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ASTOR CORPORATION
ISSUER,
AND
ASTOR HOLDINGS II, INC.
AND
STATE STREET BANK AND TRUST COMPANY,
TRUSTEE
------------------
INDENTURE
Dated as of October 8, 1996
------------------
10 1/2% Senior Subordinated Notes due 2006
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Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of October 8, 1996
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310(a)(1) . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . 7.10
7.8
Section 311(a) . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . 7.11
Section 312(a) . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . 14.3
(c) . . . . . . . . . . . . . . . 14.3
Section 313(a) . . . . . . . . . . . . . . . 7.6
(b) . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . 7.6
(d) . . . . . . . . . . . . . . . 7.6
Section 314(a) . . . . . . . . . . . . . . . 4.7
(a)(4) . . . . . . . . . . . . . . . 1.1
4.6
(b) . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . 14.4
(c)(2) . . . . . . . . . . . . . . . 14.4
(c)(3) . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . 4.6
Section 315(a) . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . 7.5
(c) . . . . . . . . . . . . . . . 7.1
(d) . . . . . . . . . . . . . . . 7.1
(e) . . . . . . . . . . . . . . . 6.13
i
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 316(a) . . . . . . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . . . . . . 6.2
6.11
(a)(1)(B) . . . . . . . . . . . . . . . 6.12
(a)(2) . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . 6.8
(c) . . . . . . . . . . . . . . . 9.4
Section 317(a)(1) . . . . . . . . . . . . . . . 6.3
(a)(2) . . . . . . . . . . . . . . . 6.4
(b) . . . . . . . . . . . . . . . 2.4
Section 318(a) . . . . . . . . . . . . . . . 1.1
1.2
1.3
ii
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 INCORPORATION BY REFERENCE OF TIA. . . . . . . . . . . . . .26
SECTION 1.3 RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . . .27
ARTICLE II
THE NOTES
SECTION 2.1 FORM AND DATING. . . . . . . . . . . . . . . . . . . . . . .27
SECTION 2.2 EXECUTION AND AUTHENTICATION . . . . . . . . . . . . . . . .28
SECTION 2.3 REGISTRAR AND PAYING AGENT . . . . . . . . . . . . . . . . .29
SECTION 2.4 PAYING AGENT TO HOLD ASSETS IN TRUST . . . . . . . . . . . .30
SECTION 2.5 NOTEHOLDER LISTS . . . . . . . . . . . . . . . . . . . . . .30
SECTION 2.6 TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . . .30
SECTION 2.7 REPLACEMENT NOTES. . . . . . . . . . . . . . . . . . . . . .36
SECTION 2.8 OUTSTANDING NOTES. . . . . . . . . . . . . . . . . . . . . .36
SECTION 2.9 TREASURY NOTES . . . . . . . . . . . . . . . . . . . . . . .37
SECTION 2.10 TEMPORARY NOTES. . . . . . . . . . . . . . . . . . . . . . .37
SECTION 2.11 CANCELLATION . . . . . . . . . . . . . . . . . . . . . . . .37
SECTION 2.12 DEFAULTED INTEREST . . . . . . . . . . . . . . . . . . . . .38
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT OF REDEMPTION. . . . . . . . . . . . . . . . . . . . .39
SECTION 3.2 NOTICES TO TRUSTEE . . . . . . . . . . . . . . . . . . . . .40
SECTION 3.3 SELECTION OF NOTES TO BE REDEEMED. . . . . . . . . . . . . .40
SECTION 3.4 NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . .40
SECTION 3.5 EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . . . . .42
SECTION 3.6 DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . .42
SECTION 3.7 NOTES REDEEMED IN PART . . . . . . . . . . . . . . . . . . .43
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF NOTES . . . . . . . . . . . . . . . . . . . . . .43
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . .43
SECTION 4.3 CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . . .44
iii
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SECTION 4.4 PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . . .44
SECTION 4.5 MAINTENANCE OF PROPERTIES AND INSURANCE. . . . . . . . . . .45
SECTION 4.6 COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT. . . . . . . . . .45
SECTION 4.7 REPORTS. . . . . . . . . . . . . . . . . . . . . . . . . . .46
SECTION 4.8 STATUS AS INVESTMENT COMPANY . . . . . . . . . . . . . . . .47
SECTION 4.9 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED
STOCK. . . . . . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 4.10 RESTRICTED PAYMENTS. . . . . . . . . . . . . . . . . . . . .49
SECTION 4.11 DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 4.12 ANTI-LAYERING. . . . . . . . . . . . . . . . . . . . . . . .54
SECTION 4.13 ASSET SALES AND SALES OF SUBSIDIARY STOCK. . . . . . . . . .55
SECTION 4.14 LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . .59
SECTION 4.15 TRANSACTIONS WITH AFFILIATES . . . . . . . . . . . . . . . .59
SECTION 4.16 LINE OF BUSINESS . . . . . . . . . . . . . . . . . . . . . .61
SECTION 4.17 FUTURE SUBSIDIARY GUARANTORS . . . . . . . . . . . . . . . .61
SECTION 4.18 WAIVER OF STAY, EXTENSION OR USURY LAWS. . . . . . . . . . .62
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 LIMITATION ON MERGER, CONSOLIDATION OR SALE OF ASSETS. . . .62
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED. . . . . . . . . . . . . .63
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . .64
SECTION 6.2 ACCELERATION OF MATURITY DATE; RESCISSION AND ANNULMENT. . .67
SECTION 6.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . .69
SECTION 6.4 TRUSTEE MAY FILE PROOFS OF CLAIM.. . . . . . . . . . . . . .69
SECTION 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES . . .70
SECTION 6.6 PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . . .71
SECTION 6.7 LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . . .71
SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM,
INTEREST AND LIQUIDATED DAMAGES. . . . . . . . . . . . . . .72
iv
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SECTION 6.9 RIGHTS AND REMEDIES CUMULATIVE . . . . . . . . . . . . . . .72
SECTION 6.10 DELAY OR OMISSION NOT WAIVER . . . . . . . . . . . . . . . .73
SECTION 6.11 CONTROL BY HOLDERS . . . . . . . . . . . . . . . . . . . . .73
SECTION 6.12 WAIVER OF PAST DEFAULT . . . . . . . . . . . . . . . . . . .73
SECTION 6.13 UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . . .74
SECTION 6.14 RESTORATION OF RIGHTS AND REMEDIES . . . . . . . . . . . . .74
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . .75
SECTION 7.2 RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . . .76
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . .77
SECTION 7.4 TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . . .77
SECTION 7.5 NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . . . . .77
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS. . . . . . . . . . . . . . . .78
SECTION 7.7 COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . . .78
SECTION 7.8 REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . . . . .79
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.. . . . . . . . . . . . . .80
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . . .81
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . . .81
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE . .81
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . .81
SECTION 8.3 COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . .82
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE . . . . . . . . .82
SECTION 8.5 DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS . . . . . . . . . .84
SECTION 8.6 REPAYMENT TO THE COMPANY . . . . . . . . . . . . . . . . . .85
SECTION 8.7 REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . . .85
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS . . . . .86
v
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SECTION 9.2 AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH
CONSENT OF HOLDERS . . . . . . . . . . . . . . . . . . . . .87
SECTION 9.3 COMPLIANCE WITH TIA. . . . . . . . . . . . . . . . . . . . .88
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS. . . . . . . . . . . . . .88
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES . . . . . . . . . . . . . .89
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . . . . . . . . . .90
SECTION 9.7 EFFECT ON SENIOR DEBT. . . . . . . . . . . . . . . . . . . .90
ARTICLE X
MEETINGS OF NOTEHOLDERS
SECTION 10.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. . . . . . . . . .90
SECTION 10.2 MANNER OF CALLING MEETINGS . . . . . . . . . . . . . . . . .91
SECTION 10.3 CALL OF MEETINGS BY THE COMPANY OR HOLDERS . . . . . . . . .91
SECTION 10.4 WHO MAY ATTEND AND VOTE AT MEETINGS. . . . . . . . . . . . .92
SECTION 10.5. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS; ADJOURNMENT. . . . . . . . . . . . .92
SECTION 10.6 VOTING AT THE MEETING AND RECORD TO BE KEPT. . . . . . . . .93
SECTION 10.7 EXERCISE OF RIGHTS OF TRUSTEE OR NOTEHOLDERS MAY NOT BE
HINDERED OR DELAYED BY CALL OF MEETING . . . . . . . . . . .93
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1 REPURCHASE OF NOTES AT OPTION OF THE HOLDER UPON A CHANGE
OF CONTROL . . . . . . . . . . . . . . . . . . . . . . . . .94
ARTICLE XII
SUBORDINATION
SECTION 12.1 NOTES SUBORDINATED TO SENIOR DEBT. . . . . . . . . . . . . .97
SECTION 12.2 NO PAYMENT ON NOTES IN CERTAIN CIRCUMSTANCES . . . . . . . .97
SECTION 12.3 NOTES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR DEBT ON
DISSOLUTION, LIQUIDATION OR REORGANIZATION . . . . . . . . .99
SECTION 12.4 NOTEHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF SENIOR
DEBT . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
vi
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SECTION 12.5 OBLIGATIONS OF THE COMPANY AND THE GUARANTORS
UNCONDITIONAL. . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 12.6 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE. . . . . . . . . . . . . . . . . . . . . 102
SECTION 12.7 APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT . . . . 103
SECTION 12.8 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF
THE COMPANY, THE GUARANTOR OR HOLDERS OF SENIOR DEBT . . . 103
SECTION 12.9 NOTEHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE SUBORDINATION
OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 12.10 RIGHT OF TRUSTEE TO HOLD SENIOR DEBT . . . . . . . . . . . 105
SECTION 12.11 ARTICLE XII NOT TO PREVENT EVENTS OF DEFAULT . . . . . . . 105
SECTION 12.12 NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR DEBT . . 105
ARTICLE XIII
NOTE GUARANTEE
SECTION 13.1 NOTE GUARANTEE . . . . . . . . . . . . . . . . . . . . . . 106
SECTION 13.2 EXECUTION AND DELIVERY OF NOTE GUARANTEE . . . . . . . . . 108
SECTION 13.3 FUTURE SUBSIDIARY GUARANTORS . . . . . . . . . . . . . . . 108
SECTION 13.4 CERTAIN BANKRUPTCY EVENTS. . . . . . . . . . . . . . . . . 108
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 TIA CONTROLS . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 14.2 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . 109
SECTION 14.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS . . . . . . . 110
SECTION 14.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT . . . . 110
SECTION 14.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. . . . . . . 110
SECTION 14.6 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR. . . . . . . . . 111
SECTION 14.7 LEGAL HOLIDAYS . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 14.8 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . 111
SECTION 14.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. . . . . . . 112
SECTION 14.10 NO RECOURSE AGAINST OTHERS . . . . . . . . . . . . . . . . 112
SECTION 14.11 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 14.12 DUPLICATE ORIGINALS. . . . . . . . . . . . . . . . . . . . 112
vii
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SECTION 14.13 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . 112
SECTION 14.14 TABLE OF CONTENTS, HEADINGS, ETC.. . . . . . . . . . . . . 113
SECTION 14.15 QUALIFICATION OF INDENTURE . . . . . . . . . . . . . . . . 113
SECTION 14.16 REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . 113
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
EXHIBIT A - FORM OF NOTE . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B - FORM OF NOTE GUARANTEE . . . . . . . . . . . . . . . . . . . . B-1
viii
INDENTURE, dated as of October 8, 1996, among Astor Corporation, a
Delaware corporation (the "Company"), Astor Holdings II, Inc. as a Guarantor and
State Street Bank and Trust Company, as Trustee.
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 Company's
10 1/2% Senior Subordinated Notes due 2006 and the class of 10 1/2% Senior
Subordinated Notes due 2006 to be exchanged for such Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"ABI CORPORATION" means ABI Corporation, a Delaware corporation, and
its successors and assigns.
"ABI SHAREHOLDER INTERCOMPANY NOTES" means the amended and restated
notes dated October 1, 1996 of ABI Acquisition 2 plc, ABI Acquisition 1 plc and
Astor Holdings II to ABI Acquisition 1 plc, Astor Holdings II and the Parent,
respectively, in connection with the acquisition of Astor Stag Ltd. and each in
a principal amount equal to L3,736,295 PLUS the principal amount of all ABI
Shareholder Notes issued from time to time in payment of interest on the then
outstanding ABI Shareholder Notes pursuant to the terms thereof.
"ABI SHAREHOLDER NOTES" means the Series A L2,285,307 8% Subordinated
Notes due 2003 and the Series B L1,450,988 8% Subordinated Notes due 2003 issued
by the Parent to the former shareholders of Associated British Industries
Limited, plc.
"ACCELERATION NOTICE" shall have the meaning specified in Section 6.2.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting
securities, by agreement or otherwise; PROVIDED that beneficial ownership of 10%
or more of the voting securities of a Person shall be deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a sale and
leaseback) (PROVIDED that the sale, lease, conveyance or other disposition of
all or substantially all of the assets of Astor Holdings II or of the Company
and its Restricted Subsidiaries taken as a whole will be governed by the
provisions under Article XI and/or the provisions under Article V and not by the
provisions of Section 4.13) and (ii) the issue or sale by Astor Holdings II of
Equity Interests of the Company or any Restricted Subsidiary or by the Company
or any Restricted Subsidiary of Equity Interests of any Restricted Subsidiary,
in the case of either of the foregoing clauses, whether in a single transaction
or a series of related transactions (a) that have a fair market value in excess
of $250,000 or (b) for net proceeds in excess of $250,000. Notwithstanding the
foregoing, the following will not be deemed to be Asset Sales: (i) a transfer of
assets by the Company to a Guarantor, by a Guarantor or a Subsidiary to the
Company or to another Guarantor or by a Restricted Subsidiary that is not a
Guarantor to another Restricted Subsidiary or the Company, (ii) the sale, lease,
conveyance or other disposition of inventory or cash management or hedging
investments by the Company or a Restricted Subsidiary of the Company in the
ordinary course of business, (iii) the sale, lease, conveyance or other
disposition of property or equipment that have become worn out, obsolete or
damaged or otherwise unusable for use in connection with the business of the
Company or any Restricted Subsidiary, as the case may be, (iv) an issuance of
Equity Interests by a Restricted Subsidiary to the Company or to any Guarantor,
(v) a sale or other disposition pursuant to and permitted by Article V, (vi) the
transfer by the Company to any Restricted Subsidiary, or by any Restricted
Subsidiary to the Company or any other Restricted Subsidiary, of non-exclusive
rights to use proprietary product formulations, (vii) the merger of a Restricted
Subsidiary into a Subsidiary Guarantor or into the Company (provided that the
Person surviving any such merger must be either a Subsidiary Guarantor or the
Company), (viii) the merger of a Restricted Subsidiary that is not a Subsidiary
Guarantor into another Restricted Subsidiary that is not a Subsidiary Guarantor,
and (ix) a Restricted Payment that is permitted by Section 4.10.
2
"ASSET SALE OFFER" shall have the meaning specified in Section 4.13.
"ASSET SALE PURCHASE DATE" shall have the meaning specified in Section
4.13.
"ASTOR HOLDINGS II" means Astor Holdings II, Inc., a Delaware
corporation, and its successors and assigns.
"BANK TERM LOAN" means the term loan facility provided under the
Senior Bank Facility.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such Person.
"BOARD RESOLUTION" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"BORROWING BASE" means, as of any date of determination (and expressed
in dollars or foreign currency as appropriate), the sum of (i) 85% of the
aggregate unpaid portions of accounts receivable of the Company and its
Restricted Subsidiaries arising in the ordinary course of business from the sale
of products or the provision of services (after allowance for doubtful accounts
and net of any credits, rebates, offsets and other adjustments) and (ii) 50% of
the value (determined at the lower of cost or market on a basis consistent with
the consolidated financial statements of the Company, after appropriate
write-downs for obsolescence, quality problems and the like) of inventories of
the Company and its Restricted Subsidiaries held in the ordinary course of
business; PROVIDED that the amount determined pursuant to clause (ii) above
shall not constitute 50% of the sum of the foregoing clauses.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means rental obligations under a lease that
are required to be capitalized for financial reporting purposes in accordance
with GAAP, and the amount of Indebtedness represented by
3
such obligations shall be the capitalized amount of such obligations as
determined in accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"CASH" means such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts.
"CASH EQUIVALENT" means (i) securities issued or directly and fully
Guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) time deposits,
certificates of deposit and money market deposits issued by and commercial paper
issued by the parent corporation of, any domestic commercial bank of recognized
standing having capital and surplus in excess of $500 million and commercial
paper issued by others rated at least A-2 or the equivalent thereof by S&P or at
least P-2 or the equivalent thereof by ▇▇▇▇▇'▇ and in each case maturing within
one year after the date of acquisition, (iii) repurchase obligations with a term
of not more than seven days for underlying securities of the types described in
clause (i) or deposits of the type described in clause (ii) above entered into
with a bank meeting the qualifications described in clause (ii) above and (iv)
investments in money market funds substantially all of whose assets comprise
securities of the types described in clauses (i), (ii) and (iii) above.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i)
any sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation) in one or a series of related transactions, of all or
substantially all of the assets of (A) the Company and its Restricted
Subsidiaries taken as a whole or (B) Astor Holdings II, the Company and its
Restricted Subsidiaries taken as a whole or (C) the Parent, Astor Holdings II,
the Company and its Restricted Subsidiaries taken as a whole to any "person" (as
defined in Section 13(d)(3) of the Exchange Act) or "group" (as defined in
4
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) unless the "beneficial
owners" (as defined in Rule 13d-3 under the Exchange Act) of the Voting Stock
of the Parent, Astor Holdings II or the Company immediately prior to such
transaction own, directly or indirectly, more than 50% of the total Voting
Stock of such person immediately after such transaction, (ii) the adoption of
a plan for the liquidation or dissolution of the Parent, Astor Holdings II or
the Company, (iii) the Parent, Astor Holdings II or the Company consolidates
with, or merges with or into, another "person" (as defined above) or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any "person" (as defined above) or "group"
(as defined above) in a transaction or series of related transactions in
which the Voting Stock of the Parent, Astor Holdings II or the Company is
converted into or exchanged for cash, securities or other property, other
than any transaction where (A) the outstanding Voting Stock of the Parent,
Astor Holdings II or the Company is converted into or exchanged for (1)
Voting Stock (other than Disqualified Stock) of the surviving or transferee
corporation and/or (2) cash, securities and other property in an amount which
could be paid by Astor Holdings II or the Company as a Restricted Payment
under this Indenture and (B) the "beneficial owners" (as defined in Rule
13d-3 under the Exchange Act) of the Voting Stock of the Parent, Astor
Holdings II or the Company immediately prior to such transaction own,
directly or indirectly, more than 50% of the total Voting Stock of the
surviving or transferee corporation immediately after such transaction, (iv)
the consummation of any transaction or series of related restrictions
(including, without limitation, by way of merger or consolidation) the result
of which is that any "person" (as defined above) or "group" (as defined
above), other than Excluded Persons, becomes the "beneficial owner" (as
defined above) of more than 50% of the Voting Stock of the Parent, Astor
Holdings II or the Company or (v) the first day on which a majority of the
members of the Board of Directors of the Parent, Astor Holdings II or the
Company are not Continuing Directors.
"CHANGE OF CONTROL OFFER" shall have the meaning specified in Section
11.1.
"CHANGE OF CONTROL PAYMENT" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL PAYMENT DATE" shall have the meaning specified in
Section 11.1.
"CHANGE OF CONTROL PUT DATE" shall have the meaning specified in
Section 11.1.
5
"COMPANY" means Astor Corporation, a Delaware corporation, and its
successors and assigns.
"CONSOLIDATED NET INCOME" means, for any period, the aggregate of the
Net Income of Astor Holdings II and its Consolidated Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP, PROVIDED
that (i) the Net Income (but not loss) of any Person that is not a Consolidated
Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to Astor Holdings II or a Consolidated Subsidiary thereof, (ii) the Net
Income of any Restricted Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not, at the date of determination, permitted
without any prior governmental approval (which has not been obtained) or
directly or indirectly by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, (iii)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be excluded and (iv) the
cumulative effect of a change in accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its Consolidated Subsidiaries as of such date plus, (ii) the
respective amounts reported on, such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that is
outstanding on the date of this Indenture or, if not then outstanding, by its
terms is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within twelve months after the
acquisition of such business) subsequent to the Issue Date in the book value of
any asset owned by such Person or a Consolidated Subsidiary of such Person, (y)
all investments as of such date in unconsolidated Subsidiaries and in Persons
that are not Subsidiaries (except, in each case, Permitted Investments) and (z)
all unamortized debt discount and expense and unamortized deferred charges as of
such
6
date, all of the foregoing being determined in accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" means, as to any Person at any date, the
Subsidiaries of such Person the accounts of which would be consolidated with
those of such Person in accordance with GAAP at such date, but excluding any
Unrestricted Subsidiary (except that the interest of Astor Holdings II, the
Company or any Restricted Subsidiary in any Unrestricted Subsidiary shall be
accounted for as an investment).
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Parent, Astor Holdings II or the Company
who (i) was a member of such Board of Directors on the Issue Date or (ii) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
"COVENANT DEFEASANCE" shall have the meaning specified in Section 8.3.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DEFAULTED INTEREST" shall have the meaning specified in Section 2.12.
"DEFINITIVE NOTES" means Notes that are in the form of Note attached
hereto as Exhibit A that do not include the information called by footnotes 1
and 3 thereof.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the person specified in Section 2.3 as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"DESIGNATED SENIOR DEBT" means (i) so long as the Company has any
Obligation under the Senior Bank Facility, the Senior Bank Facility and (ii) any
other Senior Debt of the Company permitted under the Indenture the aggregate
7
principal amount of which is $5.0 million or more and that has been designated
by the Company by notice to the Trustee as "Designated Senior Debt."
"DISQUALIFIED STOCK" means (a) any Capital Stock which, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to date on
which the Notes mature and (b) with respect to any Restricted Subsidiary, any
Capital Stock other than any common stock with no preference, privilege, or
redemption or repayment provisions.
"DOMESTIC RESTRICTED SUBSIDIARY" means any Restricted Subsidiary that
is incorporated or organized under the laws of a jurisdiction in the United
States of America.
"EBITDA" means, for any period, the Consolidated Net Income of Astor
Holdings II for such period PLUS (i) an amount equal to any extraordinary loss
plus any net loss realized in connection with an Asset Sale (to the extent such
losses were deducted in computing such Consolidated Net Income) PLUS (ii)
provision for taxes based on income or profits of Astor Holdings II and its
Consolidated Subsidiaries for such period to the extent that such provision for
taxes was included in computing such Consolidated Net Income PLUS (iii)
consolidated interest expense of Astor Holdings II and its Consolidated
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized but without duplication (including, without limitation, amortization
of original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
operating leases, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, the interest
expense actually paid on Indebtedness of another Person that is Guaranteed by,
or secured by a Lien on assets of Astor Holdings II or a Consolidated Subsidiary
and net payments (if any) pursuant to Hedging Obligations) to the extent that
any such expense was deducted in computing such Consolidated Net Income PLUS
(iv) depreciation and amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) of Astor Holdings II and its Consolidated Subsidiaries for
8
such period to the extent that such depreciation and amortization were deducted
in computing such Consolidated Net Income, in each case, on a consolidated basis
and determined in accordance with GAAP. Notwithstanding the foregoing, the
provision for taxes on the income or profits of, and the depreciation and
amortization of, a Consolidated Subsidiary shall be added to Consolidated Net
Income to compute EBITDA only to the extent (and in same proportion) that the
Net Income of such Restricted Subsidiary was included in calculating such
Consolidated Net Income and only if a corresponding amount would be permitted at
the date of determination to be dividended (or paid pursuant to the Tax Sharing
Agreement) to Astor Holdings II by such Consolidated Subsidiary without prior
approval (that has not been obtained) pursuant to the terms of its charter and
all agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its
stockholders.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for Capital Stock).
"EVENT OF DEFAULT" shall have the meaning specified in Section 6.1.
"EXCESS PROCEEDS PAYMENT" shall have the meaning specified in Section
4.13.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"EXCLUDED PERSON" means (a) the Parent, (b) Astor Holdings II, (c) the
Company, (d) Century City 1800 Partners L.P. (provided the current general
partner of Century City 1800 Partners L.P. remains the general partner or
controls the general partner of such partnership), (e) any partnership of which
Century City 1800 Partners L.P. is the general partner or controls the general
partner of such partnership (provided the current general partner of Century
City 1800 Partners L.P. remains the general partner or controls the general
partner of Century City 1800 Partners L.P.) and (f) all Related Persons of any
of the foregoing.
"EXISTING DISQUALIFIED STOCK" means Disqualified Stock in existence on
the Issue Date of the Company or any Restricted Subsidiary or Astor Holdings II
until such Disqualified Stock is redeemed or retired.
9
"EXISTING INDEBTEDNESS" means Indebtedness in existence on the Issue
Date of the Company and its Restricted Subsidiaries and Astor Holdings II until
such amounts are repaid.
"FIXED CHARGES" means, for any period, the sum of (i) the consolidated
interest expense of Astor Holdings II and its Consolidated Subsidiaries for such
period, whether paid or accrued and whether or not capitalized but without
duplication (including, without limitation, amortization of original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to operating leases,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, the interest expense actually paid
on Indebtedness of another Person that is Guaranteed by, or secured by a Lien on
assets of, Astor Holdings II or a Consolidated Subsidiary and net payments (if
any) pursuant to Hedging Obligations), and (ii) the product of (a) all cash
dividend payments (other than dividends on the Disqualified Stock of the Company
owned by ABI Corporation to the extent such dividends are returned by dividends
of the Company) on any series of Disqualified Stock of Astor Holdings II, the
Company or any Restricted Subsidiary that is not owned by Astor Holdings II, the
Company or a Restricted Subsidiary, times (b) a fraction, the numerator of which
is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of Astor Holdings II, expressed as a
decimal, in each case, on a consolidated basis and in accordance with GAAP
"FIXED CHARGE COVERAGE RATIO" means, for any period, the ratio of
EBITDA for such period to Fixed Charges for such period. In the event that
Astor Holdings II or any Consolidated Subsidiary incurs, assumes, Guarantees or
repays or redeems any Indebtedness (other than revolving Indebtedness under the
Senior Bank Facility) or issues or redeems Disqualified Stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee, repayment or redemption of
Indebtedness, or such issuance or redemption of Disqualified Stock (and the
application of the proceeds therefrom to the extent used to refinance or retire
other Indebtedness or Disqualified Stock), as if the same
10
had occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of making the computation referred to above, (i)
acquisitions that have been made by Astor Holdings II or any Consolidated
Subsidiary, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be deemed to have occurred on the first day of the four-quarter reference
period and EBITDA for such reference period shall be calculated without giving
effect to clause (iii) of the proviso set forth in the definition of
Consolidated Net Income, (ii) the EBITDA attributable to discontinued operations
as determined in accordance with GAAP and operations or businesses disposed of
prior to the Calculation Date, shall be excluded, and (iii) the Fixed Charges
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed or prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such Fixed
Charges will not be obligations of Astor Holdings II or any Consolidated
Subsidiary following the Calculation Date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States of America which are in effect on the Issue
Date.
"GLOBAL NOTE" means a Note that contains the paragraph referred to in
footnote 1 and the additional schedule referred to in footnote 3 to the form of
Note attached hereto as Exhibit A.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness. The term "Guarantee" used as a verb has a corresponding meaning.
"GUARANTORS" means Astor Holdings II and all Restricted Subsidiaries
that become Subsidiary Guarantors in accordance with this Indenture after the
Issue Date.
11
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such person against fluctuations
in interest rates.
"HOLDER" or "NOTEHOLDER" means the Person in whose name a Note is
registered on the Registrar's books.
"INDEBTEDNESS" means, with respect to any Person, (i) any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments, (ii) letters of
credit (or reimbursement agreements in respect thereof), (iii) Capital Lease
Obligations, (iv) the balance deferred and unpaid of the purchase price of any
property, (v) any Hedging Obligations and Oil and Currency Obligations, other
than Hedging Obligations and Oil and Currency Obligations incurred in accordance
with such Person's customary practices for bona fide risk hedging purposes and
not for speculative purposes, (vi) Indebtedness referred to in the preceding
clauses of others secured by a Lien on any asset of such Person (whether or not
such Indebtedness is assumed by such Person) and (vii) to the extent not
otherwise included, any Guarantee by such Person of any Indebtedness referred to
in the preceding clauses of any other Person. The principal amount of
Indebtedness represented by letters of credit shall be deemed to be equal to the
maximum potential liability thereunder. With respect to the Company, issuances
by the Company of subordinated promissory notes in an aggregate principal amount
not to exceed $2.75 million to Quaker State Company in respect of certain
environmental liabilities of the Company under the Asset Purchase and Sale
Agreement dated as of March 30, 1990, as amended by the Amendment Agreement and
Joint Release dated April 22, 1994, between the Company and Quaker State Company
shall not be deemed to be an incurrence of Indebtedness. Notwithstanding the
foregoing, items referred to in clauses (i), (iii) and (iv) above shall not
constitute Indebtedness to the extent that such items constitute an accrued
expense or trade payable of such Person arising in the ordinary course of
business, and items referred to in clauses (i), (iii) and (iv) above shall
constitute Indebtedness of such Person only if and to the extent any of such
Indebtedness would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP at such time.
12
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"INITIAL PURCHASERS" means ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation and Chase Securities Inc.
"INITIAL SECURITIES" means the 10 1/2% Senior Subordinated Notes due
2006, as supplemented from time to time in accordance with the terms hereof,
issued under this Indenture.
"INTEREST PAYMENT DATE" means the stated due date of an installment of
interest on the Notes.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees or other Indebtedness but excluding
Guarantees and other Indebtedness permitted under Section 4.9), advances or
capital contributions (excluding commission, travel, relocation and similar
loans or advances to officers and employees, accounts receivable and bank demand
deposits made or arising in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP; PROVIDED that
an acquisition of Indebtedness, Equity Interests or other securities by the
Company for consideration consisting of Equity Interests (other than
Disqualified Stock) of the Company or Astor Holdings II shall not be deemed to
be an Investment and a redemption or repurchase of the Notes or other
Indebtedness of the Company or any Restricted Subsidiary or Astor Holdings II
shall not be deemed an Investment. If the Company or any Restricted Subsidiary
sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary
or Wholly Owned Restricted Subsidiary such that, after giving effect to any such
sale or disposition, such Person is no longer a Restricted Subsidiary or a
Wholly Owned Restricted Subsidiary (as the case may be), the Company and/or such
Restricted Subsidiary making such sale or disposition 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 Equity Interests of such former Restricted Subsidiary not
sold or disposed of.
"ISSUE DATE" means the date and time at which the Notes are originally
issued under this Indenture.
13
"LEGAL DEFEASANCE" shall have the meaning specified in Section 8.2.
"LEGAL HOLIDAY" shall have the meaning specified in Section 14.7.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
(other than precautionary filings by lessors in respect of operating leases)
under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"LIQUIDATED DAMAGES" means liquidated damages payable by the Company
or a Guarantor as provided for under the Registration Rights Agreement.
"MANAGEMENT SERVICES AGREEMENT" means the Management Services
Agreement dated June 28, 1995 among the Parent, UBS Capital Corporation and
Century City 1800 Partners, L.P., a Delaware limited partnership, as in effect
on the Issue Date and as it may be amended from time to time; PROVIDED that no
such amendment shall increase any obligation thereunder in a manner that would
create a Restricted Payment.
"MATURITY DATE" means, when used with respect to any Note, the date
specified on such Note as the fixed date on which the final installment of
principal of such Note is due and payable (in the absence of any acceleration
thereof pursuant to the provisions of this Indenture regarding acceleration of
Indebtedness or any Change of Control Offer or Asset Sale Offer).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any deduction in
respect of Disqualified Stock dividends, excluding, however, (i) any gain (but
not loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale or (b) the disposition of
any securities by such Person or the extinguishment of any Indebtedness of such
Person and (ii) any extraordinary gain
14
(but not loss), together with any related provision for taxes on such
extraordinary gain (but not loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any Restricted Subsidiary or Astor Holdings II in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale), net
of the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits, tax loss
carryforwards or deductions and any tax sharing arrangements), amounts required
to be applied to the repayment of Indebtedness (other than Senior Debt) secured
by a Lien on the asset or assets that were the subject of such Asset Sale and
any reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
"NEW NOTES" means the 10 1/2% Senior Subordinated Notes due 2006 to be
issued pursuant to this Indenture in connection with the offer to exchange the
Initial Securities that may be made by the Company and the Guarantor pursuant to
the Registration Rights Agreement.
"NON-RECOURSE DEBT" means Indebtedness (i) as to which neither the
Company nor any Restricted Subsidiary nor Astor Holdings II (a) provides credit
support of any kind (including any undertaking, agreement, or instrument that
would constitute Indebtedness), (b) is directly or indirectly liable (as a
guarantor or otherwise), or (c) constitutes the lender; (ii) no default with
respect to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both)any holder of any other Indebtedness (other than
the Notes being offered hereby) of the Company or any Restricted Subsidiary or
Astor Holdings II to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity; and
(iii) as to which the lenders have been notified in writing that they will not
have any recourse to the stock or assets of the Company or any Restricted
Subsidiary or Astor Holdings II.
"NOTE GUARANTEES" means the Guarantees of Astor Holdings II and any
Restricted Subsidiaries that become Subsidiary Guarantors in accordance with the
Indenture after
15
the Issue Date with respect to the Company's payment obligations under the Notes
as provided under Article XIII.
"NOTEHOLDER" or "HOLDER" means the Person in whose name a Note is
registered on the Registrar's books.
"NOTES" means, collectively, the Initial Securities and, when and if
issued as provided in the Registration Rights Agreement, the New Notes.
"NOTES CUSTODIAN" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"NOTICE OF DEFAULT" shall have the meaning specified in Section
6.1(3).
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means, with respect to the Company or any Guarantor, the
Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer,
the President, any Vice President, the Treasurer or the Secretary of the Company
or such Guarantor.
"OFFICERS' CERTIFICATE" means, with respect to the Company or any
Guarantor, a certificate signed by two Officers of the Company or such Guarantor
and otherwise complying with the requirements of Sections 14.4 and 14.5.
"OIL AND CURRENCY OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) agreements designed to protect such Person
against fluctuations in the price of oil or oil-related products and (ii)
agreements designed to protect such Person against fluctuations in foreign
currencies.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Sections
14.4 and 14.5.
"PARENT" means Astor Holdings, Inc., a Delaware corporation, and its
successors and assigns.
"PARI PASSU DEBT" means Indebtedness that is PARI PASSU with the Notes
maturing on the same day as the Notes.
16
"PAYING AGENT" shall have the meaning specified in Section 2.3.
"PAYMENT BLOCKAGE NOTICE" shall have the meaning specified in Section
12.2.
"PAYMENT BLOCKAGE PERIOD" shall have the meaning specified in Section
12.2.
"PAYMENT DEFAULT" shall have the meaning specified in Section 12.2.
"PERMITTED BUSINESS" means any business engaged in the development,
manufacture, distribution or sale of (i) adhesives and sealants, (ii) special
waxes and other waxes or (iii) specialty chemicals; and businesses that are
reasonable extensions or reasonably incidental to the foregoing.
"PERMITTED INVESTMENTS" means (i) any Investment in the Company or in
a Subsidiary Guarantor that is a Wholly Owned Restricted Subsidiary, (ii) any
Investment in Cash Equivalents, (iii) any Investments by the Company or any
Restricted Subsidiary in a Person if, as a result of such Investment, (a) such
Person becomes a Subsidiary Guarantor that is a Wholly Owned Restricted
Subsidiary, or (b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets (or all or
substantially all the assets of a Subsidiary or operating division) to, or is
liquidated into, the Company, or a Subsidiary Guarantor that is a Wholly Owned
Restricted Subsidiary, (iv) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant described under Section 4.13, (v) Investments
received as part of the settlement of litigation or in satisfaction of
extensions of credit to any Person otherwise permitted under this Indenture
pursuant to the reorganization, bankruptcy or liquidation of such Person or a
good faith settlement of debts with such Person, (vi) any Investment in a
Restricted Subsidiary, other than a Domestic Restricted Subsidiary, which
Investment is represented by a Guarantee of Indebtedness incurred by such
Restricted Subsidiary pursuant to and in compliance with the provision described
in clause (vi) of the second paragraph of Section 4.9, (vii) any Investment not
permitted by the foregoing clauses of this definition by the Company or its
Restricted Subsidiaries in a Person that is, or immediately after giving effect
to such Investment becomes, a Wholly Owned Restricted Subsidiary that is not a
Subsidiary Guarantor, in aggregate amount not exceeding $9.0 million (or its
foreign currency equivalent)
17
and (viii) any Investment not permitted by the foregoing clauses of this
definition by the Company or its Restricted Subsidiaries in (a) a Person in
which the Company and/or its Restricted Subsidiaries owns, or immediately after
giving effect to such Investment will own, more than 20% of such Person's
outstanding Capital Stock (but which Person is not, and will not be, after
giving effect to such Investment, a Subsidiary) and (b) an Unrestricted
Subsidiary in aggregate amount for all such Investments permitted solely by this
clause (viii) not exceeding $1.0 million (or its foreign currency equivalent).
"PERMITTED JUNIOR SECURITIES" means any Qualified Capital Stock and
debt securities of the Company or any Guarantor, as the case may be, that (i)
are subordinated at least to the same extent as the Notes to Senior Debt of the
Company or the Note Guarantee of such Guarantor to the Senior Debt of such
Guarantor, as the case may be, and (ii) have no scheduled installment of
principal due, by redemption, sinking fund payment or otherwise, on or prior to
the stated maturity of the Notes; provided that the effect of any such security
is not to cause the Notes to be treated in any case or proceeding or similar
event related to bankruptcy, insolvency or receivership as part of the same
class of claims as the Senior Debt or any class of claims on a parity with or
senior to the Senior Debt for any payment or distribution and, PROVIDED FURTHER,
that if any such security includes any shares of stock of the Company or any
Guarantor as reorganized or readjusted, or securities of the Company or any
Guarantor or any other corporation provided for by a plan of arrangement,
reorganization or readjustment, (a) the Senior Debt is assumed by the new
corporation, if any, resulting from any such arrangement, reorganization or
adjustment, and (b) the rights of the holders of the Senior Debt are not,
without the consent of such holders, altered by such arrangement, reorganization
or readjustment.
"PERMITTED LIENS" means (i) Liens on assets securing Senior Debt
permitted under this Indenture; (ii) Liens on assets securing Indebtedness
incurred pursuant to and in compliance with clause (vi) or (vii) of the second
paragraph of Section 4.9; (iii) Liens in favor of the Company; (iv) Liens on
assets of any Restricted Subsidiary that is not a Subsidiary Guarantor in favor
of Astor Holdings II or a Subsidiary Guarantor; (v) Liens on property of a
Person existing at the time such Person is merged into or consolidated with the
Company or any Restricted Subsidiary, PROVIDED, that such Liens (x) were not
incurred in connection with, or in contemplation of, such merger or
consolidation and (y) do not extend to any assets other than
18
those of the Person merged into or consolidated with the Company or such
Restricted Subsidiary; (vi) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary (including (A)
Liens securing or comprising Capital Lease Obligations and (B) Liens securing
Oil and Currency Obligations that do not constitute Indebtedness; PROVIDED that
such Liens do not extend to any assets of the Company or any Restricted
Subsidiary other than the property that is the subject of such Oil and Currency
Obligations); (vii) Liens to secure the performance of statutory obligations,
surety or appeal bonds or performance bonds, or landlords', carriers',
warehousemen's, mechanics', suppliers', materialmen's or other like Liens, in
any case incurred in the ordinary course of business and with respect to amounts
not yet delinquent or being contested in good faith by appropriate process of
law, if a reserve or other appropriate provision, if any, as is required by GAAP
shall have been made therefor; (viii) Liens existing on the Issue Date; (ix)
Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded; PROVIDED that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (x) Liens securing Indebtedness incurred to refinance
Indebtedness that has been secured by a Lien permitted under this Indenture;
PROVIDED that (a) any such Lien shall not extend to or cover any assets or
property not securing the Indebtedness so refinanced and (b) the refinancing
Indebtedness secured by such Lien shall have been permitted to be incurred under
Section 4.9; and (xi) Liens to secure the Obligations under the Notes, this
Indenture or the New Notes (or Indebtedness evidenced by instruments that rank
PARI PASSU in right of payment with the Notes as permitted under this
Indenture).
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness or
Disqualified Stock of the Company or any Restricted Subsidiary of the Company or
Astor Holdings II issued in exchange for, or the net proceeds of which are used
to extend, refinance, renew, replace, defease or refund other Indebtedness or
Disqualified Stock of the Company or any Restricted Subsidiary or Astor Holdings
II, as the case may be, or constituting an amendment, modification or supplement
thereto (but such new or modified Indebtedness shall have only the same obligor
or obligors as the Indebtedness so extended, refinanced, renewed, replaced,
defeased, refunded, amended, modified or supplemented); PROVIDED that: (i) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness
19
does not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness or the liquidation value of Disqualified Stock so extended,
refinanced, renewed, replaced, defeased, refunded, amended, modified or
supplemented (plus the amount of reasonable expenses incurred in connection
therewith); (ii) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness or Disqualified Stock being extended, refinanced, renewed,
replaced, defeased, refunded, amended, modified or supplemented and (iii) if the
Indebtedness or Disqualified Stock being extended, refinanced, renewed,
replaced, defeased, refunded, amended, modified or supplemented is subordinated
in right of payment to the Notes, such Permitted Refinancing Indebtedness has a
final maturity date not earlier than and is subordinated in right of payment to
the Notes on terms at least as favorable to the Noteholders as those contained
in the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"PERSON" or "PERSON" means any corporation, individual, limited
liability company, joint stock company, joint venture, partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipality or other entity.
"PRINCIPAL" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, any applicable premium, if any, on such
Indebtedness.
"PROPERTY" means any right or interest in or to property or assets of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"PUBLIC EQUITY OFFERING" means an underwritten offering of common
stock of the Company, Astor Holdings II or the Parent pursuant to an effective
registration statement under the Securities Act after which the common stock of
the Company, Astor Holdings II or the Parent, as applicable, is listed on a
national securities exchange or quoted on the NASDAQ National Market.
"PURCHASE AGREEMENT" means that certain Purchase Agreement dated
October 2, 1996 by and among the Company, the Guarantor and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time in accordance with the terms thereof.
20
"QUALIFIED CAPITAL STOCK" means any Capital Stock of the Company that
is not Disqualified Stock.
"RCI" means Rheochem Inc., a New Jersey corporation, and its
successors and assigns.
"RECORD DATE" means a Record Date specified in the Notes whether or
not such Record Date is a Business Day.
"REDEMPTION DATE" when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to Article III of this
Indenture and paragraph 5 in the form of Note.
"REDEMPTION PRICE" when used with respect to any Note to be redeemed,
means the redemption price for such redemption pursuant to paragraph 5 in the
form of Note, which shall include, without duplication, in each case, accrued
and unpaid interest to the Redemption Date.
"REGISTRAR" shall have the meaning specified in Section 2.3.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated the date hereof by and among the Initial Purchasers, the Company
and Astor Holdings II, as such agreement may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
"REGULATION S GLOBAL NOTE" shall have the meaning specified in Section
2.6.
"RELATED PERSON" means, with respect to any Excluded Person, (a) any
Person who controls, is controlled by or under common control with such Excluded
Person; PROVIDED that for purposes of this definition "control" means the
beneficial ownership of more than 50% of the total voting power of a Person
normally entitled to vote in the election of directors, managers or trustees, as
applicable of a Person and (b) as to any natural person, (i) such Person's
spouse, parents and descendants (whether by blood or adoption, and including
stepchildren) and the spouses of any of such natural persons and (ii) any
corporation, partnership, trust or other Person in which no one has any interest
(directly or indirectly) except for any of such natural person, such spouse,
parents and descendants (whether by blood or adoption, and including
stepchildren) and the spouses of any of such natural persons.
21
"RESTRICTED GLOBAL NOTE" shall have the meaning specified in Section
2.6.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" means a Subsidiary of the Company other than
an Unrestricted Subsidiary.
"REVOLVING CREDIT FACILITY" means the revolving credit facility
provided under the Senior Bank Facility.
"RHEOCHEM" means Rheochem Technologies, Inc., a Delaware corporation,
and its successors and assigns.
"RHEOCHEM SHAREHOLDERS' AGREEMENT" means the Rheochem Shareholders'
Agreement dated as of June 30, 1994 by and among ABI Corporation, Rheochem Inc.
and Rheochem, as in effect on the Issue Date and as it may be amended from time
to time; PROVIDED that no such amendment shall increase any obligation
thereunder in a manner that would create a Restricted Payment.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SENIOR BANK FACILITY" means that certain credit agreement, dated on
or about the Issue Date, by and among the Company, The Chase Manhattan Bank, as
administrative agent, and the lenders (and their successors and assigns) from
time to time party thereto, including any related notes, Guarantees, collateral
documents, instruments and agreements executed in connection therewith and in
each case as amended, modified, renewed, extended, refunded, replaced or
refinanced from time to time, whether or not with the same agent, trustee,
representative lenders or holders, and irrespective of any changes in the terms
and conditions thereof. Without limiting the generality of the foregoing, the
term "Senior Bank Facility" shall include agreements in respect of Hedging
Obligations entered into with respect to loans thereunder with lenders party to
the Senior Bank Facility and shall also include any amendment, amendment and
restatement, renewal, extension, restructuring, supplement
22
or modification to any Senior Bank Facility and all refundings, refinancings and
replacements of any Senior Bank Facility, including any agreement (i) extending
the maturity of any Indebtedness incurred thereunder or contemplated thereby,
(ii) adding or deleting borrowers, issuers or guarantors thereunder, (iii)
increasing the amount of Indebtedness incurred thereunder or available to be
borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
"SENIOR DEBT" means (i) with respect to the Company (A) Obligations
under the Senior Bank Facility and (B) any other Indebtedness permitted to be
incurred by the Company under the terms of this Indenture, unless the instrument
under which such Indebtedness is incurred expressly provides that it is PARI
PASSU with or subordinated in right of payment to the Notes and (ii) with
respect to any Guarantor (A) Obligations under the Senior Bank Facility and (B)
any other Indebtedness permitted to be incurred by such Guarantor under the
terms of this Indenture unless the instrument under which such Indebtedness is
incurred expressly provides that such Indebtedness is PARI PASSU with or
subordinated in right of payment to the Note Guarantee of such Guarantor,
including in any event in the case of all such Obligations of the Company or any
Guarantor, interest accruing after the filing of a petition initiating any
proceeding under any bankruptcy, insolvency or similar law, whether or not
allowable as a claim in any such proceeding. Notwithstanding anything to the
contrary in the foregoing, Senior Debt will not include (w) any liability for
federal, state, local or other taxes, (x) any Indebtedness of the Company or any
Guarantor to any Affiliates, (y) any trade payables or (z) that portion of any
Indebtedness that is incurred in violation of this Indenture.
"SPECIAL RECORD DATE" for payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.12.
"STATED MATURITY," when used with respect to any Note, means October
15, 2006.
"SIGNIFICANT SUBSIDIARY" means, with respect to any Person, or any
Subsidiary of such Person that would be a "significant subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act, as such Regulation is in effect on the date hereof.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of
23
which more than 50% of the total voting power of Voting Stock is at the time
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person (or a combination thereof) and (ii) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are such Person or one or more Subsidiaries of such Person (or
any combination thereof). ABI Acquisition 1 plc shall be deemed to be a
Subsidiary of the Company for all purposes of this Agreement at any time if at
such time it is a Subsidiary (as determined above) of the Company and/or Astor
Holdings II. Because on the Issue Date, the Company owns, directly or
indirectly, no more than 50% of the Voting Stock of Rheochem, on the Issue Date
Rheochem is not a Subsidiary of the Company.
"SUBSIDIARY GUARANTOR" means any Restricted Subsidiary that executes a
Note Guarantee in accordance with the provisions of this Indenture, and their
respective successors and assigns.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of the execution of this Indenture.
"TAX SHARING AGREEMENT" means the Tax Sharing Agreement dated June 28,
1995 among the Parent, Astor Holdings II and the Company.
"TRANSFER RESTRICTED NOTES" means Notes that bear or are required to
bear the legend set forth in Section 2.6 hereof.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"TRUST OFFICER" means any officer within the corporate trust division
(or any successor group) of the Trustee or any other officer of the Trustee
customarily performing functions similar to those performed by the Persons who
at that time shall be such officers, and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company that at
the time of determination shall be
24
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only if such Subsidiary: (a) has
no Indebtedness other than Non-Recourse Debt; (b) is not party to any material
agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company; and (c) is a Person with respect to which
neither the Company nor any of Restricted Subsidiary has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results. Any such designation by the Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions and was permitted under Section 4.10 If, at any time, any
Unrestricted Subsidiary, would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such
date (and, if such Indebtedness is not permitted to be incurred as of such date
under Section 4.9 the Company shall be in default of such covenant). The Board
of Directors of the Company may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if (i) such Indebtedness is permitted under Section 4.9,
and (ii) no Default or Event of Default would be in existence following such
designation.
"U.S. GOVERNMENT OBLIGATIONS" means direct noncallable obligations of,
or noncallable 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. LEGAL TENDER EQUIVALENTS" means securities issued or directly
and fully Guaranteed or insured by the United States of America or any agency or
instrumentality thereof with a maturity of 90 days or less (provided that the
full faith and credit of the United States of America is pledged in support
thereof).
25
"VOTING STOCK" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have or might have, voting power by reason of
the happening of any contingency).
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the then
outstanding principal amount of such Indebtedness into (ii) the total of the
product obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" means a Restricted Subsidiary all
of the outstanding Capital Stock or other ownership interests of which (other
than directors' qualifying shares or one share held by a director for statutory
purposes) shall at the time be owned by the Company, Astor Holdings II or by one
or more Wholly Owned Restricted Subsidiaries of the Company, or by the Company,
Astor Holdings II and one or more Wholly Owned Restricted Subsidiaries.
SECTION 1.2 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 NOTES" means the Notes.
"INDENTURE NOTEHOLDER" means a Holder or a Noteholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture notes means the Company and any other
obligor on the Notes.
26
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 thereby.
SECTION 1.3 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(l) 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;
(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; and
(7) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE NOTES
SECTION 2.1 FORM AND DATING.
The Notes and the Trustee's certificate of authentication, in respect
thereof, shall be substantially in the form of Exhibit A hereto, which Exhibit
is part of this Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the form of the Notes and any notation, legend or endorsement on them.
Any such notations, legends or endorsements not contained in the form of Note
attached as Exhibit A hereto shall be delivered in writing to the Trustee. Each
Note shall be dated the date of its authentication.
27
The terms and provisions contained in the forms of Notes shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Note for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless and the Company
shall nevertheless be bound by the terms of the Notes and this Indenture.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note and such signature
shall be conclusive evidence that the Note has been authenticated pursuant to
the terms of this Indenture.
The Trustee shall authenticate Initial Securities for original issue
in the aggregate principal amount of up to $110.0 million, except as provided in
Section 9.1(8), and shall authenticate New Notes for original issue in the
aggregate principal amount of up to $110.0 million, except as provided in
Section 9.1(8), in each case upon a written order of the Company in the form of
an Officers' Certificate; PROVIDED that such New Notes shall be issuable only
upon the valid surrender for cancellation of Initial Securities of a like
aggregate principal amount in accordance with the Registration Rights Agreement.
The Officers' Certificate shall specify the amount of Notes to be authenticated
and the date on which the Notes are to be authenticated. The aggregate
principal amount of Notes outstanding at any time may not exceed $110.0 million,
except as provided in Section 2.7 and Section 9.1(8). Upon the written order of
the Company in the form of an Officers' Certificate, the Trustee shall
authenticate Notes in substitution of Notes originally issued to reflect any
name change of the Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so.
28
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company, any Affiliate of the Company, or any of their
respective Subsidiaries.
Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof PROVIDED that Notes
will initially be issued only to institutional "accredited investors" within the
meaning of Rule 501(A)(1), (2), (3) or (7) under the Securities Act who are not
also "qualified institutional buyers" (as defined in Rule 144A under the
Securities Act) in denominations of $250,000 and any integral multiple of $1,000
in excess thereof.
SECTION 2.3 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Notes may be presented for registration
of transfer or for exchange ("Registrar") and an office or agency where Notes
may be presented for payment ("Paying Agent") and where notices and demands to
or upon the Company in respect of the Notes may be served. The Company may act
as Registrar or Paying Agent, except that, for the purposes of Articles III,
VIII, XI, and Section 4.13 and as otherwise specified in the Indenture, neither
the Company nor any Affiliate of the Company shall act as Paying Agent. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may have one or more co-Registrars and one or more additional Paying
Agents. The term "Paying Agent" includes any additional Paying Agent. The
Company hereby initially appoints the Trustee as Registrar and Paying Agent, and
the Trustee hereby initially agrees so to act.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as Notes Custodian
with respect to the Global Notes.
29
SECTION 2.4 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, and premium, if any, interest and Liquidated Damages on, the Notes
(whether such assets have been distributed to it by the Company or any other
obligor on the Notes), and shall notify the Trustee in writing of any Default in
making any such payment. If either of the Company, Astor Holdings II or a
Subsidiary of the Company acts as Paying Agent, it shall segregate such assets
and hold them as a separate trust fund for the benefit of the Holders or the
Trustee. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered by
the Company to the Paying Agent, the Paying Agent (if other than the Company)
shall have no further liability for such assets.
SECTION 2.5 NOTEHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee on or before the third Business Day preceding each Interest Payment Date
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee reasonably may require of the names and
addresses of Holders.
SECTION 2.6 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes
are presented to the Registrar or a co-Registrar with a request:
(x) to register the transfer of such Definitive Notes; or
(y) to exchange such Definitive Notes for an equal principal
amount of Definitive Notes of other authorized denominations,
30
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
PROVIDED that the Definitive Notes surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Company and the
Registrar or co-Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and (ii) in the case of Transfer
Restricted Notes that are Definitive Notes, shall be accompanied by the
following additional information and documents, as applicable:
(A) if such Transfer Restricted Notes are 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 set forth on the reverse of the Note); or
(B) if such Transfer Restricted Note is being transferred to an
institutional "accredited investor" within the meaning of Rule 501
(A)(1), (2), (3) or (7) under the Securities Act that is acquiring the
note for its own account, or for the account of such an institutional
accredited investor, in each case in a minimum principal amount of the
Notes of $250,000, not with a view to or for offer or sale in
connection with any distribution in violation of the Securities Act,
a certification to that effect (in substantially the form set forth on
the reverse of the Note.)
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL
INTEREST IN A GLOBAL NOTE. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) if such Definitive Note is a Transfer Restricted Note,
certification, substantially in the form set forth on the reverse of the
Note, that such Definitive Note is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A or Regulation S under the Securities Act; and
31
(ii) whether or not such Definitive Note is a Transfer Restricted
Note, written instructions directing the Trustee to make, or to direct the
Notes Custodian to make, an endorsement on the Global Note to reflect an
increase in the aggregate principal amount of the Notes represented by the
Global Note; provided that no Definitive Note, or portion thereof, in
respect of which the Company or an Affiliate of the Company held any
beneficial interest shall be included in such Global Note until such
Definitive Note is freely tradeable in accordance with Rule 144(k);
provided further that the Trustee shall issue Definitive Notes upon any
transfer of a beneficial interest in a Global Note to the Company or any
Affiliate of the Company;
then the Trustee shall cancel such Definitive Note and cause, or direct the
Notes Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Notes Custodian, the
aggregate principal amount of Notes represented by the Global Note to be
increased accordingly. If no Global Notes are then outstanding, the Company
shall issue and the Trustee shall authenticate a new Global Note in the
appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. Notes that upon initial
issuance are beneficially owned by "qualified institutional buyers" (as defined
in Rule 144A under the Securities Act) will be represented by a Global Note (the
"Restricted Global Note"), and Notes that upon original issuance are
beneficially owned by Non-U.S. Persons will be represented by another Global
Note (the "Regulation S Global Note"). Transfers of interest in the Notes
between the Restricted Global Note and the Regulation S Global Note will be made
in accordance with the standing instructions and procedures of the DTC and its
participants.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A
DEFINITIVE NOTE. Except as provided below in this Section 2.6(d) and in 2.6(f),
owners of beneficial interests in a Global Note shall not be entitled to receive
physical delivery of Definitive Notes and will not be considered Holders of such
Global Notes.
If any Person having a beneficial interest in a Global Note that is a
Transfer Restricted Security wishes transfer, as provided below, such an
interest to an institutional "accredited investor" within the meaning of Rule
501(A)(1), (2), (3) or (7) under the Securities Act, then, upon receipt by the
Trustee of (i) written instructions (or such other form of instructions as is
32
customary for the Depository) from the Depository or its nominee on behalf of
any Person having a beneficial interest in a Global Note, (ii) a certificate (in
substantially the form set forth on the reverse of the Note) that the transferee
is acquiring the security for its own account, or for the account of an
institutional accredited investor, in each case in a minimum principal amount of
the Notes of $250,000 and not with a view to or for offer or sale in connection
with any distribution in violation of the Securities Act and (iii) an
authentication order from the Company in the form of an Officers' Certificate,
the Trustee or the Note Custodian, at the direction of the Trustee, will cause,
in accordance with the standing instructions and procedures existing between the
Depository and the Note Custodian, the aggregate principal amount of the Global
Note to be reduced and, following such reduction, the Company will execute and
the Trustee will authenticate and deliver to the transferee a Definitive Note.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) AUTHENTICATION OF DEFINITIVE NOTES. If at any time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Notes and a successor Depositary for the Global Notes is not appointed by
the Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Notes under this
Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Notes, will
authenticate and deliver Definitive Notes, in an aggregate principal amount
equal to the principal amount of the Global Notes, in exchange for such Global
Notes.
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(g) LEGENDS.
(i) Except as permitted by the following paragraph (ii), each
Note certificate evidencing the Global Notes and the Definitive Notes (and
all Notes issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. BY
ITS ACCEPTANCE HEREOF, THE HOLDER REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QUALIFIED INSTITUTIONAL BUYER") OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2) (3) OR (7) UNDER THE
SECURITIES ACT).
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE OF THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISIONS) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY
(A) TO ASTOR CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A,
TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT
OCCUR OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL ACCREDITED
34
INVESTOR THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE
IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO ASTOR CORPORATION'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE
FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO ASTOR CORPORATION AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note)
pursuant to Rule 144 under the Act or an effective registration statement
under the Act:
(A) in the case of any Transfer Restricted Note that is a
Definitive Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Note for a Definitive Note that does
not bear the legend set forth above and rescind any restriction on the
transfer of such Transfer Restricted Note; and
(B) any such Transfer Restricted Note represented by a Global
Note shall not be subject to the provisions set forth in (i) above
(such sales or transfers being subject only to the provisions of
Section 2.6(c) hereof).
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as
all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or cancelled, such Global Note shall be
returned to or retained and cancelled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Note is exchanged for
Definitive Notes, redeemed, repurchased or cancelled, the principal amount of
35
Notes represented by such Global Note shall be reduced and an endorsement shall
be made on such Global Note, by the Trustee or the Notes Custodian, at the
direction of the Trustee, to reflect such reduction.
(i) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF DEFINITIVE
NOTES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Definitive
Notes and Global Notes at the Registrar's or co-Registrar's request.
(ii) 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, assessments, or similar
governmental charge payable in connection therewith (other than any
such transfer taxes, assessments, or similar governmental charge
payable upon exchanges or transfers pursuant to Section 2.2 (fourth
paragraph), 2.10, 3.7, 4.13(8), 9.5, or 11.1 (final paragraph)).
(iii) The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Note
selected for redemption in whole or in part pursuant to Article III,
except the unredeemed portion of any Definitive Note being redeemed in
part, or (b) any Note for a period beginning 15 Business Days before
the mailing of a notice of an offer to repurchase pursuant to Article
XI or Section 4.13 hereof or redeem Notes pursuant to Article III
hereof and ending at the close of business on the day of such mailing.
SECTION 2.7 REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note claims and submits an affidavit or other evidence, satisfactory to the
Trustee, to the Trustee to the effect that the Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Note 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 or any Agent from any loss which any of them
may suffer if a Note
36
is replaced. The Company or Registrar may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company.
SECTION 2.8 OUTSTANDING NOTES.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee (including any Note represented by a Global Note)
except those cancelled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee hereunder
and those described in this Section 2.8 as not outstanding. A Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note, except as provided in Section 2.9.
If a Note is replaced pursuant to Section 2.7 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
BONA FIDE purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or an Affiliate of the Company) holds Cash or U.S. Government
Obligations sufficient to pay all of the principal and interest due on the Notes
payable on that date and payment of the Notes called for redemption is not
otherwise prohibited pursuant to Article XII hereof or otherwise, then on and
after that date such Notes cease to be outstanding and interest on them ceases
to accrue.
SECTION 2.9 TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, amendment, supplement, waiver or consent,
Notes owned by the Company or Affiliates of the Company shall be disregarded,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, amendment, supplement, waiver or
consent, only Notes that the Trustee knows are so owned shall be disregarded.
37
SECTION 2.10 TEMPORARY NOTES.
Until Definitive Notes are ready for delivery, the Company may
prepare, the Guarantors shall endorse and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company reasonably and in good
faith considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare, the Guarantors shall endorse and the Trustee shall
authenticate Definitive Notes in exchange for temporary Notes. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes authenticated and delivered
hereunder.
SECTION 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee,
or at the direction of the Trustee, the Registrar or the Paying Agent (other
than the Company or any Affiliate of the Company), and no one else, shall cancel
and, at the written direction of the Company, shall dispose of all Notes
surrendered for transfer, exchange, payment or cancellation. Subject to Section
2.7, the Company may not issue new Notes to replace Notes that have been paid or
delivered to the Trustee for cancellation. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section 2.11,
except as expressly permitted in the form of Notes and as permitted by this
Indenture.
SECTION 2.12 DEFAULTED INTEREST.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Note (or one or more predecessor Notes) is registered at the close of
business on the Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date plus, to the extent lawful,
any interest payable on the defaulted interest (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered holder on the
relevant Record Date, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (i) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in
38
whose names the Notes (or their respective predecessor Notes) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Note and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of Cash equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment; such Cash when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as provided in
this clause (1). Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Note register not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the persons in whose names the Notes (or their respective predecessor
Notes) are registered on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
39
ARTICLE III
REDEMPTION
SECTION 3.1 RIGHT OF REDEMPTION.
Redemption of Notes, as permitted by any provision of this Indenture,
shall be made in accordance with such provision and this Article III. The
Company will not have the right to redeem any Notes prior to October 15, 2001
(other than out of the Net Proceeds of certain issuances of Capital Stock of the
Company, Astor Holdings II or the Parent described under "Redemption" in
paragraph 5 of the form of the Notes attached as Exhibit A hereto). On or after
October 15, 2001, the Company will have the right to redeem all or any part of
the Notes at the Redemption Prices specified in the form of Note attached as
Exhibit A set forth therein under the caption "Redemption," in each case,
including accrued and unpaid interest and Liquidated Damages thereon to the
Redemption Date.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Notes pursuant to Section
3.1, an equivalent premium shall also become and be immediately due and payable
to the extent permitted by law upon the acceleration of the Notes. If an Event
of Default occurs prior to October 15, 2001 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of the Notes prior to October 15,
2001, then an amount equivalent to the Redemption Price applicable to
redemptions made during the twelve-month period following October 15, 2001 shall
also become immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
SECTION 3.2 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to paragraph 5 of the
Notes, it shall notify the Trustee in writing of the Redemption Date and the
principal amount of Notes to be redeemed and whether it wants the Trustee to
give notice of redemption to the Holders.
If the Company elects to reduce the principal amount of Notes to be
redeemed pursuant to paragraph 5 of the Notes by crediting against any such
redemption Notes it has not previously delivered to the Trustee for
40
cancellation, it shall so notify the Trustee of the amount of the reduction and
deliver such Notes with such notice.
The Company shall give each notice to the Trustee provided for in this
Section 3.2 at least 45 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee). Any such notice may be cancelled at any
time prior to notice of such redemption being mailed to any Holder and shall
thereby be void and of no effect.
SECTION 3.3 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed pursuant to paragraph
5 thereof, the Trustee shall select the Notes to be redeemed by lot or by such
other method as the Trustee shall determine to be fair and appropriate and in
such manner as complies with any applicable Depositary, legal and stock exchange
requirements.
The Trustee shall make the selection from the Notes outstanding and
not previously called for redemption and shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof to be redeemed;
PROVIDED that no Notes with a principal amount of $1,000 or less shall be
redeemed in part. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
SECTION 3.4 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail, postage
prepaid, to the Trustee and each Holder whose Notes are to be redeemed. At the
Company's request, the Trustee shall give notice of redemption in the Company's
name and at the Company's expense. Each notice for redemption shall identify
the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued
and unpaid interest to be paid upon such redemption;
(3) the name, address and telephone number of the Paying
Agent;
(4) that Notes called for redemption must be surrendered to
the Paying Agent at the address
41
specified in such notice to collect the Redemption Price;
(5) that, unless (a) the Company defaults in its obligation
to deposit Cash with the Paying Agent in accordance with Section 3.6 hereof
or (b) such redemption payment is prohibited pursuant to Article XII hereof
or otherwise, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the Holders
of such Notes is to receive payment of the Redemption Price, including
accrued and unpaid interest and Liquidated Damages to the Redemption Date,
upon surrender to the Paying Agent of the Notes called for redemption and
to be redeemed;
(6) if any Note is being redeemed in part, the portion of
the principal amount, equal to $1,000 or any integral multiple thereof, of
such Note to be redeemed and that, after the Redemption Date, and upon
surrender of such Note, a new Note or Notes in aggregate principal amount
equal to the unredeemed portion thereof will be issued;
(7) if less than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be redeemed,
as well as the aggregate principal amount of such Notes to be redeemed and
the aggregate principal amount of Notes to be outstanding after such
partial redemption;
(8) the CUSIP number of the Notes to be redeemed; and
(9) that the notice is being sent pursuant to this Section
3.4 and pursuant to the optional redemption provisions of paragraph 5 of
the Notes.
SECTION 3.5 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.4,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price, including accrued and unpaid interest and Liquidated
Damages to the Redemption Date. Upon surrender to the Trustee or Paying Agent,
such Notes called for redemption shall be paid at the Redemption Price,
including interest and Liquidated Damages, if any, accrued and unpaid to the
Redemption Date; PROVIDED that if the Redemption Date is after a regular Record
Date and on or prior to the Interest Payment Date, the accrued interest shall be
payable to the Holder of the redeemed Notes registered on the relevant Record
Date; and
42
PROVIDED FURTHER that if a Redemption Date is a Legal Holiday, payment shall be
made on the next succeeding Business Day and no interest shall accrue for the
period from such Redemption Date to such succeeding Business Day.
SECTION 3.6 DEPOSIT OF REDEMPTION PRICE.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent (other than the Company or an Affiliate of the Company) Cash
sufficient to pay the Redemption Price of, including accrued and unpaid interest
and Liquidated Damages on, all Notes to be redeemed on such Redemption Date
(other than Notes or portions thereof called for redemption on that date that
have been delivered by the Company to the Trustee for cancellation). The Paying
Agent shall promptly return to the Company any Cash so deposited which is not
required for that purpose upon the written request of the Company.
If the Company complies with the preceding paragraph and the other
provisions of this Article III and payment of the Notes called for redemption is
not prohibited under Article XII or otherwise, interest on the Notes to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Notes are presented for payment. Notwithstanding anything herein to the
contrary, if any Note surrendered for redemption in the manner provided in the
Notes shall not be so paid upon surrender for redemption because of the failure
of the Company to comply with the preceding paragraph, interest shall continue
to accrue and be paid from the Redemption Date until such payment is made on the
unpaid principal, and, to the extent lawful, on any interest not paid on such
unpaid principal, in each case at the rate and in the manner provided in Section
4.1 hereof and the Note.
SECTION 3.7 NOTES REDEEMED IN PART.
Upon surrender of a Note that is to be redeemed in part, the Company
shall execute, the Guarantors shall endorse and the Trustee shall authenticate
and deliver to the Holder, without service charge to the Holder, a new Note or
Notes equal in principal amount to the unredeemed portion of the Note
surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF NOTES.
The Company shall pay the principal of and interest on the Notes on
the dates and in the manner provided herein and in the Notes. An installment of
principal of or interest on the Notes shall be considered paid on the date it is
due if the Trustee or Paying Agent (other than the Company, a Subsidiary of the
Company or an Affiliate of the Company) holds for the benefit of the Holders, on
or before 10:00 a.m. New York City time on that date, Cash in immediately
available funds deposited and designated for and sufficient to pay the
installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Notes compounded
semi-annually, to the extent lawful.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company and the Guarantors shall maintain in the Borough of
Manhattan, The City of New York, an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company and the Guarantors in respect of the Notes and this Indenture may be
served. The Company and the Guarantors 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 and the Guarantors 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 14.2.
The Company and the Guarantors may also from time to time designate
one or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDEd that no such designation or rescission shall in any
manner relieve the Company and the Guarantors of their obligation to maintain an
office or agency in the Borough of Manhattan, the City of New York, for such
purposes. The Company and the Guarantors shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The Company and the Guarantors
hereby initially designate the office of State
44
Street Bank and Trust Company, National Association, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ as such office.
SECTION 4.3 CORPORATE EXISTENCE.
Subject to Article V, the Company and the Guarantors shall do or cause
to be done all things necessary to preserve and keep in full force and effect
their respective corporate existence and the corporate existence of each of
their Subsidiaries in accordance with the respective organizational documents of
each of them and the rights (charter and statutory) and corporate franchises of
the Company, the Guarantors and each of their respective Subsidiaries; PROVIDED
that neither the Company nor any Guarantor shall be required to preserve, with
respect to themselves, any right or franchise, and with respect to any of their
respective Subsidiaries, any such existence, right or franchise, if (a) the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of such entity and (b) the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.4 PAYMENT OF TAXES AND OTHER CLAIMS.
Except with respect to immaterial items, the Company and the
Guarantors shall, and shall cause each of their Subsidiaries to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon the Company, any Guarantor or any of their Subsidiaries or any of
their respective properties and assets and (ii) all lawful claims, whether for
labor, materials, supplies, services or anything else, which have become due and
payable and which by law have or may become a Lien upon the property and assets
of the Company, any Guarantor or any of their Subsidiaries; PROVIDED that
neither the Company nor any Guarantor shall 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 disputed amounts adequate reserves have
been established in accordance with GAAP.
SECTION 4.5 MAINTENANCE OF PROPERTIES AND INSURANCE.
The Company and the Guarantors shall cause all material properties
used or useful to the conduct of their business and the business of each of
their Subsidiaries to
45
be maintained and kept in good condition, repair and working order (reasonable
wear and tear excepted) and supplied with all necessary equipment and shall
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof; all as in their reasonable judgment may be necessary, so
that the business carried on in connection therewith may be properly conducted
at all times; PROVIDED that nothing in this Section 4.5 shall prevent the
Company or any Guarantor from discontinuing any operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is (a) in the judgment of the Board of Directors of the Company,
desirable in the conduct of business of such entity and (b) not disadvantageous
in any material respect to the Holders.
The Company and the Guarantors shall provide, or cause to be provided,
for themselves and each of their Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company, is adequate and appropriate for the conduct
of the business of the Company, the Guarantors and such Subsidiaries in a
prudent manner, with (except for self-insurance) reputable insurers or with the
government of the United States of America or any agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall be
customary, in the reasonable, good faith opinion of the Company and adequate and
appropriate for the conduct of the business of the Company, the Guarantors and
such Subsidiaries in a prudent manner for entities similarly situated in the
industry, unless failure to provide such insurance (together with all other such
failures) would not have a material adverse effect on the financial condition of
results of operations of the Company, such Guarantor or such Subsidiary.
SECTION 4.6 COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company and the Guarantor shall deliver to the Trustee
within 120 days after the end of its fiscal year an Officers' Certificate
complying with Section 314(a)(4) of the TIA and stating that a review of its
activities and the activities of each of their Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and further stating, as to each
such Officer signing such certificate, whether or not the signer knows of any
failure by the Company, any Guarantor or any Subsidiary of the Company to comply
with any conditions or covenants in this Indenture and, if such signer does know
of such a failure to
46
comply, the certificate shall describe such failure with particularity. The
Officers' Certificate shall also notify the Trustee should the relevant fiscal
year end on any date other than the current fiscal year end date.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, promptly upon becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take in
connection with remedying such Default or Event of Default. The Trustee shall
not be deemed to have knowledge of any Default, any Event of Default or any such
fact unless one of its Trust Officers receives notice thereof from the Company
or any of the Holders.
SECTION 4.7 REPORTS.
Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, Astor Holdings II will furnish to the
Noteholders (at their addresses set forth in the Register of Notes) (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if Astor
Holdings II were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial condition and results of operations of Astor Holdings II
and its Consolidated Subsidiaries and, with respect to the annual information
only, a report thereon by Astor Holdings II's certified independent accountants
and (ii) all current reports that would be required to be filed with the
Commission on Form 8-K if Astor Holdings II were required to file such reports.
In addition, whether or not required by the rules and regulations of the
Commission, Astor Holdings II will file a copy of all such information and
reports with the Commission for public availability (unless the Commission will
not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. In addition, the Company and
the Guarantors will be required, for so long as any Notes remain outstanding, to
furnish to the Noteholders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
SECTION 4.8 STATUS AS INVESTMENT COMPANY.
The Company will not, and will not permit any Restricted Subsidiary
to, and Astor Holdings II will not, take or fail to take any action which would
require the Company, such Restricted Subsidiary or Astor Holdings II to
47
register as an "investment company" (as that term is defined in the Investment
Company Act of 1940, as amended) or cause any of the foregoing Persons to become
subject to regulation under the Investment Company Act of 1940.
SECTION 4.9 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED
STOCK.
The Company will not, and will not permit any Restricted Subsidiary
to, and Astor Holdings II will not, directly or indirectly, create, incur,
issue, assume, Guarantee or otherwise become directly or indirectly liable with
respect to (collectively, "incur") any Indebtedness (including as a result of an
acquisition) and will not issue any Disqualified Stock; PROVIDED that the
Company and the Subsidiary Guarantors may incur Indebtedness or issue shares of
Disqualified Stock if (i) no Default or Event of Default shall have occurred and
be continuing at the time of, or would occur after giving effect on a pro forma
basis to, such incurrence of Indebtedness or issuance of Disqualified Stock and
(ii) the Fixed Charge Coverage Ratio for Astor Holdings II's most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock is issued would have been at least (x) 2.0 to 1 if
such incurrence or issuance occurs on or before October 8, 1998 or (y) 2.25 to 1
if such incurrence or issuance occurs at any time thereafter, in each case
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom) as if the additional Indebtedness had been incurred or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period.
The foregoing provisions will not apply to: (i) the incurrence by
the Company and any Domestic Restricted Subsidiary of Indebtedness pursuant
to the Senior Bank Facility in a maximum amount not to exceed at any time (A)
an aggregate principal amount of $20.0 million (or its foreign currency
equivalent) under the Bank Term Loan LESS the aggregate amount of all Net
Proceeds applied to permanently reduce principal Indebtedness under the Bank
Term Loan pursuant to the covenant under Section 4.13 and (B) in the case of
other Indebtedness under the Senior Bank Facility consisting of revolving
credit, working capital and/or letters of credit issued thereunder, in an
aggregate principal amount (with letters of credit being deemed to have a
principal amount equal to the maximum reimbursement obligation of the Company
or the relevant Restricted Subsidiary thereunder) outstanding at any time not
greater than the greater of (such greater amount, the "Working Capital
Amount") (1) $30.0 million (or its foreign currency equivalent), LESS the
amount of all Net Proceeds applied to
48
permanently reduce the commitments under the Revolving Credit Facility and
(2) the Borrowing Base; PROVIDED that a change in currency exchange rates
which causes the amount of Indebtedness of the Company and its Domestic
Restricted Subsidiaries outstanding to exceed the levels specified above
shall not be deemed an incurrence of Indebtedness; (ii) the incurrence by the
Company and any Restricted Subsidiary of Indebtedness that is fully secured
by letters of credit permitted pursuant to clause (i)(B) above or clause (vi)
below; (iii) the incurrence by the Company and any Guarantor of Indebtedness
represented by the Notes and the Note Guarantees; (iv) the incurrence by the
Company or any Restricted Subsidiary of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund Existing Indebtedness, Existing
Disqualified Stock or other Indebtedness that was permitted by this Indenture
to be incurred; (v) the incurrence (A) by any Wholly Owned Restricted
Subsidiary of Indebtedness owing to and held by the Company, (B) by the
Company or any Wholly Owned Restricted Subsidiary of Indebtedness owing to
and held by any Wholly Owned Subsidiary or (C) by ABI Acquisition 2 plc of
Indebtedness owing to and held by ABI Acquisition 1 plc, by ABI Acquisition 1
plc of Indebtedness owing to and held by Astor Holdings II or by Astor
Holdings II of Indebtedness owing to and held by the Parent, in each case
pursuant to the provisions of the ABI Shareholder Intercompany Notes;
PROVIDED that such Indebtedness owed by the Company or any Wholly Owned
Restricted Subsidiary that is a Guarantor to any Wholly Owned Restricted
Subsidiary that is not a Guarantor is made expressly subordinate to the
payment in full of all Obligations with respect to the Notes and the Note
Guarantees; (vi) the incurrence by Restricted Subsidiaries, other than
Domestic Restricted Subsidiaries, of Indebtedness incurred for working
capital purposes and any Guarantee thereof by the Company or Astor Holdings
II in an aggregate outstanding principal amount for all such Indebtedness
permitted solely pursuant to this clause (vi), and together with the
aggregate outstanding principal amount of Indebtedness permitted pursuant to
clause (i)(B) above, does not exceed at any time the Working Capital Amount;
and (vii) the incurrence by the Company, Astor Holdings II or any Restricted
Subsidiary of Indebtedness (in addition to Indebtedness permitted by any
other clause of this paragraph) in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding not to exceed $10 million (or
its foreign currency equivalent). For purposes of this covenant each of the
following events (but not solely the following events) shall be deemed to
constitute an "incurrence" of Indebtedness upon the happening thereof: (i)
any event that causes any Unrestricted Subsidiary to be a Restricted
Subsidiary shall be deemed to be the incurrence of such former Unrestricted
49
Subsidiary's Indebtedness by such Restricted Subsidiary and (ii) any sale of
equity or other event that results in any Wholly Owned Restricted Subsidiary
ceasing to be a Wholly Owned Restricted Subsidiary or a transfer of any such
Indebtedness by the Company to a Person that is not the Company, or by a Wholly
Owned Restricted Subsidiary to a Person that is not a Wholly Owned Restricted
Subsidiary, shall be deemed to be an incurrence by such former Wholly Owned
Restricted Subsidiary or such Person upon the happening of such event.
SECTION 4.10 RESTRICTED PAYMENTS.
The Company will not, and will not permit any Restricted Subsidiary
to, and Astor Holdings II will not, directly or indirectly; (i) declare or pay
any dividend or make any other payment or distribution on account of any Equity
Interests of Astor Holdings II, the Company or any Restricted Subsidiaries
including, without limitation, any payment in connection with any merger or
consolidation involving the Company (other than (x) dividends or distributions
payable in Equity Interests (other than Disqualified Stock) of the Company,
Astor Holdings II or a Restricted Subsidiary and (y) dividends or distributions
payable to the Company or any other Restricted Subsidiary (and, if such
Restricted Subsidiary has shareholders other than the Company or another
Restricted Subsidiary, to its other shareholders on a PRO RATA basis to such
other shareholders); (ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of Astor Holdings II, the Company or any Restricted
Subsidiary; (iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to
the Notes, except at the original final maturity thereof or in accordance with
the scheduled mandatory redemption or repayment provisions set forth in the
documentation governing such Indebtedness at the Issue Date or, if later, the
date such Indebtedness was incurred or (iv) make any Restricted Investment (all
such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "Restricted Payments"), unless:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto (including, in the case of Restricted
Investments, the pro forma effect thereof) as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period, have
been permitted
50
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of Section 4.9;
and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and any Restricted Subsidiary and
Astor Holdings II, without duplication, after the Issue Date (excluding
Restricted Payments permitted by any of clauses (ii), (iv), (v)(B), (vi),
(vii) and (viii) of the next succeeding paragraph), is less than the sum of
(1) 50% of the Consolidated Net Income for the period (taken as one
accounting period) from the beginning of the fiscal quarter during which
this Indenture is executed to the end of Astor Holdings II's most recently
ended fiscal quarter for which internal financial statements are available
at the time of such Restricted Payment (or, if such Consolidated Net Income
for such period is a deficit, minus 100% of such deficit) PLUS (2) 100% of
the aggregate net cash proceeds received by the Company from the issue or
sale since the Issue Date of Equity Interests of the Company or of debt
securities of the Company that have been converted into such Equity
Interests (other than Equity Interests (or convertible debt securities)
sold to a Restricted Subsidiary and other than Disqualified Stock or debt
securities that have been converted into Disqualified Stock) or by way of
other capital contributions to the Company PLUS (3) to the extent that any
Restricted Investment that was made after the Issue Date is sold for cash
or otherwise liquidated or repaid for cash, the lesser of (A) the cash
return of capital with respect to such Restricted Investment (less the cost
of disposition, if any) and (B) the initial amount of such Restricted
Investment; PROVIDED that no amounts received by the Company by way of
capital contributions will be counted in determining the amount available
for Restricted Payments under this clause (c) to the extent such proceeds
or amounts are excluded in accordance with clause (ii) of the next
succeeding paragraph.
The foregoing provisions will not prohibit the following: (i) the
payment of any dividend within 60 days after the date of declaration thereof, if
at such date of declaration such payment would have complied with the provisions
of this Indenture; (ii) the defeasance, redemption or repurchase of subordinated
Indebtedness with (A) the proceeds from an incurrence of Permitted Refinancing
Indebtedness or (B) the proceeds from the substantially concurrent sale (other
than to a Subsidiary of the Parent) of Equity Interests of the Parent received
by the Company by way of capital contributions; PROVIDED that the amounts of
51
any such capital contributions that are utilized for any such redemption,
repurchase, retirement or other acquisition shall be excluded from clause (c)(2)
of the preceding paragraph; (iii) the payment of dividends by the Company or ABI
Acquisition 1 plc to Astor Holdings II and by Astor Holdings II to the Parent,
solely in amounts and at the times necessary, to permit payment of amounts
required for any repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Parent (or of Equity Interests of Astor
Holdings II) held by any member of the Company's, Astor Holdings II's or the
Parent's management pursuant to any management equity subscription agreement or
stock option agreement or similar agreement, or otherwise upon their death,
disability, retirement or termination of employment or departure from the Board
of Directors of the Parent, Astor Holdings II or the Company; PROVIDED that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed (A) $500,000 in any twelve-month period and
(B) $2.0 million in the aggregate from and after the Issue Date; (iv) the
repurchase or other acquisition of Existing Disqualified Stock held by ABI
Corporation or Astor Holdings II; (v) the payment of dividends by the Company or
ABI Acquisition 1 plc to Astor Holdings II, or by Astor Holdings II to the
Parent, in amounts and at times necessary to permit payment of (A) unless
prohibited and not waived by or on behalf of the lenders under the Senior Bank
Facility, amounts payable by the Parent under the Management Services Agreement,
consisting of (1) management fees in aggregate amount not to exceed $412,000 in
any twelve-month period (adjusted in proportion to increases in the consumer
price index), (2) transaction fees equal to not more than 2% of the aggregate
acquisition consideration (as the amount of such consideration is determined in
accordance with the Management Services Agreement as in effect on the Issue
Date) in connection with merger and acquisition services rendered by certain
financial advisors in connection with acquisitions by Astor Holdings II and its
Subsidiaries and (3) certain reasonable expenses incurred by such advisors in
connection with the performance of their obligations under such Management
Services Agreement, (B) amounts due under the Tax Sharing Agreement, (C)
administrative fees in respect of certain partnerships that are investors in the
Parent, in an aggregate amount not exceeding $28,000 in any twelve-month period,
and (D) operating expenses of the Parent and Astor Holdings II incurred in the
ordinary course of business in an aggregate amount not to exceed $50,000 in any
twelve-month period PLUS audit fees and fees paid with respect to filings by the
Parent or Astor Holdings II with the Commission; (vi) the payment of dividends
on Existing Disqualified Stock owned by ABI Corporation or Astor Holdings II;
(vii) subject to the subordination provisions contained in the ABI Shareholder
Intercompany Notes,
52
payments under the ABI Shareholder Intercompany Notes by ABI Acquisition 2 plc
to ABI Acquisition 1 plc, by ABI Acquisition 1 plc to Astor Holdings II and by
Astor Holdings II to the Parent, in each case of amounts due and payable under
the terms of the ABI Shareholder Notes and necessary for any required
repurchase, payment of principal or payment of interest of or on the ABI
Shareholder Notes; and (viii) the purchase of the remaining Equity Interests of
Rheochem owned by RCI such that Rheochem becomes a Wholly Owned Restricted
Subsidiary that is a Subsidiary Guarantor pursuant to the Rheochem Shareholders'
Agreement, if the Company delivers to the Trustee an Officer's Certificate
certifying that such purchase has been approved by a majority of the
disinterested members of the Board of Directors and attaching a resolution of
the Board of Directors (A) to such effect and (B) to the effect that it has
determined in good faith that such purchase is at a price no less favorable to
the Company than the fair market value of such Equity Interests; PROVIDED that,
in the case of clauses (ii), (iii), (iv), (v)(C) and (vi), of this paragraph, no
Default or Event of Default shall have occurred or be continuing at the time of
such Restricted Payment or would occur as a consequence thereof.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if such designation would not cause
a Default. For purposes of making such determination, all outstanding
Investments by the Company and any Restricted Subsidiary and Astor Holdings II
(except to the extent repaid in cash) in the Subsidiary so designated will be
deemed to be Restricted Payments at the time of such designation and will reduce
the amount available for Restricted Payments under the first paragraph of this
covenant. All such outstanding Investments will be deemed to constitute
Investments in an amount equal to the greater of (x) the net book value of such
Investments at the time of such designation and (y) the fair market value of
such Investments at the time of such designation. Such designation will only be
permitted if such Restricted Payment would be permitted at such time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
Not later than the date of making any Restricted Payment under the
first paragraph of this Section 4.10, the Company shall deliver to the Trustee
an Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section
4.10 were computed, which calculations shall be based upon the Astor Holdings
II's latest available financial statements; PROVIDED that the Company shall not
have to deliver such an Officer's Certificate in connection with Restricted
Payments of less
53
than $200,000 in aggregate amount in any twelve-month period.
SECTION 4.11 DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
The Company will not, and will not permit any Restricted Subsidiary
to, and Astor Holdings II will not, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to: (i)(a) pay
dividends or make any other distributions to the Company or any Restricted
Subsidiary (1) on its Capital Stock or (2) with respect to any other interest or
participation in, or measured by, its profits or (b) pay any Indebtedness owed
to the Company or any Restricted Subsidiary; (ii) make loans or advances to the
Company or any Restricted Subsidiary; or (iii) transfer any of its properties or
assets to the Company or any Restricted Subsidiary, except for such encumbrances
or restrictions existing under or by reasons of (a) Existing Indebtedness; (b)
the Senior Bank Facility as in effect on the Issue Date and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof, PROVIDED that the applicable restrictions
in such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are not materially more
restrictive with respect to such transactions than those contained in the Senior
Bank Facility as in effect on the Issue Date; (c) this Indenture, the Note
Guarantees, the Notes, Pari Passu Debt and any notes with substantially
identical terms as the Notes issued in exchange for the Notes or the Pari Passu
Debt; (d) applicable law; (e) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any Restricted Subsidiary, as in
effect at the time of acquisition (except to the extent such Indebtedness was
incurred in connection with, or in contemplation of, such acquisition), which
encumbrance or restriction is not applicable to the Company, any Restricted
Subsidiary (other than the Person acquired) or Astor Holdings II, or the
properties or assets thereof (other than the properties or assets of the Person
so acquired), PROVIDED that, in the case of Indebtedness, such Indebtedness was
permitted by the terms of this Indenture to be incurred; (f) by reason of
customary non-assignment or no-subletting provisions in leases or other
contracts entered into in the ordinary course of business and consistent with
past practices; (g) purchase money obligations or Capital Lease Obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (iii) above on the property so acquired; (h)
Permitted Liens on assets
54
securing permitted Senior Debt; (i) Permitted Refinancing Indebtedness, PROVIDED
that the applicable restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are not materially more restrictive than
those contained in the agreements governing the Indebtedness being refinanced;
(j) restrictions with respect solely to a Restricted Subsidiary imposed pursuant
to a binding agreement which has been entered into for the sale or disposition
(including by merger or consolidation) of all or substantially all of the
Capital Stock or assets of such Restricted Subsidiary, PROVIDED such
restrictions apply solely to the Capital Stock or assets of such Restricted
Subsidiary; or (k) the agreement governing Indebtedness permitted pursuant to
the provision described in clause (vi) of the second paragraph of Section 4.9 to
the extent such agreement restricts transfers of collateral securing such
Indebtedness.
SECTION 4.12 ANTI-LAYERING.
The Company will not incur, create, issue, assume, Guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt and senior in any respect in right of
payment to the Notes, (ii) no Guarantor will incur, create, issue, assume,
Guarantee or otherwise become liable for any Indebtedness that is subordinate or
junior in right of payment to its Senior Debt and senior in any respect in right
of payment to the Note Guarantee executed by such Guarantor and (iii) no
Restricted Subsidiary which is not a Guarantor will incur, create, issue,
assume, Guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to its Senior Debt (other than
Indebtedness owing to Astor Holdings II, the Company or any Restricted
Subsidiary as permitted under this Indenture).
SECTION 4.13 ASSET SALES AND SALES OF SUBSIDIARY STOCK.
The Company will not, and will not permit any Restricted Subsidiary
to, and Astor Holdings II will not, engage in any Asset Sale unless (i) the
Company delivers to the Trustee an Officers' Certificate stating that such
officers have determined in good faith that the Company, the Restricted
Subsidiary or Astor Holdings II, as the case may be, will receive consideration
(including by way of relief from, or by any other Person assuming sole
responsibility for, any liabilities, contingent or otherwise) at the time of
such Asset Sale at least equal to the fair market value of the assets or Equity
Interests issued or sold or otherwise disposed of and (ii) at least 80% of the
consideration therefor (excluding contingent liabilities
55
assumed by the transferee of any such assets) received by the Company, such
Restricted Subsidiary or Astor Holdings II, as the case may be, is in the form
of cash paid at the closing thereof, PROVIDED that the amount of (x) any
liabilities as shown on the most recent balance sheet of the Company or such
Restricted Subsidiary or Astor Holdings II, as the case may be (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Notes or any Guarantee thereof) that are assumed by the transferee of any
such assets pursuant to an agreement that releases the Company or such
Restricted Subsidiary or Astor Holdings II, as the case may be, from further
liability with respect thereto will be deemed to be cash for purposes of this
provision and (y) any notes, securities or other items of property received by
the Company or any such Restricted Subsidiary or Astor Holdings II, as the case
may be, from such transferee that are promptly and in any event within 30 days
converted by the Company or such Restricted Subsidiary or Astor Holdings II, as
the case may be, into cash (to the extent of the cash received) will be deemed
to be cash for purposes of this provision and (iii) the Company delivers to the
Trustee (a) with respect to any Asset Sale or series of related Asset Sales
involving aggregate consideration in excess of $1.0 million, an Officers'
Certificate certifying that such Asset Sale has been approved by a majority of
the disinterested members of the applicable Board of Directors, and attaching a
resolution of such Board of Directors (x) to such effect and (y) to the effect
that it has determined in good faith that the consideration to be received by
the Company, the Restricted Subsidiary or Astor Holdings II at the time of such
Asset Sale is at least equal to the fair market value of the assets or Equity
Interests to be issued or otherwise disposed of and (b) with respect to any
Asset Sale or series of related Asset Sales involving aggregate consideration in
excess of $5.0 million, a written opinion as to the fairness to the Company or
such Restricted Subsidiary or Astor Holdings II, as the case may be, of such
Asset Sale from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing. Notwithstanding the foregoing
provision, if the Company is required to sell all of its Equity Interests in
Rheochem in accordance with the terms of the Rheochem Shareholders' Agreement,
the consideration received by the Company therefor shall be deemed to be fair
market value, and the Company shall not have to provide any evidence to the
Trustee as to the fairness of the consideration so received.
Within 300 days after the receipt of any Net Proceeds from an Asset
Sale, the Company and Astor Holdings II may or may cause the relevant Restricted
Subsidiary to apply such Net Proceeds, at the Company's option, (a) to
permanently reduce Indebtedness under the Senior Bank
56
Facility (and, in the case of revolving Indebtedness under the Senior Bank
Facility, to permanently reduce the commitments thereunder), (b) to permanently
reduce Senior Debt of the Company or a Subsidiary Guarantor or (c) to make an
investment in a Permitted Business or to make capital expenditures or to acquire
other long-term/tangible assets, in each case, engaged or used in a Permitted
Business (or make a binding commitment to make such investment, subject only to
reasonable and customary closing conditions, and in fact to make such investment
within 60 additional days). Pending the final application of any such Net
Proceeds, the Company or Astor Holdings II may or may cause the relevant
Restricted Subsidiary to temporarily reduce revolving indebtedness under the
Senior Bank Facility or otherwise invest such Net Proceeds in any manner that is
not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are
not applied or invested as provided in the immediately preceding sentence of
this paragraph will be deemed to constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds received by the Company, if any, any
Restricted Subsidiary, if any, and Astor Holdings II, if any, exceeds $5.0
million (the "Minimum Accumulation Date"), Astor Holdings II and the relevant
Restricted Subsidiaries will pay to the Company all Excess Proceeds, and the
Company will be required within 10 business days to make an irrevocable
unconditional offer to all Noteholders and to holders of Pari Passu Debt (an
"Asset Sale Offer") to purchase, on a PRO RATA basis from the Noteholders and
the holders of Pari Passu Debt, the maximum principal amount of Notes and Pari
Passu Debt that may be purchased out of the Excess Proceeds, at an offer price
in cash in an amount equal to 100% of the principal amount thereof PLUS accrued
and unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase (the "Excess Proceeds Payment"). The Asset Sale Offer shall remain
open for 20 Business Days, except to the extent that a longer period is required
by applicable law. Notice of an Asset Sale Offer will be sent on or before the
commencement of any Asset Sale Offer by first-class mail, by the Company to each
Noteholder or holder of Pari Passu Debt at its registered address, with a copy
to the Trustee. The notice to the Noteholder or holder of Pari Passu Debt will
contain all information, instructions and materials required by applicable law
or otherwise material to such Noteholder's or holder of Pari Passu Debt's
decision to tender Notes or Pari Passu Debt pursuant to the Asset Sale Offer.
The notice, which (to the extent consistent with the Indenture) shall govern the
terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to
such notice and this Section 4.13;
57
(2) the maximum principal amount of Notes and Pari Passu
Debt that may be purchased out of the Excess Proceeds, the Excess Proceeds
Payment, the amount of accrued and unpaid interest and Liquidated Damages
as of the then applicable date of purchase, the Final Put Date (as defined
below), and the then applicable date of purchase (the "Asset Sale Purchase
Date");
(3) that any Note or portion thereof or Pari Passu Debt not
tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing Cash
with the Paying Agent in accordance with the penultimate paragraph of this
Section 4.13 or such payment is otherwise prevented, any Note or portion
thereof or Pari Passu Debt accepted for payment pursuant to the Offer to
Purchase shall cease to accrue interest after the date of purchase;
(5) that Noteholders or holders of Pari Passu Debt electing
to have a Note or portions thereof or Pari Passu Debt purchased pursuant to
an Asset Sale Offer will be required to surrender the Note or Pari Passu
Debt, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent (which may not for
purposes of this Section 4.13, notwithstanding anything in this Indenture
to the contrary, be the Company or any Affiliate of the Company) at the
address specified in the notice prior to the close of business on the
earlier of (a) the third Business Day prior to the date of purchase and
(b) the third Business Day following the expiration of the Asset Sale Offer
(such earlier date being the "Final Put Date");
(6) that Noteholders or holders of Pari Passu Debt will be
entitled to withdraw their elections, in whole or in part, if the Paying
Agent (which may not for purposes of this Section 4.13, notwithstanding any
other provision of this Indenture, be the Company or any Affiliate of the
Company) receives, up to the close of business on the date of purchase, a
telegram, telex, facsimile transmission or letter setting forth the name of
the Noteholders or holders of Pari Passu Debt, the principal amount of the
Notes or Pari Passu Debt the Noteholders or holders of Pari Passu Debt are
withdrawing and a statement that such Noteholders or holders of Pari Passu
Debt is withdrawing their election to have such principal amount of Notes
or Pari Passu Debt purchased;
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(7) that if Notes and Pari Passu Debt in an aggregate
principal amount in excess of the Excess Proceeds are tendered on or prior
to the Final Put Date and not withdrawn, the Trustee shall select the Notes
and the Pari Passu Debt to be purchased on a PRO RATA basis (with such
adjustments as may be deemed appropriate by the Company so that only Notes
in denominations of $1,000 or integral multiples of $1,000 shall be
acquired);
(8) that Holders whose Notes were purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered; and
(9) a brief description of the circumstances and relevant
facts regarding such Asset Sale.
Any such Asset Sale Offer shall comply with all applicable provisions
of Federal and state laws, including those regulating tender offers, if
applicable, and any provisions of this Indenture that conflict with such laws
shall be deemed to be superseded by the provisions of such laws.
On or before a date of purchase, the Company shall (i) accept for
payment Notes or portions thereof and Pari Passu Debt properly tendered pursuant
to the Asset Sale Offer on or before the Final Put Date (on a PRO RATA basis if
required pursuant to paragraph (7) of this Section 4.13), (ii) deposit with the
Paying Agent Cash sufficient to pay the Excess Proceeds Payment for all Notes or
portions thereof and Pari Passu Debt so tendered and accepted and (iii) deliver
to the Trustee Notes and Pari Passu Debt so accepted together with an Officers'
Certificate stating the Notes or portions thereof and Pari Passu Debt being
purchased by the Company. The Paying Agent shall on each date of purchase mail
or deliver to Noteholders and holders of Pari Passu Debt so accepted payment in
an amount equal to the Excess Proceeds Payment for such Notes and Pari Passu
Debt, and the Trustee shall promptly authenticate and mail or deliver to such
Noteholders a new Note equal in principal amount to any unpurchased portion of
the Note surrendered. The Company shall not have any obligation to accept for
payment or pay for any Notes or Pari Passu Debt tendered by a Noteholder or
holder of Pari Passu Debt after the Final Put Date. Any Note or Pari Passu Debt
not so accepted shall be promptly mailed or delivered by the Company to the
Noteholder or holder of Pari Passu Debt thereof.
If the amount required to be paid by the Company in order to acquire
all Notes and Pari Passu Debt duly
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tendered by Noteholders or holders of Pari Passu Debt (and not withdrawn)
pursuant to an Asset Sale Offer (the "Acceptance Amount") made pursuant to the
third paragraph of this Section 4.13 is less than the Excess Proceeds, the
excess of the Excess Proceeds over the Acceptance Amount may be used by the
Company for general corporate purposes without restriction, unless otherwise
restricted by the other provisions of this Indenture. Upon consummation of any
Asset Sale Offer made in accordance with the terms of this Indenture, the amount
of Excess Proceeds will be reduced to zero irrespective of the amount of Notes
and Pari Passu Debt tendered pursuant to the Asset Sale Offer.
SECTION 4.14 LIENS.
The Company will not, and will not permit any Restricted Subsidiary
to, and Astor Holdings II will not, directly or indirectly, create, incur,
assume or suffer to exist any Lien on any property or asset now owned or
hereafter acquired, or on any income or profits therefrom or assign or convey
any right to receive income therefrom except Permitted Liens, unless the
Obligations due under this Indenture and the Notes are secured, on an equal and
ratable basis (or on a senior basis, in the case of Obligations under
Indebtedness subordinated in right of payment to the Notes), with the
Obligations so secured.
SECTION 4.15 TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any Restricted Subsidiary
to, and Astor Holdings II will not, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
(i) such Affiliate Transaction is on terms that are no less favorable to the
Company or such Restricted Subsidiary or Astor Holdings II, as the case may be,
than those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary or Astor Holdings II, as the case may be,
with an unrelated Person and (ii) the Company delivers to the Trustee (a)
with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $500,000, an
Officers' Certificate certifying that such Affiliate Transaction has been
approved by a majority of the disinterested members of the Board of Directors
and attaching a resolution of the Board of Directors (x) to such effect and
(y) to the effect that it has determined in good faith that such transaction
complies with clause (i) above, and (b) with respect to any Affiliate
Transaction or series
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of related Affiliate Transactions involving aggregate consideration in excess of
$500,000, an Officers' Certificate certifying that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of
Directors and attaching a resolution of the Board of Directors (x) to such
effect and (y) to the effect that it has determined in good faith that such
transaction complies with clause (i) above, and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 million, a written opinion as to the
fairness to the Company or such Restricted Subsidiary or Astor Holdings II, as
the case may be, of such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm of national
standing; PROVIDED that transactions with Rheochem in the ordinary course of
business consistent with past practices will not be subject to clause (ii)
above, and PROVIDED FURTHER that the following shall not be deemed Affiliate
Transactions (a) any reasonable and customary employment agreement, employment
benefit plan or other compensation plan entered into by the Company or any
Restricted Subsidiary or Astor Holdings II, as the case may be, in the ordinary
course of business, (b) reasonable and customary directors' fees and
indemnification arrangements in the ordinary course of business, (c) reasonable
and customary payment of compensation to employees, officers, directors or
consultants in the ordinary course of business, (d) loans or advances to
officers or employees of the Company or any Restricted Subsidiary to pay
business related travel expenses or reasonable relocation costs of such officers
or employees in connection with their employment by the Company or any
Restricted Subsidiary, (e) transactions between or among any combination of the
Company and the Guarantors, (f) any transfer of tax benefits and any tax sharing
or tax loss surrender arrangements and any intercompany sales of inventory
between or among any combination of the Company, Astor Holdings II and any
Restricted Subsidiary or between or among one or more Restricted Subsidiaries,
(g) payments under the Management Services Agreement, (h) payments under the Tax
Sharing Agreement, (i) payment of administrative fees in respect of certain
partnerships that are investors in the Parent, in an aggregate amount not
exceeding $28,000 per twelve-month period, (j) payments to the Parent or Astor
Holdings II to pay operating expenses of the Parent and Astor Holdings II
incurred in the ordinary course of business in an aggregate amount not to exceed
$50,000 in any twelve-month period, (k) payments made to the Parent or Astor
Holdings II to reimburse the Parent or Astor Holdings II for costs, fees and
expenses incident to a registration of any of the capital stock of the Parent or
Astor Holdings II for an offering under the Securities Act, so long as (A) a
portion of the proceeds of such offering (if it is completed) are contributed
to, or otherwise used for the benefit of, the Company and (B) the costs, fees
and expenses are allocated among the Parent or Astor Holdings and any selling
shareholders in such proportions as is required by the Stockholders Agreement as
in effect on the Issue Date or, if or to the extent that the Stockholders
Agreement is not applicable, as is appropriate to reflect the relative proceeds
received by the Parent or Astor Holdings II and
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such selling shareholders and (l) Restricted Payments permitted by the
provisions described above under clauses (i), (iii), (iv), (v), (vi), (vii) of
the second paragraph of Section 4.10.
SECTION 4.16 LINE OF BUSINESS.
The Company will not, and will not permit any Restricted Subsidiary
to, engage in any business other than a Permitted Business. Astor Holdings II
will hold the Capital Stock of and certain instruments representing the
Indebtedness of the Company and/or Restricted Subsidiaries, but will not have
any other assets.
SECTION 4.17 FUTURE SUBSIDIARY GUARANTORS.
If the Company shall acquire or create after the Issue Date, directly
or indirectly, another Domestic Restricted Subsidiary (including upon any
Unrestricted Subsidiary ceasing to be an Unrestricted Subsidiary and becoming a
Domestic Restricted Subsidiary), then such newly acquired or created Domestic
Restricted Subsidiary shall execute a Note Guarantee and a supplemental
indenture evidencing its Guarantee of the Notes and deliver an opinion of
counsel in accordance with the terms of this Indenture. The Company may elect,
from time to time, on or after the Issue Date, to cause one or more other
Restricted Subsidiaries to become a Subsidiary Guarantor by executing a Note
Guarantee and a supplemental indenture evidencing its Guarantee of the Notes.
The Company shall also deliver an Opinion of Counsel to the Trustee stating that
such Note Guarantee and supplemental indenture comply with the applicable
provisions of this Indenture and that all conditions precedent have been met.
As of the Issue Date, (i) ABI Corporation holds Capital Stock of the
Company and (ii) ABI Acquisitions 1 plc holds Capital Stock of a Restricted
Subsidiary and certain instruments representing Indebtedness of ABI Acquisition
2 plc. The Company will not permit either of ABI Corporation or ABI Acquisition
1 plc to have any other assets or to conduct any other business activities until
such time as such entity executes a Note Guarantee and a supplemental indenture
in accordance with the provisions of this Section.
In the event of a sale or other disposition of all of the assets of
any Subsidiary Guarantor by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the Capital Stock of any Subsidiary Guarantor,
then such Subsidiary Guarantor (in the event of a sale or other disposition, by
way of such a merger, consolidation or otherwise, of all of the Capital Stock of
such Subsidiary Guarantor) or the corporation acquiring the property (in the
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event of a sale or other disposition of all of the assets of such Subsidiary
Guarantor) will be released and relieved of any obligations under its Note
Guarantee, PROVIDED that such sale or other disposition is permitted by and the
Net Proceeds of such sale or other disposition are applied in accordance with
Section 4.13.
SECTION 4.18 WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company or any Guarantor from paying all or any portion of the principal of, or
premium of, or interest or Liquidated Damages on the Notes as contemplated
herein, wherever enacted, nor or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) each of the Company and the Guarantors 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 V
SUCCESSOR CORPORATION
SECTION 5.1 LIMITATION ON MERGER, CONSOLIDATION OR SALE OF ASSETS.
The Company and Astor Holdings II may not consolidate or merge with or
into (whether or not the Company or Astor Holdings II, as the case may be, is
the surviving entity), or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets in one or more
related transactions to, another corporation, Persons or entity unless (i) the
Company or Astor Holdings II, as the case may be, is the surviving corporation
or entity or the Person formed by or surviving any such consolidation or merger
(if other than the Company or Astor Holdings II, as the case may be) or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws of the
United States, any state thereof or the District of Columbia; (ii) the entity or
Person formed by or surviving any such consolidation or merger (if other than
the Company or Astor
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Holdings II, as the case may be) or the entity or Person to which such sale,
assignment, transfer, lease, conveyance or other disposition will have been made
assumes all the obligations of the Company or Astor Holdings II, as the case may
be, under the Notes and this Indenture pursuant to a supplemental indenture in
form reasonably satisfactory to the Trustee; (iii) immediately after such
transaction, no Default or Event of Default exists; and (iv) except in the case
of a merger of the Company or Astor Holdings II, as the case may be, with or
into the Company or Astor Holdings II, as the case may be, or the entity or
Person formed by or surviving any such consolidation or merger, or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have
been made (A) will have Consolidated Net Worth immediately after the transaction
equal to or greater than the Consolidated Net Worth of the Company or Astor
Holdings II, as the case may be, immediately preceding the transaction and (B)
will, at the time of such transaction after giving pro forma effect thereto as
if such transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.9.
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company or Astor Holdings II in
accordance with the foregoing, the successor corporation formed by such
consolidation or into which the Company or Astor Holdings II is merged or to
which such transfer is made, shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or Astor Holdings II, as the case
may be, under this Indenture with the same effect as if such successor
corporation had been named therein as the Company or Astor Holdings II, as the
case may be, and the Company or Astor Holdings II, as the case may be, shall be
released from the obligations under the Notes, the Note Guarantees and this
Indenture except with respect to any obligations that arise from, or are related
to, such transaction.
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ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default for 30 days in the payment when due of interest or
Liquidated Damages, if any, on the Notes (whether or not prohibited by the
provisions of Article XII);
(2) default in payment when due of principal of, or premium, if
any, on the Notes when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise (whether or not prohibited by the
provisions of Article XII) including, without limitation, payments of any
required Change of Control Payment or Excess Proceeds Payment;
(3) failure by the Company or any Guarantor to comply with its
obligations with respect to the making of a Change of Control Offer or an
Asset Sale Offer as described under Article XI or under Section 4.13;
(4) failure by the Company or any Guarantor to comply with its
other obligations described under Article XI or Section 4.13 or its
obligations described under Section 4.9 or Section 4.10 and such failure
continues for a period of 30 consecutive days after there has been given,
by registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by Holders of at least 25% in aggregate principal
amount of the Notes then outstanding, a written notice specifying such
default or breach, requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder;
(5) failure by the Company or any Guarantor to comply with its
other agreements in the Indenture or the Notes and such failure continues
for 60 consecutive days after written notice by the Trustee or the holders
of at least 25% in aggregate principal amount of the Notes then
outstanding;
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(6) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Restricted Subsidiary
or Astor Holdings II (or the payment of which is Guaranteed by the Company
or any Restricted Subsidiary or Astor Holdings II) whether such
Indebtedness or Guarantee exists on the Issue Date, or is created after the
Issue Date, which default (a) is caused by a failure to pay any such
Indebtedness at its stated final maturity after giving effect to any grace
period provided in such Indebtedness on the date of such default (the
amount of such missed payment of principal, a "Payment Default Amount") or
(b) results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the aggregate principal amount of all such
Indebtedness referred to in clause (b) together with the aggregate Payment
Default Amount at such time aggregates $5.0 million or more;
(7) failure by the Company or any Restricted Subsidiary or Astor
Holdings II to pay final judgments aggregating in excess of $5.0 million,
which judgments are not stayed, bonded or discharged within 60 days after
their entry;
(8) except as permitted by the Indenture, any Note Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any Guarantor,
or any Person acting on behalf of any Guarantor, shall deny or disaffirm
its obligations under its Note Guarantee;
(9) a decree, judgment or order by a court of competent
jurisdiction shall have been entered adjudicating the Company or any of its
Significant Subsidiaries or Astor Holdings II as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Company or any of its Significant Subsidiaries or Astor Holdings II under
any bankruptcy or similar law, and such decree or order shall have
continued undischarged and unstayed for a period of 60 days; or a decree or
order of a court of competent jurisdiction regarding the appointment of a
receiver, liquidator, trustee or assignee in bankruptcy or insolvency of
the Company or any of its Significant Subsidiaries or Astor Holdings II, or
of the property of any such Person, or for the winding up or liquidation of
the affairs of any such Person, shall have been entered, and such decree,
judgment or order
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shall have remained in force undischarged and unstayed for a period of 60
days; or
(10) the Company or any of its Significant Subsidiaries or Astor
Holdings II shall institute proceedings to be adjudicated a voluntary
bankrupt, or shall consent to the filing of a bankruptcy proceeding against
it, or shall file a petition or answer or consent seeking reorganization
under any bankruptcy or similar law or similar statute, or shall consent to
the filing of any such petition, or shall consent to the appointment of a
Custodian, receiver, liquidator, trustee or assignee in bankruptcy or
insolvency of it or any of its assets or property, or shall make a general
assignment for the benefit or creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall, within
the meaning of any Bankruptcy Law, become insolvent, fail generally to pay
its debts as they become due, or take any corporate action in furtherance
of or to facilitate, conditionally or otherwise, any of the foregoing.
Notwithstanding the 30-day period and notice requirement contained in
Section 6.1(4) above, (i) with respect to a default under Article XI the 30-day
period referred to in Section 6.1(4) shall be deemed to have begun as of the
date the Change of Control notice is required to be sent in the event that the
Company has not complied with the provisions of Section 11.1, and the Trustee or
Holders of at least 25% in principal amount of the outstanding Notes thereafter
give the Notice of Default referred to in Section 6.1(4) to the Company and, if
applicable, the Trustee; PROVIDED that if the breach or default is a result of a
default in the payment when due of the Change of Control Payment, such default
shall be deemed, for purposes of this Section 6.1, to arise no later than on
such due date; and (ii) with respect to a default under Section 4.13, the 30-day
period referred to in Section 6.1(4) shall be deemed to have begun as of the
date the notice of an Asset Sale Offer is required to be sent in the event that
the Company has not complied with the provisions of Section 4.13 requiring the
giving of such notice, and the Trustee or Holders of at least 25% in principal
amount of the outstanding Notes thereafter give the Notice of Default referred
to in Section 6.1(4) to the Company and, if applicable, the Trustee; PROVIDED
that if the breach or default is a result of a default in the payment when due
of the Excess Proceeds Payment, such default shall be deemed, for purposes of
this Section 6.1, to arise no later than on such due date.
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If a Default occurs and is continuing, the Trustee must, within 90
days after the occurrence of such default, give to the Holders notice of such
default.
SECTION 6.2 ACCELERATION OF MATURITY DATE; RESCISSION AND
ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 6.1(9) or (10) relating to the Company or any of its Significant
Subsidiaries) occurs and is continuing, then, and in every such case, unless the
principal of all of the Notes shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in aggregate principal amount of
then outstanding Notes, by a notice in writing to the Company (and to the
Trustee if given by Holders) (an "Acceleration Notice"), may declare all of the
principal of the Notes, determined as set forth below, including in each case
accrued interest thereon, to be due and payable immediately; PROVIDED that if
any Designated Senior Debt is outstanding, upon a declaration of such
acceleration, such principal and interest shall be due and payable upon the
earlier of (x) the day that is five Business Days after the provision to the
Company and the Agent under the Senior Bank Facility and the holders of other
Designated Senior Debt or their representative (in each case at the address for
notices then most recently provided to the Trustee by such holders or such
representative) of written notice, unless such Event of Default is cured or
waived prior to such date and (y) the date of acceleration of any Senior Debt
under the Senior Bank Facility. In the event a declaration of acceleration
resulting from an Event of Default described in Section 6.1(6) above has
occurred and is continuing, such declaration of acceleration shall be
automatically annulled if such default is cured or waived or the holders of the
Indebtedness which is the subject of such default have rescinded their
declaration of acceleration in respect of such Indebtedness within 45 days
thereof and the Trustee has received written notice of such cure, waiver or
rescission and no other Event of Default described in Section 6.1(6) above has
occurred that has not been cured or waived, or as to which the declaration has
not been rescinded, within 45 days of the declaration of such acceleration in
respect of such Indebtedness. Notwithstanding the foregoing, if an Event of
Default specified in Section 6.1(9) or (10) relating to the Company, any
Subsidiary that would constitute a Significant Subsidiary (or any group of
Subsidiaries that, taken together, would constitute a Significant Subsidiary) or
Astor Holding II occurs, all principal and accrued interest thereon will be
immediately due and payable on all outstanding Notes without any declaration or
other act on the part of Trustee or the Holders.
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At any time after such a declaration of acceleration being made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of a
majority in aggregate principal amount of then outstanding Notes, by written
notice to the Company and the Trustee, may rescind, on behalf of all Holders,
any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee Cash
sufficient to pay
(A) all overdue interest or Liquidated Damages on all Notes,
(B) the principal of (and premium, if any, applicable to)
any Notes which would become due other than by reason of such
declaration of acceleration, and interest thereon at the rate borne by
the Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Notes,
(D) all sums paid or advanced by the Trustee hereunder and
the compensation, expenses, disbursements and advances of the Trustee
and its agents and counsel, and
(2) all Events of Default, other than the non-payment of the
principal of, or premium, if any, or interest or Liquidated Damages on
Notes which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 6.12, including, if
applicable, any Event of Default relating to the covenants contained in
Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Note affected thereby, unless all such affected
Holders agree, in writing, to waive such Event of Default or other event. No
such waiver shall cure or waive any subsequent default or impair any right
consequent thereon.
SECTION 6.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
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The Company covenants that if an Event of Default in payment of
principal, premium, interest or Liquidated Damages specified in clause (1) or
(2) of Section 6.1 occurs and is continuing, the Company shall, upon demand of
the Trustee, pay to it, for the benefit of the Holders of such Notes, the whole
amount then due and payable on such Notes for principal, and premium (if any),
interest and Liquidated Damages (if any), and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal,
(premium, if any) and on any overdue interest, at the rate borne by the Notes,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including compensation to, and expenses,
disbursements and advances of the trustee and its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property of the Company or of such other obligor or their creditors, the
trustee (irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise to take any and all actions under
the TIA, including
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(1) to file and prove a claim for the whole amount of principal
(and premium, if any), interest and Liquidated Damages owing and unpaid in
respect of the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agent and counsel) and of
the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust in favor of the Holders, and any recovery of judgment shall,
after provision for the payment of compensation to, and expenses, disbursements
and advances of the Trustee and its agents and counsel, be for the ratable
benefit of the Holders of the Notes in respect of which such judgment has been
recovered.
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SECTION 6.6 PRIORITIES.
Any money collected by the Trustee pursuant to this Article VI shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal, premium
(if any), Liquidated Damages (if any) or interest, upon presentation of the
Notes and the notation thereon of the payment if only partially paid and upon
surrender thereof if full paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7;
SECOND: To the Holders in payment of the amounts then due and unpaid
for principal of, or premium (if any), interest or Liquidated Damages (if any)
on the Notes, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Notes for principal, premium (if any),
interest or Liquidated Damages (if any), respectively; and
THIRD: To the Company or such other Person as may be lawfully
entitled thereto, the remainder, if any.
The Trustee may, but shall not be obligated to, fix a record date and
payment date for any payment to the Holders under this Section 6.6.
SECTION 6.7 LIMITATION ON SUITS.
No Holder of any Note shall have any right to order or direct the
Trustee to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(A) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in principal amount of then
outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee
reasonable note or indemnity against the costs, expenses and liabilities to
be incurred or reasonably probable to be incurred in compliance with such
request;
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(D) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(E) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Notes;
is being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal ratable benefit of all the Holders.
SECTION 6.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, INTEREST AND LIQUIDATED DAMAGES.
Except as provided in Article XII, notwithstanding any other provision
of this Indenture, the Holder of any Note shall have the right, which is
absolute and unconditional, to receive payment of the principal of, and premium
(if any), interest and Liquidated Damages (if any) on, such Note on the dates
such amounts become due and payable (in the case of redemption, the Redemption
Price on the applicable Redemption Date, in the case of the Change of Control
Payment, on the applicable Change of Control Payment Date, and in the case of
the Excess Proceeds Payment, on the Asset Sale Purchase Date) and to institute
suit for the enforcement of any such payment after such respective dates, and
such rights shall not be impaired without the consent of such Holder.
SECTION 6.9 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in Section 2.7, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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SECTION 6.10 DELAY OR OMISSION NOT WAIVER.
No delay or omission by the Trustee or by any Holder of any Note to
exercise any right or remedy arising upon any Event of Default shall impair the
exercise of any such right or remedy or constitute a waiver of any such Event of
Default. Every right and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.11 CONTROL BY HOLDERS.
The Holder or Holders of a majority in aggregate principal amount of
then outstanding Notes shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture.
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudiced to the Holders not taking part in such
direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such discretion.
SECTION 6.12 WAIVER OF PAST DEFAULT.
Subject to Section 6.8, the Holder or Holders of at least fifty
percent in aggregate principal amount of the outstanding Notes may, on behalf of
all Holders, prior to the declaration of acceleration of the maturity of the
Notes, waive any past default hereunder and its consequences, except a default.
(A) in the payment of the principal of, premium, if any, or
interest or Liquidated Damages on, any Note as specified in clauses (1) and
(2) of Section 6.1 and not yet cured, or
(B) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of the Holder
of each outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be
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deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair the exercise of
any right arising therefrom.
SECTION 6.13 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Note by
his acceptance thereof shall be deemed to have agreed, that 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, suffered or omitted to be taken by it as
Trustee, any court may in its discretion require the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 6.13 shall not apply to any suit instituted
by the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the outstanding Notes, or to any suit instituted
by any Holder for enforcement of the payment of principal of, or premium (if
any) or interest or Liquidated Damages on, any Note on or after the respective
Maturity Date expressed in such Note (including, in the case of redemption, on
or after the Redemption Date).
SECTION 6.14 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Guarantors, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
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SECTION 7.1 DUTIES OF TRUSTEE.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no covenants or
obligations shall be implied in or read into this Indenture which are
adverse to the Trustee, and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. 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;
(1) This paragraph does not limit the effect or paragraph (b) of
this Section 7.1,
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts, and
(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 6.11.
(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 at the request, order or direction of the Holders or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
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against such risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section
7.1.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may rely 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
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 14.4 and 14.5. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such certificates or advice of counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond, debenture
or other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit.
(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
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reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby.
(g) Unless otherwise specifically provided for in this
Indenture, any demand, request, direction or notice from the Company or any
Guarantor shall be sufficient if signed by an Officer of the Company or such
Guarantor, as applicable.
(h) The Trustee shall have no duty to inquire as to the
performance of the Company's or any Guarantor's covenants in Article IV hereof.
In addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to Sections
6.1(1), 6.1(2) and 5.1, or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or obtained actual knowledge.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any
Guarantor, any of their Subsidiaries, or their respective Affiliates with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee must comply with Section 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Notes, and it shall not be accountable for the Company's
use of the proceeds from the Notes, and it shall not be responsible for any
statement in the Notes, other than the Trustee's certificate of authentication,
or the use or application of any funds received by a Paying Agent other than the
Trustee.
SECTION 7.5 NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Noteholder notice of the
uncured Default or Event of Default within 90 days after such Default or Event
of Default occurs. Except in the case of a Default or an Event of Default in
payment of principal (or premium, if any) of, or interest or Liquidated Damages
on, any Note (including the payment of the Change of Control Payment on the
Change of Control Payment Date, the payment of the Redemption Price on the
Redemption Date and the payment of the Offer Price on the Purchase Date), the
Trustee may withhold the notice if and so long as a Trust Officer in
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good faith determines that withholding the notice is in the interest of the
Noteholders.
The Company is required upon becoming aware of any Default or Event of
Default to deliver to the Trustee a statement specifying such Default or Event
of Default.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, if required by law, mail to each
Noteholder a brief report dated as of such May 15 that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b) and 313(c).
The Company shall promptly notify the Trustee in writing if the Notes
become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Noteholders shall
be mailed to the Company and filed with the SEC and each stock exchange, if any,
on which the Notes are listed.
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company and the Guarantors jointly and severally agree to pay to
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company and the Guarantors shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it in accordance with this Indenture. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel.
The Company and the Guarantors jointly and severally agree to
indemnify the Trustee (in its capacity as Trustee) and each of its officers,
directors, attorneys-in-fact and agents for, and hold it harmless against, any
claim, demand, expense (including but not limited to reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel) loss or
liability incurred by it without negligence or bad faith on the part of the
Trustee, arising out of or in connection with the administration of this trust
and its rights or duties hereunder, including the reasonable costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the
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Company promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company and the Guarantors shall defend the claim, and the
Trustee shall provide reasonable cooperation at the Company's and the
Guarantors' expense in the defense. The Trustee may have separate counsel, and
the Company and the Guarantors shall pay the reasonable fees and expenses of
such counsel; PROVIDED that the Company and the Guarantors will not be required
to pay such fees and expenses if they assume the Trustee's defense and there is
no conflict of interest between the company and the Guarantors and the Trustee
in connection with such defense. The Company and the Guarantors need not pay
for any settlement made without their written consent. The Company and the
Guarantors need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's and the Guarantors' payment obligations in
this Section 7.7, the Trustee shall have a Lien prior to the Notes on all assets
held or collected by the Trustee, in its capacity as Trustee, except assets held
in trust to pay principal of, and premium, if any, interest and Liquidated
Damages on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(9) or (10) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's and the Guarantors' obligations under this Section 7.7
and any lien arising hereunder shall survive the resignation or removal of the
Trustee, the discharge of the Company's and the Guarantors' obligations pursuant
to Article VIII of this Indenture and any rejection or termination of this
Indenture under any Bankruptcy Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing. The
Holder or Holders of a majority in principal amount of the outstanding Notes 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:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
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(c) a receiver, Custodian or other public officer takes charge
of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holder
of Holders of a majority in principal amount of the Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and after all amounts provided for in Section 7.7 have been paid, the retiring
Trustee shall transfer all property held by it as trustee to the successor
Trustee, subject to the lien provided in Section 7.7, the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holder or Holders of at least 10% in principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company and the Guarantors' obligations under Section 7.7 shall
continue for the benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, 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.
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SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1), (2) and (5). The Trustee shall have a combined capital and surplus
of at least $25,000,000 as set forth in its most recent published annual report
of condition. The Trustee shall comply with TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee 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 VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option at any time, elect to have Section 8.2
or Section 8.3 applied to all outstanding Notes upon compliance with the
conditions set forth below in this Article VIII.
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.2, the Company and the Guarantors shall be deemed to have been
discharged from their respective obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.5 and the other sections of
this Indenture referred to in (a) and (b) below, and the Company and the
Guarantors shall be deemed to have satisfied all other of their respective
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.4, and as more fully set forth in such section, payments
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in respect of the principal of, and premium, if any, interest and Liquidated
Damages, if any, on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Sections 2.4, 2.6, 2.7. 2.10 and
5.2, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's and the Guarantors' obligations in connection
therewith and (d) this Article VIII. Subject to compliance with this Article
VIII, the Company may exercise its option under this Section 8.2 notwithstanding
the prior exercise of its option under Section 8.3 with respect to the Notes.
SECTION 8.3 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.3, the Company and the Guarantors shall be released from their
respective obligations under the covenants contained in Sections 4.4, 4.5, 4.6,
4.7, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17 and Article V with
respect to the outstanding Notes on and after the date the conditions set forth
below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Notes, neither the
Company nor any Guarantor need comply with and shall have any 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 Section 6.1(5) shall not
apply to any such covenant), but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby. In addition, upon
the Company's exercise under Section 8.1 of the option applicable to this
Section 8.3, Sections 6.1(6) and 6.1(7) shall not constitute Events of Default.
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Notes:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this Article
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VIII applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Notes, (a) Cash in an amount, or (b) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, Cash in an amount, or (c)
a combination thereof, in such amounts, as in each case will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of, and premium, if any, interest
and Liquidated Damages, if any, on, the outstanding Notes on the stated maturity
or on the applicable redemption date, as the case may be; PROVIDED that the
Trustee shall have been irrevocably instructed to apply such Cash and the
proceeds of such U.S. Government Obligations to said payments with respect to
the Notes.
(b) In the case of an election under Section 8.2 prior to April 15,
2006, the Company shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) 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 shall confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for Federal income tax purposes as a result of
such Legal Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(c) In the case of an election under Section 8.3 prior to April 15,
2006, the Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee to the effect that the
Holders of the outstanding Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such Covenant Defeasance and will be
subject to Federal income tax in the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) No Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit (other than a
Default or Event of Default resulting from the borrowing of funds to be applied
to such deposit) or, in so far as Section 6.1(9) or (10) is
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concerned, at any time in the period ending on the 91st day after the date of
such deposit (it being understood that this condition is a condition subsequent
of which shall not be deemed satisfied until the expiration of such period, but
in the case of Covenant Defeasance, the covenants which are defeased under
Section 8.3 will cease to be in effect unless an Event of Default under Section
6.1(9) or (10) occurs during such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under any material agreement
or instrument other than the Indenture to which the Company, the Guarantors, or
any Restricted Subsidiary is a party or by which any of them is bound;
(f) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election under Section 8.2 or 8.3 was not made by the Company with the intent of
preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company or others; and
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating that
all conditions precedent provided for relating to either the Legal Defeasance
under Section 8.2 or the Covenant Defeasance under Section 8.3 (as the case may
be) have been complied with as contemplated by this Section 8.4.
SECTION 8.5 DEPOSITED CASH AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6, all Cash and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.5, the "Trustee") pursuant
to Section 8.4 in respect of the outstanding Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, interest, and
Liquidated Damages, if any, but such money need not be segregated from other
funds except to the extent required by law.
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SECTION 8.6 REPAYMENT TO THE COMPANY.
(a) The Trustee and the Paying Agent shall promptly pay to the
Company upon written request any Cash and U.S. Government Obligations (including
the proceeds thereof) held by them at any time in excess of amounts required to
pay principal of, and premium, if any, interest and Liquidated Damages, if any,
on the outstanding Notes on the applicable date.
(b) Any Cash and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, or premium, if any, or
interest or Liquidated Damages, if any, on any Note and remaining unclaimed for
two years after such principal, premium, if any, or interest or Liquidated
Damages, if any, has become due and payable shall be paid to the Company on its
request; and the Holder of such Notes shall thereafter look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; PROVIDED that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the NEW YORK TIMEs and THE
WALL STREET JOURNAL (national edition), 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 notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.7 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any Cash or U.S.
Government Obligations in accordance with Section 8.2 or 8.3, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's and the Guarantors' obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 until such time as the Trustee or Paying Agent is permitted
to apply such money in accordance with Section 8.2 and 8.3, as the case may be;
PROVIDED that, if the Company makes any payment of principal of, or premium, if
any, or interest or Liquidated Damages, if any, on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the Cash or U.S.
Government Obligations held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holder, the Company (when authorized by
Board Resolutions) and the Trustee, at any time and from time to time, may amend
or supplement the Indenture or the Notes or the Note Guarantees in form
satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this Indenture,
provided such action pursuant to this clause (1) shall not adversely affect the
interests of any Holder in any respect;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to add to the covenants of the Company or the Guarantors for the
benefit of the Holders, or to surrender any right or power herein conferred upon
the Company or the Guarantors or to make any other change that does not
adversely affect the legal rights of any Holder under the Indenture, provided
that the Company or the Guarantors have delivered to the Trustee an Opinion of
Counsel stating that such change does not adversely affect the rights of any
Holder;
(4) to provide for additional Guarantors of the Notes or the release,
in accordance with Section 4.17, of any Guarantor or the Note Guarantees;
(5) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the obligations of the Company, herein
and in the Notes in accordance with Article V;
(6) to comply with requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA;
(7) to provide for the issuance and authorization of the New Notes;
or
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(8) if no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof, to provide for the issuance
of Pari Passu Debt pursuant to such an indenture supplemental hereto in an
aggregate principal amount at any time outstanding not to exceed $40.0 million;
PROVIDED that the provisions of such a supplemental indenture would not have a
material adverse effect on the rights and entitlements of the Holders of the
original issuance of Notes hereunder.
SECTION 9.2 AMENDMENTS, SUPPLEMENTAL INDENTURES AND WAIVERS WITH
CONSENT OF HOLDERS.
Subject to Section 6.8, with the consent of the Holders of at least
the majority in aggregate principal amount of then outstanding Notes (including
consents obtained in connection with a purchase of or tender offer or exchange
offer for, Notes), by written act of said Holders delivered to the Company and
the Trustee, the Company when authorized by Board Resolutions, and the Trustee
may amend or supplement this Indenture or the Notes or enter into an indenture
or supplemental indentures hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Notes or of modifying in any manner the rights of the Holders under this
Indenture or the Notes. Subject to Section 6.8, the Holder or Holders of not
less than a majority in principal amount of then outstanding Notes may waive
compliance by the Company or any Guarantor with any provision of this Indenture
or the Notes. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, (a) without the consent of the Holders
of at least 75% in aggregate principal amount of the Notes at the time
outstanding (including consents obtained in connection with a tender offer or
exchange offer for Notes), make any change in the provision contained in
Sections 4.13, 11.1 and Article XII that adversely affects the rights of any
Holder of Notes (other than a reduction of the Change of Control Payment or the
Excess Proceeds Payment as provided in clause (3) below or a change in the time
of any such payment not required by applicable law), and (b) without the consent
of the Holder of each outstanding Note affected thereby:
(1) reduce the percentage of principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver of any provision of this
Indenture or the Notes;
(2) reduce the rate or change the time for payment of interest on any
Note;
(3) reduce the principal amount of any Note, or reduce the Change of
Control Payment, the Excess Proceeds
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Payment or the Redemption Price or change the time (other than changes required
by applicable law) of any required redemption or repurchase with respect to the
Notes;
(4) change the Stated Maturity of any Note;
(5) waive a Default or Event of Default in the payment of principal
of, or premium, if any, or interest or Liquidated Damages, if any, on the Notes
(except that Holders of more than 50% in aggregate principal amount of the Notes
may rescind acceleration of the Notes and waive the payment default that
resulted from such acceleration);
(6) make any changes to the provisions of this third sentence of this
Section 9.2;
(7) make the principal of, or the interest on, any Note payable with
anything or in any manner other than as provided for in this Indenture
(including changing the place of payment where, or the coin or currency in
which, any Note or any premium or the interest thereon is payable) and the Notes
as in effect on the date hereof; or
(8) release any Note Guarantee other than pursuant to Section 4.17.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
After an amendment, supplement or waiver under this Section 9.2 or
Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
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SECTION 9.3 COMPLIANCE WITH TIA.
Every amendment, waiver or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as
to his Note or portion of his Note by written notice to the Company or the
Person designated by the Company as the Person to whom consents should be sent
if such revocation is received by the Company or such Person before the date on
which the Trustee receives an Officers' Certificate certifying that the Holders
of the requisite principal amount of Notes have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
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, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. 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, and only those Person (or
their duly designated proxies), 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 Noteholder, unless it makes a change described in any of clauses (1)
through (9) of Section 9.2, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; PROVIDED that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of, and premium,
interest and Liquidated Damages on a Note, on or after the respective dates set
for such amounts to become due and payable expressed in such Note, or to bring
suit for the enforcement of any such payment on or after such respective dates.
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SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee or
require the Holder to put an appropriate notation on the Note. The Trustee may
place an appropriate notation on the Note about the changed terms and return it
to the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms. Any failure to make the appropriate
notation or to issue a new Note shall not affect the validity of such amendment,
supplement or waiver.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; 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 stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture.
SECTION 9.7 EFFECT ON SENIOR DEBT.
No supplemental indenture shall adversely affect the rights of any
holders of Senior Debt under Article Twelve unless the requisite holders of each
issue of Senior Debt affected thereby shall have consented to such supplemental
indenture.
ARTICLE X
MEETINGS OF NOTEHOLDERS
SECTION 10.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Noteholders may be called at any time and from time to
time pursuant to the provisions of this Article X for any of the following
purposes:
(a) to give any notice to the Company, any Guarantor or the Trustee,
or to give any directions to the Trustee, or to waive or to consent to the
waiving of any Default or Event of Default hereunder and its consequences,
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or to take any other action authorized to be taken by Noteholders pursuant to
any of the provisions of Article VI;
(b) to remove the Trustee or appoint a successor Trustee pursuant to
the provisions of Article VII;
(c) to consent to an amendment, supplement or waiver and the
execution of an indenture or indentures supplemental hereto pursuant to the
provisions of Section 9.2; or
(d) to take any other action (i) authorized to be taken by or on
behalf of the Holder or Holders of any specified aggregate principal amount of
the Notes under any other provision of this Indenture, or authorized or
permitted by law or (ii) which the Trustee deems necessary or appropriate in
connection with the administration of this Indenture.
SECTION 10.2 MANNER OF CALLING MEETINGS.
The Trustee may at any time call a meeting of Noteholders to take any
action specified in Section 10.1, to be held at such time and at such place in
the City of New York, New York or elsewhere as the Trustee shall determine.
Notice of each meeting of Noteholders, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed by the Trustee, first-class postage prepaid, to the Company, the
Guarantors and the Holders at their last addresses as they shall appear on the
registration books of the Registrar, not less than 10 nor more than 60 days
prior to the date fixed for such meeting.
Any meeting of Noteholders shall be valid without notice if the
Holders of all Notes then outstanding are present in Person or by proxy, or if
notice is waived before or after the meeting by the Holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
SECTION 10.3 CALL OF MEETINGS BY THE COMPANY OR HOLDERS.
In case at any time the Company or the Holders of not less than 20% in
aggregate principal amount of the Notes then outstanding shall have requested
the Trustee to call a meeting of Noteholders of take any action specified in
Section 10.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
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Company or the Holders of Notes in the amount above specified may determine the
time and place in The City of New York, New York or elsewhere for such meeting
and may call such meeting, for purpose of taking such action, by mailing or
causing to be mailed notice thereof as provided in Section 10.2, or by causing
notice thereof to be published at least once in each of two successive calendar
weeks (on any Business Day during such week) in a newspaper or newspapers
printed in the English language, customarily published at least five days a week
of a general circulation in The City of New York, State of New York; the first
such publication to be not less than 10 nor more than 60 days prior to the date
fixed for the meeting.
SECTION 10.4 WHO MAY ATTEND AND VOTE AT MEETINGS.
To be entitled to vote at any meeting of Noteholders, a Person shall
(a) be a registered holder of one or more Notes, or (b) be a Person appointed by
an instrument in writing as proxy for the registered Holder or Holders of Notes.
The only Persons who shall be entitled to be present or to speak at any meeting
of Noteholders shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and the Guarantors and their counsel.
SECTION 10.5. REGULATIONS MAY BE MADE BY TRUSTEE; CONDUCT OF THE
MEETING; VOTING RIGHTS; ADJOURNMENT.
Notwithstanding any other provision of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any action by or
any meeting of Noteholders, in regard to proof of the holding of Notes and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think appropriate. Such regulations may fix
a record date and time for determining the Holders of record of Notes entitled
to vote at such meeting, in which case those and only those Persons who are
Holders of Notes at the record date and time so fixed, or their proxies, shall
be entitled to vote at such meeting whether or not they shall be such Holders at
the time of the meeting.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 10.3, in which case the Company
or the Noteholders calling the meeting, as the case
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may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Notes represented at the meeting and
entitled to vote.
At any meeting each Noteholder or proxy shall be entitled to one vote
for each $1,000 principal amount of Notes held or represented by him; PROVIDED
that no vote shall be cast or counted at any meeting in respect of any Notes
challenged as not outstanding and ruled by the chairman of the meeting to be not
then outstanding. The chairman of the meeting shall have no right to vote other
than by virtue of Notes held by him as the proxy to vote on behalf of other
Noteholders. Any meeting of Noteholders duly called pursuant to the provisions
of Section 10.2 or Section 10.3 may be adjourned from time to time by vote of
the Holder or Holders of a majority in aggregate principal amount of the Notes
represented at the meeting and entitled to vote, and the meeting may be held as
so adjourned without further notice.
SECTION 10.6 VOTING AT THE MEETING AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Noteholders
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Notes or of their representatives by proxy and the principal amount
of the Notes voted by the ballot. Subject to the Trustee's regulations adopted
under Section 10.5, the permanent chairman of the meeting shall appoint two
inspectors of votes, who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of
Noteholders shall be prepared by the secretary of the meeting, and there shall
be attached to such record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits, by one or more Persons having
knowledge of the facts, setting forth a copy of the notice of the meeting and
showing that such notice was mailed as provided in Section 10.2 or published as
provided in Section 10.3. The record shall be signed and verified by the
affidavits of the permanent chairman and the secretary of the meeting, and one
of the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
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SECTION 10.7 EXERCISE OF RIGHTS OF TRUSTEE OR NOTEHOLDERS MAY NOT BE
HINDERED OR DELAYED BY CALL OF MEETING.
Nothing contained in this Article X shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Noteholders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Noteholders under any of the provisions of
this Indenture or of the Notes.
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1 REPURCHASE OF NOTES AT OPTION OF THE HOLDER UPON A
CHANGE OF CONTROL.
(a) In the event that a Change of Control occurs, each Holder shall
have the right, at such Holder's option, subject to the terms and conditions of
this Indenture, to require the Company to repurchase all or any part of such
Holder's Notes (provided, that the principal amount of such Notes at maturity
must be $1,000 or an integral multiple thereof) at a cash price (the "Change of
Control Payment") equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest and Liquidated Damages, if any, to and including the
date (the "Change of Control Payment Date") the Notes tendered are purchased and
paid for in accordance with this Article XI which shall be three Business Days
after the Change of Control Put Date.
Prior to complying with the provisions of this Article XI, but in any
event within 30 days following a Change of Control, the Company will either
repay all outstanding Senior Debt or obtain the requisite consents, if any,
under all agreements governing outstanding Senior Debt to permit the repurchase
of Notes under this Article XI.
(b) In the event of a Change of Control, the Company shall be
required to commence an offer to purchase Notes (a "Change of Control Offer") as
follows:
(1) the Company shall provide the Trustee with notice of the Change
of Control Offer at least five Business Days before the commencement of any
Change of Control Offer;
(2) the Change of Control Offer shall remain open for 20 Business
Days, except to the extent that a
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longer period is required by applicable law after the occurrence of the
Change of Control; and
(3) within 30 days following any Change of Control, the Company or
the Trustee (upon the request and at the expense of the Company) shall
send, by first-class mail, a notice to each of the Noteholders which (to
the extent consistent with this Indenture) shall govern the terms of the
Change of Control Offer and shall state:
(i) that the Change of Control Offer is being made pursuant to
such notice and this Section 11.1 and that all Notes, or portions thereof,
tendered will be accepted for payment;
(ii) the Change of Control Payment, including the amount of
accrued and unpaid interest and Liquidated Damages as of the then
applicable Change of Control Payment Date and the Change of Control Put
Date (as defined below);
(iii) that any Note, or portion thereof, not tendered or accepted
for payment will continue to accrue interest;
(iv) that, unless the Company defaults in depositing Cash with
the Paying Agent in accordance with the last paragraph of this Article XI
or such payment is prevented, any Note, or portion thereof, accepted for
payment pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Payment Date;
(v) that Holders electing to have a Note, or portion thereof,
purchased pursuant to a Change of Control Offer will be required to
surrender the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Paying Agent (which
may not for purposes of this Section 11.1, notwithstanding anything in this
Indenture to the contrary, be the Company or any Affiliate of the Company)
at the address specified in the notice prior to the close of business on
the third Business Day prior to the Change of Control Payment Date (the
"Change of Control Put Date");
(vi) that Holders will be entitled to withdraw their election, in
whole or in part, if the Paying Agent (which may not for purposes of this
Section 11.1, notwithstanding anything in this Indenture to the contrary,
be the Company or any Affiliate of the Company) receives, up to the close
of
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business on the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Notes the Holder is withdrawing and a statement
that such Holder is withdrawing his election to have such principal amount
of Notes purchased;
(vii) that Holders whose Notes are purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered; and
(viii) a brief description of the events resulting in such Change
of Control.
Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture which conflict with such
laws shall be deemed to be superseded by the provisions of such laws.
On or before the Change of Control Payment Date, the Company shall (i)
accept for payment Notes or portions thereof properly tendered pursuant to the
Change of Control Offer on or before the Change of Control Put Date, (ii)
deposit with the Paying Agent Cash sufficient to pay the Change of Control
Payment (including accrued and unpaid interest and Liquidated Damages) for all
Notes or portions thereof so tendered and (iii) deliver or cause to be delivered
to the Trustee Notes so accepted together with an Officers' Certificate listing
the Notes or portions thereof being purchased by the Company. The Paying Agent
shall on the Change of Control Payment Date mail to Holders of Notes so accepted
payment in an amount equal to the Change of Control Payment for such Notes, and
the Trustee shall promptly authenticate and mail or deliver (or cause to be
transferred by book entry) to such holders a new Note equal in principal amount
to any unpurchased portion of the Note surrendered PROVIDED, that each such new
Note will be in a principal amount of $1,000 or an integral multiple thereof.
The Company shall not have any obligation to accept for payment or pay for any
Notes tendered by a Holder after the Change of Control Put Date. Any Note not
so accepted shall be promptly mailed or delivered by the Company to the Holder
thereof.
The Company will publicly announce the results of the Change of
Control Offer as soon as practicable after the Change of Control Payment. The
Company will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the
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requirements set forth in this Section and purchases all Notes validly tendered
and not withdrawn under such Change of Control Offer
ARTICLE XII
SUBORDINATION
SECTION 12.1 NOTES SUBORDINATED TO SENIOR DEBT.
The Company and the Guarantors and each Holder, by its acceptance of
Notes, agree that (a) the payment of the principal of and interest on the Notes
and (b) any other payment in respect of the Notes, including on account of the
acquisition or redemption of the Notes by the Company and the Guarantors
(including, without limitation, pursuant to Section 4.13 or 11.1 or by
acceleration) is subordinated, to the extent and in the manner provided in this
Article XII, to the prior payment in full in Cash or U.S. Legal Tender
Equivalents of all Senior Debt of the Company and the Guarantors and that these
subordination provisions are for the benefit of the holders of Senior Debt.
This Article XII shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Debt, and such provisions are made for the benefit of the holders of
Senior Debt, and such holders are made obligees hereunder and anyone or more of
them may enforce such provisions.
SECTION 12.2 NO PAYMENT ON NOTES IN CERTAIN CIRCUMSTANCES.
(a) No payment (by set-off or otherwise) shall be made by or on
behalf of the Company or a Guarantor, as applicable, on account of any
Obligation in respect of the Notes, including the principal of, or premium, if
any, interest or Liquidated Damages on the Notes (including any repurchases of
Notes), or on account of the redemption provisions of the Notes (or Liquidated
Damages pursuant to the Registration Rights Agreement), in any such case for
cash, property or securities (except in Permitted Junior Securities or from the
trust described under Article VIII), in the event of default in payment of any
principal of, or premium, if any, or interest on Designated Senior Debt of the
Company or such Guarantor (and, in the case of Senior Debt under the Senior Bank
Facility, all other monetary obligations in respect thereof) when the same
becomes due and payable beyond any applicable period of grace, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise (a
"Payment Default") unless and
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until such Payment Default has been cured or waived or otherwise has ceased to
exist.
(b) Upon (i) the happening of an event of default (other than a
Payment Default) that permits the holders of Designated Senior Debt to declare
such Designated Senior Debt to be due and payable (or, in the case of letters of
credit, require cash collateralization thereof) and (ii) written notice of such
event of default given to the Trustee by the Company or the representative under
the Senior Bank Facility or the holders of any other Designated Senior Debt or
their representative (a "Payment Blockage Notice"), then, unless and until such
event of default has been cured or waived or otherwise has ceased to exist, no
payment (by set-off or otherwise) may be made by or on behalf of the Company or
any guarantor which is an obligor under such Designated Senior Debt on account
of any Obligation in respect of the Notes, including the principal of, or
premium, if any, interest or Liquidated Damages on the Notes, or to repurchase
any of the Notes, or on account of the redemption provisions of the Notes (or
liquidated damages pursuant to the Registration Rights Agreement), in any such
case, other than payments made in Permitted Junior Securities or from the trust
described under Article VIII. Notwithstanding the foregoing, unless the
Designated Senior Debt in respect of which such event of default exists has been
declared due and payable in its entirety (or cash collateral is required for
letters of credit) within 179 days after the Payment Blockage Notice is
delivered as set forth above (such period of 179 or fewer days being hereinafter
referred to as the "Payment Blockage Period") (and such declaration has not been
rescinded or waived), at the end of the Payment Blockage Period, the Company and
the Guarantors shall be required to pay all sums not paid to the Holders of the
Notes during the Payment Blockage Period due to the foregoing prohibitions and
to resume all other payments as and when due on the Notes. Any number of
Payment Blockage Notices may be given; PROVIDED that (i) not more than one
Payment Blockage Notice shall be given within a period of any 360 consecutive
days, and (ii) no default that existed upon the date of such Payment Blockage
Notice or the commencement of such Payment Blockage Period (whether or not such
event of default is on the same issue of Designated Senior Debt) shall be made
the basis for the commencement of any other Payment Blockage Period.
(c) In furtherance of the provisions of Section 12.1, in the event
that, notwithstanding the foregoing provisions of this Section 12.2, any payment
or distribution of assets on account of any Obligation in respect of the Notes,
including principal of or interest on the Notes or to defease or acquire any of
the Notes (including repurchases of Notes pursuant to Section 4.13 or 11.1), or
on account of
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the redemption provisions of the Notes (or Liquidated Damages pursuant to the
Registration Rights Agreement) shall be made for cash, property or securities
(excluding payments made with Permitted Junior Securities or from the trust
described under Article VIII) by the Company or any of the Guarantors and
received by the Trustee, by any Holder or by any Paying Agent (or, if the
Company is acting as the Paying Agent, money for any such payment shall be
segregated and held in trust), at a time when such payment or distribution was
prohibited by the provisions of this Section 12.2, then, unless such payment or
distribution is no longer prohibited by this Section 12.2, such payment or
distribution (subject to the provisions of Section 12.7) shall be received and
held in trust by the Trustee or such Holder or Paying Agent for the benefit of
the holders of Senior Debt of the Company or such Guarantor, and shall be paid
or delivered by the Trustee or such Holders or such Paying Agent, as the case
may be, to the holders of Senior Debt of the Company or such Guarantor remaining
unpaid or unprovided for, or to their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Debt of the Company or such Guarantor may have been
issued, ratably, according to the aggregate amounts unpaid on account of such
Senior Debt held or represented by each, for application to the payment of all
such Senior Debt remaining unpaid or unprovided for, to the extent necessary to
pay or provide for the payment of all such Senior Debt in full in Cash or U.S.
Legal Tender Equivalents or otherwise to the extent holders accept satisfaction
of amounts due by settlement in other than Cash or U.S. Legal Tender Equivalents
after giving effect to all concurrent payments and distributions to or for the
holders of such Senior Debt.
SECTION 12.3 NOTES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR DEBT
ON DISSOLUTION, LIQUIDATION OR REORGANIZATION.
Upon any distribution of assets of the Company or any Guarantor or
upon any dissolution, winding up, total or partial liquidation or reorganization
of the Company or any Guarantor, whether voluntary or involuntary, in
bankruptcy, insolvency, receivership or similar proceeding or upon assignment
for the benefit of creditors or any marshalling of assets or liabilities:
(a) the holders of all Senior Debt of the Company or such Guarantor,
as applicable, shall first be entitled to receive payments in full of all
Obligations due in respect of such Senior Debt (including interest after the
commencement of any such proceeding at the rate specified in the applicable
Senior Debt, whether or not payable or allowable in such proceeding) in Cash or
U.S. Legal Tender
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Equivalents or otherwise to the extent holders accept satisfaction of amounts
due by settlement in other than Cash or U.S. Legal Tender Equivalents (or have
such payment duly provided for) before the Holders are entitled to receive any
payment on account of any Obligation in respect of the Notes, including the
principal of, and premium, if any, interest and Liquidated Damages, if any, on
the Notes (except Holders may receive Permitted Junior Securities and payments
made from the trust described in Article VIII);
(b) any payment or distribution of assets of the Company or such
Guarantor of any kind or character from any source, whether in cash, property or
securities (excluding payments made with Permitted Junior Securities and from
the trust described in Article VIII), to which the Holders or the Trustee on
behalf of the Holders would be entitled (by set-off or otherwise) except for the
provisions of this Article XII, shall be paid by the liquidating trustee or
agent or other Person making such a payment or distribution, directly to the
holders of such Senior Debt or their representative or representatives or to the
Trustee or trustees under any indenture pursuant to which any instrument
evidencing such Senior Debt may have been issued, ratably according to the
respective amounts of Senior Debt held or represented by each, to the extent
necessary to make payment in full in Cash or U.S. Legal Tender Equivalents (or
have such payment duly provided for) all such Senior Debt remaining unpaid after
giving effect to all concurrent payments and distributions to the holders of
such Senior Debt; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company or any Guarantor of any kind or character
from any source, whether in Cash, property or securities (other than Permitted
Junior Securities or payments from the trust described in Article VIII), shall
be received by the Trustee or the Holders or any Paying Agent (or, if the
Company is acting as its own Paying Agent, money for any such payment or
distribution shall be segregated or held in trust) on account of any Obligation
in respect of the Notes, including the principal of, and premium, if any,
interest and Liquidated Damages, if any, on the Notes or to repurchase any of
the Notes, or on account of the redemption provisions of the Notes, before all
Senior Debt of the Company or any Guarantor is paid in full in Cash or U.S.
Legal Tender Equivalents or otherwise to the extent holders accept satisfaction
of amounts due by settlement in other than Cash or U.S. Legal tender
Equivalents, such payment or distribution (subject to the provisions of Section
12.7) shall be received and held in trust by the Trustee or such Holder or
Paying Agent for the benefit of the holders of such Senior Debt, or their
respective representative or
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representatives, or to the trustee or trustees under any indenture pursuant to
which any instrument evidencing such Senior Debt may have been issued, ratably
according to the respective amounts of such Senior Debt held or represented by
each, to the extent necessary to make payment as provided herein of all such
Senior Debt remaining unpaid after giving effect to all concurrent payments and
distributions and all provisions therefor to or for the holders of such Senior
Debt, but only to the extent that as to any holder of such Senior Debt, as
promptly as practical following notice from the Trustee to the holders of such
Senior Debt that such prohibited payment has been received by the Trustee,
Holder(s) or Paying Agent (or has been segregated as provided above), such
holder (or a representative therefor) notifies the Trustee of the amounts then
due and owing on such Senior Debt, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be paid to or for the
holders of such Senior Debt.
SECTION 12.4 NOTEHOLDERS TO BE SUBROGATED TO RIGHTS OF HOLDERS OF
SENIOR DEBT.
Subject to the payment in full in Cash or U.S. Legal Tender
Equivalents of all Senior Debt of the Company or any Guarantor as provided
herein or otherwise to the extent holders accept satisfaction of amounts due by
settlement in other than Cash or U.S. Legal Tender Equivalents, the Holders of
Notes shall be subrogated to the rights of the holders of such Senior Debt to
receive payments or distributions of assets of the Company or such Guarantor
applicable to the Senior Debt until all amounts owing on the Notes shall be paid
in full, and for the purpose of such subrogation no such payments or
distributions to the holders of such 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
XII, which otherwise would have been made to the Holders shall, as between the
Company or any Guarantor and the Holders, be deemed to be payment by the Company
or any Guarantor on account of such Senior Debt, it being understood that the
provisions of this Article XII are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
such Senior Debt, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article XII shall have been
applied pursuant to the provisions of this Article XII, to the payment of
amounts payable under Senior Debt of the Company or any Guarantor, then the
Holders shall be entitled to receive from the holders of such Senior Debt any
payments or distributions received by such holders of Senior Debt in
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excess of the amount sufficient to pay all amounts payable under or in respect
of such Senior Debt in full in Cash or U.S. Legal Tender Equivalents.
SECTION 12.5 OBLIGATIONS OF THE COMPANY AND THE GUARANTORS
UNCONDITIONAL.
Nothing contained in this Article XII or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as between the Company and the
Guarantors and the Holders, the obligation of each such Person, which is
absolute and unconditional, to pay to the Holders the Obligations in respect of
the Notes as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders and creditors of the Company and the Guarantors other than the holders
of the Senior Debt, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XII, of the holders of Senior Debt in respect of cash, property or
securities of the Company and the Guarantors received upon the exercise of any
such remedy. Notwithstanding anything to the contrary in this Article XII or
elsewhere in this Indenture or in the Notes, upon any distribution of assets of
the Company and the Guarantors referred to in this Article XII, the Trustee,
subject to the provisions of Section 7.1 and 7.2, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Debt and other Indebtedness of
the Company or any Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article XII so long as such court has been apprised of, or the order,
decree or certificate makes reference to, the provisions of this Article XII.
Nothing in this Section 12.5 shall apply to the claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
SECTION 12.6 TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until a Trust Officer of the Trustee or any Paying Agent
shall have received, no later than one Business Day prior to
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such payment, written notice thereof from the Company or from one or more
holders of Senior Debt or from any representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instrument
evidencing such Senior Debt may have been issued and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Sections 7.1
and 7.2, shall be entitled in all respects conclusively to assume that no such
fact exists. Nothing in this Article XII shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.7 hereof.
SECTION 12.7 APPLICATION BY TRUSTEE OF ASSETS DEPOSITED WITH IT.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article VIII shall be for the sole benefit of Noteholders and,
to the extent (i) the making of such deposit by the Company shall not be in
contravention of any term or provision of the Senior Bank Facility and (ii)
allocated for the payment of Notes, shall not be subject to the subordination
provisions of this Article XII. Otherwise, any deposit of assets with the
Trustee or the Agent (whether or not in trust) for the payment of principal of,
or premium, if any, or interest on any Notes shall be subject to the provisions
of Sections 12.1, 12.2, 12.3 and 12.4; PROVIDED, THAT, if prior to one Business
Day preceding the date on which by the terms of this Indenture any such assets
may become distributable for any purpose (including without limitation, the
payment of principal of, or premium, of any, or interest or Liquidated Damages
on any Note) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 12.6, then the
Trustee or such Paying Agent shall have full power and authority to receive such
assets and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date.
SECTION 12.8 SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF THE COMPANY, THE GUARANTOR OR HOLDERS OF SENIOR DEBT.
No right of any present or future holders of any Senior Debt to
enforce subordination provisions contained in this Article XII 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 any Guarantor or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company or any Guarantor with
the terms of this Indenture, regardless of any knowledge thereof which any such
holder may have or be otherwise charged with. The
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holders of Senior Debt may extend, renew, modify or amend the terms of the
Senior Debt or any note therefor and release, sell or exchange such note and
otherwise deal freely with the Company and the Guarantors, all without affecting
the liabilities and obligations of the parties to this Indenture or the Holders.
Any renewal or extension of the time of payment of any Senior Debt or
the exercise by the holders of Senior Debt of any of their rights under any
instrument creating or evidencing Senior Debt, including, without limitation,
the waiver of default thereunder, may be made or done all without notice to or
assent from the Holders or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Debt is outstanding or of such Senior Debt, whether or not such release
is in accordance with the provisions of any applicable document, shall in any
way alter or affect any of the provisions of this Article Twelve or of the Notes
relating to the subordination thereof.
SECTION 12.9 NOTEHOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF NOTES.
Each Holder of the Notes by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article XII and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company or any Guarantor (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of assets and liabilities of the Company or
any Guarantor), the immediate filing of a claim for the unpaid balance of his
Notes in the form required in said proceedings and cause said claim to be
approved. 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 each holder of the Senior Debt or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instrument evidencing such Senior Debt may have
been issued is hereby authorized to have the right to file and is hereby
authorized to file an appropriate claim for and on behalf of the Holders of said
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Notes. Nothing herein contained shall be deemed to authorize the Trustee or the
holders of Senior Debt or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instrument
evidencing such Senior Debt may have been issued to authorize or consent to or
accept or adopt on behalf of any Note holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee or the holders of Senior Debt or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instrument evidencing such Senior Debt may have
been issued to vote in respect of the claim of any Noteholder in any such
proceeding.
SECTION 12.10 RIGHT OF TRUSTEE TO HOLD SENIOR DEBT.
The Trustee shall be entitled to all of the rights set forth in this
Article XII in respect of any Senior Debt at any time held by it to the same
extent as any other holder of Senior Debt, and nothing in this indenture shall
be construed to deprive the Trustee of any of its rights as such holder.
SECTION 12.11 ARTICLE XII NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of, or premium,
if any, or interest or Liquidated Damages on the Notes by reason of any
provision of this Article XII shall not be construed as preventing the
occurrence of a Default or an Event of Default under Section 6.1 or in any way
prevent the holders from exercising any right hereunder other than the right to
receive payment on the Notes.
SECTION 12.12 NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders (other than
for its willful misconduct or negligence) if it shall in good faith mistakenly
pay over or distribute to the Holders of Notes or the Company, any Guarantor or
any other Person, cash, property or securities to which any holders of Senior
Debt shall be entitled by virtue of this Article XII or otherwise. Nothing in
this Section 12.12 shall affect the obligation of any other such Person to hold
such payment for the benefit of, and to pay such payment over to, the holders of
Senior Debt or their representative.
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ARTICLE XIII
NOTE GUARANTEE
SECTION 13.1 NOTE GUARANTEE.
(a) In consideration of good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, to the fullest extent permitted
by applicable law, each of the Guarantors hereby irrevocably and unconditionally
Guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Notes or the obligations of the
Company under this Indenture or the Notes, that: (w) the principal of, and
premium (if any), interest and Liquidated Damages (if any) on the Notes will be
paid in full when due, whether at the maturity or interest payment date, by
acceleration, call for redemption, upon a Change of Control, an Asset Sale Offer
or otherwise; (x) all other obligations of the Company to the Holders or the
Trustee under this Indenture or the Notes will be promptly paid in full or
performed, all in accordance with the terms of this Indenture and the Notes; and
(y) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, they will be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity, by
acceleration, call for redemption, upon a Change of Control, an Asset Sale Offer
or otherwise. Failing payment when due of any amount so Guaranteed for whatever
reason, each Guarantor shall be obligated, subject to the provisions of Article
XII, to pay the same before failure so to pay becomes an Event of Default.
(b) Each Guarantor hereby agrees to the fullest extent permitted by
applicable law, that its obligations with regard to this Note Guarantee shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
delays in obtaining or realizing upon or failures to obtain or realize upon
collateral, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstances that might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or right to require the prior disposition
of the assets of the Company to meet its obligations, protest, notice and all
demands whatsoever and covenants that this
107
Note Guarantee will not be discharged except by complete performance of the
obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either the Company or any Guarantor, or any Custodian or
similar official acting in relation to either the Company or such Guarantor, any
amount paid by either the Company or such Guarantor to the Trustee or such
holder, this Note Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations Guaranteed hereby until payment in full of all obligations
Guaranteed hereby. Each Guarantor further agrees that, as between such
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the obligations Guaranteed hereby may be accelerated as
provided in Section 6.2 for the purposes of this Note Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration as to the
Company of the obligations Guaranteed hereby, and (ii) in the event of any
declaration of acceleration of those obligations as provided in Section 6.2,
those obligations (whether or not due and payable) will forthwith become due and
payable by each of the Guarantors for the purpose of this Note Guarantee.
(d) It is the intention of each Guarantor and the Company that the
obligations of each Guarantor hereunder shall be in, but not in excess of, the
maximum amount permitted by applicable law. Accordingly, if the obligations in
respect of the Note Guarantee would be annulled, avoided or subordinated to the
creditors of any Guarantor by a court of competent jurisdiction in a proceeding
actually pending before such court as a result of a determination both that such
Note Guarantee was made by such Guarantor without fair consideration and,
immediately after giving effect thereto, such Guarantor was insolvent or unable
to pay its debts as they mature or left with an unreasonably small capital, then
the obligations of such Guarantor under such Note Guarantee shall be reduced by
such court if and to the extent such reduction would result in the avoidance of
such annulment, avoidance or subordination; PROVIDED that any reduction pursuant
to this paragraph shall be made in the smallest amount as is strictly necessary
to reach such result. For purposes of this paragraph, "fair consideration",
"insolvency", "unable to pay its debts as they mature", "unreasonably small
capital" and the effective times of reductions, if any, required by this
paragraph shall be determined in accordance with applicable law.
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SECTION 13.2 EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 13.1, each
Guarantor agrees that a notation of such Note Guarantee substantially in the
form annexed hereto as Exhibit B shall be endorsed on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on behalf
of such Guarantor by two Officers or an Officer and an Assistant Secretary by
manual or facsimile signature.
Each Guarantor agrees that its Note Guarantee set forth in Section
13.1 shall remain in full force and effect and apply to all the Notes
notwithstanding any failure to endorse on each Note a notation of such Note
Guarantee.
If an Officer whose signature is on a Note Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which such Note
Guarantee is endorsed, such Note Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of each Guarantor.
SECTION 13.3 FUTURE SUBSIDIARY GUARANTORS.
The Company and the Guarantors covenant and agree that they shall
cause each Domestic Restricted Subsidiary of the Company acquired or created
after the Issue Date to execute a Note Guarantee in the form of EXHIBIT B hereto
in accordance with the covenant provided under Section 4.17 and will cause such
Domestic Restricted Subsidiary to execute a supplemental Indenture hereto for
the purpose of adding such Domestic Restricted Subsidiary as a Guarantor
hereunder.
SECTION 13.4 CERTAIN BANKRUPTCY EVENTS.
Each Guarantor hereby covenants and agrees, to the fullest extent that
it may do so under applicable law, that in the event of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company, such
Guarantor shall not file (or join in any filing of), or otherwise seek to
participate in the filing of, any motion or request seeking to stay or prohibit
(even temporarily) execution on the Note Guarantee hereby and hereby waives and
agrees not to take the benefit of any such stay of execution, whether under
Section 362 or 105 of the United States Bankruptcy Code or otherwise.
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ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 TIA CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION 14.2 NOTICES.
Any notices or other communications to the Company or any Guarantor or
the Trustee 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 any Guarantor:
Astor Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party shall be deemed to have been given or made as of
the date so delivered, if personally delivered; made as of the date so
delivered, if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and five Business 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 made to a Noteholder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the
110
registration books of the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 14.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA Section 312(c).
SECTION 14.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, such Person shall furnish to
the Trustee:
(1) an Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been met; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such
counsel, all such conditions precedent have been met.
SECTION 14.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture 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
111
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 met; and
(4) a statement as to whether or not, in the opinion of
each such Person, such condition or covenant has been met;
PROVIDED, HOWEVER, that with respect to such matters of fact an
Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
SECTION 14.6 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
the Noteholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 14.7 LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York are authorized or obligated by law or
executive order to close. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 14.8 GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE COMPANY AND THE
GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND
THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF
THE COMPANY AND THE GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
112
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL EFFECT THE RIGHT OF THE TRUSTEE OR ANY NOTEHOLDER TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY AND THE GUARANTORS IN ANY OTHER
JURISDICTION.
SECTION 14.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Guarantor or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 14.10 NO RECOURSE AGAINST OTHERS.
No partner, incorporator, direct or indirect stockholder, director,
officer, employee or affiliate (other than the Company and the Guarantors), as
such, past, present or future, of the Company or any Guarantor, or any successor
entity, shall have any personal liability for any obligations of the Company and
the Guarantors under the Notes, the Note Guarantees or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation, by reason of his, her or its status as such partner, incorporator,
stockholder, director, officer or employee or affiliate (other than the Company
and the Guarantors). Each Noteholder by accepting a Note waives and releases
all such liability. Such waiver and release are part of the consideration for
the issuance of the Notes.
SECTION 14.11 SUCCESSORS.
All agreements of the Company and the Guarantor in this Indenture and
the Notes shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 14.12 DUPLICATE ORIGINALS.
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 14.13 SEVERABILITY.
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity,
113
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 14.14 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 14.15 QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA in accordance
with the terms and conditions of the Registration Rights Agreement and shall pay
all costs and expenses (including attorneys' fees for the Company and the
Trustee) incurred in connection therewith, including but not limited to, costs
and expenses of qualification of the Indenture and the Notes and printing this
Indenture and the Notes. The Trustee shall be entitled to receive from the
Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 14.16 REGISTRATION RIGHTS.
Certain Holders of the Notes may be entitled to certain registration
rights with respect to such Notes pursuant to, and subject to the terms of, the
Registration Rights Agreement.
114
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
ASTOR CORPORATION,
[Seal]
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name:
Title:
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Secretary
GUARANTOR: ASTOR HOLDINGS II, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Name:
Title:
STATE STREET BANK
AND TRUST COMPANY,
---------------------------
as Trustee
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
Name:
Title:
115
Exhibit A
FORM OF NOTE
ASTOR CORPORATION
10 1/2% SENIOR SUBORDINATED NOTE
DUE 2006
No. CUSIP No.
$
Astor Corporation, a Delaware corporation (hereinafter called the
"Company", which term includes any successors under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of $___________ Dollars, on October 15,
2006.
Interest Payment Dates: October 15 and April 15, commencing on April
15, 1997.
Record Dates: October 1 and April 1.
Reference is made to the further provisions of this Note on the
reverse side, which will, for all purposes, have the same effect as if set forth
as this place.
Dated: ____________, 1996
ASTOR CORPORATION
By: ______________________
Name:
Title:
Attest: ________________
Secretary
A-1
FORM OF TRUSTEE'S CERTIFICATION OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
________________________
as Trustee
By: ________________________
Authorized Signature
Dated: ___________, ____
A-2
ASTOR CORPORATION
10 1/2% SENIOR SUBORDINATED NOTE
DUE 2006
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the depositary or another nominee of the Depositary or by the Depositary of any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.(1)
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION. BY ITS ACCEPTANCE HEREOF, THE HOLDER
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QUALIFIED INSTITUTIONAL BUYER") OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR"
--------------------
(1) This paragraph should only be added if the Note is issued in global
form.
A-3
(AS DEFINED IN RULE 501(A)(1), (2) (3) OR (7) UNDER THE
SECURITIES ACT).
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE OF THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE
TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISIONS) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO ASTOR
CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR
THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF
$250,000 AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO ASTOR CORPORATION'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE
FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON
A-4
THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO ASTOR CORPORATION AND THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.(2)
1. INTEREST.
Astor Corporation, a Delaware corporation (hereinafter called the
"Company," which term includes any successors under the Indenture hereinafter
referred to), promises to pay interest on the principal amount of this Note at
the rate of 10 1/2% per annum. To the extent it is lawful, the Company promises
to pay interest on any interest payment due but unpaid on such principal amount
at a rate of 10 1/2% per annum compounded semi-annually.
The Company will pay interest semi-annually on
October 15 and April 15 of each year (each, and "Interest Payment Date"),
commencing on April 15, 1997. Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid on
the Notes, from the date of original issuance. Interest will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
2. METHOD OF PAYMENT.
The Company shall pay interest on the Notes (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. Holders
must surrender Notes to a Paying Agent to collect principal payments. Except as
provided below, the Company shall pay principal and interest in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("U.S. Legal Tender"). The
Company will pay principal and interest by its check payable in such U.S. Legal
Tender. The Company may deliver any such interest payment to the Paying Agent
or the Company may mail any such interest payment to a Holder at the Holder's
registered address.
--------------------
(2) This legend should not be added to New Notes.
A-5
3. PAYING AGENT AND REGISTRAR.
Initially, State Street Bank and Trust Company (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. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Paying Agent,
Registrar or co-Registrar.
4. INDENTURE.
The Company issued the Notes under an Indenture, dated as of October
8, 1996 (the "Indenture"), among the Company, the Guarantors named therein and
the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act, as in effect on the date of the Indenture. The Notes are subject
to all such terms, and Holders of Notes are referred to the Indenture and said
Act for a statement of them. The Notes are general unsecured obligations of the
Company.
5. REDEMPTION.
The Notes may be redeemed in whole or from time to time in part at any
time on and after October 15, 2001, at the option of the Company, at the
Redemption Price (expressed as a percentage of principal amount) set forth below
with respect to the indicated Redemption Date, in each case, plus any accrued
but unpaid interest and Liquidated Damages thereon to the Redemption Date. The
Notes may not be so redeemed prior to October 15, 2001 (other than out of the
Net Proceeds of certain issuances of common stock of the Company described
below).
-----------------------------------------------------------------------
If redeemed during the
12-month period
beginning Redemption Price
-----------------------------------------------------------------------
2001 . . . . . . . . . . . . . . . . . . . 105.25%
2002 . . . . . . . . . . . . . . . . . . . 103.50%
2003 . . . . . . . . . . . . . . . . . . . 101.75%
2004 and thereafter. . . . . . . . . . . . 100.00%
-----------------------------------------------------------------------
Notwithstanding the foregoing, at any time prior to October 15, 1999,
the Company may also redeem up to $35.0 million aggregate principal amount of
the Notes at a Redemption Price equal to 109.5% of the principal amount of the
Notes, together with accrued and unpaid interests to the Redemption Date with
the Net Proceeds from one or more Public Equity Offering in the case of an
offering by the
A-6
Company, or from such proceeds invested directly or indirectly by the Parent or
Astor Holdings II in Qualified Capital Stock in the case of an offering by the
Parent or Astor Holdings II; PROVIDED that at least $75.0 million in aggregate
principal amount of the Notes originally issued remain outstanding after each
such redemption and that each such redemption occurs within 75 days after the
receipt of such Net Proceeds.
Any such redemption will comply with Article III of the Indenture.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have had
to pay if the Company then had elected to redeem the Notes pursuant to Section
3.1 of the Indenture, an equivalent premium shall also become and be immediately
due and payable to the extent permitted by law upon the acceleration of the
Notes. If an Event of Default occurs prior to October 15, 2001 by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding the prohibition on redemption of the Notes prior
to October 15, 2001, then an amount equivalent to the Redemption Price
applicable to redemptions made during the twelve-month period following October
15, 2001 shall also become immediately due and payable to the extent permitted
by law upon the acceleration of the Notes.
6. NOTICE OF REDEMPTION.
Notice of redemption will be sent by first class mail, at least 30
days and not more than 60 days prior to the Redemption Date to the Holder of
each Note to be redeemed at such Holder's last address as then shown upon the
registry books of the Registrar. Notes may be redeemed in part in multiples of
$1,000 only.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Notes called for redemption shall have
been deposited with the Paying Agent on such Redemption Date and payment of the
Notes called for redemption is not prohibited under Article XII of the
Indenture, the Notes called for redemption will cease to bear interest and the
only right of the Holders of such Notes will be to receive payment of the
Redemption Price, plus any accrued and unpaid interest to the Redemption Date.
A-7
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000; provided that Notes will initially be
issued only to Institutional Accredited Investors in denominations of $250,000
and any multiple of $1,000 in excess thereof. A Holder may register the
transfer of, or exchange Notes in accordance with, the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsement and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Notes selected for redemption.
8. PERSONS DEEMED OWNERS.
The registered Holder of a Note may be treated as the owner of it for
all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at its written request. After that, all liability of the Trustee
and such Paying Agent(s) with respect to such money shall cease.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, Cash, U.S.
Government Obligations or a combination thereof, in such amounts as will be
sufficient in the opinion of a nationally recognized firm of independent public
accountants selected by the Trustee, to pay the principal of, and premium, if
any, interest and Liquidated Damages on the Notes to redemption or maturity and
complies with the other provisions of the Indenture relating thereto, the
Company and the Guarantors will be discharged from certain provisions of the
Indenture and the Notes (including the financial covenants, but excluding their
obligation to pay principal of, and premium, if any, interest and Liquidated
Damages, if any, on the Notes). Upon satisfaction of certain additional
conditions set forth in the Indenture, the Company may, within one year of the
Stated Maturity of the Notes, elect to have its and the Guarantors' obligations
discharged with respect to outstanding Notes.
A-8
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding. Without
notice to or consent of any Holder, the parties thereto may under certain
circumstances amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency, or make any other change
that does not adversely affect the rights of any Holder of a Note.
12. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of the
Company and the Guarantors to, among other things, incur additional Indebtedness
and issue Disqualified Stock, pay dividends or make certain other restricted
payments, enter into certain transactions with Affiliates, incur Liens, sell
assets, merge or consolidate with any other Person or transfer (by lease,
assignment or otherwise) substantially all of the properties and assets of the
Company. The limitations are subject to a number of important qualifications
and exceptions. The Company must periodically report to the Trustee on
compliance with such limitations.
13. RANKING.
Payment of principal, and premium, if any, interest and Liquidated
Damages, if any, on the Notes is subordinated, in the manner and to the extent
set forth in the Indenture, to the prior payment in full of all Senior Debt.
14. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
offer to purchase on the Change of Control Payment Date all outstanding Notes at
a purchase price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, to the Change of Control Payment
Date. Holders of Notes will receive a Change of Control Offer from the Company
prior to any related Change of Control Payment Date and may elect to have such
Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
(b) The Indenture imposes certain limitations on the ability of the
Company, the Guarantors or any of their respective Subsidiaries to sell assets.
In the event the
A-9
proceeds from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Company will be required either to reinvest the proceeds of such
Asset Sale in its business or to make an offer to purchase each Holder's Notes
at 100% of the principal amount thereof, plus accrued interest and Liquidated
Damages, if any, to the purchase date.
15. SUCCESSORS.
When a successor assumes all the obligations of its predecessor under
the Notes and the Indenture, the predecessor will be released from those
obligations.
16. DEFAULTS AND REMEDIES.
If an Event of Default occurs and is continuing (other than as an
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Notes shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Notes then outstanding may
declare all the Notes to be due and payable immediately in the manner and with
the effect provided in the Indenture. Holders of Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in aggregate
principal amount of the Notes then outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest), if it determines that withholding notice is
in their interest.
17. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture may, in its individual or any other
capacity, make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS.
No partner, incorporator, direct or indirect stockholder, director,
officer, employee or affiliate (other than the Company or the Guarantors), as
such, past, present or future, of the Company or any Guarantor, or any successor
entity, shall have any personal liability for any obligations of the Company and
the Guarantors under the Notes or the Indenture or for any claim based on, in
respect
A-10
of, or by reason of, such obligations or their creation by reason of his, her or
its status as such partner, incorporator, stockholder, director, officer,
employee or affiliate. Each Holder of a Note by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
19. AUTHENTICATION.
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
20. ABBREVIATIONS AND DEFINED TERMS.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
21. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
22. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED NOTES.
In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Notes shall have all the rights set forth in the
Registration Rights Agreement, including without limitation the right to receive
Liquidated Damages as provided therein.
A-11
FORM OF ASSIGNMENT
I or we assign this Note to
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security Number or other identifying number of
assignee
--------------------------
and irrevocably appoint _______________ agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
Dated: Signed:
----------- ---------------------------------
Signature Guaranteed by an
institution member of the
Signature Guaranty Medallion Program
----------------------------------------------------------------------
(Sign exactly as name appears on
the other side of this Note)
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.13 or Article XI of the Indenture, check the appropriate
box: /__/ Section 4.13 /__/ Article XI
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.13 or Article XI of the Indenture, as the case may
be, state the amount you want to be purchased: $____________
Date: Signature:
------------------ -------------------------
(Sign exactly as your
name appears on the
other side of this
Note)
A-13
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES
The following exchanges of a part of this Global Note for Definitive
Notes have been made:
Principal Signature of
Amount of Amount of Amount of this authorized
decrease in increase in Global Note officer of
Principal Principal following such Trustee or
Date of Amount of this Amount of this decrease (or Notes
Exchange Global Note Global Note increase) Custodian
--------------------------------------------------------------------------------
--------------------
(3)This schedule should only be added if the Note is issued in global
form.
A-14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
NOTES(4)
Re: 10 1/2% SENIOR SUBORDINATED NOTES DUE 2006 OF ASTOR CORPORATION
This Certificate relates to $ principal amount of Notes held
in (check applicable space) book-entry or definitive form
by (the "Transferor").
The Transferor (check applicable box):
/ / has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depositary a Note or
Notes in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global Note
(or the portion thereof indicated above); or
/ / has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above-captioned Notes and as provided in Section 2.6 of such
Indenture, the transfer of this Note does not require registration under the
Securities Act (as defined below) because:
/ / Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.6(a)(ii)(A) of the Indenture).
/ / Such Note is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")) in reliance on Rule 144A (in satisfaction of Section
2.6(b)(i) or Section 2.6(c) of the Indenture) or pursuant to an exemption from
registration in accordance with Regulation S under the Securities Act (in
satisfaction of Section 2.6(b)(i) or Section 2.6(c) of the Indenture).
/ / Such Note is being transformed to an institutional "accredited
investor" within the meaning of Rule 501(A)(1), (2), (3) or (7) under the
Securities Act that is acquiring the note for its own account, or for the
account of such an
--------------------
(4)The following should be included only for Initial Securities.
A-15
institutional "accredited investor", in each case in a minimum principal amount
of the Notes of $250,000, not with a view to or for offer or sale in connection
with any distribution in violation of the Securities Act.
/ / Such Note is being transferred in accordance with Rule 144 under the
Securities Act, or pursuant to an effective registration statement under the
Securities Act.
/ / Such Note is being transferred in reliance on and in compliance with
an exemption from the registration requirements of the Securities Act, other
than as provided in the immediately preceding paragraph. An Opinion of Counsel
to the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate.
----------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------
Date:
----------------------
A-16
EXHIBIT B
FORM OF NOTE GUARANTEE
For value received, _______________, a _________ corporation, hereby
unconditionally guarantees to the Holder of the Note upon which this Note
Guarantee is endorsed the due and punctual payment, as set forth in the
Indenture pursuant to which such Note and this Note Guarantee were issued, of
the principal of, premium (if any), interest and Liquidated Damages (if any) on
such Note when and as the same shall become due and payable for any reason
according to the terms of such Note, Article XIII and Section 4.17 of the
Indenture. The Note Guarantee of the Note upon which this Note Guarantee is
endorsed will not become effective until the Trustee signs the certificate of
authentication on such Note.
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By:
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Attest:
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