of its issuance and shall be authenticated by
the Trustee.
Securities offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent Global Securities in registered
form, substantially in the form set forth in Exhibit A, deposited with the
Trustee, as custodian for the Depository, and shall bear the legend set forth
on Exhibit C. The aggregate principal amount of any Global Security may from
time to time be increased or decreased by adjustments made on the records of
the Trustee, as custodian for the Depository, as hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of certificated Securities in
registered form in substantially the form set forth in Exhibit A (the "Offshore
Physical Securities"). Securities offered and sold in reliance on any other
exemption from registration under the Securities Act other than as described in
the preceding paragraph shall be issued, and Securities offered and sold in
reliance on Rule 144A may be issued, in the form of certificated Securities in
registered form in substantially the form set forth in Exhibit A (the "U.S.
Physical Securities"). The Offshore Physical Securities and the U.S. Physical
Securities are sometimes collectively herein referred to as the "Physical
Securities."
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SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall sign, or one
Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by manual or facsimile
signature. The Company's seal shall also be reproduced on the Securities.
If an Officer or Assistant Secretary whose signature is on a Security was
an Officer or Assistant Secretary at the time of such execution but no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless. Each Guarantor shall execute its
Guarantee in the manner set forth in Section 10.07.
A Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Series A Securities for original issue
in the aggregate principal amount not to exceed $120,000,000 and (ii) Series B
Securities in the aggregate amount not to exceed $120,000,000, in each case
upon a written order of the Company in the form of an Officers' Certificate and
an Opinion of Counsel in a form reasonably required by the Trustee as to the
compliance with applicable law of the exchange of Series B Securities for
Series A Securities. The Officers' Certificate shall specify the amount of
Securities to be authenticated, the series of Securities and the date on which
the Securities are to be authenticated. The aggregate principal amount of
Securities outstanding at any time may not exceed $170,000,000, except as
provided in Section 2.07. Upon receipt of a written order of the Company in
the form of an Officers' Certificate, the Trustee shall authenticate Securities
in substitution for Securities originally issued to reflect any name change of
the Company.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticat-
38
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ing agent has the same rights as an Agent to deal with the Company and
Affiliates of the Company.
The Securities shall be issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands in respect of the Securities and this Indenture may be
served. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company, upon written notice to the Trustee, may
have one or more co-Registrars and one or more additional Paying Agents
reasonably acceptable to the Trustee. The term "Paying Agent" includes any
additional Paying Agent. The Company initially appoints the Trustee as
Registrar and Paying Agent until such time as the Trustee has resigned or a
successor has been appointed. Neither the Company nor any Affiliate of the
Company may act as Paying Agent except as otherwise expressly provided in the
form of the Security.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, premium if any, or interest on, the Securities, and shall notify
the Trustee in writing of any Default by the Company in making any such
payment. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time, but shall be under no obligation to, during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee
and to account for any assets distributed. Upon distribution to the Trustee of
all assets that shall have been delivered by the Company to the Paying Agent,
the Paying Agent shall have no further liability for such assets.
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SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee before each Record Date and at such other times as the Trustee may
request in writing a list as of such date and in such form as the Trustee may
reasonably require of the names and addresses of Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations of the same
series, the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar's or co-Registrar's
written request. No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or other governmental charge
payable upon exchanges or transfers pursuant to Section 2.02, 2.10, 3.06, 4.12,
4.24 or 9.05). The Registrar or co-Registrar shall not be required to register
the transfer of or exchange of any Security (i) during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Securities and ending at the close of business on the day of such mailing and
(ii) selected for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Security being redeemed in part.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Depository
(or its agent),
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and that ownership of a beneficial interest in a Global Security shall be
required to be reflected in a book entry system.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder of
a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate upon written
notice from the Company a replacement Security if the Trustee's requirements
are met. If required by the Trustee or the Company, such Holder must provide
an indemnity bond or other indemnity, sufficient in the judgment of both the
Company and the Trustee, to protect the Company, the Trustee and any Agent from
any loss which any of them may suffer if a Security is replaced. The Company
and the Trustee may charge such Holder for their respective reasonable
out-of-pocket expenses in replacing a Security, including reasonable fees and
expenses of counsel. Every replacement Security is an additional obligation of
the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee except those cancelled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
Subject to Section 2.09, a Security does not cease to be outstanding because
the Company or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Final Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Securities payable on that date, then on and
after that date such Securities cease to be outstanding and interest on them
ceases to accrue.
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SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any Guarantor or any of their respective Affiliates shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities that a Responsible Officer of the Trustee actually knows are so
owned shall be disregarded.
The Trustee may require an Officers' Certificate listing Securities owned
by the Company, any Guarantor or any of their respective Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate upon receipt of a written
order of the Company pursuant to Section 2.02 definitive Securities in exchange
for temporary Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, at the written direction of the Company,
shall dispose of all Securities surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new
Securities to replace Securities that it has paid or delivered to the Trustee
for cancellation. If the Company or any Guarantor shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Securities unless and until the same
are surrendered to the Trustee for cancellation pursuant to this Section 2.11.
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SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay interest on overdue principal and on overdue installments of interest
(without grace periods) from time to time on demand at the rate of 2% per annum
in excess of the rate shown on the Security.
SECTION 2.13. CUSIP Number.
The Company in issuing the Securities will use a "CUSIP" number, and if
so, the Trustee shall use the CUSIP number 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 Securities, and that reliance may be placed
only on the other identification numbers printed on the Securities.
SECTION 2.14. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest Payment Date and
the Final Maturity Date, the Company shall deliver by wire transfer to the
Paying Agent in immediately available funds money sufficient to make cash
payments due on such Interest Payment Date or the Final Maturity Date, as the
case may be, in a timely manner which permits the Paying Agent to remit payment
to the Holders on such Interest Payment Date or the Final Maturity Date, as the
case may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit C.
Members of, or participants in, the Depository ("Participants") shall have
no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, 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
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or
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the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and Participants, the operation of customary practices governing the exercise
of the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 2.16. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for any Global Security and a successor depositary is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depository to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an entirety
to beneficial owners pursuant to paragraph (b) of this Section 2.15, the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall upon written instructions
from the Company authenticate and deliver, to each beneficial owner identified
by the Depository in exchange for its beneficial interest in the Global
Securities, an equal aggregate principal amount of Physical Securities of
authorized denominations.
(d) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in a Global Security pursuant to paragraph (b) or (c)
of this Section 2.15 shall, except as otherwise provided by Section 2.16, bear
the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
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SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When Physical
Securities are presented to the Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal number of
Physical Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
the requirements under this Indenture as set forth in this Section 2.16 for
such transactions are met; provided, however, that the Physical Securities
presented or surrendered for registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in
writing; and
(II) in the case of Physical Securities the offer and sale of which
have not been registered under the Securities Act, such Physical
Securities shall be accompanied by an Opinion of Counsel addressed to the
Registrar to the effect that such transfer and exchange is in compliance
with applicable securities law and, in the sole discretion of the
Company, by the following additional information and documents, as
applicable:
(A) if such Physical Security is being delivered to the
Registrar by a holder for registration in the name of such holder,
without transfer, a certification from such holder to that effect
(in substantially the form of Exhibit D hereto); or
(B) if such Physical Security is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under
the Securities Act, a certification to that effect (in
substantially the form of Exhibit D hereto); or
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a certification to
that effect (in substan-
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tially the form of Exhibit D hereto) and a Transferee Certificate
for Institutional Accredited Investors in substantially the form of
Exhibit E hereto; or
(D) if such Physical Security is being transferred in reliance
on Regulation S, delivery of a certification to that effect (in
substantially the form of Exhibit D hereto) and a Transferee
Certificate for Regulation S Transfers in substantially the form of
Exhibit F hereto and an Opinion of Counsel reasonably satisfactory
to the Company to the effect that such transfer is in compliance
with the Securities Act; or
(E) if such Physical Security is being transferred in reliance
on Rule 144 under the Securities Act, delivery of a certification
to that effect (in substantially the form of Exhibit D hereto) and
an Opinion of Counsel reasonably satisfactory to the Company to the
effect that such transfer is in compliance with the Securities Act;
or
(F) if such Physical Security is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially
the form of Exhibit D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transfer is in
compliance with the Securities Act.
(b) Restrictions on Transfer of a Physical Security for a Beneficial
Interest in a Global Security. A Physical Security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar of a Physical
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Registrar, together with:
(A) a certification, in substantially the form of Exhibit D
hereto, that such Physical Security is being transferred to a
Qualified Institutional Buyer; and
(B) written instructions directing the Registrar to make, or
to direct the Depository to make, an endorsement on the Global
Security to reflect an in-
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crease in the aggregate amount of the Securities represented by the
Global Security,
then the Registrar shall cancel such Physical Security and cause, or direct the
Depository to cause, in accordance with the standing instructions and
procedures existing between the Depository and the Registrar, the number of
Securities represented by the Global Security to be increased accordingly. If
no Global Security is then outstanding, the Company shall issue and the Trustee
shall upon written instructions from the Company authenticate a new Global
Security in the appropriate amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depository
therefor.
(d) Transfer of a Beneficial Interest in a Global Security for a Physical
Security.
(i) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Physical Security.
Upon receipt by the Registrar of written instructions or such other form
of instructions as is customary for the Depository from the Depository or
its nominee on behalf of any Person having a beneficial interest in a
Global Security and upon receipt by the Trustee of a written order or
such other form of instructions as is customary for the Depository or the
Person designated by the Depository as having such a beneficial interest
containing registration instructions and, in the case of any such
transfer or exchange of a beneficial interest in Securities the offer and
sale of which have not been registered under the Securities Act, the
following additional information and documents:
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner,
a certification from such Person to that effect (in substantially
the form of Exhibit D hereto); or
(B) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under
the Securities Act, a cer-
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tification to that effect (in substantially the form of Exhibit D
hereto); or
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery of a certification to
that effect (in substantially the form of Exhibit D hereto) and a
Certificate for Institutional Accredited Investors in substantially
the form of Exhibit E hereto; or
(D) if such beneficial interest is being transferred in
reliance on Regulation S, delivery of a certification to that
effect (in substantially the form of Exhibit D hereto) and a
Transferee Certificate for Regulation S Transfers in substantially
the form of Exhibit F hereto and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transfer is in
compliance with the Securities Act; or
(E) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act, delivery of a
certification to that effect (in substantially the form of Exhibit
D hereto) and an Opinion of Counsel reasonably satisfactory to the
Company to the effect that such transfer is in compliance with the
Securities Act; or
(F) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of
the Securities Act, a certification to that effect (in
substantially the form of Exhibit D hereto) and an Opinion of
Counsel reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act,
then the Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depository and the
Registrar, the aggregate amount of the Global Security to be reduced and,
following such reduction, the Company will execute and, upon receipt of
an authentication order in the form of an Officers' Certificate, the
Trustee will authenticate and deliver to the transferee a Physical
Security.
(ii) Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Sec-
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tion 2.16(d) shall be registered in such names and in such authorized
denominations as the Depository, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Registrar in
writing. The Registrar shall deliver such Physical Securities to the
Persons in whose names such Physical Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or replacement
of Securities not bearing the Private Placement Legend, the Registrar shall
deliver Securities that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Securities bearing the Private Placement
Legend, the Registrar shall deliver only Securities that bear the Private
Placement Legend unless, and the Trustee is hereby authorized to deliver
Securities without the Private Placement Legend if, (i) there is delivered to
the Trustee an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act or (ii) such Security has been sold pursuant to an effective
registration statement under the Securities Act.
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
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ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to Paragraph 5 or
Paragraph 6 of the Securities, it shall notify the Trustee in writing of the
Redemption Date, the Redemption Price and the principal amount of Securities to
be redeemed. The Company shall give notice of redemption to Trustee at least
45 days but not more than 60 days before the Redemption Date (unless a shorter
notice shall be agreed to by the Trustee in writing), together with an
Officers' Certificate stating that such redemption will comply with the
conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed, on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate; provided, however, that
if the Securities are redeemed pursuant to Paragraph 6 of the Securities, the
Securities shall be redeemed solely on a pro rata basis or on as nearly a pro
rata basis as is practicable (subject to the procedures of the Depository)
unless the securities exchange, if any, on which the Securities are listed
requires a different method. If the Securities are listed on any national
securities exchange, the Company shall notify the Trustee in writing of the
requirements of such exchange in respect of any redemption. The Trustee shall
make the selection from the Securities outstanding and not previously called
for redemption and shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed. The
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail or cause to be mailed a
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notice of redemption by first-class mail, postage prepaid, to each Holder whose
Securities are to be redeemed. At the Company's written request, the Trustee
shall give the notice of redemption in the Company's name and at the Company's
expense. Each notice for redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if
any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the
Holders of such Securities is to receive payment of the Redemption Price
and accrued interest, if any, to the Redemption Date upon surrender to
the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion
thereof will be issued;
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption; and
(8) the Paragraph of the Securities pursuant to which the Securities
are to be redeemed.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price
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plus accrued interest, if any. Upon surrender to the Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price (which
shall include accrued interest thereon to the Redemption Date), but
installments of interest, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business
on the relevant Record Dates.
SECTION 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m. New York City time on the Redemption Date, the Company
shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
Redemption Price plus accrued interest, if any, of all Securities to be
redeemed on that date.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued interest,
if any, interest on the Securities to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not such Securities are
presented for payment.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the Trustee
shall authenticate for the Holder a new Security or Securities equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities in
the manner provided in the Securities. An installment of principal of or
interest on the Securities shall be considered paid on the date it is due if
the Trustee or Paying Agent holds on that date U.S. Legal Tender designated for
and sufficient to pay the installment.
The Company shall pay, to the extent such payments are lawful, interest on
overdue principal and it shall pay interest on overdue installments of interest
(without regard to
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any applicable grace periods) from time to time on demand at the rate borne by
the Securities plus 2% per annum. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, the office or agency required under Section 2.03. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in
Section 11.02. The Company hereby initially designates the office of the
Trustee at 000 Xxxx Xxxxxx, Xxxxxxxxx Trust Services, Xxx Xxxx, Xxx Xxxx
00000, as its office or agency in the Borough of Manhattan, The City of New
York.
SECTION 4.03. Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or
otherwise become responsible for payment of (collectively, "incur") any
Indebtedness (other than Permitted Indebtedness); provided, however, that if no
Default or Event of Default shall have occurred and be continuing at the time
of or as a consequence of the incurrence of any such Indebtedness, the Company
or any Guarantor may incur Indebtedness (including, without limitation,
Acquired Indebtedness) and the Restricted Subsidiaries may incur Acquired
Indebtedness, in each case if on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof, the Consolidated
Fixed Charge Coverage Ratio of the Company is greater than 2.0 to 1.0 if such
incurrence occurs on or prior to May 1, 2001 or 2.25 to 1.0, if such incurrence
occurs after May 1, 2001.
No Indebtedness incurred pursuant to the Consolidated Fixed Charge
Coverage Ratio test of the preceding paragraph (including, without limitation,
Indebtedness under the Credit Agreement) shall reduce the amount of
Indebtedness which may be incurred pursuant to any clause of the definition of
Permitted Indebtedness (including, without limitation, Indebtedness under
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the Credit Agreement pursuant to clause (ii) of the definition of Permitted
Indebtedness).
Indebtedness of a Person existing at the time such Person becomes a
Restricted Subsidiary or which is secured by a Lien on an asset acquired by the
Company or a Restricted Subsidiary (whether or not such Indebtedness is assumed
by the acquiring Person) shall be deemed incurred at the time the Person
becomes a Restricted Subsidiary or at the time of the asset acquisition, as the
case may be.
SECTION 4.04. Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of the Restricted
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or
make any distribution (other than dividends or distributions, payable in
Qualified Capital Stock of the Company) on or in respect of shares of the
Company's Capital Stock to holders of such Capital Stock, (b) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or
any warrants, rights or options to purchase or acquire shares of any class of
such Capital Stock or (c) make any Investment (other than Permitted
Investments) (each of the foregoing actions set forth in clauses (a), (b) and
(c) being referred to as a "Restricted Payment"), if at the time of such
Restricted Payment or immediately after giving effect thereto, (i) a Default or
an Event of Default shall have occurred and be continuing or (ii) the Company
is not able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.03 or (iii) the aggregate
amount of Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Issue Date (the amount expended for such purpose, if other
than in cash, being the fair market value of such property as determined
reasonably and in good faith by the Board of Directors of the Company) shall
exceed the sum of: (w) 50% of the cumulative Consolidated Net Income (or if
cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of
the Company earned subsequent to the Issue Date and on or prior to the date the
Restricted Payment occurs (the "Reference Date" (treating such period as a
single accounting period); plus (x) 100% of the fair market value of the
aggregate net proceeds received by the Company from any Person (other than a
Subsidiary of the Company) from the issuance and sale subsequent to the Issue
Date and on or prior to the Reference Date of Qualified Capital Stock of the
Company; plus (y) without duplication of any amounts included in clause
(iii)(x) above, 100% of the fair market value of the aggregate
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net proceeds of any contribution to the common equity capital of the Company
received by the Company from a holder of the Company's Capital Stock
(excluding, in the case of clauses (iii)(x) and (y), any net proceeds from a
Public Equity Offering to the extent used to redeem the Securities); plus (z)
an amount equal to the lesser of (A) the sum of the fair market value of the
Capital Stock of an Unrestricted Subsidiary owned by the Company and the
Restricted Subsidiaries and the aggregate amount of all Indebtedness of such
Unrestricted Subsidiary owed to the Company, the Guarantors and each
Unleveraged Restricted Subsidiary on the date of Revocation of such
Unrestricted Subsidiary as an Unrestricted Subsidiary in accordance with
Section 4.23 or (B) the Designation Amount with respect to such Unrestricted
Subsidiary on the date of the Designation of such Subsidiary as an Unrestricted
Subsidiary in accordance with Section 4.23.
Notwithstanding the foregoing, the provisions set forth in the immediately
preceding paragraph do not prohibit: (1) the payment of any dividend within 60
days after the date of declaration of such dividend if the dividend would have
been permitted on the date of declaration; (2) if no Default or Event of
Default shall have occurred and be continuing, the acquisition of any shares of
Capital Stock of the Company, either (i) solely in exchange for shares of
Qualified Capital Stock of the Company or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company;
(3) Permitted Tax Payments; (4) so long as no Default or Event of Default shall
have occurred and be continuing, repurchases of Capital Stock of the Company
from officers, directors, employees or consultants pursuant to equity ownership
or compensation plans not to exceed $500,000 in any year; and (5) so long as no
Default or Event of Default shall have occurred and be continuing, other
Restricted Payments in an aggregate amount not to exceed $5.0 million. In
determining the aggregate amount of Restricted Payments made subsequent to the
Issue Date in accordance with clause (iii) of the immediately preceding
paragraph, amounts expended pursuant to clauses (1), (2), (4) and (5) shall be
included in such calculation.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an officers' certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal
quarterly financial statements.
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SECTION 4.05. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other
existence of each of the Restricted Subsidiaries in accordance with the
respective organizational documents of each Restricted Subsidiary and the
rights (charter and statutory) and material franchises of the Company and each
of its Restricted Subsidiaries; provided, however, that the Company shall not
be required to preserve any such right or franchise, or the corporate existence
of any Restricted Subsidiary, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Restricted Subsidiaries, taken as a
whole, and that the loss thereof is not, and will not be, adverse in any
material respect to the Holders.
SECTION 4.06. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments
and governmental charges levied or imposed upon it or any of the Restricted
Subsidiaries or upon the income, profits or property of it or any of the
Restricted Subsidiaries and (ii) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability or Lien upon the property of it or any of the Restricted
Subsidiaries; provided, however, 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 proceedings and for which appropriate provision has been
made.
SECTION 4.07. Maintenance of Properties and Insurance.
(1) The Company shall cause all material properties owned by or leased by
it or any of the Restricted Subsidiaries used in the conduct of its business or
the business of any of the Restricted Subsidiaries to be improved or maintained
and kept in normal 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 thereof, all as in its judgment may be necessary, so that the
business carried on in connection therewith may be properly and advantageously
56
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conducted at all times; provided, however, that nothing in this Section 4.07
shall prevent the Company or any of the Restricted Subsidiaries 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
judgment of the Board of Directors of the Company or of the Board of Directors
of any Restricted Subsidiary, or of an officer (or other agent employed by the
Company or of any of the Restricted Subsidiaries) of the Company or any of its
Restricted Subsidiaries having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Restricted
Subsidiary, and if such discontinuance or disposal is not adverse in any
material respect to the Holders.
(2) The Company shall maintain, and shall cause the Restricted
Subsidiaries to maintain, insurance with responsible carriers against such
risks and in such amounts, and with such deductibles, retentions, self-insured
amounts and co-insurance provisions, as are customarily carried by similar
businesses of similar size, including property and casualty loss, workers'
compensation and interruption of business insurance.
SECTION 4.08. Compliance Certificate; Notice of Default.
(1) The Company shall deliver to the Trustee, within 100 days after the
close of each fiscal year an Officers' Certificate stating that a review of the
activities of the Company has been made under the supervision of the signing
officers with a view to determining whether it has kept, observed, performed
and fulfilled its obligations under this Indenture and further stating, as to
each such Officer signing such certificate, that to the best of his knowledge
the Company during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no Default or Event of Default
occurred during such year and at the date of such certificate no Default or
Event of Default has occurred and is continuing or, if such signers do know of
such Default or Event of Default, the certificate shall describe its status
with particularity. The Officers' Certificate shall also notify the Trustee
should the Company elect to change the manner in which it fixes its fiscal year
end.
(2) The annual financial statements delivered pursuant to Section 4.10
shall be accompanied by a written report of the Company's independent
accountants (who shall be a firm of established national reputation) that in
conducting their audit of such financial statements nothing has come to their
attention that would lead them to believe that the Company has vio-
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lated any provisions of Article Four, Five or Six of this Indenture insofar as
they relate to accounting matters or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(3) The Company shall deliver to the Trustee, within ten days of becoming
aware of any Default or Event of Default in the performance of any covenant,
agreement or condition contained in this Indenture, an Officers' Certificate
specifying the Default or Event of Default and describing its status with
particularity.
SECTION 4.09. Compliance with Laws.
The Company shall comply, and shall cause each of the Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations,
orders and restrictions of the United States of America, all states and
municipalities thereof, and of any governmental department, commission, board,
regulatory authority, bureau, agency and instrumentality of the foregoing, in
respect of the conduct of their respective businesses and the ownership of
their respective properties, except for such noncompliances as would not in the
aggregate have a material adverse effect on the financial condition or results
of operations of the Company and the Restricted Subsidiaries taken as a whole.
SECTION 4.10. SEC Reports.
(1) The Company will file with the SEC all information documents and
reports to be filed with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, whether or not the Company is subject to such filing requirements
so long as the SEC will accept such filings. The Company (at its own expense)
will file with the Trustee within 15 days after it files them with the SEC,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which 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 Section 314(a).
(2) At the Company's expense, regardless of whether the Company is
required to furnish such reports to its stockholders pursuant to the Exchange
Act, the Company shall cause
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its consolidated financial statements, comparable to that which would have been
required to appear in annual or quarterly reports, to be delivered to the
Trustee and the Holders. The Company will also make such reports available to
prospective purchasers of the Securities, securities analysts and
broker-dealers upon their request.
(3) For so long as any of the Securities remain outstanding the Company
will make available to any prospective purchaser of the Securities or
beneficial owner of the Securities in connection with any sale thereof the
information required by Rule 144A(d)(4) under the Securities Act during any
period when the Company is not subject to Section 13 or 15(d) under the
Exchange Act.
SECTION 4.11. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) 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 and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture, and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.12. Limitation on Asset Sales.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, consummate on Asset Sale unless (i) the Company or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors), (ii) at least 75% of the consideration received
by the Company or the Restricted Subsidiary, as the case may be, from such
Asset Sale shall be in the form of cash or Cash Equivalents and is received at
the time of such disposition; and (iii) upon the consummation of an Asset Sale,
the Company shall apply, or cause such Restricted Subsidiary to apply, the Net
Cash Proceeds relating to such Asset Sale within
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360 days of receipt thereof either (A) to prepay any Senior Debt or Guarantor
Senior Debt and, in the case of any Senior Debt or Guarantor Senior Debt under
any revolving credit facility, effect a permanent reduction in the availability
under such revolving credit facility, (B) to make an investment in properties
and assets that will be used in the business of the Company and its Restricted
Subsidiaries as existing on the Issue Date or in businesses reasonably related
thereto, or (C) a combination of prepayment and investment permitted by the
foregoing clauses (iii)(A) and (iii)(B). On the 361st day after an Asset Sale
or such earlier date, if any, as the Board of Directors of the Company or of
such Restricted Subsidiary determines not to apply the Net Cash Proceeds
relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and
(iii)(C) of the next preceding sentence (each, a "Net Proceeds Offer Trigger
Date"), such aggregate amount of Net Cash Proceeds which have not been applied
on or before such Net Proceeds Offer Trigger Date as permitted in clauses
(iii)(A), (iii)(B) and (iii)(C) of the next preceding sentence (each, a "Net
Proceeds Offer Amount") shall be applied by the Company to make an offer to
purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment
Date") not less than 30 nor more than 60 days following the applicable Net
Proceeds Offer Trigger Date, from all Holders on a pro rata basis, that
principal amount of Securities equal to the Net Proceeds Offer Amount at a
price equal to 100% of the principal amount of the Securities to be purchased,
plus accrued and unpaid interest, if any, thereon to the date or purchase;
provided, however, that if at any time any non-cash consideration received by
the Company or any Restricted Subsidiary, as the case may be, in connection
with any Asset Sale is converted into or sold or otherwise disposed of for cash
(other than interest received with respect to any such non-cash consideration),
then such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance with
this covenant. The Company may defer the Net Proceeds Offer until there is an
aggregate unutilized Net Proceeds Offer Amount equal to or in excess of
$5,000,000 resulting from one or more Asset Sales (at which time, the entire
unutilized Net Proceeds Offer Amount, and not just the amount in excess of
$5,000,000 shall be applied as required pursuant to this paragraph).
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company and the Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.01, the
successor corporation shall be deemed to have sold the properties and assets of
the
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Company and the Restricted Subsidiaries not so transferred for purposes of this
covenant, and shall comply with the provisions of this covenant with respect to
such deemed sale as if it were an Asset Sale. In addition, the fair market
value of such properties and assets of the Company or the Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this covenant.
Notice of each Net Proceeds Offer pursuant to this Section 4.12 will be
mailed or caused to be mailed, by first class mail, by the Company within 30
days following the Net Proceeds Offer Trigger Date to all Holders at their last
registered addresses, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender
Securities pursuant to the Net Proceeds Offer and shall state the following
terms:
(1) that the Net Proceeds Offer is being made pursuant to Section
4.12 and that all Securities tendered in whole or in part in integral
multiples of $1,000 will be accepted for payment; provided, however, that
if the principal amount of Securities tendered in a Net Proceeds Offer
exceeds the aggregate amount of the Net Cash Proceeds Offer Amount, the
Company shall select the Securities to be purchased on a pro rata basis;
(2) the purchase price (including the amount of accrued interest, if
any) and the Net Proceeds Offer Payment Date (which shall be at least 20
Business Days from the date of mailing of notice of such Net Proceeds
Offer, or such longer period as required by law);
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Net Proceeds Offer
shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a
Net Proceeds Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Net Proceeds Offer Payment
Date;
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(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the Business Day prior to the Net
Proceeds Offer Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased; and
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered.
On or before the Net Proceeds Offer Payment Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with item (1) above,
(ii) deposit with the Paying Agent in accordance with Section 2.14 U.S. Legal
Tender sufficient to pay the purchase price plus accrued interest, if any, of
all Securities to be purchased and (iii) deliver to the Trustee Securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to the Holders of Securities so accepted payment in an amount
equal to the purchase price plus accrued interest, if any. For purposes of
this Section 4.12, the Trustee shall act as the Paying Agent.
The Company shall and shall cause its Subsidiaries to comply with all
tender offer rules under state and Federal securities laws, including, but not
limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to
the extent applicable to such offer. To the extent that the provisions of any
securities laws or regulations conflict with the foregoing provisions of this
Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the
foregoing provisions of this Indenture by virtue thereof.
SECTION 4.13. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company will not, and will not cause or permit any of the
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
or permit to exist or become effective any encumbrance or restriction on the
ability of any Re-
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stricted Subsidiary to (a) pay dividends or make any other distributions on or
in respect of its Capital Stock; (b) make loans or advances or to pay any
Indebtedness or other obligation owed to the Company or any other Restricted
Subsidiary; or (c) transfer any of its property or assets to the Company or any
other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reasons of: (1) applicable law; (2) this Indenture; (3)
customary non-assignment provisions of any contract or any lease governing a
leasehold interest of any Restricted Subsidiary; (4) any instrument governing
Acquired Indebtedness, which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person or
the properties or assets of the Person so acquired; (5) agreements existing on
the Issue Date to the extent and in the manner such agreements are in effect on
the Issue Date; (6) any other agreement entered into after the Issue Date which
contains encumbrances and restrictions which are no more restrictive with
respect to any Restricted Subsidiary than those in effect with respect to such
Restricted Subsidiary pursuant to agreements as in effect on the Issue Date;
and (7) an agreement governing Refinancing Indebtedness incurred to Refinance
the Indebtedness issued, assumed or incurred pursuant to an agreement referred
to in clause (2), (4) or (5) above; provided, however, that the provisions
relating to such encumbrance or restriction contained in any such Refinancing
Indebtedness are no more restrictive than the provisions relating to such
encumbrance or restriction contained in agreements referred to in such clause
(2), (4) or (5).
SECTION 4.14. Limitation on Preferred Stock of Restricted
Subsidiaries.
The Company will not permit any of the Restricted Subsidiaries to issue
any Preferred Stock (other than to the Company or to a Wholly Owned Restricted
Subsidiary) or permit any Person (other than the Company or to a Restricted
Subsidiary) to own any Preferred Stock of any Restricted Subsidiary.
SECTION 4.15. Limitation on Liens.
The Company will not, and will not cause or permit any of the Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or permit or
suffer to exist any Liens of any kind against or upon any property or assets of
the Company or any of the Restricted Subsidiaries whether owned on the Issue
Date or acquired after the Issue Date, or any proceeds therefrom, or assign or
otherwise convey any right to receive
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income or profits therefrom unless (i) in the case of Liens securing
Indebtedness that is expressly subordinate or junior in right of payment to the
Securities, the Securities are secured by a Lien on such property, assets or
proceeds that is senior in priority to such Liens and (ii) in all other cases,
the Securities are equally and ratably secured, except for (A) Liens existing
as of the Issue Date to the extent and in the manner such Liens are in effect
on the Issue Date; (B) Liens securing Senior Debt and Liens securing Guarantor
Senior Debt; (C) Liens securing the Securities and any Guarantees; (D) Liens in
favor of the Company, a Guarantor or an Unleveraged Restricted Subsidiary; (E)
Liens securing Refinancing Indebtedness which is incurred to Refinance any
Indebtedness which has been secured by a Lien permitted under this Indenture
and which has been incurred in accordance with the provisions of this
Indenture; provided, however, that such Liens do not extend to or cover any
property or assets of the Company or any of the Restricted Subsidiaries not
securing the Indebtedness so Refinanced; and (F) Permitted Liens.
SECTION 4.16. [Intentionally Omitted]
SECTION 4.17. Prohibition on Incurrence of Senior Subordinated Debt.
The Company will not, and will not permit any Guarantor to, incur or
suffer to exist Indebtedness (other than Xxxxxx Indebtedness) that is senior in
right of payment to the Securities or the Guarantee of such Guarantor and
subordinate in right of payment to any other Indebtedness of the Company or
such Guarantor, as the case may be.
SECTION 4.18. Limitations on Transactions with Affiliates.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each, an
"Affiliate Transaction"), other than (x) Affiliate Transactions permitted under
paragraph (b) below and (y) Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm's-length basis from a Person that is not an
Affiliate of the Company or such Restricted Subsidiary. All Affiliate
Transactions (and each se-
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xxxx of related Affiliate Transactions which are similar or part of a common
plan) involving aggregate payments or other property with a fair market value
in excess of $1.0 million shall be approved by the Board of Directors of the
Company or such Restricted Subsidiary, as the case may be, such approval to be
evidenced by a Board Resolution stating that such Board of Directors has
determined that such transaction complies with the foregoing provisions. If
the Company or any Restricted Subsidiary enters into an Affiliate Transaction
(or series of related Affiliate Transactions related to a common plan) that
involves an aggregate fair market value of more than $10.0 million, the Company
or such Restricted Subsidiary, as the case may be, shall, prior to the
consummation thereof, obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to the Company or the relevant
Restricted Subsidiary, as the case may be, from a financial point of view, from
an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to (i)
employment, consulting and compensation arrangements and agreements of the
Company as in effect on the Issue Date; (ii) reasonable fees and compensation
paid to and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary as determined in good
faith by the Company's Board of Directors or senior management; (iii)
consulting fees paid by the Company consistent with past practice; (iv)
transactions exclusively between or among the Company and any of the Restricted
Subsidiaries or exclusively between or among such Restricted Subsidiaries,
provided such transactions are not otherwise prohibited by this Indenture; (v)
transactions pursuant to the Existing Agreements; and (vi) Restricted Payments
permitted by this Indenture.
SECTION 4.19. Issuance of Subsidiary Guarantees.
If (a) any Domestic Wholly Owned Restricted Subsidiary incurs any
Indebtedness or (b) any Restricted Subsidiary (whether or not a Domestic Wholly
Owned Restricted Subsidiary) guarantees any Indebtedness of the Company or any
of its Restricted Subsidiaries (other than a Subsidiary of such Restricted
Subsidiary) then, in either case, the Company shall cause such Domestic Wholly
Owned Restricted Subsidiary or such Restricted Subsidiary, as the case may be,
to (i) execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such Domestic Wholly
Owned Restricted Subsidiary or such Restricted
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Subsidiary, as the case may be, shall unconditionally guarantee (each, a
"Guarantee") all of the Company's obligations under the Securities and this
Indenture on the terms set forth in Article Ten and (ii) deliver to the Trustee
an Opinion of Counsel (which may contain customary exceptions) that such
supplemental indenture has been duly authorized, executed and delivered by such
Domestic Wholly Owned Restricted Subsidiary or such Restricted Subsidiary, as
the case may be, and constitutes a legal, valid, binding and enforceable
obligation of such Domestic Wholly Owned Restricted Subsidiary or such
Restricted Subsidiary, as the case may be. Thereafter, such Domestic Wholly
Owned Restricted Subsidiary or such Restricted Subsidiary, as the case may be,
shall be a Guarantor for all purposes of this Indenture. The Company may cause
any other Restricted Subsidiary of the Company to issue a Guarantee and become
a Guarantor.
SECTION 4.20. [Intentionally Omitted].
SECTION 4.21. Lines of Business.
The Company and the Restricted Subsidiaries will not engage in any
businesses which are not either (i) the same, similar or related to the
businesses in which the Company and the Restricted Subsidiaries are engaged on
the Issue Date, (ii) Permitted Investments or (iii) businesses acquired through
an acquisition after the Issue Date which are not material to the Company and
the Restricted Subsidiaries, taken as a whole.
SECTION 4.22. Payments for Consent.
The Company will not, and will not cause or 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 Holder of any Securities for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Securities or the Guarantees unless such
consideration is offered to be paid to all Holders of the Securities who so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
SECTION 4.23. Limitation on Designations of Unrestricted
Subsidiaries.
The Company may designate any Subsidiary of the Company (other than a
Subsidiary of the Company which owns Capital Stock of a Restricted Subsidiary)
as an "Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
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(a) no Default shall have occurred and be continuing at the time of
or after giving effect to such Designation; and
(b) the Company would be permitted under this Indenture to make an
Investment at the time of Designation (assuming the effectiveness of such
Designation) in an amount (the "Designation Amount") equal to the sum of
(i) fair market value of the Capital Stock of such Subsidiary owned by
the Company and the Restricted Subsidiaries on such date and (ii) the
aggregate amount of Indebtedness of such Subsidiary owed to the Company
and the Restricted Subsidiaries on such date; and
(c) the Company would be permitted to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.03
hereof at the time of Designation (assuming the effectiveness of such
Designation).
In the event of any such Designation, the Company shall be deemed to have
made an Investment constituting a Restricted Payment in the Designation Amount
pursuant to Section 4.04 hereof for all purposes of this Indenture. The
Company shall not, and shall not permit any Restricted Subsidiary to, at any
time (x) provide direct or indirect credit support for or a guarantee of any
Indebtedness of any Unrestricted Subsidiary (including of any undertaking
agreement or instrument evidencing such Indebtedness), (y) be directly or
indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z) be
directly or indirectly liable for any Indebtedness which provides that the
holder thereof may (upon notice, lapse of time or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity upon the occurrence of a default with respect to any
Indebtedness of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary), except, in the case
of clause (x) or (y), to the extent permitted under Section 4.04 hereof.
The Company may revoke any Designation of a Subsidiary as an Unrestricted
Subsidiary ("Revocation"), whereupon such Subsidiary shall then constitute a
Restricted Subsidiary, if
(a) no Default shall have occurred and be continuing at the time
and after giving effect to such Revocation; and
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(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by Board Resolutions of
the Company delivered to the Trustee certifying compliance with the foregoing
provisions.
SECTION 4.24. Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall within
30 days of the Change of Control either (i) repay in full and terminate all
commitments under Indebtedness under the Credit Agreement and all other Senior
Debt the terms of which require repayment upon a Change of Control or offer to
repay in full and terminate all commitments under all Indebtedness under the
Credit Agreement and all other such Senior Debt and to repay the Indebtedness
owed to each lender which has accepted such offer or (ii) obtain the requisite
consents under the Credit Agreement and all other Senior Debt to permit the
repurchase of the Securities as provided below. After the Company complies
with the covenant in the immediately preceding sentence, the Company shall make
an offer to purchase (a "Change of Control Offer"), and shall purchase, on a
Business Day not more than 60 nor less than 30 days following the occurrence of
the Change of Control (the "Change of Control Payment Date"), all of the then
outstanding Securities at a purchase price equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, thereon to the Change
of Control Payment Date. The Change of Control Offer shall remain open for 20
Business Days (or such longer period as may be required by law) and until the
close of business on the Change of Control Payment Date.
(b) Within 30 days following the date upon which the Change of Control
occurred (the "Change of Control Date"), the Company shall mail, or cause to be
mailed, by first class mail, a notice to each Holder, with a copy to the
Trustee, which notice shall govern the terms of the Change of Control Offer.
The notice to the Holders shall contain all instructions and materials
necessary to enable such Holders to tender Securities pursuant to the Change of
Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.24 and that all Securities tendered and not withdrawn will be
accepted for payment;
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(2) the purchase price (including the amount of accrued interest)
and the Change of Control Payment Date;
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a
Change of Control Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the Business Day prior to the
Change of Control Payment Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Securities purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent in accordance with
Section 2.14 U.S. Legal Tender sufficient to pay the purchase price plus
accrued interest, if any, of all Securities so tendered and (iii) deliver to
the Trustee Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof being purchased by the Company.
Upon receipt by the Paying Agent of the monies specified in clause (ii) above
and a copy of the Officers' Certificate specified in clause (iii) above, the
Paying Agent shall promptly mail to the
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Holders of Securities so accepted payment in an amount equal to the purchase
price plus accrued interest, if any, and the Trustee shall promptly
authenticate and mail to such Holders new Securities equal in principal amount
to any unpurchased portion of the Securities surrendered. Any Securities not
so accepted shall be promptly mailed by the Company to the Holder thereof. For
purposes of this Section 4.24, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of all validly tendered and not
validly withdrawn Securities pursuant to a Change of Control Offer shall be
returned by the Trustee to the Company.
The Company shall and shall cause its Subsidiaries to comply with all
tender offer rules under state and Federal securities laws, including, but not
limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to
the extent applicable to such offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.24, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.24 by virtue
thereof.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations and Sales of Assets.
(a) The Company will not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise
dispose of) all or substantially all of the Company's assets (determined on a
consolidated basis for the Company and the Restricted Subsidiaries) whether as
an entirety or substantially as an entirety to any Person unless: (i) either
(1) the Company shall be the surviving or continuing corporation or (2) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the properties and assets of
the Company and the Restricted Subsidiaries substantially as an entirety
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(the "Surviving Entity") (x) shall be a corporation organized and validly
existing under the laws of the United States or any State thereof or the
District of Columbia and (y) shall expressly assume, by supplemental indenture
(in form and substance satisfactory to the Trustee), executed and delivered to
the Trustee, the due and punctual payment of the principal of, and premium, if
any, and interest on all of the Securities and the performance of every
covenant of the Securities, this Indenture and the Registration Rights
Agreement on the part of the Company to be performed or observed; (ii)
immediately after giving effect to such transaction and the assumption
contemplated by clause (i)(2)(y) above (including giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred
in connection with or in respect of such transaction), the Company or such
Surviving Entity, as the case may be, shall be able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.03 hereof; (iii) immediately before and immediately after giving effect to
such transaction and the assumption contemplated by clause (i)(2)(y) 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 or in respect of the transaction), no Default or Event of
Default shall have occurred or be continuing; and (iv) the Company or the
Surviving Entity shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with the applicable provisions of this Indenture
and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries, the Capital Stock of which constitutes all or substantially all
of the properties and assets of the Company, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Company.
(c) No Guarantor (other than any Guarantor whose Guarantee is to be
released in accordance with the terms of the Guarantee and this Indenture in
connection with any transaction complying with the provisions of Section 4.12
will, and the Company will not cause or permit any Guarantor to, consolidate
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with or merge with or into any Person other than the Company or any other
Guarantor unless: (i) the entity formed by or surviving any such consolidation
or merger (if other than the Guarantor) is a corporation organized and existing
under the laws of the United States or any State thereof or the District of
Columbia; (ii) such entity assumes by supplemental indenture all of the
obligations of the Guarantor under this Indenture, such Guarantor's Guarantee
and the Registration Rights Agreement; (iii) immediately after giving effect to
such transaction, no Default or Event of Default shall have occurred and be
continuing; (iv) immediately after giving effect to such transaction and the
use of any net proceeds therefrom on a pro forma basis, the Company could
satisfy the provisions of clause (a)(ii) of this Section 5.01; and (v) the
Company shall have delivered to the Trustee an Officers' Certificate and
Opinion of Counsel, each stating that such consolidation or merger and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with the applicable provisions of this Indenture
and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
SECTION 5.02. Successor Corporation Substituted.
In accordance with the foregoing, upon any such consolidation, merger,
conveyance, lease or transfer of all or substantially all of the assets of the
Company in which the Company is not the continuing corporation, the Surviving
Entity formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Securities with the same effect as if such successor had
been named as the Company herein, and thereafter (except in the case of a sale,
assignment, transfer, lease, conveyance or other disposition) the predecessor
corporation will be relieved of all further obligations and covenants under
this Indenture, the Securities and the Registration Rights Agreement; provided
that solely for purposes of computing amounts described in subclause (iii) of
Section 4.04, any such Surviving Entity shall only be deemed to have succeeded
to and be substituted for the Company with respect to periods subsequent to the
effective time of such merger, consolidation or transfer of assets.
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company fails to pay interest on any Security for a period
of 30 days after the same becomes due and payable (whether or not such
payment shall be prohibited by Article Twelve); or
(2) the Company fails to pay the principal of any Security, when
such principal becomes due and payable, whether at maturity, upon
redemption or otherwise (including the failure to make a payment to
purchase Securities tendered pursuant to a Change of Control Offer or Net
Proceeds Offer) (whether or not such payment shall be prohibited by
Article Twelve); or
(3) the Company or any Guarantor defaults in the observance or
performance of any other covenant or agreement contained in this
Indenture, the Securities or any Guarantee, which default continues for a
period of 30 days (with respect to the covenants set forth in Sections
4.03, 4.04, 4.12 and 4.15) or 60 days (with respect to any other covenant
or agreement), as the case may be, after (x) the Company receives written
notice specifying the default and requiring the Company to remedy the
same from the Trustee or (y) the Company and the Trustee receive such a
notice from Holders of at least 25% in principal amount of outstanding
Securities (except in the case of a default with respect to Article Five,
which will constitute an Event of Default with such notice requirement
but without such passage of time requirement); or
(4) the Company or a Restricted Subsidiary defaults under any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness of the Company
or of any Restricted Subsidiary (or the payment of which is guaranteed by
the Company or any Restricted Subsidiary) which default (a) is caused by
a failure to pay principal of such Indebtedness after any applicable
grace period provided in such Indebtedness on the date of such default (a
"principal payment default"), or (b) results in the accel-
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eration of such Indebtedness prior to its express maturity (and such
acceleration is not rescinded, or such Indebtedness is not repaid, within
30 days) and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a principal payment default or
the maturity of which has been so accelerated (and such acceleration is
not rescinded, or such Indebtedness is not repaid, within 30 days),
aggregates $5.0 million; or
(5) the Company or any of its Significant Subsidiaries (A) admits in
writing its inability to pay its debts generally as they become due, (B)
commences a voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (C) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under
any Bankruptcy Law, (D) consents to the appointment of a Custodian of it
or for substantially all of its property, (E) consents to or acquiesces
in the institution of a bankruptcy or an insolvency proceeding against
it, (F) makes a general assignment for the benefit of its creditors, or
(G) takes any corporate action to authorize or effect any of the
foregoing; or
(6) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding under any Bankruptcy
Law, which shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Company or any of its Significant Subsidiaries, (B) appoint a Custodian
of the Company or any of its Significant Subsidiaries or for
substantially all of any of their property or (C) order the winding-up or
liquidation of its affairs; and such judgment, decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(7) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $5.0 million, either individually or in the
aggregate, shall be entered against the Company or any Restricted
Subsidiary of the Company or any of their respective properties and shall
not be discharged or fully bonded and there shall have been a period of
60 days after the date on which any period for appeal has expired and
during which a stay of
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enforcement of such judgment, order or decree shall not be in effect; or
(8) any Guarantee of a Significant Subsidiary ceases to be in full
force and effect, or any Guarantee of a Significant Subsidiary is
declared to be null and void and unenforceable or any Guarantee of a
Significant Subsidiary is found to be invalid or any Guarantor which is a
Significant Subsidiary denies its liability under its Guarantee (other
than by reason of release of a Guarantor in accordance with the terms of
this Indenture).
The Trustee shall, within 30 days after the occurrence of any Default
actually known to a Responsible Officer of the Trustee, give to the holders of
Securities notice of such Default; provided that, except in the case of a
Default in the payment of principal of or interest on any of the Securities,
the Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in clause
(5) or (6) above) occurs and is continuing, then the Trustee or the Holders of
not less than 25% in aggregate principal amount of the then outstanding
Securities may declare the unpaid principal of, premium, if any, and accrued
and unpaid interest on, all the Securities then outstanding to be immediately
due and payable, by a notice in writing to the Company (and to the Trustee, if
given by Holders) specifying the respective Event(s) of Default and that it is
a "notice of acceleration" and upon such declaration such principal amount,
premium, if any, and accrued and unpaid interest will become immediately due
and payable. If an Event of Default specified in clause (5) or (6) above
occurs, all unpaid principal of, and premium, if any, and accrued and unpaid
interest on, the Securities then outstanding will ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after a declaration of acceleration with respect to the
Securities as described in the preceding paragraph, the Holders of a majority
in principal amount of the Securities then outstanding may rescind and cancel
such declaration and its consequences (a) if the rescission would not conflict
with any judgment or decree, (b) if all existing Events
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of Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration, (c) to the extent the
payment of such interest is lawful, interest on overdue installments of
interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid, (d) if the Company has paid the
Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances and (e) in the event of the cure or waiver
of an Event of Default of the type described in clauses (5) and (6) of the
description of Events of Default above, the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities, this Indenture or any Guarantee.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.02, 6.07 and 9.02, the Holders of not less than a
majority in principal amount of the outstanding Securities by written notice to
the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of, premium or
interest on any Security as specified in clauses (1) and (2) of Section 6.01.
The Company shall deliver to the Trustee an Officers' Certificate stating that
the requisite percentage of Holders have consented to such waiver and attaching
copies of such consents upon which the Trustee may conclusively rely. When a
Default or Event of Default is waived, it is cured and ceases.
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SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. Subject to Section 7.01, however, the Trustee may
refuse to follow any direction that conflicts with any law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability; provided
that the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction.
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
from the Company satisfactory to it in its sole discretion against any fees,
loss, liability, cost or expense caused by taking such action or following such
direction.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture,
the Securities or any Guarantee unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holder or Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 30 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 30-day period the Holder or Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
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A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium and interest on a Security,
on or after the respective due dates expressed in such Security, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per
annum borne by the Securities and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, legal fees,
disbursements and advances of the Trustee, its agents, nominees, custodians,
counsel, accountants and experts) and the Securityholders allowed in any
judicial proceedings relating to the Company, 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
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, legal fees, disbursements and advances of the
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Trustee, its agents, nominees, custodians and counsel, and any other amounts
due the Trustee under Section 7.07. Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts owing under Section 7.07;
Second: if the Holders are forced to proceed against the Company, a
Guarantor or any other obligor on the Securities directly without the
Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Securities for
principal, premium and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities
for principal, premium and interest, respectively; and
Fourth: to the Company or any Guarantors, as their respective
interests may appear.
The Trustee, upon prior notice to the Company, may fix a record date and
payment date for any payment to Securityholders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, 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.
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This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a Responsible 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 person would exercise or use
under the circumstances in the conduct of his own affairs. Subject to such
provisions, the Trustee shall be under no obligation to exercise any of its
rights or powers under this Indenture at the request of any of the holders of
Securities, unless they shall have offered to the Trustee security and
indemnity satisfactory to it in its sole discretion.
(b) Except during the continuance of an Event of Default actually known
to a Responsible Officer of the Trustee:
(1) The Trustee need perform only those duties as are specifically
set forth herein and no others and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions and such
other documents delivered to it pursuant to Section 11.04 hereof
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
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(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Trustee, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of
such funds is not assured to it or it does not receive an indemnity
satisfactory to it in its sole discretion against such risk, liability, loss,
fee or expense which might be incurred by it in compliance with such request or
direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to this Section 7.01.
(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. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel, which shall conform
to the provisions of Section 11.05. The Trustee shall not be liable for
any action it
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takes or omits to take in good faith in reliance on such certificate or
opinion.
(c) The Trustee may act through its attorneys, agents, custodians
and nominees and shall not be responsible for the misconduct or
negligence of any attorney, agent, custodian or nominee (other than such
a person 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 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) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the fees, costs, expenses and
liabilities which may be incurred therein or thereby.
(g) Except with respect to Section 4.01, the Trustee shall not have
any duty as to inquire as to the performance by the Company of its
covenants or obligations under this Indenture. The Trustee shall not be
deemed to have notice or any knowledge of any matter (including without
limitation Defaults or Events of Default) unless a Responsible Officer
assigned to and working in the Trustee's Corporate Trust Administration
has actual knowledge thereof or unless written notice thereof is received
by the Trustee, attention: Corporate Trust Administration and such
notice references the Securities generally, the Company or this
Indenture.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, any Guarantors and
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their respective Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, 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 Securities (including
without limitation any preliminary or final offering memorandum) or any
statement in the Securities other than the Trustee's certificate of
authentication. The Trustee makes no representations with respect to the
effectiveness or adequacy of this Indenture. The Trustee shall not be
responsible for independently ascertaining or maintaining such validity, if
any, and shall be fully protected in relying upon certificates and opinions
delivered to it in accordance with the terms of this Indenture.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and a
Responsible Officer of the Trustee receives actual notice of such event, the
Trustee shall mail to each Securityholder, as their names and addresses appear
on the Securityholder list described in Section 2.05, notice of the uncured
Default or Event of Default within 30 days after the Trustee receives such
notice. Except in the case of a Default or an Event of Default in payment of
principal of, premium or interest on, any Security, including the failure to
make payment on (i) the Change of Control Payment Date pursuant to a Change of
Control Offer or (ii) the Excess Proceeds Payment Date pursuant to an Asset
Sale Offer, the Trustee may withhold the notice if and so long as the board of
directors, the executive committee, or a trust committee of directors, of the
Trustee in good faith determines that withholding the notice is in the interest
of the Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
This Section 7.06 shall not be operative as a part of this Indenture until
this Indenture is qualified under the TIA, and, until such qualification, this
Indenture shall be construed as if this Section 7.06 were not contained herein.
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Within 60 days after each May 15 of each year beginning with 1998, the
Trustee shall, to the extent that any of the events described in TIA Section
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Securityholder a brief report dated as of such date that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Section Section
313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to Securityholders shall
be mailed to the Company and filed with the SEC and each securities exchange,
if any, on which the Securities are listed.
The Company shall notify a Responsible Officer of the Trustee if the
Securities become listed on any securities exchange or of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by it in addition to the compensation for its
services, except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, legal fees, disbursements and expenses of
the Trustee's agents, accountants, experts, nominees, custodians and counsel
and any taxes or other expenses incurred by a trust created pursuant to Section
8.01 hereof.
The Company shall indemnify the Trustee, its directors, officers and
employees and each predecessor trustee for, and hold it harmless against, any
loss, liability or expense incurred by the Trustee without negligence or bad
faith on its part arising out of or in connection with the administration of
this trust and its duties under this Indenture, including the reasonable
expenses and attorneys' fees of defending itself against any claim of liability
arising hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense (and may employ its own counsel) at the
Company's ex-
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pense. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld or delayed. The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee as a result of the violation of this
Indenture by the Trustee if such violation arose from the Trustee's negligence
or bad faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a senior claim and lien prior to the Securities against all
money or property held or collected by the Trustee, in its capacity as Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (5) or (6) of Section 6.01 occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any Bankruptcy Law and are intended to constitute
expenses of administration under any Bankruptcy Law. The Company's obligations
under this Section 7.07 and any claim arising hereunder shall survive the
resignation or removal of any Trustee, the discharge of the Company's
obligations pursuant to Article Eight and any rejection or termination under
any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities
may remove the Trustee by so notifying the Company and the Trustee in writing
and may appoint a successor trustee with the Company's consent. The Company
may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes legally incapable of acting with respect to
its duties hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company
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shall notify each Holder of such event and shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities 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, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture; provided, however, that no Trustee under this Indenture
shall be liable for any act or omission of any successor Trustee. A successor
Trustee shall mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee and the Company shall pay to any such replaced or removed
Trustee all amounts owed under Section 7.07 upon such replacement or removal.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee. In case any Securities
shall have been authenticated, but not delivered, by
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the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirement
of TIA Section Section 310(a)(1) and 310(a)(5). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 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 Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee, in its capacity as Trustee hereunder, shall comply with TIA
Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either paragraph (b) or paragraph (c)
below be applied to the outstanding Securities 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
Securities on the date the conditions set forth below are satisfied
(hereinafter,
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"Legal Defeasance"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the outstanding Securities, which shall thereafter be deemed to
be "outstanding" only for the purposes of the Sections and matters under this
Indenture referred to in (i) and (ii) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned, except for the following, which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of the Holders of
outstanding Securities to receive payment in respect of the principal of,
premium, if any, and interest on such Securities when such payments are due,
(ii) the Company's obligations to issue temporary Securities, register the
transfer or exchange of any Securities, replace mutilated, destroyed, lost or
stolen Securities and maintain an office or agency for payments in respect of
the Securities, (iii) the rights, powers, trusts, duties and immunities of the
Trustee, and (iv) the Legal Defeasance provisions of this Indenture. 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
Securities.
(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 Five and in
Sections 4.03 through 4.24 with respect to the outstanding Securities on and
after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Securities 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 Securities, the Company and any Guarantor 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 6.01(3), nor shall any event referred to in
Section 6.01(4) or (7) thereafter constitute a Default or an Event of Default
thereunder but, except as specified above, the remainder of this Indenture and
such Securities 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 Securities:
(1) The Company shall have irrevocably deposited in trust with the
Trustee, pursuant to an irrevocable trust and security agreement in form
and substance satisfactory to the Trustee, U.S. Legal Tender or direct
non-callable obligations of, or non-callable obligations guaranteed by,
the United States of America for the payment of which obligation or
guarantee the full faith and credit of the United States of America is
pledged ("U.S. Government Obligations") maturing as to principal and
interest in such amounts and at such times as are sufficient, without
consideration of the reinvestment of such interest and principal and
after payment of all Federal, state and local taxes or other charges or
assessments in respect thereof payable by the Trustee, in the opinion of
a nationally recognized firm of Independent public accountants expressed
in a written certification thereof (in form and substance reasonably
satisfactory to the Trustee) delivered to the Trustee, to pay the
principal of, premium, if any, and interest on all the outstanding
Securities on the dates on which any such payments are due and payable in
accordance with the terms of this Indenture and of the Securities;
(2) Such deposits shall not cause the Trustee to have a conflicting
interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received Officers' Certificates stating
that No Default of Event of Default or event which with notice or lapse
of time or both would become a Default or an Event of Default with
respect to the Securities shall have occurred and be continuing on the
date of such deposit or, insofar as Section 6.01(5) or (6) is 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);
(4) The Trustee shall have received Officers' Certificates stating
that such deposit will not result in a Default under this Indenture or a
breach or violation of, or constitute a default under, any other material
instrument or agreement to which the Company or any of its Sub-
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sidiaries is a party or by which it or its property is bound;
(5) (i) In the event the Company elects paragraph (b) hereof, the
Company shall deliver to the Trustee an Opinion of Counsel, in form and
substance reasonably satisfactory to the Trustee to the effect that (A)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the Issue Date, there has
been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall state
that Holders of the Securities will not recognize income gain or loss for
Federal income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to Federal income
taxes in the same manner and at the same times as would have been the
case of such deposit and defeasance had not occurred, or (ii) in the
event the Company elects paragraph (c) hereof, the Company shall deliver
to the Trustee an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, to the effect that, Holders of the
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and the defeasance contemplated
hereby and will be subject to Federal income tax in the same amounts and
in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred;
(6) The Company shall have delivered to the Trustee an Opinion of
Counsel stating that as a result of the Legal Defeasance or Covenant
Defeasance, neither the Trustee nor the trust have become or are deemed
to have become an "investment company" under the Investment Company Act
of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officers'
Certificate, in form and substance reasonably satisfactory to the
Trustee, stating that the deposit under clause (1) was not made by the
Company, a Guarantor or any Subsidiary of the Company with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Company, a Guarantor, or any Subsidiary of the Company or others;
(8) The Company shall have delivered to the Trustee an Opinion of
Counsel, in form and substance reasonably satisfactory to the Trustee, to
the effect that, (A) the
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trust funds will not be subject to the rights of holders of Indebtedness
of the Company or any Guarantor other than the Securities and (B)
assuming no intervening bankruptcy of the Company between the date of
deposit and the 91st day following the deposit and that no Holder of
Securities is an insider of the Company, after the passage of 90 days
following the deposit, the trust funds will not be subject to any
applicable bankruptcy, insolvency, reorganization or similar law
affecting creditors' rights generally; and
(9) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance contemplated by
this Section 8.01 have been complied with; provided, however, that no
deposit under clause (1) above shall be effective to terminate the
obligations of the Company under the Securities or this Indenture prior
to 90 days following any such deposit; and
(10) The Company shall have paid all amounts owing to the Trustee
pursuant to Section 7.07.
Notwithstanding the foregoing, the Opinion of Counsel required by
paragraph (5) above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable on the maturity date for the securities within one
year, or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.
In the event all or any portion of the Securities are to be redeemed
through such irrevocable trust, the Company must make arrangements satisfactory
to the Trustee, at the time of such deposit, for the giving of the notice of
such redemption or redemptions by the Trustee in the name and at the expense of
the Company.
SECTION 8.02. Satisfaction and Discharge.
In addition to the Company's rights under Section 8.01, the Company may
terminate all of its obligations under this Indenture (subject to Section 8.03)
when:
(1) all Securities theretofore authenticated and delivered (other
than Securities which have been destroyed,
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lost or stolen and which have been replaced or paid as provided in
Section 2.07) have been delivered to the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee for
cancellation (except lost, stolen or destroyed Securities which have been
replaced or paid) have been called for redemption pursuant to the terms
of the Securities or have otherwise become due and payable and the
Company has irrevocably deposited or caused to be deposited with the
Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Securities not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any, and interest on the
Securities to the date of deposit together with irrevocable instructions
from the Company directing the Trustee to apply such funds to the payment
thereof at maturity or redemption, as the case may be; and
(3) the Company has paid or caused to be paid all other sums payable
hereunder and under the Securities by the Company; and
(4) there exists no Default or Event of Default under this
Indenture; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the satisfaction and discharge of
this Indenture have been complied with; and
(6) the Company shall have paid all amounts owing to the Trustee
pursuant to Section 7.07.
SECTION 8.03. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of
the Securities referred to in Section 8.01 or 8.02, the respective obligations
of the Company and the Trustee under Sections 2.02, 2.03, 2.04, 2.05, 2.06,
2.07, 2.10, 2.12, 2.13, 4.01, 4.02 and 6.07, Article Seven and Sections 8.05,
8.06 and 8.07 shall survive until the Securities are no longer outstanding, and
thereafter the obligations of the Company and the Trustee under Sections 7.07,
8.05, 8.06 and 8.07 shall survive. Nothing contained in this Article Eight
shall abrogate any of the rights, obligations or duties of the Trustee under
this Indenture.
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SECTION 8.04. Acknowledgment of Discharge by Trustee.
Subject to Section 8.07, after (i) the conditions of Section 8.01 or 8.02
have been satisfied, (ii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company and (iii) the Company has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Assets.
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable trust established pursuant to
Section 8.01. The Trustee shall apply the deposited U.S. Legal Tender or the
U.S. Government Obligations, together with earnings thereon, through the Paying
Agent, in accordance with this Indenture and the terms of the irrevocable trust
agreement established pursuant to Section 8.01, to the payment of principal of
and interest on the Securities. The U.S. Legal Tender or U.S. Government
Obligations so held in trust and deposited with the Trustee in compliance with
Section 8.01 shall not be part of the trust estate under this Indenture, but
shall constitute a separate trust fund for the benefit of all Holders entitled
thereto.
SECTION 8.06. Repayment to the Company or Guarantors; Unclaimed
Money.
Subject to Sections 7.07 and 8.01, the Trustee shall promptly pay to the
Company, or if deposited with the Trustee by any Guarantor, to such Guarantor,
upon receipt by the Trustee of an Officers' Certificate, any excess money,
determined in accordance with Section 8.01, held by it at any time. The
Trustee and the Paying Agent shall pay to the Company or any Guarantor, as the
case may be, upon receipt by the Trustee or the Paying Agent, as the case may
be, of an Officers' Certificate, 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 cause to be published once in a newspaper of
general circulation in the City of New York or mail to each Holder enti-
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tled to such money 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), which shall be at least 2 years from the date of
such publication or mailing, any unclaimed balance of such money then remaining
will be repaid to the Company. After payment to the Company or any Guarantor,
as the case may be, Security holders 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 8.07. Reinstatement.
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 and each Guarantor's, if any, obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had been made pursuant to this Indenture until such time as
the Trustee is permitted to apply all such money or U.S. Government Obligations
in accordance with this Indenture; provided, however, that if the Company or
the Guarantors, as the case may be, have made any payment of principal of,
premium, if any, or interest on any Securities because of the reinstatement of
their obligations, the Company or the Guarantors, as the case may be, shall be,
subrogated to the rights of the holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and any Guarantors (when authorized by Board Resolutions), and
the Trustee, together, may amend or supplement this Indenture or the Securities
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
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(2) to evidence the succession in accordance with Article Five
hereof of another Person to the Company or a Guarantor and the assumption
by any such successor of the covenants of the Company or a Guarantor
herein and in the Securities or a Guarantee, as the case may be;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any other change that does not materially adversely
affect the rights of any Securityholders hereunder; or
(5) to comply with any requirements of the SEC in connection with
the qualification of this Indenture under the TIA; or
(6) to add or release any Guarantor pursuant to the terms of this
Indenture;
provided that each of the Company and any Guarantors has delivered to the
Trustee an Opinion of Counsel and an Officers' Certificate, each stating that
such amendment or supplement complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and any Guarantors (when authorized
by Board Resolutions) and the Trustee, together, with the written consent of
the Holder or Holders of at least a majority in aggregate principal amount of
the outstanding Securities, may amend or supplement this Indenture, the
Securities and any Guarantees without notice to any other Securityholders.
Subject to Section 6.07, the Holder or Holders of a majority in aggregate
principal amount of the outstanding Securities may waive compliance by the
Company with any provision of this Indenture or the Securities without notice
to any other Securityholder. Without the consent of each Securityholder
affected, however, no amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may:
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture, the Securities or any Guarantees;
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(2) reduce the rate or change or have the effect of changing the
time for payment of interest, including default interest, on any
Security;
(3) reduce the principal amount of any Security;
(4) change or have the effect of changing the Final Maturity Date of
any Security, or alter the redemption or repurchase provisions contained
in this Indenture or the Securities in a manner adverse to any Holder;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Security on or after the due date thereof or to bring suit to
enforce such payment, or permitting Holders of a majority in principal
amount of the Securities to waive Defaults or Events of Default;
(6) make any changes in Section 6.04, 6.07 or this Section 9.02;
(7) make the principal of, premium or the interest on any Security
payable in money other than as provided for in this Indenture as in
effect on the date hereof;
(8) affect the ranking of the Securities or any Guarantee, in each
case in a manner adverse to the Holders;
(9) amend, modify or change the obligation of the Company to make or
consummate a Change of Control Offer after the occurrence of a Change of
Control or make or consummate a Net Proceeds Offer with respect to any
Asset Sale that has been consummated or waive any default in the
performance thereof or modify any of the provisions or definitions with
respect to any such offers; or
(10) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with the terms
of this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 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, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the
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Holders affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 9.03. Compliance with TIA.
From the date on which this Indenture is qualified under the TIA, every
amendment, waiver or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security by notice to the Trustee
or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall
be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder, unless it makes a change described in any of clauses (1)
through (10) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such
waiver shall not impair or affect the right of any Holder to receive payment of
principal of and
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interest on a Security, on or after the respective due dates expressed in such
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates without the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized
pursuant to this Article Nine; provided that the Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects
the Trustee's own rights, duties or immunities under this Indenture. The
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel and an Officers' Certificate each stating that the
execution of any amendment, supplement or waiver authorized pursuant to this
Article Nine is authorized or permitted by this Indenture and constituted the
legal, valid and binding obligations of the Company enforceable in accordance
with its terms. Such Opinion of Counsel shall be at the expense of the
Company, and the Trustee shall have a lien under Section 7.07 for any such
expense.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Guarantor agrees to unconditionally, jointly and severally, guarantee
to each Holder of a Security authenticated and delivered by the Trustee, and to
the Trustee and its suc-
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cessors and assigns, that: (i) the principal of, premium and interest on the
Securities will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration or otherwise and interest on
the overdue principal, if any, and interest on any interest, to the extent
lawful, of the Securities and all other Obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (ii) in
case of any extension of time of payment or renewal of any Securities or of any
such other Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration or
otherwise, subject, however, in the case of clauses (i) and (ii) above, to the
limitations set forth in Section 10.03. Each Guarantor agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence
of any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each Guarantor waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that its
Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and each Guarantee. If
any Securityholder or the Trustee is required by any court or otherwise to
return to the Company, any Guarantor or any custodian, trustee, liquidator or
other similar official acting in relation to the Company or any Guarantor, any
amount paid by the Company or any Guarantor to the Trustee or such
Securityholder, each Guarantee to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purposes of each Guarantee
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become
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due and payable by each Guarantor for the purpose of its Guarantee.
SECTION 10.02. Severability.
In case any provision of a Guarantee shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.03. Release of a Guarantor.
If all or substantially all of the assets of any Guarantor or all of the
Capital Stock of any Guarantor owned by the Company and the Restricted
Subsidiaries is sold (including by issuance or otherwise) by the Company and/or
any of its Subsidiaries in a transaction constituting an Asset Sale, and if the
Net Cash Proceeds from such Asset Sale are used in accordance with Section
4.12, then such Guarantor (in the event of a sale or other disposition of all
of the Capital Stock of such Guarantor) or the corporation or other entity
acquiring such assets (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) shall be released and
discharged of its Obligations under its Guarantee.
The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a request by the Company accompanied by an Officers'
Certificate and Opinion of Counsel certifying as to the compliance with this
Section 10.03. Any Guarantor not so released remains liable for the full
amount of principal of an interest on the Securities as provided in this
Article Ten.
SECTION 10.04. Limitation of a Guarantor's Liability.
Each Guarantor and, by its acceptance hereof, each Holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
state law. To effectuate the foregoing intention, the Holders and each
Guarantor irrevocably agree that the obligations of each Guarantor under its
Guarantee shall be limited to the maximum amount as will, after giving effect
to all other contingent and fixed liabilities of such Guarantor, and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of
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such other Guarantor under its Guarantee, or pursuant to Section 10.05, result
in the obligations of such Guarantor under its Guarantee not constituting such
fraudulent transfer or conveyance.
SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to its Guarantee. "Adjusted Net Assets" of a Guarantor at any
date shall mean the lesser of the amount by which (x) the fair value of the
property of such Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date), but
excluding liabilities under the Guarantee of such Guarantor at such date and
(y) the present fair salable value of the assets of such Guarantor at such date
exceeds the amount that will be required to pay the probable liability of such
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), excluding debt in respect of the
Guarantee of such Guarantor as they become absolute and matured.
SECTION 10.06. Waiver of Subrogation.
Until all Guarantee Obligations are paid in full, each Guarantor hereby
irrevocably waives any claims or other rights which it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of such Guarantor's obligations under its Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in
any claim or remedy of any Holder of Securities against the Company, whether or
not such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights. If any
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amount shall be paid to any Guarantor in violation of the preceding sentence
and the Securities shall not have been paid in full, such amount shall have
been deemed to have been paid to such Guarantor for the benefit of, and held in
trust for the benefit of, the Holders of the Securities, and shall forthwith
be paid to the Trustee for the benefit of such Holders to be credited and
applied upon the Securities, in accordance with the terms of this Indenture.
Each Guarantor acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by this Indenture and that the
waiver set forth in this Section 10.06 is knowingly made in contemplation of
such benefits.
SECTION 10.07. Execution of Guarantees.
To evidence its guarantee to the Securityholders set forth in this Article
Ten, each Guarantor shall execute a Guarantee in substantially the form of
Exhibit G attached hereto, which shall be endorsed on each Security ordered to
be authenticated and delivered by the Trustee. Each Guarantor agrees that its
Guarantee set forth in this Article Ten shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Guarantee. Each such Guarantee shall be signed on behalf of each Guarantor by
two Officers, or an Officer and an Assistant Secretary or one Officer shall
sign and one Officer or an Assistant Secretary (each of whom shall, in each
case, have been duly authorized by all requisite corporate actions) shall
attest to such Guarantee prior to the authentication of the Security on which
it is endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Guarantor. Such signatures upon the Guarantee may
be by manual or facsimile signature of such officers and may be imprinted or
otherwise reproduced on the Guarantee, and in case any such officer who shall
have signed the Guarantee shall cease to be such officer before the Security on
which such Guarantee is endorsed shall have been authenticated and delivered by
the Trustee or disposed of by the Company, such Security nevertheless may be
authenticated and delivered or disposed of as though the person who signed the
Guarantee had not ceased to be such officer of the Guarantor.
SECTION 10.08. Waiver of Stay, Extension or Usury Laws.
Each Guarantor covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or
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advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive each such Guarantor from performing its Guarantee as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that it may lawfully do so) each such Guarantor hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by operation of Section 318(c) of the TIA, the imposed
duties shall control.
SECTION 11.02. Notices.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, by
telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Company or a Guarantor:
Talon Automotive Group, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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if to the Trustee:
U.S. Bank Trust National Association
Xxxx Building
Suite 740
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Corporate Trust Services
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Each of the Company and the Trustee by written notice to each other such
person may designate additional or different addresses for notices to such
person. Any notice or communication to the Company or a Guarantor or the
Trustee, shall be deemed to have been given or made as of the date so delivered
if personally delivered; when answered back, if telexed; when receipt is
acknowledged, if telecopied; and five (5) calendar days after mailing if sent
by registered or certified mail, postage prepaid (except that a notice of
change of address shall not be deemed to have been given until actually
received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the registration books of the Registrar and shall be sufficiently given to
him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture, the
Securities or any Guarantees. The Company, the Trustee, the Registrar and any
other Person shall have the protection of TIA Section 312(c).
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SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee at the
request of the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture, other than the Officers' Certificate
required by Section 4.08, shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
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SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee, Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 11.07. Legal Holidays.
If a payment date is not a Business Day, payment may be made on the next
succeeding day that is a Business Day with the same force and effect as if made
on such payment date.
SECTION 11.08. Governing Law.
THIS INDENTURE, THE SECURITIES AND ANY GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Company or any of its Subsidiaries or any
Guarantor. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
the Company or any of its Subsidiaries or any Guarantor shall not have any
liability for any obligations of the Company or any Guarantor under the
Securities, this Indenture or any Guarantee or for any claim based on, in
respect of or by reason of such obligations or their creations. Each
Securityholder by accepting a Security waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Securities.
SECTION 11.11. Successors.
All agreements of the Company and any Guarantors in this Indenture, the
Securities and any Guarantees shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
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SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each signed
copy or counterpart shall be an original, but all of them together shall
represent the same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture, in the
Securities or in any Guarantee shall be held invalid, illegal or unenforceable,
in any respect for any reason, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions shall not
in any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 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.
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Securities Subordinated to Senior Debt; Guarantees
Subordinated to Guarantor Senior Debt.
The Company and each Guarantor covenants and agrees, and each Holder of
the Securities, by its acceptance thereof, likewise covenants and agrees, that
all Securities and Guarantees shall be issued subject to the provisions of this
Article Twelve; and each Person holding any Security, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees that
the payment of all Obligations on the Securities and Guarantees by the Company
and any Guarantors shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior payment in full in
cash or Cash Equivalents (or such payment shall be duly provided for to the
satisfaction of the holders of the Senior Debt and Guarantor Senior Debt, as
the case may
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be) of all Obligations on the Senior Debt and Guarantor Senior Debt, as the
case may be; that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Debt and Guarantor Senior Debt,
as the case may be, and that each holder of Senior Debt and Guarantor Senior
Debt, as the case may be, whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired Senior Debt
and Guarantor Senior Debt, as the case may be, in reliance upon the covenants
and provisions contained in this Indenture.
SECTION 12.02. No Payment on Securities in Certain Circumstances.
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Senior Debt or
Guarantor Senior Debt, no payment of any kind or character shall be made by or
on behalf of the Company or the applicable Guarantor or any other Person on the
Company's or such Guarantor's, as the case may be, behalf with respect to any
Obligations on the Securities or the Guarantee of such Guarantor, as the case
may be, or to acquire any of the Securities for cash or property or otherwise.
In addition, if any other event of default occurs and is continuing with
respect to any Designated Senior Debt, as such event of default is defined in
the instrument creating or evidencing such Designated Senior Debt, permitting
the holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for the respective issue of
Designated Senior Debt gives written notice of the event of default to the
Trustee (a "Default Notice"), then neither the Company nor any other Person on
its behalf shall (x) make any payment of any kind or character with respect to
any Obligations on the Securities or (y) acquire any of the Securities for cash
or property or otherwise for a period of time (the "Blockage Period")
terminating on the earliest to occur of (1) the date all events of default have
been cured or waived or shall have ceased to exist and the Company and the
Trustee receive written notice thereof from the Representative for the
applicable issue of Designated Senior Debt, (2) the Trustee receives written
notice from the Representative for the applicable issue of Designated Senior
Debt terminating the Blockage Period or the benefits of this sentence are
waived by the Representative for the applicable issue of Designated Senior
Debt, (3) the applicable issue of Designated Senior Debt is discharged or paid
in full in cash or Cash
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Equivalents or (4) the expiration of the 180-day consecutive period commencing
on the date of the giving of such Default Notice. Upon the termination of such
Blockage Period, the Company shall (to the extent not otherwise prohibited by
this Article Twelve) promptly resume making all payments on the Securities,
including all payments not made during such Blockage Period. Notwithstanding
anything herein to the contrary, in no event shall a Blockage Period extend
beyond 180 days from the date the payment on the Securities was due and only
one such Blockage Period may be commenced within any 360 consecutive days. No
event of default which existed or was continuing on the date of the
commencement of any Blockage Period with respect to the Designated Senior Debt
shall be, or be made, the basis for commencement of a second Blockage Period by
the Representative of such Designated Senior Debt, whether or not within a
period of 360 consecutive days, unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed
or was continuing shall constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee or any Holder when such payment is prohibited by
Section 12.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt or Guarantor
Senior Debt, as the case may be, (pro rata to such holders on the basis of the
respective amount of Senior Debt or Guarantor Senior Debt, as the case may be,
held by such holders) as their respective interests may appear. The Trustee
shall be entitled to conclusively rely on information regarding amounts then
due and owing on the Senior Debt or Guarantor Senior Debt, as the case may be,
if any, received from the holders of Senior Debt or Guarantor Senior Debt (or
their Representatives), as the case may be, or, if such information is not
received from such holders or their Representatives, from the Company and only
amounts included in the information provided to the Trustee shall be paid to
the holders of Senior Debt or Guarantor Senior Debt, as the case may be. The
Company shall keep complete and accurate records of the names, addresses and
amounts owed to all holders of Senior Debt and Guarantor Senior Debt, shall
produce such records to the Trustee upon request and the Trustee shall be
absolutely protected in relying on
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such records in paying over or delivering moneys pursuant to this Article
Twelve.
Nothing contained in this Article Twelve shall limit or compromise the
right of the Trustee or the Holders to take any action to accelerate the
maturity of the Securities pursuant to Section 6.02 or to pursue any rights or
remedies hereunder or otherwise; provided, however, that all Senior Debt and
Guarantor Senior Debt of the applicable Guarantor thereafter due or declared to
be due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment of any kind or character with
respect to Obligations on the Securities or the Guarantee of the applicable
Guarantor, as the case may be.
SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of the Company or a
Guarantor of any kind or character, whether in cash, property or securities to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or such Guarantor or in a bankruptcy, reorganization, insolvency, receivership
or other similar proceeding relating to the Company or its property or such
Guarantor or its property, whether voluntary or involuntary, all Obligations
due or to become due upon all Senior Debt or Guarantor Senior Debt of such
Guarantor, as the case may be, shall first be paid in full in cash or Cash
Equivalents, or such payment shall be duly provided for to the satisfaction of
the holders of Senior Debt or Guarantor Senior Debt of such Guarantor, as the
case may be, before any payment or distribution of any kind or character is
made on account of any Obligations on the Securities or the Guarantee of such
Guarantor, as the case may be, or for the acquisition of any of the Securities
for cash or property or otherwise. Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of the Company or a Guarantor of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee
under this Indenture would be entitled, except for the provisions hereof, shall
be paid by the Company or such Guarantor or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders or by the Trustee under this Indenture if
received by them, directly to the holders of Senior Debt or Guarantor Senior
Debt of such Guarantor, as the case may be (pro rata to such holders on the
basis of the re-
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spective amounts of Senior Debt or Guarantor Senior Debt of such Guarantor, as
the case may be, held by such holders) or their respective Representatives, or
to the trustee or trustees under any indenture pursuant to which any of such
Senior Debt or Guarantor Senior Debt of such Guarantor, as the case may be, may
have been issued, as their respective interests may appear, for application to
the payment of Senior Debt or Guarantor Senior Debt of such Guarantor, as the
case may be, remaining unpaid until all such Senior Debt or Guarantor Senior
Debt of such Guarantor, as the case may be, has been paid in full in cash or
Cash Equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Senior Debt or Guarantor Senior
Debt of such Guarantor, as the case may be.
(b) To the extent any payment of Senior Debt or Guarantor Senior Debt
(whether by or on behalf of the Company or a Guarantor, as proceeds of security
or enforcement of any right of setoff or otherwise) is declared to be
fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under
any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the Senior
Debt or Guarantor Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company or a Guarantor of any kind or character,
whether in cash, property or securities, shall be received by any Holder when
such payment or distribution is prohibited by Section 12.03(a), such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Debt or Guarantor Senior Debt of such
Guarantor, as the case may be (pro rata to such holders on the basis of the
respective amount of Senior Debt or Guarantor Senior Debt of such Guarantor, as
the case may be, held by such holders) or their respective Representatives, or
to the trustee or trustees under any indenture pursuant to which any of such
Senior Debt or Guarantor Senior Debt of such Guarantor, as the case may be, may
have been issued, as their respective interests may appear, for application to
the payment of Senior Debt or Guarantor Senior Debt of such Guarantor, as the
case may be, remaining unpaid until all such Senior Debt or Guarantor Senior
Debt of such Guarantor, as the case may be, has been paid in full in
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cash or Cash Equivalents, after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior Debt
or Guarantor Senior Debt of such Guarantor, as the case may be.
(d) The consolidation of the Company with, or the merger of the Company
with or into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of all or substantially all of its
assets, to another corporation upon the terms and conditions provided in
Article Five hereof shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section if, in the event the Company
is not the surviving corporation, such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assume the Company's
obligations hereunder in accordance with Article Five hereof.
SECTION 12.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Twelve or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in
Sections 12.02 and 12.03, from making payments at any time for the purpose of
making payments of principal of and interest on the Securities, or from
depositing with the Trustee any monies for such payments, or (ii) in the
absence of actual knowledge by a Responsible Officer of the Trustee that a
given payment would be prohibited by Section 12.02 or 12.03, the application by
the Trustee of any monies deposited with it for the purpose of making such
payments of principal of, and interest on, the Securities to the Holders
entitled thereto unless at least one Business Day prior to the date upon which
such payment would otherwise become due and payable, the Trustee shall have
received the written notice provided for in Section 12.02(a) or in Section
12.07. The Company shall give prompt written notice to the Trustee of any
dissolution, winding-up, liquidation or reorganization of the Company.
SECTION 12.05. Subrogation.
Subject to the payment in full in cash or Cash Equivalents of all Senior
Debt and Guarantor Senior Debt, the Holders shall be subrogated to the rights
of the holders of Senior Debt and Guarantor Senior Debt to receive payments or
distributions of cash, property or securities of the Company and such Guarantor
applicable to the Senior Debt and Guarantor Senior Debt until the Securities
shall be paid in full; and,
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for the purposes of such subrogation, no such payments or distributions to the
holders of the Senior Debt and Guarantor Senior Debt by or on behalf of the
Company or any Guarantor or by or on behalf of the Holders by virtue of this
Article Twelve which otherwise would have been made to the Holders shall, as
between the Company or any Guarantor and the Holders, be deemed to be a payment
by the Company or any Guarantor to or on account of the Senior Debt or
Guarantor Senior Debt, as the case may be, it being understood that the
provisions of this Article Twelve are and are intended solely for the purpose
of defining the relative rights of the Holders, on the one hand, and the
holders of the Senior Debt or Guarantor Senior Debt, as the case may be, on the
other hand.
SECTION 12.06. Obligations of the Company Unconditional.
Nothing contained in this Article Twelve or elsewhere in this Indenture or
in the Securities or Guarantees is intended to or shall impair, as among the
Company, any Guarantor, their respective creditors other than the holders of
Senior Debt or Guarantor Senior Debt, and the Holders, the obligation of the
Company and any Guarantors, which is absolute and unconditional, to pay to the
Holders the principal of and any interest on the Securities as and when the
same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company and any Guarantors other than the holders of any Senior Debt or
Guarantor Senior Debt, nor shall anything herein or therein prevent the Holder
or the Trustee on its behalf from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Twelve of the holders of Senior Debt or Guarantor
Senior Debt in respect of cash, property or securities of the Company or any
Guarantor received upon the exercise of any such remedy.
SECTION 12.07. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article Twelve. Regardless of anything to the contrary contained in this
Article Twelve or elsewhere in this Indenture, the Trustee shall not be charged
with knowledge of the existence of any default or event of default with respect
to any Senior Debt or Guarantor Senior Debt or of any other facts which would
pro-
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hibit the making of any payment to or by the Trustee unless and until the
Trustee shall have received notice in writing from the Company, or from a
holder of Senior Debt or Guarantor Senior Debt or a Representative therefor,
and, prior to the receipt of any such written notice, the Trustee shall be
entitled to assume (in the absence of actual knowledge of a Responsible Officer
to the contrary) that no such facts exist.
In the event that the Trustee determines in good faith that any evidence
is required with respect to the right of any Person as a holder of Senior Debt
or Guarantor Senior Debt to participate in any payment or distribution pursuant
to this Article Twelve, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amounts of Senior Debt
or Guarantor Senior Debt held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Twelve, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such person to receive such
payment.
SECTION 12.08. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company or Guarantor
referred to in this Article Twelve, the Trustee, subject to the provisions of
Article Seven hereof, and the Holders shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, delivered
to the Trustee or the Holders, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior Debt or
Guarantor Senior Debt and other Indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Twelve.
SECTION 12.09. Trustee's Relation to Senior Debt or Guarantor Senior
Debt.
The Trustee and any agent of the Company or the Trustee shall be entitled
to all the rights set forth in this Article Twelve with respect to any Senior
Debt or Guarantor Senior Debt which may at any time be held by it in it
individual
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or any other or Guarantor capacity to the same extent as any other holder of
Senior Debt and nothing in this Indenture shall deprive the Trustee or any such
agent of any of its rights as such holder. The Trustee shall not be liable to
any holder of Senior Debt or Guarantor Senior Debt if it shall mistakenly pay
over or deliver to the Holders, the Company or any other Person monies or
assets to which any such holder of the Senior Debt or Guarantor Senior Debt
shall be entitled by virtue of this Article Twelve.
With respect to the holders of Senior Debt or Guarantor Senior Debt, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Twelve, and no
implied covenants or obligations with respect to the holders of Senior Debt or
Guarantor Senior Debt shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt or Guarantor Senior Debt.
Whenever a distribution is to be made or a notice given to holders or
owners of Senior Debt or Guarantor Senior Debt, the distribution may be made
and the notice may be given to their Representative, if any.
SECTION 12.10. Subordination Rights Not Impaired by Acts or
Omissions of the Company or a Guarantor or Holders of Senior
Debt.
No right of any present or future holders of any Senior Debt or Guarantor
Senior Debt to enforce subordination as provided herein shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or a Guarantor or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company or a Guarantor with the
terms of this Indenture, regardless of any knowledge thereof which any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt or a Guarantor may, at any time and from time to time,
without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders and without impairing or releasing
the subordination provided in this Article Twelve or the obligations hereunder
of the Holders to the holders of the Senior Debt or Guarantor Senior Debt, do
any one or more of the following: (i) change the manner, place or terms of
payment or
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extend the time of payment of, or renew or alter, Senior Debt or Guarantor
Senior Debt, or otherwise amend or supplement in any manner Senior Debt or
Guarantor Senior Debt, or any instrument evidencing the same or any agreement
under which Senior Debt or Guarantor Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged
otherwise securing Senior Debt or Guarantor Senior Debt; (iii) release any
Person liable in any manner for the payment or collection of Senior Debt or
Guarantor Senior Debt; and (iv) exercise or refrain from exercising any rights
against the Company or a Guarantor or any other Person.
SECTION 12.11. Holders Authorize Trustee To Effectuate Subordination
of Securities.
Each Holder by its acceptance of them authorizes and expressly directs the
Trustee on its behalf to take such action as may be necessary or appropriate to
effectuate, as between the holders of Senior Debt or Guarantor Senior Debt and
the Holders, the subordination provided in this Article Twelve, and appoints
the Trustee its attorney-in-fact for such purposes, including, in the event of
any dissolution, winding-up, liquidation or reorganization of the Company or a
Guarantor (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company or a Guarantor, the filing of a claim for the unpaid balance of its
Securities and accrued interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the form
required in such proceeding prior to 30 days before the expiration of the time
to file such claim or claims, then the holders of the Senior Debt or Guarantor
Senior Debt or their Representative are or is hereby authorized to have the
right to file and are or is hereby authorized to file an appropriate claim for
and on behalf of the Holders of said Securities. Nothing herein contained
shall be deemed to authorize the Trustee or the holders of Senior Debt or
Guarantor Senior Debt or their Representative to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights
of any Holder thereof, or to authorize the Trustee or the holders of Senior
Debt or Guarantor Senior Debt or their Representative to vote in respect of the
claim of any Holder in any such proceeding.
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SECTION 12.12. This Article Twelve Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest on
the Securities by reason of any provision of this Article Twelve will not be
construed as preventing the occurrence of an Event of Default.
SECTION 12.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Twelve will apply to amounts due to the Trustee
pursuant to other Sections in this Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
TALON AUTOMOTIVE GROUP, INC.
By:
-------------------------------------
Name:
Title:
VS HOLDINGS, INC.
By:
-------------------------------------
Name:
Title:
XXXXXX HOLDINGS USA, INC.
By:
-------------------------------------
Name:
Title:
XXXXXX METAL PRODUCTS CO.
By:
-------------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Trustee
By:
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
118
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
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 SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES
TO PERSONS OTHER THAN U.S. PERSONS IN OFFSHORE TRANSACTIONS MEETING THE
REQUIREMENTS OF RULE 904 UNDER REGULATION S UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
A-1
119
TALON AUTOMOTIVE GROUP, INC.
9.625% Senior Subordinated Notes
due May 1, 2008, Series A
CUSIP No.:
No. [ ] $[ ]
TALON AUTOMOTIVE GROUP, INC., a Michigan corporation (the "Company", which
term includes any successor corporation), for value received promises to pay to
CEDE & CO. or registered assigns, the principal sum of $[ ] Dollars, on
May 1, 2008.
Interest Payment Dates: May 1 and November 1, commencing November 1, 1998
Record Dates: April 15 and October 15
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated:
TALON AUTOMOTIVE GROUP, INC.
By:
Name:
Title:
By:
Name:
Title:
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120
This is one of the 9.625% Senior Subordinated Notes due 2008, Series A,
described in the within-mentioned Indenture.
Dated: U.S. BANK TRUST NATIONAL ASSOCIATION, as
Trustee
By:
--------------------
Authorized Signatory
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121
(REVERSE OF SECURITY)
TALON AUTOMOTIVE GROUP, INC.
9.625% Senior Subordinated Notes
due May 1, 2008, Series A
1. Interest.
TALON AUTOMOTIVE GROUP, INC., a Michigan corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semi-annually on May 1
and November 1 of each year (an "Interest Payment Date"), commencing November 1,
1998. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from April 28,
1998. 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 from time to time on
demand at the rate borne by the Securities plus 2% and on overdue installments
of interest (without regard to any applicable grace periods) to the extent
lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date
even if the Securities are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company shall
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. The Company
may deliver any such interest payment to the Paying Agent or to a Holder at the
Holder's registered address.
3. Paying Agent and Registrar.
Initially, U.S. Bank Trust National Association (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders.
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122
4. Indenture.
The Company issued the Securities under an Indenture, dated as of April
28, 1998 (the "Indenture"), among the Company, the Guarantors and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Section Section 77aaa-77bbbb) (the "TIA"), as
in effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are limited in aggregate principal amount to $170,000,000.
5. Optional Redemption.
The Securities will be redeemable, at the Company's option, in whole at
any time or in part from time to time, on and after May 1, 2003 at the
following redemption prices (expressed as percentages of the principal amount)
if redeemed during the twelve-month period commencing on May 1 of the years set
forth below, plus, in each case, accrued interest thereon to the date of
redemption:
Year Percentage
---- ----------
2003............... 104.813%
2004............... 103.208%
2005............... 101.604%
2006 and thereafter 100.000%
6. Optional Redemption upon Public Equity Offering.
At any time, or from time to time, on or prior to May 1, 2001, the Company
may, at its option, use the net cash proceeds of one or more Public Equity
Offerings (as defined) to redeem up to 35% of the Securities issued at a
redemption price equal to 109.625% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of redemption; provided that at least
65% of the principal amount of Securities remains outstanding immediately after
giving effect to any such redemption. In order to effect the foregoing
redemption with the net cash proceeds of a Public Equity Offering, the Company
shall send the redemption notice not later than 180 days after the consummation
of such Public Equity Offering.
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123
As used in the preceding paragraph, "Public Equity Offering" means an
underwritten public offering of Qualified Capital Stock of the Company pursuant
to a registration statement filed with and declared effective by the SEC in
accordance with the Securities Act.
7. 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 Securities to be redeemed at
such Holder's registered address. Securities in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal
to $1,000 or any integral multiple thereof) of the principal of Securities that
have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of redemption
that relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof
upon cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, the Company will be required
to offer to purchase all of the outstanding Securities at a purchase price
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of repurchase.
9. Limitation on Disposition of Assets.
The Company is subject to certain conditions, obligated to make an offer
to purchase Securities at 100% of their principal amount plus accrued and
unpaid interest to the date of repurchase with certain net cash proceeds of
certain sales or other dispositions of assets in accordance with the Indenture.
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations
of $1,000 and integral multiples of $1,000. A Holder shall register the
transfer of or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or
similar governmental charges payable in connection
A-6
124
therewith as permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Securities or portions thereof selected for
redemption, except the unredeemed portion of any security being redeemed in
part.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it
for all purposes.
12. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to the Company at
its request. After that, all liability of the Trustee and such Paying Agent
with respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the Indenture and
the Securities except for certain provisions thereof, and may be discharged
from its obligations to comply with certain covenants contained in the
Indenture and the Securities, in each case upon satisfaction of certain
conditions specified in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may
be waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of
certificated Securities or comply with any requirements of the SEC in
connection with the qualification of the Indenture under the TIA, or make any
other change that does not materially adversely affect the rights of any Holder
of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and certain of its subsidiaries to make restricted
payments, to incur indebt-
A-7
125
edness, to create liens, to issue preferred or other capital stock of
subsidiaries, to sell assets, to permit restrictions on dividends and other
payments by subsidiaries to the Company, to consolidate, merge or sell all or
substantially all of its assets, to engage in transactions with affiliates or
to engage in certain businesses. The limitations are subject to a number of
important qualifications and exceptions.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal, premium or interest, including an
accelerated payment) if it determines that withholding notice is in their
interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Company, its Subsidiaries, any Guarantor and their respective Affiliates as if
it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Company shall have any liability for any obligation of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
A-8
126
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities.
No representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Series A Security for the Company's 9.625% Senior Subordinated Notes due
2008, Series B (the "Series B Securities"), which have been registered under
the Securities Act, in like principal amount and having terms identical in all
material respects as the Series A Securities. 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.
23. Subordination.
The Securities are subordinated in right of payment, in the manner and to
the extent set forth in the Indenture, to the prior payment in full in cash or
Cash Equivalents of all Senior Debt of the Company, whether outstanding on the
date of the Indenture or thereafter created, incurred, assumed or guaranteed.
Each Holder by his acceptance hereof agrees to be bound by such provisions and
authorizes and expressly directs the Trustee, on his behalf, to take such
action as may be nec-
A-9
127
xxxxxx or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purposes.
The Company will furnish to any Holder of a Security upon written request
and without charge a copy of the Indenture. Requests may be made to: Xxxxx X.
Xxxxxxxx, Talon Automotive Group, Inc., 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx, XX
00000.
X-00
000
XXXXXXXXX
Each undersigned Guarantor (as defined in the Indenture referred to in the
Security upon which this notation is endorsed and each referred to as the
"Guarantor," which term includes any successor person under the Indenture)
unconditionally guarantees on a senior subordinated basis as set forth in
Article Twelve of the Indenture (such guarantee by the Guarantor being referred
to herein as a "Guarantee") (i) the due and punctual payment of the principal
of and interest on the Securities, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
and interest, if any, on the Securities, 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 set forth in Article Ten of the
Indenture and (ii) in case of any extension of time of payment or renewal of
any Securities 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.
No stockholder, officer, director or incorporator, as such, past, present
or future, of the Guarantor shall have any liability under the Guarantee by
reason of his or its status as such stockholder, officer, director or
incorporator.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
VS HOLDINGS, INC.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
X-00
000
XXXXXX HOLDINGS USA, INC.
By:____________________________
Name:
Title:
By:_____________________________
Name:
Title:
XXXXXX METAL PRODUCTS CO.
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
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130
ASSIGNMENT FORM
I or we assign and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or
transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_____________________________________
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Dated: _________________ Signed: ____________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee:____________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
reasonably acceptable to the Trustee)
A-13
131
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.12 or Section 4.24 of the Indenture, check the
appropriate box:
Section 4.12 [ ] Section 4.24 [ ]
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.12 or Section 4.24 of the Indenture, state the
amount: $_____________
Date: ________________ Your Signature:________________________________________
(Sign exactly as
your name appears
on the other side
of this Security)
Signature Guarantee:__________________________________________________________
A-14
132
EXHIBIT B
[FORM OF SERIES B SECURITY]
TALON AUTOMOTIVE GROUP, INC.
9.625% Senior Subordinated Notes
due May 1, 2008, Series B
CUSIP No.: [ ]
No. [ ] $[ ]
TALON AUTOMOTIVE GROUP, INC., a Michigan corporation (the "Company", which
term includes any successor corporation), for value received promises to pay to
CEDE & CO. or registered assigns, the principal sum of $[ ] Dollars,
on May 1, 2008.
Interest Payment Dates: May 1 and November 1, commencing November 1, 1998
Record Dates: April 15 and October 15
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated:
TALON AUTOMOTIVE GROUP, INC.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
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133
This is one of the 9.625% Senior Subordinated Notes due 2008, Series B,
described in the within-mentioned Indenture.
Dated: U.S. BANK TRUST NATIONAL ASSOCIATION, as
Trustee
By:
------------------------
Authorized Signatory
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134
(REVERSE OF SECURITY)
TALON AUTOMOTIVE GROUP, INC.
9.625% Senior Subordinated Notes
due May 1, 2008, Series B
1. Interest.
TALON AUTOMOTIVE GROUP, INC., a Michigan corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semi-annually on May 1
and November 1 of each year (an "Interest Payment Date"), commencing November
1, 1998. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from April 28,
1998. 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 from time to time on
demand at the rate borne by the Securities plus 2% and on overdue installments
of interest (without regard to any applicable grace periods) to the extent
lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date
even if the Securities are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company shall
pay principal and interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. The Company
may deliver any such interest payment to the Paying Agent or to a Holder at the
Holder's registered address.
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135
3. Paying Agent and Registrar.
Initially, U.S. Bank Trust National Association (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of April
28, 1998 (the "Indenture"), among the Company, the Guarantors and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Section Section 77aaa-77bbbb) (the "TIA"), as
in effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and the TIA for a statement of them. The
Securities are limited in aggregate principal amount to $170,000,000.
5. Optional Redemption.
The Securities will be redeemable, at the Company's option, in whole at
any time or in part from time to time, on and after May 1, 2003 at the
following redemption prices (expressed as percentages of the principal amount)
if redeemed during the twelve-month period commencing on May 1 of the years set
forth below, plus, in each case, accrued interest thereon to the date of
redemption:
Year Percentage
---- ----------
2003............... 104.813%
2004............... 103.208%
2005............... 101.604%
2006 and thereafter 100.000%
6. Optional Redemption upon Public Equity Offering.
At any time, or from time to time, on or prior to May 1, 2001, the Company
may, at its option, use the net cash proceeds of one or more Public Equity
Offerings (as defined) to redeem up to 35% of the Securities issued at a
redemption price equal to 109.625% of the principal amount thereof plus accrued
and unpaid interest, if any, to the date of redemption; provided that at least
65% of the principal amount of Securities
B-4
136
remains outstanding immediately after giving effect to any such redemption. In
order to effect the foregoing redemption with the net cash proceeds of a Public
Equity Offering, the Company shall send the redemption notice not later than
180 days after the consummation of such Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering" means an
underwritten public offering of Qualified Capital Stock of the Company pursuant
to a registration statement filed with and declared effective by the SEC in
accordance with the Securities Act.
7. 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 Securities to be redeemed at
such Holder's registered address. Securities in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions (equal
to $1,000 or any integral multiple thereof) of the principal of Securities that
have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of redemption
that relates to such Security shall state the portion of the principal amount
thereof to be redeemed. A new Security in a principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof
upon cancellation of the original Security. On and after the Redemption Date,
interest will cease to accrue on Securities or portions thereof called for
redemption.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, the Company will be required
to offer to purchase all of the outstanding Securities at a purchase price
equal to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of repurchase.
9. Limitation on Disposition of Assets.
The Company is subject to certain conditions, obligated to make an offer
to purchase Securities at 100% of their principal amount plus accrued and
unpaid interest to the date of repurchase with certain net cash proceeds of
certain sales or other dispositions of assets in accordance with the Indenture.
B-5
137
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in denominations
of $1,000 and integral multiples of $1,000. A Holder shall register the
transfer of or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes or
similar governmental charges payable in connection therewith as permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Securities or portions thereof selected for redemption, except the unredeemed
portion of any security being redeemed in part.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of it
for all purposes.
12. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for two
years, the Trustee and the Paying Agent will repay the funds to the Company at
its request. After that, all liability of the Trustee and such Paying Agent
with respect to such funds shall cease.
13. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the Indenture and
the Securities except for certain provisions thereof, and may be discharged
from its obligations to comply with certain covenants contained in the
Indenture and the Securities, in each case upon satisfaction of certain
conditions specified in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may
be waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of
certificated Securities or comply with any requirements of the SEC in
connection with the qualification of the
B-6
138
Indenture under the TIA, or make any other change that does not materially
adversely affect the rights of any Holder of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things, limit
the ability of the Company and certain of its subsidiaries to make restricted
payments, to incur indebtedness, to create liens, to issue preferred or other
capital stock of subsidiaries, to sell assets, to permit restrictions on
dividends and other payments by subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of its assets, to engage in transactions
with affiliates or to engage in certain businesses. The limitations are
subject to a number of important qualifications and exceptions.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal, premium or interest, including an
accelerated payment) if it determines that withholding notice is in their
interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the
Company, its Subsidiaries, any Guarantor and their respective Affiliates as if
it were not the Trustee.
19. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Company shall have any liability for any obligation of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason
B-7
139
of, such obligations or their creation. Each Holder of a Security by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of the Securities.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities.
No representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Subordination.
The Securities are subordinated in right of payment, in the manner and to
the extent set forth in the Indenture, to the prior payment in full, in cash or
Cash Equivalents of all Senior Debt of the Company, whether outstanding on the
date of the Indenture or thereafter created, incurred, assumed or guaranteed.
Each Holder by his acceptance hereof agrees to be bound by such provisions and
authorizes and expressly directs the Trustee, on his behalf, to take such
action as may be necessary or appropriate to effectuate the subordination
provided for in the Indenture and appoints the Trustee his attorney-in-fact for
such purposes.
The Company will furnish to any Holder of a Security upon written request
and without charge a copy of the Indenture. Requests may be made to: Xxxxx X.
Xxxxxxxx, Talon Automotive Group, Inc., 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx, XX
00000.
B-8
140
GUARANTEE
Each undersigned Guarantor (as defined in the Indenture referred to in the
Security upon which this notation is endorsed and each referred to as the
"Guarantor," which term includes any successor person under the Indenture)
unconditionally guarantees on a senior subordinated basis as set forth in
Article Twelve of the Indenture (such guarantee by the Guarantor being referred
to herein as a "Guarantee") (i) the due and punctual payment of the principal
of and interest on the Securities, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
and interest, if any, on the Securities, 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 set forth in Article Ten of the
Indenture and (ii) in case of any extension of time of payment or renewal of
any Securities 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.
No stockholder, officer, director or incorporator, as such, past, present
or future, of the Guarantor shall have any liability under the Guarantee by
reason of his or its status as such stockholder, officer, director or
incorporator.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
VS HOLDINGS, INC.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
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XXXXXX HOLDINGS USA, INC.
By:___________________________
Name:
Title:
By:_________________________
Name:
Title:
XXXXXX METAL PRODUCTS CO.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
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ASSIGNMENT FORM
I or we assign and transfer this Security to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or
transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint ____________________________________
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Dated: _________________ Signed: ____________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee:____________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.12 or Section 4.24 of the Indenture, check the
appropriate box:
Section 4.12 [ ] Section 4.24 [ ]
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.12 or Section 4.24 of the Indenture, state the
amount: $_____________
Date: ________________ Your Signature:_______________________________________
(Sign exactly as
your name appears
on the other side
of this Security)
Signature Guarantee:_________________________________________________________
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EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR
DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES
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 SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY 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 IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
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EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 9.625% Senior Subordinated Notes
due 2008, Series A, and 9.625% Senior
Subordinated Notes due 2008, Series B (the
"Securities"), of Talon Automotive Group,
Inc.
This Certificate relates to $_______ principal amount of Securities held
in the form of* ___ a beneficial interest in a Global Security or* _______
Physical Securities by ______ (the "Transferor").
The Transferor:*
[ ] has requested by written order that the Registrar deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Physical Security or Physical Securities in definitive, registered form of
authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
[ ] has requested that the Registrar by written order exchange or
register the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of this Security does not require registration under the Securities
Act of 1933, as amended (the "Act") because*:
[ ] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16(a)(II)(A) or Section
2.16(d)(i)(A) of the Indenture).
[ ] Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
[ ] Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule
501 under the Act.
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146
[ ] Such Security is being transferred in reliance on Regulation S under
the Act
[ ] Such Security is being transferred in reliance on Rule 144 under the
Act.
[ ] Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act other than Rule
144A or Rule 144 or Regulation S under the Act to a person other than an
institutional "accredited investor."
______________________________
[INSERT NAME OF TRANSFEROR]
By: _________________________
[Authorized Signatory]
Date:______________
*Check applicable box.
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147
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
_______________, ____
U.S. Bank Trust National Association
Xxxx Building
Suite 740
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Corporate Trust Services
Re: Talon Automotive Group, Inc. (the
"Company") Indenture (the "Indenture") relating
to 9.625% Senior Subordinated Notes due 2008,
Series A, or 9.625% Senior Subordinated Notes due
2008, Series B
Ladies and Gentlemen:
In connection with our proposed purchase of 9.625% Senior Subordinated
Notes due 2008, Series A, or 9.625% Senior Subordinated Notes due 2008, Series
B (the "Securities"), of Talon Automotive Group, Inc. (the "Company"), we
confirm that:
1. We have received such information as we deem necessary in order to make
our investment decision.
2. We understand that any subsequent transfer of the Securities is subject
to certain restrictions and conditions set forth in the Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Securities have not been
registered under the Securities Act, and that the Securities may not be offered
or sold within the United States or to, or for the account or benefit of, U.S.
persons 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 Securities, we will do so only (A) to the
Company or
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any subsidiary thereof, (B) inside the United States in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as defined
therein), (C) inside the United States 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 the Trustee a signed letter
substantially in the form hereof, (D) outside the United States in accordance
with Regulations S under the Securities Act, (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available), or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing Securities from us a
notice advising such purchaser that resales of the Securities are restricted as
stated herein.
4. We understand that, on any proposed resale of Securities, we will be
required to furnish to the Trustee and the Company, such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us will
bear a legend to the foregoing effect.
5. 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 Securities,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or their investment, as the case may be.
6. We are acquiring the Securities 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.
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149
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 Transferor]
By: ---------------------------
[Authorized Signatory]
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150
EXHIBIT F
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
_______________, ____
U.S. Bank Trust National Association
Xxxx Building
Suite 740
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Corporate Trust Services
Re: Talon Automotive Group, Inc. (the
"Company") 9.625% Senior Subordinated Notes due
2008, Series A, and 9.625% Senior Subordinated
Notes due 2008, Series B (the "Securities")
Dear Sirs:
In connection with our proposed sale of $____________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States, or (b)
the transaction was executed in, on or through the facilities of a designated
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;
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151
(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 Securities.
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. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By: -----------------------------
[Authorized Signatory]
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152
EXHIBIT G
[FORM OF GUARANTEE]
Each undersigned Guarantor (as defined in the Indenture referred to in the
Security upon which this notation is endorsed and each referred to as the
"Guarantor," which term includes any successor person under the Indenture)
unconditionally guarantees on a senior subordinated basis as set forth in
Article Twelve of the Indenture (such guarantee by the Guarantor being referred
to herein as a "Guarantee") (i) the due and punctual payment of the principal
of and interest on the Securities, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal
and interest, if any, on the Securities, 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 set forth in Article Ten of the
Indenture and (ii) in case of any extension of time of payment or renewal of
any Securities 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.
No stockholder, officer, director or incorporator, as such, past, present
or future, of the Guarantor shall have any liability under the Guarantee by
reason of his or its status as such stockholder, officer, director or
incorporator.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
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