EXHIBIT 4.2
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▇▇▇▇▇▇▇ CORPORATION,
THE SUBSIDIARY GUARANTORS PARTIES HERETO,
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
9.25% Senior Notes due 2010
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INDENTURE
Dated as of April 18, 2002
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions and Incorporation by Reference............................................................. 1
SECTION 1.1. Definitions............................................................................... 1
SECTION 1.2. Other Definitions......................................................................... 1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act......................................... 33
SECTION 1.4. Rules of Construction..................................................................... 33
ARTICLE II
The Securities......................................................................................... 34
SECTION 2.1. Form, Dating and Terms.................................................................... 34
SECTION 2.2. Execution and Authentication.............................................................. 41
SECTION 2.3. Registrar and Paying Agent................................................................ 42
SECTION 2.4. Paying Agent to Hold Money in Trust....................................................... 42
SECTION 2.5. Securityholder Lists...................................................................... 42
SECTION 2.6. Transfer and Exchange..................................................................... 43
SECTION 2.7. Form of Certificate to be Delivered in Connection with Transfers to Institutional
Accredited Investors................................................................ 46
SECTION 2.8. Form of Certificate to be Delivered in Connection with Transfers Pursuant
to Regulation S..................................................................... 47
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Securities........................................... 48
SECTION 2.10. Outstanding Securities................................................................... 49
SECTION 2.11. Temporary Securities..................................................................... 50
SECTION 2.12. Cancellation............................................................................. 50
SECTION 2.13. Payment of Interest; Defaulted Interest.................................................. 50
SECTION 2.14. Computation of Interest.................................................................. 51
SECTION 2.15. CUSIP Numbers............................................................................ 51
ARTICLE III
Covenants.............................................................................................. 52
SECTION 3.1. Payment of Securities..................................................................... 52
SECTION 3.2. SEC Reports............................................................................... 52
SECTION 3.3. Limitation on Indebtedness................................................................ 52
SECTION 3.4. Limitation on Restricted Payments......................................................... 57
SECTION 3.5. Limitation on Liens....................................................................... 62
SECTION 3.6. Limitation on Restrictions on Distributions from Restricted Subsidiaries.................. 62
SECTION 3.7. Limitation on Sales of Assets and Subsidiary Stock........................................ 64
SECTION 3.8. Limitation on Affiliate Transactions...................................................... 67
SECTION 3.9. Change of Control......................................................................... 67
SECTION 3.10. Limitation on Sale of Capital Stock of Restricted Subsidiaries........................... 71
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SECTION 3.11. Limitation on Sale/Leaseback Transactions................................................ 71
SECTION 3.12. Future Subsidiary Guarantors............................................................. 72
SECTION 3.13. Limitation on Lines of Business.......................................................... 72
SECTION 3.14. Effectiveness of Covenants............................................................... 72
SECTION 3.15. Maintenance of Office or Agency.......................................................... 72
SECTION 3.16. Corporate Existence...................................................................... 73
SECTION 3.17. Payment of Taxes and Other Claims........................................................ 73
SECTION 3.18. Payments for Consent..................................................................... 73
SECTION 3.19. Compliance Certificate................................................................... 73
SECTION 3.20. Further Instruments and Acts............................................................. 74
SECTION 3.21. Statement by Officers as to Default...................................................... 74
ARTICLE IV
Successor Company...................................................................................... 74
SECTION 4.1. Merger and Consolidation.................................................................. 74
ARTICLE V
Redemption of Securities............................................................................... 75
SECTION 5.1. Optional Redemption....................................................................... 75
SECTION 5.2. Applicability of Article.................................................................. 75
SECTION 5.3. Election to Redeem; Notice to Trustee..................................................... 75
SECTION 5.4. Selection by Trustee of Securities to Be Redeemed......................................... 76
SECTION 5.5. Notice of Redemption...................................................................... 76
SECTION 5.6. Deposit of Redemption Price............................................................... 77
SECTION 5.7. Securities Payable on Redemption Date..................................................... 77
SECTION 5.8. Securities Redeemed in Part............................................................... 78
ARTICLE VI
Defaults and Remedies.................................................................................. 78
SECTION 6.1. Events of Default......................................................................... 78
SECTION 6.2. Acceleration.............................................................................. 81
SECTION 6.3. Other Remedies............................................................................ 81
SECTION 6.4. Waiver of Past Defaults................................................................... 82
SECTION 6.5. Control by Majority....................................................................... 82
SECTION 6.6. Limitation on Suits....................................................................... 82
SECTION 6.7. Rights of Holders to Receive Payment...................................................... 82
SECTION 6.8. Collection Suit by Trustee................................................................ 83
SECTION 6.9. Trustee May File Proofs of Claim.......................................................... 83
SECTION 6.10. Priorities............................................................................... 83
SECTION 6.11. Undertaking for Costs.................................................................... 83
SECTION 6.12. Additional Payments...................................................................... 84
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ARTICLE VII
Trustee................................................................................................ 84
SECTION 7.1. Duties of Trustee......................................................................... 84
SECTION 7.2. Rights of Trustee......................................................................... 85
SECTION 7.3. Individual Rights of Trustee.............................................................. 86
SECTION 7.4. Trustee's Disclaimer...................................................................... 86
SECTION 7.5. Notice of Defaults........................................................................ 86
SECTION 7.6. Reports by Trustee to Holders............................................................. 86
SECTION 7.7. Compensation and Indemnity................................................................ 86
SECTION 7.8. Replacement of Trustee.................................................................... 87
SECTION 7.9. Successor Trustee by Merger............................................................... 88
SECTION 7.10. Eligibility; Disqualification............................................................ 88
SECTION 7.11. Preferential Collection of Claims Against Company........................................ 89
ARTICLE VIII
Discharge of Indenture; Defeasance..................................................................... 89
SECTION 8.1. Discharge of Liability on Securities; Defeasance.......................................... 89
SECTION 8.2. Conditions to Defeasance.................................................................. 90
SECTION 8.3. Application of Trust Money................................................................ 91
SECTION 8.4. Repayment to Company...................................................................... 92
SECTION 8.5. Indemnity for U.S. Government Obligations................................................. 92
SECTION 8.6. Reinstatement............................................................................. 92
ARTICLE IX
Amendments............................................................................................. 92
SECTION 9.1. Without Consent of Holders................................................................ 92
SECTION 9.2. With Consent of Holders................................................................... 93
SECTION 9.3. Compliance with Trust Indenture Act....................................................... 94
SECTION 9.4. Revocation and Effect of Consents and Waivers............................................. 94
SECTION 9.5. Notation on or Exchange of Securities..................................................... 94
SECTION 9.6. Trustee To Sign Amendments................................................................ 95
ARTICLE X
Subsidiary Guarantee................................................................................... 95
SECTION 10.1. Subsidiary Guarantee..................................................................... 95
SECTION 10.2. Limitation on Liability; Termination, Release and Discharge.............................. 96
SECTION 10.3. Right of Contribution.................................................................... 98
SECTION 10.4. No Subrogation........................................................................... 98
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ARTICLE XI
Miscellaneous......................................................................................... 98
SECTION 11.1. Trust Indenture Act Controls............................................................ 98
SECTION 11.2. Notices................................................................................. 99
SECTION 11.3. Communication by Holders with other Holders............................................. 99
SECTION 11.4. Certificate and Opinion as to Conditions Precedent...................................... 100
SECTION 11.5. Statements Required in Certificate or Opinion........................................... 100
SECTION 11.6. When Securities Disregarded............................................................. 100
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar............................................ 100
SECTION 11.8. Legal Holidays.......................................................................... 101
SECTION 11.9. Governing Law........................................................................... 101
SECTION 11.10. No Recourse Against Others............................................................. 101
SECTION 11.11. Successors............................................................................. 101
SECTION 11.12. Multiple Originals..................................................................... 101
SECTION 11.13. Qualification of Indenture............................................................. 101
SECTION 11.14. Table of Contents; Headings............................................................ 101
EXHIBIT A Form of the Series A Note
EXHIBIT B Form of the Series S Note
EXHIBIT C Form of Subsidiary Guarantee
Schedule 1.1(a) Assets held for sale
Schedule 3.8 Existing Affiliate Transactions
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) ...................................................................... 7.10
(a)(2) ...................................................................... 7.10
(a)(3) ...................................................................... N.A.
(a)(4) ...................................................................... N.A.
(b) ...................................................................... 7.8; 7.10
(c) ...................................................................... N.A.
311(a) ...................................................................... 7.11
(b) ...................................................................... 7.11
(c) ...................................................................... N.A.
312(a) ...................................................................... 2.5
(b) ...................................................................... 13.3
(c) ...................................................................... 13.3
313(a) ...................................................................... 7.6
(b)(1) ...................................................................... N.A.
(b)(2) ...................................................................... 7.6
(c) ...................................................................... 7.6
(d) ...................................................................... 7.6
314(a) ...................................................................... 3.2; 3.19; 13.2
(b) ...................................................................... N.A.
(c)(1) ...................................................................... 13.4
(c)(2) ...................................................................... 13.4
(c)(3) ...................................................................... N.A.
(d) ...................................................................... N.A.
(e) ...................................................................... 13.5
315(a) ...................................................................... 7.1
(b) ...................................................................... 7.5; 13.2
(c) ...................................................................... 7.1
(d) ...................................................................... 7.1
(e) ...................................................................... 6.11
316(a)(last sentence) ...................................................................... 13.6
(a)(1)(A) ...................................................................... 6.5
(a)(1)(B) ...................................................................... 6.4
(a)(2) ...................................................................... N.A.
(b) ...................................................................... 6.7
317(a)(1) ...................................................................... 6.8
(a)(2) ...................................................................... 6.9
(b) ...................................................................... 2.4
318(a) ...................................................................... 13.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
INDENTURE dated as of April 18, 2002, among ▇▇▇▇▇▇▇ CORPORATION, an
Alabama corporation (the "Company"), THE SUBSIDIARY GUARANTORS (as defined) and
Wachovia Bank, National Association, a national banking association (the
"Trustee") as Trustee.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (i) the Company's 9.25%
Senior Notes, Series A, due 2010, issued on the date hereof (the "Initial
Securities"), (ii) if and when issued, an unlimited principal amount of
additional 9.25% Senior Notes, Series A, due 2010 in a non-registered offering
or 9.25% Senior Notes, Series S, due 2010 in a registered offering of the
Company that may be offered from time to time subsequent to the Issue Date (the
"Additional Securities") and (iii) if and when issued, the Company's 9.25%
Senior Notes, Series S, due 2010 that may be issued from time to time in
exchange for Initial Securities or any Additional Securities in an offer
registered under the Securities Act as provided in the Registration Rights
Agreement (as hereinafter defined the "Exchange Securities," and together with
the Initial Securities and Additional Securities, the "Securities").
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness (i) of a Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary or (ii) assumed in connection with the acquisition of assets from
such Person, in each case whether or not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition. Acquired Indebtedness shall be
deemed to have been incurred, with respect to clause (i) of the preceding
sentence, on the date such Person becomes a Restricted Subsidiary and, with
respect to clause (ii) of the preceding sentence, on the date of consummation
of such acquisition of assets.
"Additional Assets" means (1) any property or assets (other than
Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Related Business; (2) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or a Restricted Subsidiary of the Company; or (3) Capital
Stock constituting a minority interest in any Person that at such time is a
Restricted Subsidiary of the Company; provided, however, that, in the case of
clauses (2) and (3), such Restricted Subsidiary is primarily engaged in a
Related Business.
"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 the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing;
provided that
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beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Assets Held for Sale" means the properties and assets held for sale
by the Company on the date of this Indenture as set forth on Schedule 1.1(a)
hereto.
"Asset Disposition" means any direct or indirect sale, lease (other
than an operating lease entered into in the ordinary course of business),
transfer, issuance or other disposition, or a series of related sales, leases,
transfers, issuances or dispositions that are part of a common plan, of shares
of Capital Stock of a Subsidiary (other than directors' qualifying shares),
property or other assets (each referred to for the purposes of this definition
as a "disposition") by the Company or any of its Restricted Subsidiaries,
including any disposition by means of a merger, consolidation or similar
transaction.
Notwithstanding the preceding, the following items shall not be deemed
to be Asset Dispositions:
(1) a disposition by a Restricted Subsidiary to the Company or by
the Company or a Restricted Subsidiary to another Restricted
Subsidiary (other than a Receivables Entity);
(2) the sale of Cash Equivalents in the ordinary course of
business;
(3) a disposition of inventory in the ordinary course of
business;
(4) a disposition of obsolete or worn out equipment or equipment
that is no longer useful in the conduct of the business of
the Company or its Restricted Subsidiaries and that is
disposed of in each case in the ordinary course of business;
(5) transactions permitted under Sections 4.1;
(6) an issuance of Capital Stock by a Restricted Subsidiary of
the Company to the Company or to a Wholly-Owned Subsidiary
(other than a Receivables Entity);
(7) for purposes of Section 3.7 only, the making of a Permitted
Investment or the making of a restricted payment pursuant to
Section 3.4;
(8) sales of accounts receivable and related assets or an
interest therein of the type specified in the definition of
"Qualified Receivables Transaction" to a Receivables Entity;
(9) dispositions of assets in a single transaction or series of
related transactions with an aggregate fair market value in
any calendar year of less than $1.5 million (with unused
amounts in any calendar year being
3
carried over to the next succeeding calendar year subject to
a maximum of $2.5 million in such next succeeding fiscal
year);
(10) dispositions in connection with Permitted Liens;
(11) the licensing or sublicensing of intellectual property or
other general intangibles and licenses, leases or subleases
of other property in the ordinary course of business which do
not materially interfere with the business of the Company and
its Restricted Subsidiaries;
(12) the Excluded Sale/Leasebacks;
(13) dispositions of Assets Held for Sale to the extent the Net
Cash Proceeds of such dispositions do not in the aggregate
exceed $25.0 million; and
(14) foreclosure on assets.
"Attributable Indebtedness" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate implicit in such transaction determined in accordance with GAAP)
of the total obligations of the lessee for rental payments during the remaining
term of the lease included in such Sale/Leaseback Transaction (including any
period for which such lease has been extended).
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (1) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness
or redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by (2) the sum of all such payments.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code or any similar
Federal or state law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Borrowing Base" means, as of the date of determination, an amount
equal to the sum, without duplication of (1) 85% of the net book value of the
Company's and its Domestic Subsidiaries' accounts receivable at such date, (2)
50% of the net book value of the Company's and its Domestic Subsidiaries'
inventories at such date and (3) $50.0 million. Net book value shall be
determined in accordance with GAAP and shall be that reflected on the most
recent available balance sheet (it being understood that the accounts
receivable and inventories of an acquired business may be included if such
acquisition has been completed on or prior to the date of determination).
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participation or other equivalents of or
interests in (however
4
designated) equity of such Person, including any Preferred Stock, but excluding
any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation will be the capitalized amount of such
obligation at the time any determination thereof is to be made as determined in
accordance with GAAP, and the Stated Maturity thereof will be the date of the
last payment of rent or any other amount due under such lease prior to the
first date such lease may be terminated without penalty.
"Cash Equivalents" means:
(1) securities issued or directly and fully guaranteed or insured
by the United States Government or any agency or
instrumentality of the United States (provided that the full
faith and credit of the United States is pledged in support
thereof), having maturities of not more than one year from
the date of acquisition;
(2) marketable general obligations issued by any state of the
United States of America or any political subdivision of any
such state or any public instrumentality thereof maturing
within one year from the date of acquisition of the United
States (provided that the full faith and credit of the United
States is pledged in support thereof) and, at the time of
acquisition, having a credit rating of "A" or better from
either Standard & Poor's Ratings Services or ▇▇▇▇▇'▇
Investors Service, Inc.;
(3) certificates of deposit, time deposits, eurodollar time
deposits, overnight bank deposits or bankers' acceptances
having maturities of not more than one year from the date of
acquisition thereof or letters of credit issued in favor of
the Company or one of its Restricted Subsidiaries with a
tenor of no longer than 90 days issued by any commercial bank
the long term debt of which is rated at the time of
acquisition thereof at least "A" or the equivalent thereof by
Standard & Poor's Ratings Services, or "A" or the equivalent
thereof by ▇▇▇▇▇'▇ Investors Service, Inc., and having
combined capital and surplus in excess of $250 million;
(4) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in
clauses (1), (2) and (3) entered into with any bank meeting
the qualifications specified in clause (3) above;
(5) commercial paper rated at the time of acquisition thereof at
least "A-2" or the equivalent thereof by Standard & Poor's
Ratings Services and "P-2" or the equivalent thereof by
▇▇▇▇▇'▇ Investors Service, Inc., or carrying an equivalent
rating by a nationally recognized rating agency, if both of
the
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two named rating agencies cease publishing ratings of
investments, and in any case maturing within one year after
the date of acquisition thereof; and
(6) interests in any investment company or money market fund
which invests at least 95% in instruments of the type
specified in clauses (1) through (5) above.
"Change of Control" means:
(1) any "person" or "group" of related persons (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), other
than Permitted Holders, is or becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that such person or group shall be deemed to have
"beneficial ownership" of all shares that any such person or
group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total voting
power of the Voting Stock of the Company (or its successor by
merger, consolidation or purchase of all or substantially all
of its assets) (for the purposes of this clause, such person
or group shall be deemed to beneficially own any Voting Stock
of the Company held by a parent entity, if such person or
group "beneficially owns" (as defined above), directly or
indirectly, more than 35% of the voting power of the Voting
Stock of such parent entity); or
(2) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors; or
(3) the 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 the Company and its Restricted Subsidiaries
taken as a whole to any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than a
Permitted Holder; or
(4) the adoption by the stockholders of the Company of a plan or
proposal for the liquidation or dissolution of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Consolidated Coverage Ratio" means as of any date of determination,
with respect to any Person, the ratio of (x) the aggregate amount of
Consolidated EBITDA of such Person for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination for
which financial statements are in existence to (y) Consolidated Interest
Expense for such four fiscal quarters, provided, however, that:
(1) if the Company or any Restricted Subsidiary:
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(a) has Incurred any Indebtedness since the beginning of
such period that remains outstanding on such date of
determination or if the transaction giving rise to
the need to calculate the Consolidated Coverage
Ratio is an Incurrence of Indebtedness, Consolidated
EBITDA and Consolidated Interest Expense for such
period will be calculated after giving effect on a
pro forma basis to such Indebtedness as if such
Indebtedness had been Incurred on the first day of
such period (except that in making such computation,
the amount of Indebtedness under any revolving
credit facility outstanding on the date of such
calculation will be computed based on (i) the
average daily balance of such Indebtedness during
such four fiscal quarters or such shorter period for
which such facility was outstanding or (ii) if such
facility was created after the end of such four
fiscal quarters, the average daily balance of such
Indebtedness during the period from the date of
creation of such facility to the date of such
calculation) and the discharge of any other
Indebtedness repaid, repurchased, defeased or
otherwise discharged with the proceeds of such new
Indebtedness as if such discharge had occurred on
the first day of such period; or
(b) has repaid, repurchased, defeased or otherwise
discharged any Indebtedness since the beginning of
the period that is no longer outstanding on such
date of determination or if the transaction giving
rise to the need to calculate the Consolidated
Coverage Ratio involves a discharge of Indebtedness
(in each case other than Indebtedness incurred under
any revolving credit facility unless such
Indebtedness has been permanently repaid and the
related commitment terminated), Consolidated EBITDA
and Consolidated Interest Expense for such period
will be calculated after giving effect on a pro
forma basis to such discharge of such Indebtedness,
including with the proceeds of such new
Indebtedness, as if such discharge had occurred on
the first day of such period;
(2) if since the beginning of such period the Company or any
Restricted Subsidiary will have disposed of any company,
division, operating unit, segment, business, group of related
assets or line if business or if the transaction giving rise
to the need to calculate the Consolidated Coverage Ratio is
an Asset Disposition:
(a) the Consolidated EBITDA for such period will be
reduced by an amount equal to the Consolidated
EBITDA (if positive) directly attributable to the
assets which are the subject of such Asset
Disposition for such period or increased by an
amount equal to the Consolidated EBITDA (if
negative) directly attributable thereto for such
period; and
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(b) Consolidated Interest Expense for such period will
be reduced by an amount equal to the Consolidated
Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to the Company and
its continuing Restricted Subsidiaries in connection
with such Asset Disposition for such period (or, if
the Capital Stock of any Restricted Subsidiary is
sold, the Consolidated Interest Expense for such
period directly attributable to the Indebtedness of
such Restricted Subsidiary to the extent the Company
and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such
sale);
(3) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) will have made
an Investment in any Restricted Subsidiary (or any Person
which becomes a Restricted Subsidiary or is merged with or
into the Company) or an acquisition of assets, including any
acquisition of assets occurring in connection with a
transaction causing a calculation to be made hereunder, which
constitutes all or substantially all of any company,
operating unit, division, segment, business, group of related
assets or line of business, Consolidated EBITDA and
Consolidated Interest Expense for such period will be
calculated after giving pro forma effect thereto (including
the Incurrence of any Indebtedness) as if such Investment or
acquisition occurred on the first day of such period; and
(4) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged
with or into the Company or any Restricted Subsidiary since
the beginning of such period) will have Incurred any
Indebtedness or discharged any Indebtedness, made any Asset
Disposition or any Investment or acquisition of assets that
would have required an adjustment pursuant to clause (1), (2)
or (3) above if made by the Company or a Restricted
Subsidiary during such period, Consolidated EBITDA and
Consolidated Interest Expense for such period will be
calculated after giving pro forma effect thereto as if such
Incurrence or discharge, Asset Disposition or Investment or
acquisition of assets occurred on the first day of such
period.
For purposes of this definition, whenever pro forma effect is to be
given to any calculation under this definition, the pro forma calculations will
be determined in good faith by a responsible financial or accounting officer of
the Company (including pro forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the Securities Act). If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness will be calculated as if the
rate in effect on the date of determination had been the applicable rate for
the entire period (taking into account any Interest Rate Agreement applicable
to such Indebtedness if such Interest Rate Agreement has a
8
remaining term in excess of 12 months). If any Indebtedness that is being given
pro forma effect bears an interest rate at the option of the Company, the
interest rate shall be calculated by applying such optional rate chosen by the
Company.
"Consolidated Current Liabilities" means, as of any date of
determination, the aggregate amount of liabilities of the Company and its
consolidated Restricted Subsidiaries which may properly be classified as
current liabilities (including taxes accrued as estimated), after eliminating:
(1) all intercompany items between the Company and any Restricted
Subsidiary or between Restricted Subsidiaries, and
(2) all current maturities of long-term Indebtedness.
"Consolidated EBITDA" for any period means, without duplication, the
Consolidated Net Income for such period, plus the following to the extent
deducted in calculating such Consolidated Net Income:
(1) Consolidated Interest Expense;
(2) Consolidated Income Taxes;
(3) consolidated depreciation expense;
(4) consolidated amortization (including but not limited to
amortization of goodwill and intangibles);
(5) other non-cash charges reducing Consolidated Net Income
(excluding any such non-cash charge to the extent it
represents an accrual of or reserve for cash charges in any
future period or amortization of a prepaid cash expense that
was paid in a prior period not included in the calculation);
and
(6) for the relevant period of time, cash charges that reduced
Consolidated Net Income during the fiscal year ended December
29, 2001 relating to the Company's restructuring and
reorganization program.
Notwithstanding the preceding sentence, clauses (2) through (5) relating to
amounts of a Restricted Subsidiary of a Person will be added to Consolidated
Net Income to compute Consolidated EBITDA of such Person only to the extent
(and in the same proportion) that the net income (loss) of such Restricted
Subsidiary was included in calculating the Consolidated Net Income of such
Person and, to the extent the amounts set forth in clauses (2) through (5) are
in excess of those necessary to offset a net loss of such Restricted Subsidiary
or if such Restricted Subsidiary has net income for such period included in
Consolidated Net Income, only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained),
9
pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Income Taxes" means, with respect to any Person for any
period, taxes imposed upon such Person or other payments required to be made by
such Person by any governmental authority which taxes or other payments are
calculated by reference to the income or profits of such Person or such Person
and its Restricted Subsidiaries (to the extent such income or profits were
included in computing Consolidated Net Income for such period), regardless of
whether such taxes or payments have been paid, estimated or accrued.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Restricted Subsidiaries determined on a
consolidated basis, whether paid or accrued, plus, to the extent not included
in such interest expense:
(1) interest expense attributable to Capitalized Lease
Obligations and the interest portion of rent expense
associated with Attributable Indebtedness in respect of the
relevant lease giving rise thereto, determined as if such
lease were a capitalized lease in accordance with GAAP and
the interest component of any deferred payment obligations;
(2) amortization of debt discount and debt issuance cost;
(3) non-cash interest expense;
(4) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance
financing;
(5) the interest expense actually paid with respect to a
Guarantee of Indebtedness of another Person or with respect
to Indebtedness of another Person that is secured by a Lien
on assets of such Person or one of its Restricted
Subsidiaries;
(6) net costs associated with Hedging Obligations (including
amortization of fees);
(7) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such
period;
(8) the product of (a) all dividends paid or payable in cash,
Cash Equivalents or Indebtedness or accrued during such
period on any series of Disqualified Stock of such Person or
on Preferred Stock of its Restricted Subsidiaries payable to
a party other than the Company or a Wholly-Owned 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, provincial and local statutory tax rate of
such Person, expressed as a
10
decimal, in each case, on a consolidated basis and in
accordance with GAAP; and
(9) the cash contributions to any employee stock ownership plan
or similar trust to the extent such contributions are used by
such plan or trust to pay interest to any Person (other than
the Company) in connection with Indebtedness Incurred by such
plan or trust; provided, however, that there will be excluded
therefrom any such interest expense of any Unrestricted
Subsidiary to the extent the related Indebtedness is not
Guaranteed or paid by the Company or any Restricted
Subsidiary.
For purposes of the foregoing, total interest expense will be determined after
giving effect to any net payments made or received by the Company and its
Subsidiaries with respect to Interest Rate Agreements.
"Consolidated Net Income" means, for any period, the net income (loss)
of the Company and its Restricted Subsidiaries determined on a consolidated
basis in accordance with GAAP; provided,however, that there will not be
included in such Consolidated Net Income:
(1) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that:
(a) subject to the limitations contained in clauses (3),
(4) and (5) below, the Company's equity in the net
income of any such Person for such period will be
included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by
such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or
other distribution to a Restricted Subsidiary, to
the limitations contained in clause (2) below); and
(b) the Company's equity in a net loss of any such
Person (other than an Unrestricted Subsidiary) for
such period will be included in determining such
Consolidated Net Income to the extent such loss has
been funded with cash from the Company or a
Restricted Subsidiary;
(2) any net income (but not loss) of any Restricted Subsidiary if
such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of
distributions by such Restricted Subsidiary, directly or
indirectly, to the Company, except that:
(a) subject to the limitations contained in clauses (3),
(4) and (5) below, the Company's equity in the net
income of any such Restricted Subsidiary for such
period will be included in such Consolidated Net
Income up to the aggregate amount of cash that
11
could have been distributed by such Restricted
Subsidiary during such period to the Company or
another Restricted Subsidiary as a dividend
(subject, in the case of a dividend to another
Restricted Subsidiary, to the limitation contained
in this clause); and
(b) the Company's equity in a net loss of any such
Restricted Subsidiary for such period will be
included in determining such Consolidated Net
Income;
(3) any gain (loss) realized upon the sale or other disposition
of any property, plant or equipment of the Company or its
consolidated Restricted Subsidiaries (including pursuant to
any Sale/Leaseback Transaction) which is not sold or
otherwise disposed of in the ordinary course of business
consistent with past practice and any gain (loss) realized
upon the sale or other disposition of any Capital Stock of
any Person;
(4) any extraordinary gain or loss; and
(5) the cumulative effect of a change in accounting principles.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its consolidated Restricted Subsidiaries as
the total assets (less accumulated depreciation, amortization, allowances for
doubtful receivables, other applicable reserves and other properly deductible
items) of the Company and its Restricted Subsidiaries, after giving effect to
purchase accounting and after deducting therefrom Consolidated Current
Liabilities and, to the extent otherwise included, the amounts of (without
duplication):
(1) the excess of cost over fair market value of assets or
businesses acquired;
(2) any revaluation or other write-up in book value of assets
subsequent to the last day of the fiscal quarter of the
Company immediately preceding the Issue Date as a result of a
change in the method of valuation in accordance with GAAP;
(3) unamortized debt discount and expenses and other unamortized
deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or
developmental expenses and other intangible items;
(4) minority interests in consolidated Subsidiaries held by
Persons other than the Company or any Restricted Subsidiary;
(5) treasury stock;
12
(6) cash or securities set aside and held in a sinking or other
analogous fund established for the purpose of redemption or
other retirement of Capital Stock to the extent such
obligation is not reflected in Consolidated Current
Liabilities; and
(7) Investments in and assets of Unrestricted Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who: (1) was a member of such
Board of Directors on the date of this Indenture; or (2) 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.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement as to which such
Person is a party or a beneficiary.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Securities" means certificated Securities.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person 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:
(1) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise;
(2) is convertible or exchangeable for Indebtedness or
Disqualified Stock (excluding Capital Stock which is
convertible or exchangeable solely at the option of the
Company or a Restricted Subsidiary); or
(3) is redeemable at the option of the holder of the Capital
Stock thereof, in whole or in part,
in each case on or prior to the date that is 91 days after the date (a) on
which the Securities mature or (b) on which there are no Securities
outstanding, provided that only the portion of Capital Stock which so matures
or is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such date will be
deemed to be Disqualified Stock; provided, further, that any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof have the
right to require the Company to repurchase such Capital Stock upon the
occurrence of a change of control or asset sale (each defined in a
13
substantially identical manner to the corresponding definitions in this
Indenture) shall not constitute Disqualified Stock if the terms of such Capital
Stock (and all such securities into which it is convertible or for which it is
ratable or exchangeable) provide that the Company may not repurchase or redeem
any such Capital Stock (and all such securities into which it is convertible or
for which it is ratable or exchangeable) pursuant to such provision prior to
compliance by the Company with the provisions of this Indenture described under
Section 3.9 and Section 3.7 and such repurchase or redemption complies with
Section 3.4.
"Domestic Subsidiary" means any Restricted Subsidiary that is
organized under the laws of the United States of America or any state thereof
or the District of Columbia.
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" shall have the meaning set forth in the Registration
Rights Agreement.
"Excluded Sale/Leasebacks" means sale/leaseback transactions involving
the Company's distribution centers in Montgomery, Alabama and Columbus,
Georgia.
"Equity Offering" means an offering for cash by the Company of its
common stock, or options, warrants or rights with respect to its common stock
whether made pursuant to a registration statement that has been declared
effective by the Securities and Exchange Commission (other than on Form S-4 or
S-8), or otherwise.
"Fair Market Value" means the price that could be negotiated in an
arm's-length free market transaction, for cash, between a willing seller and a
willing buyer, neither of whom is under undue pressure or compulsion to
complete the transaction.
"Foreign Borrowing Base" means, as of the date of determination, an
amount equal to the sum, without duplication, of (1) 75% of the net book value
of the accounts receivable of Foreign Subsidiaries of the Company at such date
and (2) 40% of the net book value of the inventories of Foreign Subsidiaries of
the Company at such date. Net book value shall be determined in accordance with
GAAP and shall be that reflected on the most recent available balance sheet (it
being understood that accounts receivable and inventories of an acquired
business may be included if such acquisition has been completed on or prior to
the date of determination).
"Foreign Subsidiary" means any Restricted Subsidiary that is not
organized under the laws of the United States of America or any state thereof
or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of this Indenture, including
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public
14
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession. All ratios and computations
based on GAAP contained in this Indenture will be computed in conformity with
GAAP.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such
Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such other
Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in
whole or in part);
provided, however, that the term "Guarantee" will not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantor Subordinated Obligation" means, with respect to a
Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether
outstanding on the Issue Date or thereafter Incurred) which is expressly
subordinate in right of payment to the obligations of such Subsidiary Guarantor
under its Subsidiary Guarantee pursuant to a written agreement.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Incur" means issue, create, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) will be deemed to
be incurred by such Restricted Subsidiary at the time it becomes a Restricted
Subsidiary; and the terms "Incurred" and "Incurrence" have meanings correlative
to the foregoing.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(2) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
15
(3) the principal component of all obligations of such Person in
respect of letters of credit, bankers' acceptances or other
similar instruments (including reimbursement obligations with
respect thereto except to the extent such reimbursement
obligation relates to a trade payable and such obligation is
satisfied within 30 days of Incurrence);
(4) the principal component of all obligations of such Person to
pay the deferred and unpaid purchase price of property
(except trade payables and other accrued liabilities incurred
in the ordinary course of business), which purchase price is
due more than six months after the date of placing such
property in service or taking delivery and title thereto;
(5) Capitalized Lease Obligations and all Attributable
Indebtedness of such Person;
(6) the principal component or liquidation preference of all
obligations of such Person with respect to the redemption,
repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary, any Preferred Stock (but
excluding, in each case, any accrued dividends);
(7) the principal component of all Indebtedness of other Persons
secured by a Lien on any asset of such Person, whether or not
such Indebtedness is assumed by such Person; provided,
however, that the amount of such Indebtedness will be the
lesser of (a) the fair market value of such asset at such
date of determination and (b) the amount of such Indebtedness
of such other Persons;
(8) the principal component of Indebtedness of other Persons to
the extent Guaranteed by such Person; and
(9) to the extent not otherwise included in this definition, net
obligations of such Person under Currency Agreements and
Interest Rate Agreements (the amount of any such obligations
to be equal at any time to the termination value of such
agreement or arrangement giving rise to such obligation that
would be payable by such Person at such time).
The amount of Indebtedness of any Person at any date will be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date.
Notwithstanding the foregoing, money borrowed and set aside at the time of the
Incurrence of any Indebtedness in order to pre-fund the payment of interest on
such Indebtedness shall not be deemed to be "Indebtedness" provided that such
money is held to secure the payment of such interest.
16
In addition, "Indebtedness" of any Person shall include Indebtedness
described in the preceding paragraph that would not appear as a liability on
the balance sheet of such Person if:
(1) such Indebtedness is the obligation of a partnership or joint
venture that is not a Restricted Subsidiary (a "Joint
Venture");
(2) such Person or a Restricted Subsidiary of such Person is a
general partner of the Joint Venture (a "General Partner");
and
(3) there is recourse, by contract or operation of law, with
respect to the payment of such Indebtedness to property or
assets of such Person or a Restricted Subsidiary of such
Person; and then such Indebtedness shall be included in an
amount not to exceed:
(a) the lesser of (i) the net assets of the General
Partner and (ii) the amount of such obligations to
the extent that there is recourse, by contract or
operation of law, to the property or assets of such
Person or a Restricted Subsidiary of such Person; or
(b) if less than the amount determined pursuant to
clause (a) immediately above, the actual amount of
such Indebtedness that is recourse to such Person or
a Restricted Subsidiary of such Person, if the
Indebtedness is evidenced by a writing and is for a
determinable amount and the related interest expense
shall be included in Consolidated Interest Expense
to the extent actually paid by the Company or its
Restricted Subsidiaries.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Initial Securities" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a
beneficiary.
"Investment" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of any direct
or indirect advance, loan (other than advances to customers in the ordinary
course of business) or other extension of credit (including by way of Guarantee
or similar arrangement, but excluding any debt or extension of credit
represented by a bank deposit other than a time deposit) or capital
contribution (excluding commission, travel and similar advances made in the
ordinary course of business) to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other
17
similar instruments issued by, such Person and all other items that are or
would be classified as investments on a balance sheet prepared in accordance
with GAAP; provided that none of the following will be deemed to be an
Investment:
(1) Hedging Obligations entered into in the ordinary course of
business and in compliance with this Indenture;
(2) endorsements of negotiable instruments and documents in the
ordinary course of business; and
(3) an acquisition of assets, Capital Stock or other securities
by the Company or a Subsidiary for consideration to the
extent such consideration consists of common equity
securities of the Company.
For purposes of Section 3.4:
(1) "Investment" will include the portion (proportionate to the
Company's equity interest in a Restricted Subsidiary to be
designated as an Unrestricted Subsidiary) of the fair market
value of the net assets of such Restricted Subsidiary of the
Company at the time that such Restricted Subsidiary is
designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company will be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an
amount (if positive) equal to (a) the Company's "Investment"
in such Subsidiary at the time of such redesignation less (b)
the portion (proportionate to the Company's equity interest
in such Subsidiary) of the fair market value of the net
assets (as conclusively determined by the Board of Directors
of the Company in good faith) of such Subsidiary at the time
that such Subsidiary is so re-designated a Restricted
Subsidiary; and
(2) any property transferred to or from an Unrestricted
Subsidiary will be valued at its fair market value at the
time of such transfer, in each case as determined in good
faith by the Board of Directors of the Company.
"Investment Grade Status" shall occur when the Securities receive a
rating of "BBB-" or higher from S&P and a rating of "Baa3" or higher from
Moody's.
"Issue Date" means the date on which the Initial Securities are
originally issued.
"Joint Venture" means a partnership or joint venture that is not a
Restricted Subsidiary.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
18
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only
as and when received, but excluding any other consideration received in the
form of assumption by the acquiring Person of Indebtedness or other obligations
relating to the properties or assets that are the subject of such Asset
Disposition or received in any other noncash form) therefrom, in each case net
of:
(1) all legal, accounting, investment banking, title and
recording tax expenses, commissions and other fees and
expenses incurred, and all Federal, state, provincial,
foreign and local taxes required to be paid or accrued as a
liability under GAAP (after taking into account any available
tax credits or deductions and any tax sharing agreements), as
a consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition, in accordance with
the terms of any Lien upon such assets, or which must by its
terms, or in order to obtain a necessary consent to such
Asset Disposition, or by applicable law be repaid out of the
proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures
as a result of such Asset Disposition; and
(4) the deduction of appropriate amounts to be provided by the
seller as a reserve, in accordance with GAAP, against any
liabilities associated with the assets disposed of in such
Asset Disposition and retained by the Company or any
Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, listing fees,
discounts or commissions and brokerage, consultant and other fees and charges
actually incurred in connection with such issuance or sale and net of taxes
paid or payable as a result of such issuance or sale (after taking into account
any available tax credit or deductions and any tax sharing arrangements).
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any Restricted Subsidiary
(a) provides any Guarantee or credit support of any kind
(including any undertaking, guarantee, indemnity agreement or
instrument that would constitute Indebtedness) or (b) is
directly or indirectly liable (as a guarantor or otherwise);
19
(2) 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 of the Company or any Restricted Subsidiary to
declare a default under such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its
stated maturity; and
(3) the explicit terms of which provide there is no recourse
against any of the assets of the Company or its Restricted
Subsidiaries.
"Non-U.S. Person" means a person who is not a U.S. person, as defined
in Regulation S.
"Note Register" means the register of Securities, maintained by the
Trustee, pursuant to Section 2.3.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, any Vice President, the
Treasurer or the Secretary of the Company. Officer of any Subsidiary Guarantor
has a correlative meaning.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and either an Assistant Treasurer or an Assistant Secretary of
the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, a Subsidiary Guarantor or the Trustee.
"Pari Passu Indebtedness" means Indebtedness that ranks equally in
right of payment to the Securities.
"Permitted Holders" means (i) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (or in the event
of the incompetence or death of any Permitted Holder, their respective estate,
heirs, executor, administrator, committee or other personal representative
(collectively "heirs")), (ii) any trust or foundation established for estate or
charitable planning purposes for which one or more of the individuals named in
clause (i) are either a trustee or director or a principal beneficiary or (iii)
any Person the majority of the equity interests of which is owned by one or
more of the individuals or entities named in clause (i) above.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in:
(1) the Company by a Restricted Subsidiary or a Restricted
Subsidiary (other than a Receivables Entity) or a Person
which will, upon the making of such Investment, become a
Restricted Subsidiary (other than a
20
Receivables Entity); provided, however, that the primary
business of such Restricted Subsidiary is a Related Business;
(2) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers
or conveys all or substantially all its assets to, the
Company or a Restricted Subsidiary (other than a Receivables
Entity); provided, however, that such Person's primary
business is a Related Business;
(3) cash and Cash Equivalents;
(4) receivables owing to the Company or any Restricted Subsidiary
created or acquired in the ordinary course of business;
(5) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made
in the ordinary course of business;
(6) loans or advances to officers, directors and employees made
in the ordinary course of business of the Company or such
Restricted Subsidiary;
(7) stock, obligations, indebtedness or securities received in
settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted
Subsidiary or in satisfaction of judgments or pursuant to
any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of a debtor;
(8) Investments made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to
and in compliance with Section 3.7;
(9) Investments in existence on the Issue Date;
(10) Currency Agreements, Interest Rate Agreements and related
Hedging Obligations, which transactions or obligations are
Incurred in compliance with Section 3.3;
(11) Investments by the Company or any of its Restricted
Subsidiaries, together with all other Investments pursuant to
this clause (11), in an aggregate amount at the time of such
Investment not to exceed $25.0 million outstanding at any one
time;
(12) Deposits required by government agencies or public utilities
(including pertaining to taxes and other similar charges);
(13) Guarantees issued in accordance with Section 3.3;
21
(14) Investments by the Company or a Restricted Subsidiary in a
Receivables Entity or any Investment by a Receivables Entity
in any other Person, in each case, in connection with a
Qualified Receivables Transaction, provided, however, that
any Investment in any such Person is in the form of a
Purchase Money Note, or any equity interest or interests in
accounts receivable and related assets generated by the
Company or a Restricted Subsidiary and transferred to any
Person in connection with a Qualified Receivables Transaction
or any such Person owning such accounts receivable;
(15) Investments by the Company or any Restricted Subsidiary in
Joint Ventures the primary business of which is a Related
Business, together with all other Investments made pursuant
to this clause (15), in an aggregate amount not to exceed
7.5% of Consolidated Net Tangible Assets; and
(16) Investments in the Securities and Subsidiary Guarantees.
"Permitted Liens" means, with respect to any Person:
(1) Liens securing Indebtedness and other obligations of the
Company and the Subsidiary Guarantors under the Senior Credit
Agreement and related Interest Rate Agreements and liens on
assets of Restricted Subsidiaries securing Guarantees of
Indebtedness and other obligations under the Senior Credit
Agreement permitted to be incurred under this Indenture in an
aggregate principal amount at any one time outstanding not to
exceed the difference between (x) the greater of (a) the
Borrowing Base and (b)(i) $375.0 million less (ii) the
aggregate principal amount of all repayments with the
proceeds from Asset Dispositions and (y) the principal
component of amounts outstanding under Qualified Receivables
Transactions;
(2) pledges or deposits by such Person under workmen's
compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such
Person or deposits or cash or United States government bonds
to secure surety or appeal bonds to which such Person is a
party, or deposits as security for contested taxes or import
or customs duties or for the payment of rent, in each case
Incurred in the ordinary course of business;
(3) Liens imposed by law, including carriers', warehousemen's,
repairman's, landlords' and mechanics' Liens, in each case
for sums not yet due or being contested in good faith by
appropriate proceedings if a reserve or
22
other appropriate provisions, if any, as shall be required by
GAAP shall have been made in respect thereof;
(4) Liens for taxes, assessments or other governmental charges
that are not yet delinquent or which are being contested in
good faith by appropriate proceedings provided appropriate
reserves required pursuant to GAAP have been made in respect
thereof;
(5) Liens in favor of issuers of surety or performance bonds or
letters of credit or bankers' acceptances issued pursuant to
the request of and for the account of such Person in the
ordinary course of its business; provided, however, that such
letters of credit do not constitute Indebtedness;
(6) encumbrances, easements or reservations of, or rights of
others for, licenses, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real properties
or liens incidental to the conduct of the business of such
Person or to the ownership of its properties which do not
materially adversely affect the value of said properties or
materially impair their use in the operation of the business
of such Person;
(7) Liens securing Hedging Obligations so long as the related
Indebtedness is, and is permitted to be under this Indenture,
secured by a Lien on the same property securing such Hedging
Obligation;
(8) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the
Company or any of its Restricted Subsidiaries;
(9) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review
of such judgment have not been finally terminated or the
period within which such proceedings may be initiated has not
expired;
(10) Liens for the purpose of securing the payment of all or a
part of the purchase price of, or Capitalized Lease
Obligations with respect to, assets or property acquired or
constructed in the ordinary course of business, provided
that:
(a) the aggregate principal amount of Indebtedness
secured by such Liens is otherwise permitted to be
Incurred under this Indenture and does not exceed
the cost of the assets or property so acquired or
constructed; and
23
(b) such Liens are created within 180 days of
construction or acquisition of such assets or
property and do not encumber any other assets or
property of the Company or any Restricted Subsidiary
other than such assets or property and assets
affixed or appurtenant thereto;
(11) Liens arising by virtue of any statutory or common law
provisions relating to banker's Liens, rights of set-off or
similar rights and remedies as to deposit accounts or other
funds maintained with a depositary institution; provided
that:
(a) such deposit account is not a dedicated cash
collateral account and is not subject to
restrictions against access by the Company in excess
of those set forth by regulations promulgated by the
Federal Reserve Board; and
(b) such deposit account is not intended by the Company
or any Restricted Subsidiary to provide collateral
to the depository institution;
(12) Liens arising from Uniform Commercial Code financing
statement filings regarding operating leases entered into by
the Company and its Restricted Subsidiaries in the ordinary
course of business;
(13) Liens existing on the Issue Date;
(14) Liens on property or shares of stock of a Person at the time
such Person becomes a Restricted Subsidiary; provided,
however, that such Liens are not created, incurred or assumed
in connection with, or in contemplation of, such other Person
becoming a Restricted Subsidiary; provided further, however,
that any such Lien may not extend to any other property owned
by the Company or any Restricted Subsidiary;
(15) Liens on property at the time the Company or a Restricted
Subsidiary acquired the property, including any acquisition
by means of a merger or consolidation with or into the
Company or any Restricted Subsidiary; provided, however, that
such Liens are not created, incurred or assumed in connection
with, or in contemplation of, such acquisition; provided
further, however, that such Liens may not extend to any other
property owned by the Company or any Restricted Subsidiary;
(16) Liens securing Indebtedness or other obligations of a
Restricted Subsidiary owing to the Company or a Wholly-Owned
Subsidiary (other than a Receivables Entity);
(17) Liens securing the Securities and Subsidiary Guarantees;
24
(18) Liens securing Refinancing Indebtedness incurred to refinance
Indebtedness that was previously so secured, provided that
any such Lien is limited to all or part of the same property
or assets (plus improvements, accessions, proceeds or
dividends or distributions in respect thereof) that secured
(or, under the written arrangements under which the original
Lien arose, could secure) the Indebtedness being refinanced
or is in respect of property that is the security for a
Permitted Lien hereunder;
(19) Liens securing Indebtedness of Foreign Subsidiaries in an
aggregate principal amount at any one time outstanding not to
exceed the greater of (x) the Foreign Borrowing Base and (y)
$25.0 million;
(20) Indebtedness Incurred in connection with the Excluded
Sale/Leasebacks in an aggregate principal amount at any one
time not to exceed $35.0 million;
(21) Liens on assets transferred to a Receivables Entity or on
assets of a Receivables Entity, in either case incurred in
connection with a Qualified Receivables Transaction;
(22) Liens incurred or assumed in connection with the issuance of
revenue bonds the interest on which is exempt from federal
income taxation pursuant to Section 103(b) of the Internal
Revenue Code;
(23) Liens on assets of the Company or any Restricted Subsidiary
arising as a result of a Sale/Leaseback Transaction with
respect to such assets; provided that the Net Available Cash
from such Sale/Leaseback are applied in accordance with
Section 3.7;
(24) Liens on cash deposited in a trust or escrow account to
defease or discharge Indebtedness (other than Subordinated
Obligations, Guarantor Subordinated Obligations or
Disqualified Stock, except to the extent the Company or a
Restricted Subsidiary would be permitted to repay such
Indebtedness under Section 3.4); and
(25) Liens not otherwise permitted by clauses (1) through (24)
above encumbering assets having an aggregate Fair Market
Value not in excess of 5.0% of Consolidated Net Tangible
Assets, as determined based on the consolidated balance sheet
of the Company as of the end of the most recent fiscal
quarter ending at least 45 days prior to the date the Lien
shall be Incurred.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, government or any agency or political subdivision
hereof or any other entity. "Preferred Stock",
25
as applied to the Capital Stock of any corporation, means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such corporation, over shares of
Capital Stock of any other class of such corporation.
"Purchase Money Note" means a promissory note of a Receivables Entity
evidencing a line of credit, which may be irrevocable, from the Company or any
Restricted Subsidiary of the Company in connection with a Qualified Receivables
Transaction to a Receivables Entity, which note is repayable from cash
available to the Receivables Entity, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts owing to such investors and amounts paid in connection with the
purchase of newly generated accounts receivable.
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Company or any of its Restricted
Subsidiaries pursuant to which the Company or any of its Restricted
Subsidiaries may sell, convey or otherwise transfer to (1) a Receivables Entity
(in the case of a transfer by the Company or any of its Restricted
Subsidiaries) and (2) any other Person (in the case of a transfer by a
Receivables Entity), or may grant a security interest in, any accounts
receivable (whether now existing or arising in the future) of the Company or
any of its Restricted Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, the proceeds of such receivables and other assets which are
customarily transferred, or in respect of which security interests are
customarily granted in connection with an asset securitization involving
accounts receivable.
"Receivables Entity" means a Wholly-Owned Subsidiary of the Company
(or another Person in which the Company or any Restricted Subsidiary of the
Company makes an Investment and to which the Company or any Restricted
Subsidiary of the Company transfers accounts receivable and related assets)
which engages in no activities other than in connection with the financing of
accounts receivable and which is designated by the Board of Directors of the
Company (as provided below) as a Receivables Entity:
(1) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(a) is guaranteed by the Company or any Restricted
Subsidiary of the Company (excluding guarantees of
Obligations (other than the principal of, and
interest on, Indebtedness) pursuant to Standard
Securitization Undertakings);
(b) is recourse to or obligates the Company or any
Restricted Subsidiary of the Company in any way
other than pursuant to Standard Securitization
Undertakings; or
26
(c) subjects any property or asset of the Company or any
Restricted Subsidiary of the Company, directly or
indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to
Standard Securitization Undertakings;
(2) with which neither the Company nor any Restricted Subsidiary
of the Company has any material contract, agreement,
arrangement or understanding (except in connection with a
Purchase Money Note or Qualified Receivables Transaction)
other than on terms no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at
the time from Persons that are not Affiliates of the Company,
other than fees payable in the ordinary course of business in
connection with servicing accounts receivable; and
(3) to which neither the Company nor any Restricted Subsidiary of
the Company has any obligation to maintain or preserve such
entity's financial condition or cause such entity to achieve
certain levels of operating results.
Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Company giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, exchange, renew, repay or extend (including
pursuant to any defeasance or discharge mechanism) (collectively, "refinance,"
"refinances," and "refinanced" shall have a correlative meaning) any
Indebtedness existing on the date of this Indenture or Incurred in compliance
with this Indenture (including Indebtedness of the Company that refinances
Indebtedness of any Restricted Subsidiary and Indebtedness of any Restricted
Subsidiary that refinances Indebtedness of another Restricted Subsidiary)
including Indebtedness that refinances Refinancing Indebtedness, provided,
however, that:
(1) (a) if the Stated Maturity of the Indebtedness being
refinanced is earlier than the Stated Maturity of the
Securities, the Refinancing Indebtedness has a Stated
Maturity no earlier than the Stated Maturity of the
Indebtedness being refinanced or (b) if the Stated Maturity
of the Indebtedness being refinanced is later than the Stated
Maturity of the Securities, the Refinancing Indebtedness has
a Stated Maturity at least 91 days later than the Stated
Maturity of the Securities;
(2) the Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being
refinanced;
27
(3) such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if issued with original issue discount,
an aggregate issue price) that is equal to or less than the
sum of (x) the aggregate principal amount (or if issued with
original issue discount, the aggregate accreted value) then
outstanding of Indebtedness being refinanced plus (y) without
duplication, any additional Indebtedness Incurred to pay
interest or premiums required by the instruments governing
such existing Indebtedness and fees, underwriting discounts,
commissions and other expenses incurred in connection the
issuance of the Refinancing Indebtedness and the repayment of
the Indebtedness being refinanced); and
(4) if the Indebtedness being refinanced is subordinated in right
of payment to the Securities or the Subsidiary Guarantee,
such Refinancing Indebtedness is subordinated in right of
payment to the Securities or the Subsidiary Guarantee on
terms at least as favorable to the Holders of Securities as
those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Registration Rights Agreement" means that certain registration rights
agreement dated as of the date of this Indenture by and between the Company,
the Subsidiary Guarantors and the initial purchasers set forth therein and
future registration rights agreements with respect to Additional Securities.
"Related Business" means any business which is the same as or related,
ancillary or complementary to any of the businesses of the Company and its
Restricted Subsidiaries that is being conducted on the date of this Indenture.
"Representative" means any trustee, agent or representative (if any)
of an issue of Indebtedness; provided that when used in connection with the
Senior Credit Agreement, the term "Representative" shall refer to the
administrative agent under the Senior Credit Agreement.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"▇▇▇▇▇▇▇ Co-op" means ▇▇▇▇▇▇▇ Co-op LLC, a limited liability company
organized under the laws of the territory of Guam.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person.
28
"Secured Indebtedness" means Indebtedness that is secured by a lien on
the property or assets of the relevant obligor.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the Global
Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"Securityholder" or "Holder" means the Person in whose name a Security
is registered in the Note Register.
"Senior Credit Agreement" means, with respect to the Company, one or
more debt facilities (including, without limitation, the Senior Secured Credit
Agreement dated on or about April 18, 2002 entered into among the Company,
Fleet Capital Corporation, as Administrative Agent, Fleet Securities, Inc. as
arranger, and the lenders parties thereto from time to time) together with the
related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreement may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreements extending the
maturity of, refinancing, replacing (whether or not contemporaneously) or
otherwise restructuring (including increasing the amount of available
borrowings thereunder (provided that such increase in borrowings is permitted
by Section 3.3) or adding Restricted Subsidiaries of the Company as additional
borrowers or collateral guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreements
and whether by the same or any other agent, lender or group of lenders or
investors and whether such refinancing or replacement is under one or more debt
facilities or commercial paper facilities, indentures or other agreements, in
each case with banks or other institutional lenders or trustees or investors
providing for revolving credit loans, term loans, notes or letters or credit,
together with related documents thereto (including, without limitation, any
guaranty agreements and security documents).
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Restricted Subsidiary of the Company which are reasonably customary in
securitization of accounts receivable transactions.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision, but shall not include any contingent obligations to
repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof at the option of the holder or otherwise.
29
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement.
"Subsidiary" of any Person means any corporation, association,
partnership, joint venture, limited liability company or other business entity
of which more than 50% of the total voting power of shares of Capital Stock or
other interests (including partnership and joint venture interests) entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (1) such Person, (2) such Person and one or more
Subsidiaries of such Person or (3) one or more Subsidiaries of such Person.
Unless otherwise specified herein, each reference to a Subsidiary will refer to
a Subsidiary of the Company.
"Subsidiary Guarantee" means, individually, any Guarantee of payment
of the Securities by a Subsidiary Guarantor pursuant to the terms of this
Indenture and any supplemental indenture hereto, and, collectively, all such
Guarantees. Each such Subsidiary Guarantee will be in the form prescribed by
this Indenture.
"Subsidiary Guarantor" means each Restricted Subsidiary of the Company
that has issued a Subsidiary Guarantee.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb), as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" shall mean, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of
determination shall be designated an Unrestricted Subsidiary
by the Board of Directors of the Company in the manner
provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary or a
Person becoming a Subsidiary through merger or consolidation or Investment
therein) to be an Unrestricted Subsidiary only if:
30
(1) such Subsidiary or any of its Subsidiaries does not own any
Capital Stock or Indebtedness of or have any Investment in,
or own or hold any Lien on any property of, any other
Subsidiary of the Company which is not a Subsidiary of the
Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary;
(2) all the Indebtedness of such Subsidiary and its Subsidiaries
shall, at the date of designation, consist of Non-Recourse
Debt;
(3) such designation and the Investment of the Company in such
Subsidiary complies with Section 3.4;
(4) such Subsidiary, either alone or in the aggregate with all
other Unrestricted Subsidiaries, does not operate, directly
or indirectly, all or substantially all of the business of
the Company and its Subsidiaries;
(5) such Subsidiary is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct
or indirect obligation: (a) to subscribe for additional
Capital Stock of such Person; or (b) to maintain or preserve
such Person's financial condition or to cause such Person to
achieve any specified levels of operating results; and
(6) on the date such Subsidiary is designated an Unrestricted
Subsidiary, such Subsidiary is not a party to any agreement,
contract, arrangement or understanding with the Company or
any Restricted Subsidiary with terms substantially less
favorable to the Company, than those that might have been
obtained from Persons who are not Affiliates of the Company.
Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a resolution of the Board
of Directors of the Company giving effect to such designation and an Officers'
Certificate certifying that such designation complies with the foregoing
conditions. 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 as of such date.
The Board of Directors of the Company may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that immediately after
giving effect to such designation, no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof and the
Company could incur at least $1.00 of additional Indebtedness under the first
paragraph of Section 3.3 on a pro forma basis taking into account such
designation.
31
"Voting Stock" of a corporation means all classes of Capital Stock of
such corporation then outstanding and normally entitled to vote (without regard
to any contingency) in the election of directors.
"Wholly-Owned Subsidiary" means a Restricted Subsidiary of the
Company, all of the Capital Stock of which (other than directors' qualifying
shares) is owned by the Company or another Wholly-Owned Subsidiary.
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- ----------
"Additional Restricted Securities" ................................ 2.1(b)
"Affiliate Transaction"............................................ 3.8
"Agent Member"..................................................... 2.1(e)
"Asset Disposition Offer".......................................... 3.7(b)
"Asset Disposition Offer Amount"................................... 3.7(c)(1)
"Asset Disposition Offer Period"................................... 3.7(c)(1)
"Asset Disposition Purchase Date".................................. 3.7(c)(1)
"Authenticating Agent"............................................. 2.2
"Change of Control Offer".......................................... 3.9
"Change of Control Payment"........................................ 3.9
"Change of Control Payment Date"................................... 3.9
"Company Order".................................................... 2.2
"Corporate Trust Office"........................................... 3.15
"covenant defeasance option"....................................... 8.1(b)
"cross acceleration provision"..................................... 6.1(6)(b)
"Defaulted Interest"............................................... 2.13
"Event of Default"................................................. 6.1
32
"Excess Proceeds".................................................. 3.7(b)
"Exchange Global Note"............................................. 2.1(b)
"Global Securities"................................................ 2.1(b)
"IAI".............................................................. 2.1(b)
"Institutional Accredited Investor Note"........................... 2.1(b)
"Institutional Accredited Investor Global Note".................... 2.1(b)
"judgment default provision"....................................... 6.1(8)
"legal defeasance option".......................................... 8.1(b)
"Obligations"..................................................... 10.1
"Pari Passu Notes"................................................ 3.7(b)
"payment default" ................................................ 6.1(6)
"Paying Agent".................................................... 2.3
"Private Placement Legend"........................................ 2.1(d)
"QIB"............................................................. 2.1(b)
"Registrar"....................................................... 2.3
"Regulation S".................................................... 2.1(b)
"Regulation S Global Note"........................................ 2.1(b)
"Regulation S Legend"............................................. 2.1(d)
"Regulation S Note"............................................... 2.1(b)
"Resale Restriction Termination Date"............................. 2.6(a)
"Restricted Payment".............................................. 3.4
"Rule 144A"....................................................... 2.1(b)
"Rule 144A Global Note"........................................... 2.1(b)
"Rule 144A Note".................................................. 2.1(b)
"Special Interest Payment Date"................................... 2.13(a)
33
"Special Record Date"............................................. 2.13(a)
"Successor Company"............................................... 4.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on this Indenture securities means the Company and any other
obligor on this Indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.10. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate
or junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater.
34
ARTICLE II
The Securities
SECTION 2.1. Form, Dating and Terms.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Initial
Securities issued on the date hereof will be in an aggregate principal amount
of $250,000,000. In addition, the Company may issue, from time to time in
accordance with the provisions of this Indenture, including, without
limitation, Section 3.3 hereof, Additional Securities and Exchange Securities.
Furthermore, Securities may be authenticated and delivered upon registration or
transfer, or in lieu of, other Securities pursuant to Section 2.6, 2.9, 2.11 or
9.5 or in connection with an Asset Disposition Offer pursuant to Section 3.7 or
a Change of Control Offer pursuant to Section 3.9.
The Initial Securities shall be known and designated as "9.25% Senior
Notes, Series A, due 2010" of the Company. Additional Securities issued as
Restricted Securities shall be known and designated as "9.25% Senior Notes,
Series A, due 2010" of the Company. Additional Securities issued other than as
Restricted Securities shall be known and designated as "9.25% Senior Notes,
Series S, due 2010" of the Company, and Exchange Securities shall be known and
designated as "9.25% Senior Notes, Series S, due 2010" of the Company.
With respect to any Additional Securities, the Company shall set forth
in a Board Resolution and an Officer's Certificate, the following information:
(1) the aggregate principal amount of such Additional Securities
to be authenticated and delivered pursuant to this Indenture;
(2) the issue price and the issue date of such Additional
Securities, including the date from which interest shall accrue; and
(3) whether such Additional Securities shall be Restricted
Securities issued in the form of Exhibit A hereto and/or shall be issued in the
form of Exhibit B hereto.
The Initial Securities, the Additional Securities and the Exchange
Securities shall be considered collectively as a single class for all purposes
of this Indenture. Holders of the Initial Securities, the Additional Securities
and the Exchange Securities will vote and consent together on all matters to
which such Holders are entitled to vote or consent as one class, and none of
the Holders of the Initial Securities, the Additional Securities or the
Exchange Securities shall have the right to vote or consent as a separate class
on any matter to which such Holders are entitled to vote or consent.
(b) The Initial Securities are being offered and sold by the Company
pursuant to a Purchase Agreement, dated April 11, 2002, among the Company, the
Subsidiary Guarantors, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and the other initial
purchasers named therein. The Initial Securities and any Additional Securities
(if issued as Restricted Securities) (the "Additional Restricted Securities")
will be resold initially only to (A) qualified institutional buyers (as defined
in Rule 144A under the Securities Act ("Rule 144A")) in reliance on Rule 144A
("QIBs") and (B)
35
Persons other than U.S. Persons (as defined in Regulation S under the
Securities Act ("Regulation S")) in reliance on Regulation S. Such Initial
Securities and Additional Restricted Securities may thereafter be transferred
to, among others, QIBs, purchasers in reliance on Regulation S and
institutional "accredited investors" (as defined in Rules 501(a)(1), (2), (3)
and (7) under the Securities Act) who are not QIBs ("IAIs") in accordance with
Rule 501 of the Securities Act in accordance with the procedure described
herein.
Initial Securities and Additional Restricted Securities offered and
sold to qualified institutional buyers in the United States of America in
reliance on Rule 144A (the "Rule 144A Notes") shall be issued in the form of a
permanent global Security, without interest coupons, substantially in the form
of Exhibit A, which is hereby incorporated by reference and made a part of this
Indenture, including appropriate legends as set forth in Section 2.1(d) (the
"Rule 144A Global Note"), deposited with the Trustee, as custodian for DTC,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The Rule 144A Global Note may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal
amount of the Rule 144A Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
DTC or its nominee, as hereinafter provided.
Initial Securities and Additional Securities offered and sold outside
the United States of America (the "Regulation S Notes") in reliance on
Regulation S shall be issued in the form of a permanent global Security,
without interest coupons, substantially in the form of Exhibit A (the
"Regulation S Global Note") deposited with the Trustee, as custodian for DTC,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The Regulation S Global Note may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal
amount of the Regulation S Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
DTC or its nominee, as hereinafter provided.
Initial Securities and Additional Securities resold to IAIs (the
"Institutional Accredited Investor Notes") in the United States of America
shall be issued in the form of a permanent global Security, without interest
coupons, substantially in the form of Exhibit A (the "Institutional Accredited
Investor Global Note") deposited with the Trustee, as custodian for DTC, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The Institutional Accredited Investor Global Note may be represented
by more than one certificate, if so required by DTC's rules regarding the
maximum principal amount to be represented by a single certificate. The
aggregate principal amount of the Institutional Accredited Investor Global Note
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for DTC or its nominee, as hereinafter
provided.
Exchange Securities exchanged for interests in the Rule 144A Notes,
the Regulation S Notes and the Institutional Accredited Investor Notes will
be issued in the form of a permanent global Security, without interest coupons,
substantially in the form of Exhibit B, which is hereby incorporated by
reference and made a part of this Indenture, deposited with the Trustee as
hereinafter provided, including the appropriate legend set forth in
Section 2.1(d) (the
36
"Exchange Global Note"). The Exchange Global Note may be represented by more
than one certificate, if so required by DTC's rules regarding the maximum
principal amount to be represented by a single certificate.
The Rule 144A Global Note, the Regulation S Global Note, the
Institutional Accredited Investor Global Note and the Exchange Global Note are
sometimes collectively herein referred to as the "Global Securities."
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose pursuant to Section 2.3;
provided, however, that, at the option of the Company, each installment of
interest may be paid by (i) check mailed to addresses of the Persons entitled
thereto as such addresses shall appear on the Note Register or (ii) wire
transfer to an account located in the United States maintained by the payee.
Payments in respect of Securities represented by a Global Security (including
principal, premium and interest) will be made by wire transfer of immediately
available funds to the accounts specified by DTC.
The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage, in addition to those set forth on Exhibit A
and Exhibit B and in Section 2.1(d). The Company and the Trustee shall approve
the forms of the Securities and any notation, endorsement or legend on them.
Each Security shall be dated the date of its authentication. The terms of the
Securities set forth in Exhibit A and Exhibit B are part of the terms of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to be bound by such
terms.
(c) Denominations. The Securities shall be issuable only in fully
registered form, without coupons, and only in denominations of $1,000 and any
integral multiple thereof.
(d) Restrictive Legends. Unless and until (i) an Initial Security is
sold under an effective registration statement or (ii) an Initial Security is
exchanged for an Exchange Security in connection with an effective registration
statement, in each case pursuant to the Registration Rights Agreement or a
similar agreement,
(A) the Rule 144A Global Note and the Institutional Accredited
Investor Global Note shall bear the following legend (the "Private Placement
Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. 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 UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS
OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR
37
WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT 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
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN
INSTITUTIONAL ACCREDITED INVESTOR 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, FOR INVESTMENT PURPOSES 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 ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE
ASSETS USED BY SUCH HOLDER TO ACQUIRE AND HOLD THIS SECURITY
CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO
TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), OF PLANS, INDIVIDUAL RETIREMENT ACCOUNTS OR
OTHER ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF THE U.S.
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR PROVISIONS
UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR
REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE
("SIMILAR LAWS"), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE
CONSIDERED TO INCLUDE "PLAN ASSETS" OF SUCH PLANS, ACCOUNTS OR
ARRANGEMENTS, OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY
38
WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER
ANY APPLICABLE SIMILAR LAWS."
(B) the Regulation S Global Note shall bear the following legend (the
"Regulation S Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT
IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT ("REGULATION
S"), (2) BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT 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
WITHIN THE MEANING OF REGULATION S, (E) TO AN INSTITUTIONAL ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT THAT IS AN INSTITUTIONAL ACCREDITED INVESTOR
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, FOR INVESTMENT
PURPOSES 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 ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) OR (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
39
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 THE COMPANY AND THE TRUSTEE. THIS
LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND
INCLUDING THE LATER OF (A) THE DAY ON WHICH THE SECURITIES ARE OFFERED
TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S) AND
(B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING. 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."
(C) The Global Securities, whether or not an Initial Security, shall
bear the following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, 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 IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THIS INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
(e) Book-Entry Provisions
(i) This Section 2.1(e) shall apply only to Global Securities
deposited with the Trustee, as custodian for DTC.
(ii) Each Global Security initially shall (x) be registered
in the name of DTC for such Global Security or the nominee of DTC, (y) be
delivered to the Trustee as custodian for DTC and (z) bear legends as set forth
in Section 2.1(d).
(iii) Members of, or participants in, DTC ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by DTC or by the Trustee as the custodian of DTC or under
such Global Security, and DTC may be treated by
40
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by DTC or impair,
as between DTC and its Agent Members, the operation of customary practices of
DTC governing the exercise of the rights of a Holder of a beneficial interest
in any Global Security.
(iv) In connection with any transfer of a portion of the
beneficial interest in a Global Security pursuant to subsection (f) of this
Section 2.1 to beneficial owners who are required to hold Definitive
Securities, the Securities Custodian shall reflect on its books and records the
date and a decrease in the principal amount of such Global Security in an
amount equal to the principal amount of the beneficial interest in the Global
Security to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Definitive Securities of like tenor
and amount.
(v) In connection with the transfer of an entire Global
Security to beneficial owners pursuant to subsection (f) of this Section 2.1,
such Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by DTC in exchange for its
beneficial interest in such Global Security, an equal aggregate principal
amount of Definitive Securities of authorized denominations.
(vi) The registered Holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Securities.
(f) Definitive Securities. (i) Except as provided below,
owners of beneficial interests in Global Securities will not be entitled to
receive Definitive Securities. If required to do so pursuant to any applicable
law or regulation, beneficial owners may obtain Definitive Securities in
exchange for their beneficial interests in a Global Security upon written
request in accordance with DTC's and the Registrar's procedures. In addition,
Definitive Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if (a) DTC notifies the
Company that it is unwilling or unable to continue as depositary for such
Global Security or DTC ceases to be a clearing agency registered under the
Exchange Act, at a time when DTC is required to be so registered in order to
act as depositary, and in each case a successor depositary is not appointed by
the Company within 90 days of such notice or, (b) the Company executes and
delivers to the Trustee and Registrar an Officers' Certificate stating that
such Global Security shall be so exchangeable or (c) an Event of Default has
occurred and is continuing and the Registrar has received a request from DTC.
(ii) Any Definitive Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.1(e)(iv) or (v) shall,
except as otherwise provided by Section 2.6(c), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security set forth
in Section 2.1(d).
41
(iii) In connection with the exchange of a portion of a
Definitive Security for a beneficial interest in a Global Security, the Trustee
shall cancel such Definitive Security, and the Company shall execute, and the
Trustee shall authenticate and deliver, to the transferring Holder a new
Definitive Security representing the principal amount not so transferred.
SECTION 2.2. Execution and Authentication. One Officer shall sign
the Securities for the Company by manual or facsimile signature. If an Officer
whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless,
after giving effect to any exchange of Initial Securities for Exchange
Securities.
A Security shall not be valid until an authorized signatory of the
Trustee manually authenticates the Security. The signature of the Trustee on a
Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be
dated the date of its authentication.
At any time and from time to time after the execution and delivery of
this Indenture, the Trustee shall authenticate and make available for delivery:
(1) Initial Securities for original issue on the Issue Date in an aggregate
principal amount of $250,000,000, (2) Additional Securities for original issue
and (3) Exchange Securities for issue only in an Exchange Offer pursuant to the
Registration Rights Agreement, and only in exchange for Initial Securities or
Additional Securities of an equal principal amount, in each case upon a written
order of the Company signed by two Officers or by an Officer and either an
Assistant Treasurer or an Assistant Secretary of the Company (the "Company
Order"). Such Company Order shall specify the amount of the Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Securities,
Additional Securities or Exchange Securities.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Securities. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by the
Authenticating Agent.
In case the Company or any Subsidiary Guarantor, pursuant to Article
IV or Section 10.2, shall be consolidated or merged with or into any other
Person or shall convey, transfer, lease or otherwise dispose of its properties
and assets substantially as an entirety to any Person, and the successor Person
resulting from such consolidation, or surviving such merger, or into which the
Company or any Subsidiary Guarantor shall have been merged, or the Person which
shall have received a conveyance, transfer, lease or other disposition as
aforesaid, shall have executed an indenture supplemental hereto with the
Trustee pursuant to Article IV, any of the Securities authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Order of
the successor Person, shall authenticate and deliver Securities as
42
specified in such order for the purpose of such exchange. If Securities shall
at any time be authenticated and delivered in any new name of a successor
Person pursuant to this Section 2.2 in exchange or substitution for or upon
registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time outstanding for Securities authenticated
and delivered in such new name.
SECTION 2.3. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Company shall
cause each of the Registrar and the Paying Agent to maintain an office or
agency in the Borough of Manhattan, The City of New York. The Registrar shall
keep a register of the Securities and of their transfer and exchange (the "Note
Register"). 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 shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of each such agent. If the Company
fails to maintain a Registrar or Paying Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to Section
7.7. The Company or any of its Restricted Subsidiaries may act as Paying Agent,
Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent for the Securities.
SECTION 2.4. Paying Agent to Hold Money in Trust. By no later
than 10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall deposit with the
Paying Agent a sum sufficient in immediately available funds to pay such
principal or interest when due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all money held by
such Paying Agent for the payment of principal of or interest on the Securities
and shall notify the Trustee in writing of any default by the Company or any
Subsidiary Guarantor in making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent (other than the Trustee) to pay all money held by it to the
Trustee and to account for any funds disbursed by such Paying Agent. Upon
complying with this Section, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money delivered to the
Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect
to the Company, the Trustee shall serve as Paying Agent for the Securities.
SECTION 2.5. Securityholder Lists. The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, or to the extent otherwise required under the
43
TIA, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.6. Transfer and Exchange.
(a) The following provisions shall apply with respect to any proposed
transfer of a Rule 144A Note or an Institutional Accredited Investor Note prior
to the date which is two years after the later of the date of its original
issue and the last date on which the Company or any affiliate of the Company
was the owner of such Securities (or any predecessor thereto) (the "Resale
Restriction Termination Date"):
(i) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a QIB shall be made upon the
representation of the transferee in the form as set forth on the reverse of the
Security that it is purchasing for its own account or an account with respect
to which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule 144A,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to an IAI shall be made upon
receipt by the Trustee or its agent of a certificate substantially in the form
set forth in Section 2.7 from the proposed transferee and, if requested by the
Company or the Trustee, the delivery of an opinion of counsel, certification
and/or other information satisfactory to each of them; and
(iii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a Non-U.S. Person shall be
made upon receipt by the Trustee or its agent of a certificate substantially in
the form set forth in Section 2.8 from the proposed transferee and, if
requested by the Company or the Trustee, the delivery of an opinion of counsel,
certification and/or other information satisfactory to each of them.
(b) The following provisions shall apply with respect to any proposed
transfer of a Regulation S Note prior to the expiration of the Restricted
Period:
(i) a transfer of a Regulation S Note or a beneficial interest therein
to a QIB shall be made upon the representation of the transferee, in the form
of assignment on the reverse of the certificate, that it is purchasing the
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has
requested
44
pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided by
Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial interest
therein to an IAI shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in Section 2.7 from the
proposed transferee and, if requested by the Company or the Trustee, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to each of them; and
(iii) a transfer of a Regulation S Note or a beneficial interest
therein to a Non-U.S. Person shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form set forth in Section 2.8
hereof from the proposed transferee and, if requested by the Company or the
Trustee, receipt by the Trustee or its agent of an opinion of counsel,
certification and/or other information satisfactory to each of them.
After the expiration of the Restricted Period, interests in the
Regulation S Note may be transferred without requiring the certification set
forth in Section 2.7, Section 2.8 or any additional certification.
(c) Restricted Securities Legend. Upon the transfer, exchange or
replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing a
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless there is delivered to the Registrar
an Opinion of Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(d) The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.1 or this Section
2.6. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable prior written notice to the Registrar.
(e) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Company
shall, subject to the other terms and conditions of this Article II, execute
and the Trustee shall authenticate Definitive Securities and Global Securities
at the Registrar's or co-registrar's request.
(ii) No service charge shall be made to a Holder 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 charges payable upon exchange or transfer
pursuant to Sections 3.7, 3.9 or 9.5).
(iii) The Registrar or co-registrar shall not be required to register
the transfer of or exchange of any Security for a period beginning (1) 15 days
before the mailing of a
45
notice of an offer to repurchase or redeem Securities and ending at the close
of business on the day of such mailing or (2) 15 days before an interest
payment date and ending on such interest payment date.
(iv) Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any co-registrar shall
be affected by notice to the contrary.
(v) Any Definitive Security delivered in exchange for an interest in a
Global Security pursuant to Section 2.1(e) shall, except as otherwise provided
by Section 2.6(c), bear the applicable legend regarding transfer restrictions
applicable to the Definitive Security set forth in Section 2.1(d).
(vi) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Securities surrendered upon
such transfer or exchange.
(f) No Obligation of the Trustee
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in, DTC or
other Person with respect to the accuracy of the records of DTC or its nominee
or of any participant or member thereof, with respect to any ownership interest
in the Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than DTC) of any notice (including any
notice of redemption) or the payment of any amount or delivery of any
Securities (or other security or property) under or with respect to such
Securities. All notices and communications to be given to the Holders and all
payments to be made to Holders in respect of the Securities shall be given or
made only to or upon the order of the registered Holders (which shall be DTC or
its nominee in the case of a Global Security). The rights of beneficial owners
in any Global Security shall be exercised only through DTC subject to the
applicable rules and procedures of DTC. The Trustee may rely and shall be fully
protected in relying upon information furnished by DTC with respect to its
members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of
any interest in any Security (including any transfers between or among DTC
participants, members or beneficial owners in any Global Security) other than
to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by, the
terms of this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
46
SECTION 2.7. Form of Certificate to be Delivered in
Connection with Transfers to Institutional Accredited Investors.
[Date]
▇▇▇▇▇▇▇ Corporation
c/o Wachovia Bank, National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
This certificate is delivered to request a transfer of
$_________ principal amount of the 9.25% Senior Notes due 2010 (the
"Securities") of ▇▇▇▇▇▇▇ Corporation (the "Company").
Upon transfer, the Securities would be registered in the name
of the new beneficial owner as follows:
Name:
------------------------------------------
Address:
---------------------------------------
Taxpayer ID Number:
----------------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act")) purchasing for our own account or for the
account of such an institutional "accredited investor" at least $250,000
principal amount of the Securities, and we are acquiring the Securities not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of our investment in the Securities and we invest in or purchase
securities similar to the Securities in the normal course of our business. We
and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
2. We understand that the Securities have not been
registered under the Securities Act and, unless so registered, may not be sold
except as permitted in the following sentence. We agree on our own behalf and
on behalf of any investor account for which we are purchasing Securities to
offer, sell or otherwise transfer such Securities prior to the date that is two
years after the later of the date of original issue and the last date on which
the Company or any affiliate of the Company was the owner of such Securities
(or any predecessor thereto) (the "Resale Restriction Termination Date") only
(a) to the Company, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) in a transaction complying
with the requirements of Rule 144A under the Securities Act, to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is
47
being made in reliance on Rule 144A, (d) pursuant to offers and sales that
occur outside the United States within the meaning of Regulation S under the
Securities Act, (e) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
purchasing for its own account or for the account of such an institutional
"accredited investor," in each case in a minimum principal amount of Securities
of $250,000 or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property
or the property of such investor account or accounts be at all times within our
or their control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If any resale or other transfer of the Securities
is proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) and that it is acquiring such Securities
for investment purposes and not for distribution in violation of the Securities
Act. Each purchaser acknowledges that the Company and the Trustee reserve the
right prior to any offer, sale or other transfer prior to the Resale
Termination Date of the Securities pursuant to clauses (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:
--------------------------------
BY:
----------------------------------------
SECTION 2.8. Form of Certificate to be Delivered in
Connection with Transfers Pursuant to Regulation S.
[Date]
▇▇▇▇▇▇▇ Corporation
c/o Wachovia Bank, National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: ▇▇▇▇▇▇▇ Corporation
9.25% Senior Notes due 2010 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) the offer of the Securities was not made to a person
in the United States;
48
(b) either (i) at the time the buy order was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States or (ii) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may
be.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------------------
---------------------------------------------
Authorized Signature
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen
Securities. If a mutilated Security is surrendered to the Registrar or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the requirements of Section 8-405 of the Uniform
Commercial Code are met, such that the Securityholder (a) satisfies the Company
or the Trustee within a reasonable time after such Securityholder has notice of
such loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (b) makes such request to the
Company or Trustee prior to the Security being acquired by a protected
purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
"protected purchaser") and (c) satisfies any other reasonable requirements of
the Trustee. If required by the Trustee or the Company, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar
and any co-registrar from any loss which any of them may suffer if a Security
is replaced, and, in the absence of notice to the Company, any Subsidiary
Guarantor or the Trustee
49
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon Company Order the Trustee shall authenticate and make
available for delivery, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor
and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, any Subsidiary Guarantor (if
applicable) and any other obligor upon the Securities, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.10. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security ceases to be outstanding in the
event the Company or a Subsidiary of the Company holds the Security, provided,
however, that (i) for purposes of determining which are outstanding for consent
or voting purposes hereunder, the provisions of Section 11.6 shall apply and
(ii) in determining whether the Trustee shall be protected in making a
determination whether the Holders of the requisite principal amount of
outstanding Securities are present at a meeting of Holders of Securities for
quorum purposes or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or modification
hereunder, or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer of the Trustee actually knows to be held by the Company or
an Affiliate of the Company shall not be considered outstanding.
If a Security is replaced pursuant to Section 2.9, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or
50
maturing, as the case may be, and the Paying Agent is not prohibited from
paying such money to the Securityholders on that date pursuant to the terms of
this Indenture, then on and after that date such Securities (or portions
thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.11. Temporary Securities. In the event that
Definitive Securities are to be issued under the terms of this Indenture, until
such Definitive Securities are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall
be substantially in the form of Definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Securities. After the preparation of Definitive
Securities, the temporary Securities shall be exchangeable for Definitive
Securities upon surrender of the temporary Securities at any office or agency
maintained by the Company for that purpose and such exchange shall be without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute, and the Trustee shall
authenticate and make available for delivery in exchange therefor, one or more
Definitive Securities representing an equal principal amount of Securities.
Until so exchanged, the Holder of temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as a Holder of Definitive
Securities.
SECTION 2.12. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel all Securities surrendered for registration of transfer, exchange,
payment or cancellation and destroy such Securities in accordance with its
internal policies including delivery of a certificate (a "Certificate of
Destruction") describing such Securities disposed (subject to the record
retention requirements of the Exchange Act). The Company may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation for any reason other than in connection with a transfer or
exchange.
SECTION 2.13. Payment of Interest; Defaulted Interest.
Interest on any Security 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 such Security (or one or more predecessor Securities) is registered at the
close of business on the regular record date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 2.3.
Any interest on any Security which is payable, but is not
paid when the same becomes due and payable and such nonpayment continues for a
period of 30 days shall forthwith cease to be payable to the Holder on the
regular record date by virtue of having been such Holder, and such defaulted
interest and (to the extent lawful) interest on such defaulted interest at the
rate borne by the Securities (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest") shall be paid by the Company,
at its election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or
their respective predecessor Securities) are registered at the close
of business on a Special Record Date (as defined below) for the
51
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 Security
and the date (not less than 30 days after such notice) of the proposed
payment (the "Special Interest Payment Date"), and at the same time
the Company shall deposit with the Trustee an amount of money 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 money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a record date (the "Special Record
Date") for the payment of such Defaulted Interest, which date shall be
not more than 15 days and not less than 10 days prior to the Special
Interest Payment Date 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 and Special Interest Payment Date therefor to be given in the
manner provided for in Section 11.2, 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 and Special Interest
Payment Date therefor having been so given, such Defaulted Interest
shall be paid on the Special Interest Payment Date to the Persons in
whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (b).
(b) 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 Securities 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 of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of, transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 2.14. Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 2.15. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such CUSIP numbers. The Company shall promptly notify the Trustee
in writing of any change in the CUSIP numbers.
52
ARTICLE III
Covenants
SECTION 3.1. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and
in the manner provided in the Securities and in this Indenture. Principal and
interest shall be considered paid on the date due if on such date the Trustee
or the Paying Agent holds in accordance with this Indenture immediately
available funds sufficient to pay all principal and interest then due.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United States
of America from principal or interest payments hereunder.
SECTION 3.2. SEC Reports. Notwithstanding that the
Company may not be subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, to the extent permitted by the Exchange Act, the Company
shall file with the Commission, and make available to the Trustee and the
registered Holders of the Securities, 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, and any successor or substitute forms
thereto, if the Company were required to file reports on such forms, including
a Management's Discussion and Analysis of Financial Condition and Results of
Operations, and all current reports that are required to be filed with the
Commission on Form 8-K, and any successor or substitute form thereto, if the
Company were required to file such reports on such form, and proxy statements
if the Company were required to file proxy statements, and any other reports
required to be filed pursuant to Sections 13 and 15(d) of the Exchange Act, in
each case, within the time periods specified therein. In the event that the
Company is not permitted to file such reports, documents and information with
the Commission pursuant to the Exchange Act, the Company will nevertheless
provide such Exchange Act information to the Trustee and, upon request, to the
Holders of the Securities as if the Company were subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act within the time periods
specified therein.
SECTION 3.3. Limitation on Indebtedness. The Company
shall not, and shall not permit any of its Restricted Subsidiaries to, Incur
any Indebtedness (including Acquired Indebtedness); provided, however, that the
Company and the Subsidiary Guarantors may Incur Indebtedness if on the date
thereof:
(1) the Consolidated Coverage Ratio for the Company and
its Restricted Subsidiaries is at least 2.50 to
1.00; and
(2) no Default or Event of Default will have occurred or
be continuing or would occur as a consequence of
Incurring the Indebtedness.
53
The first paragraph of this Section 3.3 will not prohibit the
Incurrence of the following Indebtedness:
(1) Indebtedness of the Company and its Subsidiary
Guarantors Incurred pursuant to the Senior Credit
Agreement together with the principal component of
amounts outstanding under Qualified Receivables
Transactions in an aggregate principal amount not to
exceed the greater of (a) the Borrowing Base and
(b)(x) $375.0 million less (y) the aggregate
principal amount of all repayments with the proceeds
from Asset Dispositions;
(2) the Subsidiary Guarantees and other Guarantees by
the Subsidiary Guarantors of Indebtedness Incurred
in accordance with the provisions of this Indenture;
provided that in the event such Indebtedness that is
being Guaranteed is a Subordinated Obligation or a
Guarantor Subordinated Obligation, then the related
Guarantee shall be subordinated in right of payment
to the Subsidiary Guarantee;
(3) Indebtedness of the Company owing to and held by any
Restricted Subsidiary (other than a Receivables
Entity) or Indebtedness of a Restricted Subsidiary
owing to and held by the Company or any Restricted
Subsidiary (other than a Receivables Entity),
provided, however;
(a) if the Company is the obligor on such
Indebtedness extended by a Subsidiary that
is not a Subsidiary Guarantor, such
Indebtedness is expressly subordinated to
the prior payment in full in cash of all
obligations with respect to the Securities;
and
(b) (i) any subsequent issuance or transfer of
Capital Stock or any other event which
results in any such Indebtedness being
beneficially held by a Person other than
the Company or a Restricted Subsidiary
(other than a Receivables Entity) of the
Company; and
(ii) any sale or other transfer of any such
Indebtedness to a Person other than the
Company or a Restricted Subsidiary (other
than a Receivables Entity) of the Company,
shall be deemed, in each case, to constitute an Incurrence of
such Indebtedness by the Company or such Subsidiary, as the
case may be;
(4) Indebtedness represented by (a) the Securities
issued on the Issue Date, (b) any Indebtedness
(other than the Indebtedness described in clauses
(1), (2), (3), (6), (8), (9), (10) and (13))
outstanding on the Issue Date and (c) any
Refinancing Indebtedness Incurred in respect of any
Indebtedness
54
described in this clause (4) or clause (5) or
Incurred pursuant to the first paragraph of this
Section 3.3;
(5) Indebtedness of a Subsidiary Guarantor Incurred and
outstanding on the date on which such Subsidiary
Guarantor was acquired by the Company (other than
Indebtedness Incurred (a) to provide all or any
portion of the funds utilized to consummate the
transaction or series of related transactions
pursuant to which such Subsidiary Guarantor became a
Subsidiary Guarantor or was otherwise acquired by
the Company or (b) otherwise in connection with, or
in contemplation of, such acquisition); provided
however, that at the time such Subsidiary Guarantor
is acquired by the Company, the Company would have
been able to Incur $1.00 of additional Indebtedness
pursuant to the first paragraph of this Section 3.3
after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (5);
(6) Indebtedness under Currency Agreements and Interest
Rate Agreements; provided that in the case of
Currency Agreements, such Currency Agreements are
related to business transactions of the Company or
its Restricted Subsidiaries entered into in the
ordinary course of business or in the case of
Currency Agreements and Interest Rate Agreements,
such Currency Agreements and Interest Rate
Agreements are entered into for bona fide hedging
purposes of the Company or its Restricted
Subsidiaries (as determined in good faith by the
Board of Directors or senior management of the
Company) and substantially correspond in terms of
notional amount, duration, currencies and interest
rates, as applicable, to Indebtedness of the Company
or its Restricted Subsidiaries Incurred without
violation of this Indenture;
(7) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness represented
by Capitalized Lease Obligations, mortgage
financings or purchase money obligations with
respect to assets other than Capital Stock or other
Investments, in each case incurred for the purpose
of financing all or any part of the purchase price
or cost of construction or improvements of property
or assets used in the business of the Company or
such Restricted Subsidiaries, in an aggregate
principal amount not to exceed $15.0 million at any
time outstanding;
(8) Indebtedness incurred in respect of workers'
compensation claims, self-insurance obligations,
performance, surety and similar bonds and completion
guarantees provided by the Company or a Restricted
Subsidiary in the ordinary course of business;
(9) Indebtedness arising from agreements of the Company
or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or
similar obligations, in each case, incurred or
assumed in connection with
55
the disposition of any business, assets or Capital
Stock of a Restricted Subsidiary, provided that the
maximum aggregate liability in respect of all such
Indebtedness shall at no time exceed the gross
proceeds actually received by the Company and its
Restricted Subsidiaries in connection with such
disposition;
(10) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or
similar instrument drawn against insufficient funds
in the ordinary course of business, provided,
however, that such Indebtedness is extinguished
within five business days of Incurrence;
(11) Any Securities or Subsidiary Guarantees issued in
exchange for the Securities or Subsidiary Guarantees
pursuant to the Registration Rights Agreement;
(12) Indebtedness Incurred in connection with the
Excluded Sale/Leasebacks in an aggregate principal
amount at any one time not to exceed $35.0 million;
(13) Indebtedness of Foreign Subsidiaries in an aggregate
principal amount at any one time outstanding not to
exceed the greater of (x) the Foreign Borrowing Base
and (y) $25.0 million; and
(14) in addition to the items referred to in clauses (1)
through (13) above, Indebtedness of the Company and
its Subsidiary Guarantors in an aggregate
outstanding principal amount which, when taken
together with the principal amount of all other
Indebtedness Incurred pursuant to this clause (14)
and then outstanding, will not exceed $25.0 million.
For purposes of determining compliance with, and the
outstanding principal amount of any particular Indebtedness incurred pursuant
to and in compliance with, this Section 3.3:
(1) in the event that Indebtedness meets the criteria of
more than one of the types of Indebtedness described
in the first and second paragraphs of this Section
3.3, the Company, in its sole discretion, will
classify such item of Indebtedness on the date of
Incurrence and only be required to include the
amount and type of such Indebtedness in one of such
clauses, and the Company will be entitled, at the
time of such Incurrence, to divide and classify an
item of Indebtedness into one or more types of
Indebtedness described herein, and the Company may
reclassify any such Indebtedness between clauses (1)
and (14) of the second paragraph of this Section
3.3, between clauses (7) and (14) of the second
paragraph of this Section 3.3 and between clauses
(13) and (14) of the second paragraph of this
Section
56
3.3 to the extent such Indebtedness could be
Incurred pursuant to such clause at the time of such
reclassification;
(2) all Indebtedness outstanding on the date of this
Indenture under the Senior Credit Agreement shall be
deemed outstanding under clause (1) of the second
paragraph of this Section 3.3;
(3) all amounts outstanding under Qualified Receivables
Transactions on the date of this Indenture shall be
deemed outstanding under clause (1) of the second
paragraph of this Section 3.3;
(4) all amounts outstanding under credit arrangements of
Foreign Subsidiaries on the date of this Indenture
shall be deemed outstanding under clause (13) of the
second paragraph of this Section 3.3; and
(5) the amount of Indebtedness issued at a price that is
less than the principal amount thereof will be equal
to the amount of the liability in respect thereof
determined in accordance with GAAP.
Accrual of interest, accrual of dividends, the accretion of
accreted value, the payment of interest in the form of additional Indebtedness
and the payment of dividends in the form of additional shares of Preferred
Stock will not be deemed to be an Incurrence of Indebtedness for purposes of
this Section 3.3. The amount of any Indebtedness outstanding as of any date
shall be (i) the accreted value of the Indebtedness in the case of any
Indebtedness issued with original issue discount and (ii) the principal amount
or liquidation preference thereof, together with any interest thereon that is
more than 30 days past due, in the case of any other Indebtedness.
In addition, the Company will not permit any of its
Unrestricted Subsidiaries to Incur any Indebtedness or issue any shares of
Disqualified Stock, other than Non-Recourse Debt. If at any time an
Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of
such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of
the Company as of such date (and, if such Indebtedness is not permitted to be
Incurred as of such date under this Section 3.3, the Company shall be in
Default of this Section 3.3).
For purposes of determining compliance with any U.S.
dollar-denominated restriction on the Incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was Incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness;
provided that if such Indebtedness is Incurred to refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the
applicable U.S. dollar-denominated restriction to be exceeded if calculated at
the relevant currency exchange rate in effect on the date of such refinancing,
such U.S. dollar denominated restriction shall be deemed not to have been
exceeded so long as the principal amount of such refinancing Indebtedness does
not exceed the principal amount of such Indebtedness being refinanced.
Notwithstanding any other provision of this
57
Section 3.3, the maximum amount of Indebtedness that the Company may Incur
pursuant to this Section 3.3 shall not be deemed to be exceeded solely as a
result of fluctuations in the exchange rate of currencies. The principal amount
of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a
different currency from the Indebtedness being refinanced, shall be calculated
based on the currency exchange rate applicable to the currencies in which such
Refinancing Indebtedness is denominated that is in effect on the date of such
refinancing.
SECTION 3.4. Limitation on Restricted Payments. The
Company will not, and will not permit any of its Restricted Subsidiaries,
directly or indirectly, to:
(1) declare or pay any dividend or make any distribution
on or in respect of its Capital Stock (including any
payment in connection with any merger or
consolidation involving the Company or any of its
Restricted Subsidiaries) except:
(a) dividends or distributions payable in
Capital Stock of the Company (other than
Disqualified Stock) or in options, warrants
or other rights to purchase such Capital
Stock; and
(b) dividends or distributions payable to the
Company or a Restricted Subsidiary of the
Company (and if such Restricted Subsidiary
is not a Wholly-Owned Subsidiary, to its
other holders of common Capital Stock on a
pro rata basis);
(2) purchase, redeem, retire or otherwise acquire for
value any Capital Stock of the Company or any direct
or indirect parent of the Company held by Persons
other than the Company or a Restricted Subsidiary of
the Company (other than in exchange for Capital
Stock of the Company (other than Disqualified
Stock));
(3) purchase, repurchase, redeem, defease or otherwise
acquire or retire for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Obligations or
Guarantor Subordinated Obligations (other than the
purchase, repurchase, redemption, defeasance or
other acquisition of Subordinated Obligations or
Guarantor Subordinated Obligations in anticipation
of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due
within one year of the date of purchase, repurchase,
redemption, defeasance or acquisition); or
(4) make any Restricted Investment in any Person;
(any such dividend, distribution, purchase, redemption, repurchase, defeasance,
other acquisition, retirement or Restricted Investment referred to in clauses
(1) through (4) shall be referred to herein as a "Restricted Payment"), if at
the time the Company or such Restricted Subsidiary makes such Restricted
Payment:
58
(a) a Default shall have occurred and be continuing (or
would result therefrom); or
(b) the Company is not able to Incur an additional $1.00
of Indebtedness pursuant to the first paragraph of
Section 3.3 after giving effect, on a pro forma
basis, to such Restricted Payment; or
(c) the aggregate amount of such Restricted Payment and
all other Restricted Payments declared or made
subsequent to the Issue Date would exceed the sum
of:
(i) 50% of Consolidated Net Income for the
period (treated as one accounting period)
from the beginning of the first fiscal
quarter commencing prior to the Issue Date
to the end of the most recent fiscal
quarter ending prior to the date of such
Restricted Payment for which financial
statements are in existence (or, in case
such Consolidated Net Income is a deficit,
minus 100% of such deficit);
(ii) 100% of the aggregate Net Cash Proceeds
received by the Company from the issue or
sale of its Capital Stock (other than
Disqualified Stock) or other capital
contributions subsequent to the Issue Date
(other than Net Cash Proceeds received from
an issuance or sale of such Capital Stock
to a Subsidiary of the Company or an
employee stock ownership plan, option plan
or similar trust to the extent such sale to
an employee stock ownership plan option
plan or similar trust is financed by loans
from or guaranteed by the Company or any
Restricted Subsidiary unless such loans
have been repaid on or prior to the date of
determination);
(iii) the amount by which Indebtedness of the
Company is reduced on the Company's balance
sheet upon the conversion or exchange
(other than by a Subsidiary of the Company)
subsequent to the Issue Date of any
Indebtedness of the Company convertible or
exchangeable for Capital Stock (other than
Disqualified Stock) of the Company (less
the amount of any cash, or other property,
distributed by the Company upon such
conversion or exchange, plus the amount of
cash received by the Company upon such
conversion or exchange); and
(iv) the amount equal to the net reduction in
Restricted Investments made by the Company
or any of its Restricted Subsidiaries in
any Person resulting from:
59
(A) repurchases or redemptions of such
Restricted Investments by such
Person, proceeds realized upon the
sale of such Restricted Investment
to an unaffiliated purchaser,
repayments of loans or advances or
other transfers of assets
(including by way of dividend or
distribution) by such Person to the
Company or any Restricted
Subsidiary of the Company; or
(B) the redesignation of Unrestricted
Subsidiaries as Restricted
Subsidiaries (valued in each case
as provided in the definition of
"Investment") not to exceed, in the
case of any Unrestricted
Subsidiary, the amount of
Investments previously made by the
Company or any Restricted
Subsidiary in such Unrestricted
Subsidiary,
which amount in each case under this clause (iv) was
included in the calculation of the amount of
Restricted Payments; provided, however, that no
amount will be included under this clause (iv) to
the extent it is already included in Consolidated
Net Income.
The provisions of the preceding paragraph will not prohibit:
(1) any purchase, retirement, prepayment, defeasance or
redemption of Capital Stock or Subordinated
Obligations of the Company or Guarantor Subordinated
Obligations made by exchange for, or out of the
proceeds of the substantially concurrent sale of,
Capital Stock of the Company (other than
Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary or an employee stock
ownership plan or similar trust to the extent such
sale to an employee stock ownership plan or similar
trust is financed by loans from or guaranteed by the
Company or any Restricted Subsidiary unless such
loans have been repaid on or prior to the date of
determination); provided, however, that (a) such
purchase or redemption will be excluded in
subsequent calculations of the amount of Restricted
Payments and (b) the Net Cash Proceeds from such
sale will be excluded from clause (c)(ii) of the
preceding paragraph;
(2) any purchase, retirement, prepayment, defeasance or
redemption of Subordinated Obligations of the
Company or Guarantor Subordinated Obligations made
by exchange for, or out of the proceeds of the
substantially concurrent sale of, Subordinated
Obligations of the Company or Guarantor Subordinated
Obligations, as the case may be, that qualifies as
Refinancing Indebtedness; provided, however, that
such purchase or redemption will be excluded in
subsequent calculations of the amount of Restricted
Payments;
60
(3) so long as no Default or Event of Default has
occurred and is continuing, any purchase or
redemption of Subordinated Obligations or Guarantor
Subordinated Obligations from Net Available Cash to
the extent permitted under Section 3.7; provided,
however, that such purchase or redemption will be
excluded in subsequent calculations of the amount of
Restricted Payments;
(4) dividends paid within 60 days after the date of
declaration if at such date of declaration such
dividend would have complied with this provision;
provided however, that such dividends will be
included in subsequent calculations of the amount of
Restricted Payments;
(5) so long as no Default or Event of Default has
occurred and is continuing,
(a) the purchase, redemption or other
acquisition, cancellation or retirement for
value of Capital Stock, or options,
warrants, equity appreciation rights or
other rights to purchase or acquire Capital
Stock of the Company or any Restricted
Subsidiary of the Company or any parent of
the Company held by any existing or former
employees or management of the Company or
any Subsidiary of the Company or their
assigns, estates or heirs, in each case in
connection with the repurchase provisions
under employee stock option or stock
purchase agreements or other agreements to
compensate management employees; provided
that such redemptions or repurchases
pursuant to this clause will not exceed
$1.0 million in the aggregate during any
calendar year and $5.0 million in the
aggregate for all such redemptions and
repurchases; provided, however, that the
amount of any such repurchase or redemption
will be included in subsequent calculations
of the amount of Restricted Payments; and
(b) loans or advances to employees or directors
of the Company or any Subsidiary of the
Company, in an aggregate amount not in
excess of $2.0 million at any one time
outstanding; provided, however,that the
amount of such loans and advances will be
included in subsequent calculations of the
amount of Restricted Payments;
(6) so long as no Default or Event of Default has
occurred and is continuing, the declaration and
payment of dividends to holders of any class or
series of Disqualified Stock of the Company issued
in accordance with the terms of this Indenture to
the extent such dividends are included in the
definition of "Consolidated Interest Expense";
provided, that the payment of such dividends will be
excluded from the calculation of Restricted
Payments;
61
(7) repurchases of Capital Stock deemed to occur upon
the exercise of stock options if such Capital Stock
represents a portion of the exercise price thereof;
provided, however, that such repurchases will be
excluded from subsequent calculations of the amount
of Restricted Payments;
(8) the repurchase, redemption, defeasance, retirement,
refinancing or acquisition for value or payment of
principal of Subordinated Obligations at a purchase
price not greater than 101% of the principal amount
of such Subordinated Obligations in the event of a
Change of Control pursuant to a provision similar to
Section 3.9; provided, however, that prior to any
such repurchase, the Company has made a Change of
Control Offer as provided in Section 3.9 above with
respect to the Securities and has repurchased all
Securities validly tendered for payment in
connection with such Change of Control Offer;
provided, however, that any repurchase, redemption,
defeasance, retirement, refinancing or acquisition
for value of Subordinated Obligations pursuant to
this clause (8) will be excluded in subsequent
calculations of the amount of Restricted Payments;
(9) the declaration and payment of dividends on the
Company's common stock, par value $0.01 per share
(the "Common Stock"), in an amount not to exceed the
greater of (a) $0.16 per share in any fiscal year,
which amount will be reduced to reflect any
subdivision of the Common Stock by means of a stock
split, stock dividend or otherwise, or (b) $5.25
million in the aggregate in any fiscal year;
provided that at the time of declaration of such
dividend (x) no Default or Event of Default has
occurred and is continuing, and (y) the Company is
able to Incur at least an additional $1.00 of
Indebtedness pursuant to the first paragraph of
Section 3.3; provided further that the payment of
such dividends will be included in subsequent
calculations of the amount of Restricted Payments;
or
(10) Restricted Payments, not otherwise described in
clauses (1) through (9) above, in an amount not to
exceed $7.5 million; provided that the amount of
such Restricted Payments will be included in the
calculation of the amount of Restricted Payments.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of such Restricted Payment of the asset(s)
or securities proposed to be paid, transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment.
The fair market value of any cash Restricted Payment shall be its face amount
and any non-cash Restricted Payment shall be determined conclusively by the
Board of Directors acting in good faith, whose resolution with respect thereto
shall be delivered to the Trustee, such determination to be based upon an
opinion or appraisal issued by an accounting, appraisal, financial advisory, or
investment banking firm of national standing if such fair market value is
estimated to exceed $25.0 million. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations
62
required by Section 3.4 were computed, together with a copy of any fairness
opinion or appraisal required by this Indenture.
SECTION 3.5. Limitation on Liens. The Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur or suffer to exist any Lien (other than Permitted
Liens) upon any of its property or assets (including Capital Stock), whether
owned on the date of this Indenture or acquired after that date, securing any
Indebtedness, unless contemporaneously with the Incurrence of the Liens,
effective provision is made to secure the Indebtedness due under this Indenture
and the Securities or, in respect of Liens on any Restricted Subsidiary's
property or assets, any Subsidiary Guarantee of such Restricted Subsidiary,
equally and ratably with (or prior to in the case of Liens with respect to
Subordinated Obligations or Guarantor Subordinated Obligations, as the case may
be) the Indebtedness secured by such Lien for so long as such Indebtedness is
so secured.
SECTION 3.6. Limitation on Restrictions on Distributions
from Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or
become effective any consensual encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its
Capital Stock or pay any Indebtedness or other
obligations owed to the Company or any Restricted
Subsidiary;
(2) make any loans or advances to the Company or any
Restricted Subsidiary; or
(3) transfer any of its property or assets to the
Company or any Restricted Subsidiary.
The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to
an agreement in effect at or entered into
on the date of this Indenture, including,
without limitation, this Indenture, the
Securities, the Subsidiary Guarantees and
the Senior Credit Agreement in effect on
such date;
(ii) any encumbrance or restriction with respect
to a Restricted Subsidiary pursuant to an
agreement relating to any Indebtedness
Incurred by a Restricted Subsidiary on or
before the date on which such Restricted
Subsidiary was acquired by the Company
(other than Indebtedness Incurred as
consideration in, or to provide all or any
portion of the funds utilized to
consummate, the transaction or series of
related transactions pursuant to which such
Restricted Subsidiary became a Restricted
Subsidiary or was acquired by the Company
or in contemplation of the transaction) and
outstanding on such date;
63
(iii) any encumbrance or restriction with respect
to a Restricted Subsidiary pursuant to an
agreement effecting a refunding,
replacement or refinancing of Indebtedness
Incurred pursuant to an agreement referred
to in clause (i) or (ii) of this paragraph
or this clause (iii) or contained in any
amendment to an agreement referred to in
clause (i) or (ii) of this paragraph or
this clause (iii); provided, however, that
the encumbrances and restrictions with
respect to such Restricted Subsidiary
contained in any such agreement are not
materially less favorable, taken as a
whole, to the Holders of the Securities
than the encumbrances and restrictions
contained in such agreements referred to in
clauses (i) or (ii) of this paragraph on
the Issue Date or the date such Restricted
Subsidiary became a Restricted Subsidiary,
whichever is applicable;
(iv) in the case of clause (3) of the first
paragraph of this Section 3.6, any
encumbrance or restriction:
(a) that restricts in a customary
manner the subletting, assignment
or transfer of any property or
asset that is subject to a lease,
license or similar contract, or the
assignment or transfer of any such
lease, license or other contract;
(b) contained in mortgages, pledges,
security agreements or other Liens
permitted under this Indenture
securing Indebtedness of the
Company or a Restricted Subsidiary
to the extent such encumbrances or
restrictions restrict the transfer
of the property subject to such
mortgages, pledges, security
agreements or other Liens; or
(c) pursuant to customary provisions
restricting dispositions of real
property interests set forth in any
reciprocal easement agreements of
the Company or any Restricted
Subsidiary;
(v) purchase money obligations for property
acquired in the ordinary course of business
consistent with past practice that impose
encumbrances or restrictions of the nature
described in clause (3) of the first
paragraph of this Section 3.6 on the
property so acquired;
(vi) any Purchase Money Note or other
Indebtedness or contractual requirements
incurred with respect to a Qualified
Receivables Transaction relating
exclusively to a Receivables Entity that,
in the
64
good faith determination of the Board of
Directors, are necessary to effect such
Qualified Receivables Transaction;
(vii) any restriction with respect to a
Restricted Subsidiary (or any of its
property or assets) imposed pursuant to an
agreement entered into for the direct or
indirect sale or disposition of all or
substantially all the Capital Stock or
assets of such Restricted Subsidiary (or
the property or assets that are subject to
such restriction) pending the closing of
such sale or disposition;
(viii) encumbrances or restrictions arising or
existing by reason of applicable law or any
applicable rule, regulation or order;
(ix) provisions with respect to the distribution
of assets or property or joint venture
interests in joint venture agreements and
other similar agreements that are customary
for such agreements; and
(x) restrictions on cash or other deposits of
net worth imposed by customers in contracts
entered into in the ordinary course of
business.
SECTION 3.7. Limitation on Sales of Assets and
Subsidiary Stock. (a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the
case may be, receives consideration at the time of
contractually agreeing to such Asset Disposition at
least equal to the fair market value, as determined
in good faith by the Board of Directors (including
as to the value of all non-cash consideration), of
the shares and assets subject to such Asset
Disposition;
(2) at least 75% of the consideration from such Asset
Disposition received by the Company or such
Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash
from such Asset Disposition is applied by the
Company or such Restricted Subsidiary, as the case
may be:
(a) first, to the extent the Company or any
Restricted Subsidiary, as the case may be,
elects (or is required by the terms of any
Indebtedness), to prepay, repay or purchase
Secured Indebtedness (other than
Disqualified Stock or Subordinated
Obligations) of the Company or Secured
Indebtedness (other than any Preferred
Stock or Guarantor Subordinated
Obligations) of a Restricted Subsidiary (in
each case other than Indebtedness owed to
the Company or an
65
Affiliate of the Company) or the Senior
Credit Agreement (whether the Senior Credit
Agreement is secured or unsecured) within
365 days from the later of the date of such
Asset Disposition or the receipt of such
Net Available Cash; provided, however,
that, in connection with any prepayment,
repurchase or repayment of Indebtedness
pursuant to this clause (a), the Company or
such Restricted Subsidiary will retire such
Indebtedness, and will cause the related
commitment (if any) to be permanently
reduced in an amount equal to the principal
amount so prepaid, repaid or repurchased;
and
(b) second, to the extent of the balance of
such Net Available Cash after application
in accordance with clause (a), to the
extent the Company or such Restricted
Subsidiary elects, to invest in Additional
Assets within 365 days from the later of
the date of such Asset Disposition or the
receipt of such Net Available Cash;
provided, that, investments in Additional
Assets made within 60 days preceding the
Asset Disposition will be deemed to be an
investment in Additional Assets.
Clauses (1) and (2) above shall not be applicable to Assets
Held for Sale.
(b) Any Net Available Cash from Asset Dispositions that
are not applied or invested as provided in the preceding paragraph will be
deemed to constitute "Excess Proceeds." On the 366th day after an Asset
Disposition, if the aggregate amount of Excess Proceeds exceeds $15.0 million,
the Company will be required to make an offer ("Asset Disposition Offer") to
all Holders of Securities and to the extent required by the terms of other Pari
Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding
with similar provisions requiring the Company to make an offer to purchase such
Pari Passu Indebtedness with the proceeds from any Asset Disposition ("Pari
Passu Notes"), to purchase the maximum principal amount of Securities and any
such Pari Passu Notes to which the Asset Disposition Offer applies 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 of the Securities and Pari Passu Notes
plus accrued and unpaid interest to the date of purchase, in accordance with
the procedures set forth in this Indenture or the agreements governing the Pari
Passu Notes, as applicable, in each case in integral multiples of $1,000. To
the extent that the aggregate amount of Securities and Pari Passu Notes so
validly tendered and not properly withdrawn pursuant to an Asset Disposition
Offer is less than the Excess Proceeds, the Company may use any remaining
Excess Proceeds for any other purpose which is not expressly prohibited by this
Indenture, including, but not limited to the purchase of Subordinated
Obligations and Guarantor Subordinated Obligations. If the aggregate principal
amount of Securities surrendered by Holders thereof and other Pari Passu Notes
surrendered by holders or lenders, collectively, exceeds the amount of Excess
Proceeds, the Trustee shall select the Securities and Pari Passu Notes to be
purchased on a pro rata basis on the basis of the aggregate principal amount of
tendered Securities and Pari Passu Notes. Upon completion of such Asset
Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
66
(c)(1) The Asset Disposition Offer will remain open for a
period of 20 Business Days following its commencement, except to the extent
that a longer period is required by applicable law (the "Asset Disposition
Offer Period"). No later than five Business Days after the termination of the
Asset Disposition Offer Period (the "Asset Disposition Purchase Date"), the
Company will purchase the principal amount of Securities and Pari Passu Notes
required to be purchased pursuant to this Section 3.7 (the "Asset Disposition
Offer Amount") or, if less than the Asset Disposition Offer Amount has been so
validly tendered, all Securities and Pari Passu Notes validly tendered in
response to the Asset Disposition Offer.
(2) If the Asset Disposition Purchase Date is on or
after an interest record date and on or before the related interest payment
date, any accrued and unpaid interest will be paid to the Person in whose name
a Note is registered at the close of business on such record date, and no
additional interest will be payable to Holders of the Securities who tender
Securities pursuant to the Asset Disposition Offer.
(3) On or before the Asset Disposition Purchase Date,
the Company will, to the extent lawful, accept for payment, on a pro rata basis
to the extent necessary, the Asset Disposition Offer Amount of Securities and
Pari Passu Notes or portions of Securities and Pari Passu Notes so validly
tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or
if less than the Asset Disposition Offer Amount has been validly tendered and
not properly withdrawn, all Securities and Pari Passu Notes so validly tendered
and not properly withdrawn, in each case in integral multiples of $1,000. The
Company will deliver to the Trustee an Officers' Certificate stating that such
Securities or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.7 and, in addition, the Company
will deliver all certificates and notes required, if any, by the agreements
governing the Pari Passu Notes. The Company or the Paying Agent, as the case
may be, will promptly (but in any case not later than five Business Days after
termination of the Asset Disposition Offer Period) mail or deliver to each
tendering Holder of Securities or holder or lender of Pari Passu Notes, as the
case may be, an amount equal to the purchase price of the Securities or Pari
Passu Notes so validly tendered and not properly withdrawn by such holder or
lender, as the case may be, and accepted by the Company for purchase, and the
Company will promptly issue a new Security, and the Trustee, upon delivery of
an Officers' Certificate from the Company will authenticate and mail or deliver
such new Security to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered; provided that each such new
Security will be in a principal amount of $1,000 or an integral multiple of
$1,000. In addition, the Company will take any and all other actions required
by the agreements governing the Pari Passu Notes. Any Security not so accepted
will be promptly mailed or delivered by the Company to the Holder thereof. The
Company will publicly announce the results of the Asset Disposition Offer on
the Asset Disposition Purchase Date.
For the purposes of this Section 3.7, the following will be
deemed to be cash:
(1) the assumption by the transferee of Indebtedness
(other than Subordinated Obligations or Disqualified
Stock) of the Company or Indebtedness (other than
Guarantor Subordinated Obligations or Preferred
Stock) of any Restricted Subsidiary of the Company
and the release of the Company or
67
such Restricted Subsidiary from all liability on
such Indebtedness in connection with such Asset
Disposition (in which case the Company will, without
further action, be deemed to have applied such
deemed cash to Indebtedness in accordance with
clause (a) above); and
(2) securities, notes or other obligations received by
the Company or any Restricted Subsidiary of the
Company from the transferee that are converted
within 90 days by the Company or such Restricted
Subsidiary into cash.
(d) The Company will comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Securities
pursuant to this Section 3.7. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 3.7,
the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Indenture by
virtue of any conflict.
SECTION 3.8. Limitation on Affiliate Transactions. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into or conduct any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Company (an "Affiliate Transaction") unless:
(1) the terms of such Affiliate Transaction are no less
favorable to the Company or such Restricted
Subsidiary, as the case may be, than those that
could be obtained by the Company or the relevant
Restricted Subsidiary in a comparable transaction at
the time of such transaction in arm's-length
dealings with a Person who is not such an Affiliate;
(2) in the event such Affiliate Transaction involves
aggregate consideration in excess of $10.0 million,
the terms of such transaction have been approved by
a majority of the members of the Board of Directors
having no personal stake in such transaction, if any
(and such majority or majorities, as the case may
be, determines that such Affiliate Transaction
satisfies the criteria in clause (1) above); and
(3) in the event such Affiliate Transaction involves
aggregate consideration in excess of $25.0 million,
the Company has received a written opinion from an
accounting, appraisal, financial advisory or
investment banking firm of nationally recognized
standing that such Affiliate Transaction is not
materially less favorable than those that might
reasonably have been obtained in a comparable
transaction at such time on an arm's length basis
from a Person that is not an Affiliate.
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The preceding paragraph will not apply to:
(1) any Restricted Payment (other than a Restricted
Investment) permitted to be made pursuant to this
Indenture;
(2) any issuance of securities, or other payments,
awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment
arrangements, stock options and stock ownership
plans and other reasonable fees, compensation,
benefits and indemnities paid or entered into by the
Company or its Restricted Subsidiaries in the
ordinary course of business or approved by a
majority of the disinterested members of the Board
of Directors of the Company, or indemnification
pursuant to the Company's or a Restricted
Subsidiary's charter or by-laws or applicable
corporate law, to or with officers, directors or
employees of the Company and its Restricted
Subsidiaries;
(3) loans or advances to employees of the Company or any
of its Restricted Subsidiaries in the ordinary
course of business or approved by a majority of the
disinterested members of the Board of Directors of
the Company;
(4) any transaction between the Company and a Restricted
Subsidiary (other than a Receivables Entity) or
between Restricted Subsidiaries (other than a
Receivables Entity);
(5) the payment of reasonable and customary fees paid
to, and indemnity provided on behalf of, officers,
directors or employees of the Company or any
Restricted Subsidiary of the Company, or the payment
of any director's and officer's insurance premiums;
(6) the performance of obligations of the Company or any
of its Restricted Subsidiaries under the terms of
any agreement or arrangement in existence on the
Issue Date to which the Company or any of its
Restricted Subsidiaries is a party on the Issue Date
and identified on Schedule 3.8 hereto on the Issue
Date, as these agreements may be amended, modified
or supplemented from time to time; provided,
however, that any future amendment, modification or
supplement entered into after the Issue Date will be
permitted to the extent that its terms are not
materially less favorable to the Company or its
Restricted Subsidiaries than the terms of the
agreements or arrangements in effect on the Issue
Date;
(7) sales or other transfers or dispositions of accounts
receivable and other related assets customarily
transferred in an asset securitization transaction
involving accounts receivable to a Receivables
Entity in a Qualified Receivables Transaction, and
acquisitions of Permitted Investments in connection
with a Qualified Receivables Transaction;
69
(8) any merger between or among the Company or any of
its Restricted Subsidiaries for the purpose of
reincorporating the Company or the Restricted
Subsidiary;
(9) sales or purchases of products or materials or the
rendering of services in the ordinary course of
business and on terms at least as favorable as might
have reasonably been obtained from an unaffiliated
party;
(10) the granting or performance of registration rights
under a written agreement and approved by the Board
of Directors of the Company, or a Restricted
Subsidiary, as the case may be, containing customary
terms, taken as a whole; and
(11) any agreement to do any of the foregoing.
SECTION 3.9. Change of Control. If a Change of Control
occurs, each registered Holder of Securities will have the right to require the
Company to repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Securities at a purchase price in cash equal to 101%
of the principal amount of the Securities plus accrued and unpaid interest, if
any, to the date of purchase (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that notwithstanding the foregoing, the Company shall
not be obligated to repurchase the Securities pursuant to this Section 3.9 if
the Company has exercised its right to redeem all of the Securities pursuant to
the terms of Section 5.1.
Within 30 days following any Change of Control, the Company
will mail a notice (the "Change of Control Offer") to each registered Holder
with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such
Holder has the right to require the Company to
purchase such Holder's Securities at a purchase
price in cash equal to 101% of the principal amount
of such Securities plus accrued and unpaid interest,
if any, to the date of purchase (subject to the
right of Holders of record on a record date to
receive interest on the relevant interest payment
date) (the "Change of Control Payment");
(2) the repurchase date (which shall be no earlier than
30 days nor later than 60 days from the date such
notice is mailed) (the "Change of Control Payment
Date"); and
(3) the procedures and instructions determined by the
Company, consistent with this Indenture, that a
Holder must follow in order to have its Securities
repurchased.
70
On the Change of Control Payment Date, the Company will, to
the extent lawful:
(1) accept for payment all Securities or portions of
Securities (in integral multiples of $1,000)
properly tendered pursuant to the Change of Control
Offer;
(2) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all
Securities or portions of Securities so tendered;
and
(3) deliver or cause to be delivered to the Trustee the
Securities so accepted together with an Officers'
Certificate stating the aggregate principal amount
of Securities or portions of Securities being
purchased by the Company.
The Paying Agent will promptly mail to each Holder of
Securities so tendered the Change of Control Payment for such Securities, and
the Trustee will promptly authenticate and mail (or cause to be transferred by
book entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; provided that each
such new Security will be in a principal amount of $1,000 or an integral
multiple of $1,000.
If the Change of Control Payment Date is on or after an
interest record date and on or before the related interest payment date, any
accrued and unpaid interest, if any, will be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no
additional interest will be payable to Holders who tender pursuant to the
Change of Control Offer.
Prior to mailing a Change of Control Offer, and as a
condition to such mailing, the Company shall (i) obtain the requisite consent
of holders of each issue of Indebtedness issued under an indenture or other
agreement that may be violated by the payment of the Change of Control Offer
and obtain waivers to any event of default, caused by the Change of Control or
(ii) the Company will repay all outstanding Indebtedness issued under an
indenture or other agreement that may be violated by a payment to the Holders
of Securities under a Change of Control Offer or the Company must offer to
repay all such Indebtedness, and make payment to the holders of such
Indebtedness that accept such offer and obtain waivers of any event of default
from the remaining holders of such Indebtedness. The Company covenants to
effect such repayment or obtain such consent and waiver within 30 days
following any Change of Control, it being a Default of this Section 3.9 if the
Company fails to comply with such covenant.
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
requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section 3.9. To the extent that the provisions of
71
any securities laws or regulations conflict with provisions of this Indenture,
the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations described in this Indenture
by virtue of the conflict.
SECTION 3.10. Limitation on Sale of Capital Stock of
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Voting Stock of any Restricted Subsidiary or to issue
any of the Voting Stock of a Restricted Subsidiary (other than, if necessary,
shares of its Voting Stock constituting directors' qualifying shares) to any
Person except:
(1) to the Company or a Wholly-Owned Subsidiary (other
than a Receivables Entity); or
(2) in compliance with Section 3.7 and immediately after
giving effect to such issuance or sale, such
Restricted Subsidiary would continue to be a
Restricted Subsidiary.
Notwithstanding the preceding paragraph, the Company may sell
all the Voting Stock of a Restricted Subsidiary as long as the Company complies
with the terms of Section 3.7.
SECTION 3.11. Limitation on Sale/Leaseback Transactions.
The Company will not, and will not permit any of its Restricted Subsidiaries
to, enter into any Sale/Leaseback Transaction unless:
(1) the Company or such Restricted Subsidiary, as the
case may be, receives consideration at the time of
such Sale/Leaseback Transaction at least equal to
the fair market value (as evidenced by a resolution
of the Board of Directors of the Company) of the
property subject to such transaction;
(2) the Company or such Restricted Subsidiary could have
Incurred Indebtedness in an amount equal to the
Attributable Indebtedness in respect of such
Sale/Leaseback Transaction pursuant to Section 3.3;
(3) the Company or such Restricted Subsidiary would be
permitted to create a Lien on the property subject
to such Sale/Leaseback Transaction without securing
the Securities by Section 3.5; and
(4) the Sale/Leaseback Transaction is treated as an
Asset Disposition and all of the conditions of this
Indenture described under Section 3.7 (including the
provisions concerning the application of Net
Available Cash) are satisfied with respect to such
Sale/Leaseback Transaction.
Notwithstanding the foregoing, the foregoing subparagraphs
(1) - (4) shall not apply to the Excluded Sale/Leasebacks.
72
SECTION 3.12. Future Subsidiary Guarantors. After the
Issue Date, if any Restricted Subsidiary of the Company whether existing on the
Issue Date or thereafter formed or acquired becomes an obligor under or
guarantor of the Senior Credit Agreement and such Restricted Subsidiary is not
at that time a Subsidiary Guarantor, then the Company will cause such
Restricted Subsidiary to execute and deliver to the Trustee a Subsidiary
Guarantee pursuant to which such Subsidiary Guarantor will unconditionally
Guarantee, on a joint and several basis, the full and prompt payment of the
principal of, premium, if any, and interest on the Securities on a senior
unsecured basis, and each Restricted Subsidiary shall comply with the foregoing
notwithstanding any prior release of such Restricted Subsidiary from a
Subsidiary Guarantee in accordance with the terms of this Indenture.
SECTION 3.13. Limitation on Lines of Business. The
Company will not, and will not permit any Restricted Subsidiary to, engage in
any business other than a Related Business.
SECTION 3.14. Effectiveness of Covenants. The covenants
described under Sections 3.2, 3.3, 3.4, 3.6, 3.7, 3.8, 3.10, 3.12 and 3.13 (the
"Suspended Covenants") will no longer be in effect upon the Company attaining
Investment Grade Status. Notwithstanding the foregoing, if at any time the
Company's credit rating is downgraded from Investment Grade Status, the
Suspended Covenants shall be reinstated in full force and effect to the same
extent as though the Company had never attained Investment Grade Status.
SECTION 3.15. Maintenance of Office or Agency. The
Company will maintain in The City of New York, an office or agency where the
Securities may be presented or surrendered for payment, where, if applicable,
the Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The principal corporate trust office of the
Trustee, or if the Trustee's principal corporate trust office is not located in
The City of New York, any other office or agency maintained by the Trustee in
The City of New York (the "Corporate Trust Office"), shall be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
73
SECTION 3.16. Corporate Existence. Subject to Article IV
and Section 10.2, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence and that
of each Restricted Subsidiary and the corporate rights (charter and statutory)
licenses and franchises of the Company and each Restricted Subsidiary;
provided, however, that the Company shall not be required to preserve any such
existence (except the Company), right, license or franchise if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and each of its
Restricted Subsidiaries, taken as a whole, and that the loss thereof would not
have a material adverse effect on the ability of the Company to perform its
obligations under the Securities or this Indenture, provided, further, the
Company may merge in accordance with Sections 4.1 and 10.2, and provided,
further, that each of ▇▇▇▇▇▇▇ Athletic, Inc., a Georgia corporation, and
▇▇▇▇▇▇▇ Athletic West, Inc., a Nevada corporation, may be dissolved,
liquidated, wound up or merged into the Company or a Guarantor pursuant to the
applicable provisions of the laws of such corporation's state of incorporation,
at which time, all of the assets of such corporation, net of any fees and
expenses associated with such dissolution, liquidation, winding up or merger,
will be distributed to the Company or to a Guarantor.
SECTION 3.17. Payment of Taxes and Other Claims. The
Company will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (ii)
all lawful claims for labor, materials and supplies, which, if unpaid, might by
law become a material liability or lien upon the property of the Company or any
Restricted Subsidiary, except for any Lien permitted to be incurred pursuant to
subsections (3) and (4) of the definition of "Permitted Liens"; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate reserves, if necessary (in the good faith
judgment of management of the Company), are being maintained in accordance with
GAAP or where the failure to pay or discharge the same would not have a
material adverse effect on the ability of the Company to perform its
obligations under the Securities or this Indenture.
SECTION 3.18. Payments for Consent. Neither the Company
nor any of its Restricted Subsidiaries will, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fees or
otherwise, to any Holder of any Securities for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Securities unless such consideration is offered to be paid or
is paid to all Holders of the Securities that consent, waive or agree to amend
in the time frame set forth in the solicitation documents relating to such
consent, waiver or amendment.
SECTION 3.19. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each Fiscal Year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default or Event of Default and whether or not the
signers know of any Default or Event of Default that occurred during such
period. If they do, the certificate shall describe the Default or Event of
Default, its status and
74
what action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA ss. 314(a)(4).
SECTION 3.20. Further Instruments and Acts. Upon the
reasonable request of the Trustee, the Company will execute and deliver such
further instruments and do such further acts as may be reasonably necessary or
proper to carry out more effectively the purpose of this Indenture.
SECTION 3.21. Statement by Officers as to Default. The
Company shall deliver to the Trustee, as soon as possible and in any event
within fifteen days after the Company becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth
the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
ARTICLE IV
Successor Company
SECTION 4.1. Merger and Consolidation. The Company will
not consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, unless:
(1) the resulting, surviving or transferee Person (the
"Successor Company") will be a corporation,
partnership, trust or limited liability company
organized and existing under the laws of the United
States of America, any State of the United States or
the District of Columbia and the Successor Company
(if not the Company) will expressly assume, by
supplemental indenture, executed and delivered to
the Trustee, in form reasonably satisfactory to the
Trustee, all the obligations of the Company under
the Securities and this Indenture;
(2) immediately after giving effect to such transaction
(and treating any Indebtedness that becomes an
obligation of the Successor Company or any
Subsidiary of the Successor Company as a result of
such transaction as having been Incurred by the
Successor Company or such Subsidiary at the time of
such transaction), no Default or Event of Default
shall have occurred and be continuing;
(3) immediately after giving effect to such transaction,
the Successor Company would be able to Incur at
least an additional $1.00 of Indebtedness pursuant
to the first paragraph of Section 3.3;
(4) each Subsidiary Guarantor (unless it is the other
party to the transactions above, in which case
clause (1) shall apply) shall have by supplemental
indenture confirmed that its Subsidiary Guarantee
shall apply to such
75
Person's obligations in respect of this Indenture
and the Securities and its obligations under the
Registration Rights Agreement shall continue to be
in effect; and
(5) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger or
transfer and such supplemental indenture (if any)
comply with this Indenture.
For purposes of this Section 4.1, the sale, lease,
conveyance, assignment, transfer, or other disposition of all or substantially
all of the properties and assets of one or more Subsidiaries of the Company,
which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
The Successor Company will succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture, but, in the case of a lease of all or substantially all its assets,
the Company will not be released from the obligation to pay the principal of
and interest on the Securities.
Notwithstanding the preceding clause (3), (x) any Restricted
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company and (y) the Company may merge
with an Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction to realize tax benefits or to reincorporate in
Delaware.
ARTICLE V
Redemption of Securities
SECTION 5.1. Optional Redemption. The Securities may be
redeemed, as a whole or from time to time in part, subject to the conditions
and at the redemption prices specified in the form of Securities set forth in
Exhibits A and B hereto, which are hereby incorporated by reference and made a
part of this Indenture, together with accrued and unpaid interest to the
Redemption Date.
SECTION 5.2. Applicability of Article. Redemption of
Securities at the election of the Company or otherwise, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 5.3. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 5.1 shall
be evidenced by a Board Resolution. In case of any redemption at the election
of the Company, the Company shall, upon not later than the earlier of the date
that is 45 days prior to the Redemption Date fixed by the Company or the date
on which notice is given to the Holders (except as provided in Section 5.5
76
or unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 5.4.
SECTION 5.4. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed at any time
pursuant to an optional redemption, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the outstanding Securities not previously called for redemption,
in compliance with the requirements of the principal securities exchange, if
any, on which such Securities are listed, or, if such Securities are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee
shall deem fair and appropriate (and in such manner as complies with applicable
legal requirements) and which may provide for the selection for redemption of
portions of the principal of the Securities; provided, however, that no such
partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 5.5. Notice of Redemption. Notice of redemption
shall be given in the manner provided for in Section 11.2 not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of Securities to
be redeemed. The Trustee shall give notice of redemption in the Company's name
and at the Company's expense; provided, however, that the Company shall deliver
to the Trustee, at least 45 days prior to the Redemption Date, an Officers'
Certificate requesting that the Trustee give such notice at the Company's
expense and setting forth the information to be stated in such notice as
provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the redemption price and the amount of accrued
interest to the Redemption Date payable as provided
in Section 5.7, if any,
(3) if less than all outstanding Securities are to be
redeemed, the identification of the particular
Securities (or portion thereof) to be redeemed, as
well as the aggregate principal amount of Securities
to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial
redemption,
77
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall
state that on and after the Redemption Date, upon
surrender of such Security, the Holder will receive,
without charge, a new Security or Securities of
authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date the redemption price
(and accrued interest, if any, to the Redemption
Date payable as provided in Section 5.7) will become
due and payable upon each such Security, or the
portion thereof, to be redeemed, and, unless the
Company defaults in making the redemption payment,
that interest on Securities called for redemption
(or the portion thereof) will cease to accrue on and
after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and
accrued interest, if any,
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
Redemption Price,
(9) the CUSIP number, and that no representation is made
as to the accuracy or correctness of the CUSIP
number, if any, listed in such notice or printed on
the Securities, and
(10) the paragraph of the Securities pursuant to which
the Securities are to be redeemed.
SECTION 5.6. Deposit of Redemption Price. Prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 2.4) an amount of money sufficient to pay the
redemption price of, and accrued interest on, all the Securities which are to
be redeemed on that date.
SECTION 5.7. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
redemption price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the redemption price, together with accrued interest, if any, to
the Redemption Date (subject to the rights of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date).
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Securities.
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SECTION 5.8. Securities Redeemed in Part. Any Security
which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at the office or agency of the Company maintained
for such purpose pursuant to Section 3.15 (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Security at the expense of the Company, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered, provided,
that each such new Security will be in a principal amount of $1,000 or integral
multiple thereof.
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default. Each of the following is
an "Event of Default":
(1) default in any payment of interest or additional
interest (as required by the Registration Rights
Agreement) on any Security when due, continued for
30 days;
(2) default in the payment of principal of or premium,
if any, on any Security when due at its Stated
Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise;
(3) failure by the Company or any Subsidiary Guarantor
to comply with its obligations under Article IV or
Section 10.2;
(4) failure by the Company to comply for 30 days after
notice with any of its obligations under Sections
3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11,
3.12, 3.13, 3.15, 3.16, 3.17 and 3.18 (in each case,
other than a failure to purchase Securities, which
will constitute an Event of Default under clause (2)
above);
(5) failure by the Company to comply for 60 days after
notice with its other agreements contained in this
Indenture;
(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 of its
Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted
Subsidiaries), other than Indebtedness owed to the
Company or a Restricted Subsidiary, whether such
Indebtedness or
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guarantee now exists, or is created after the date
of this Indenture, which default:
(a) is caused by a failure to pay principal of,
or interest or premium, if any, on such
Indebtedness prior to the expiration of the
grace period provided in such Indebtedness
("payment default"); or
(b) results in the acceleration of such
Indebtedness prior to its maturity (the
"cross acceleration provision");
and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of
any other such Indebtedness under which there has
been a payment default or the maturity of which has
been so accelerated, aggregates $25.0 million or
more;
(7) (a) the Company or Significant Subsidiary (other
than any Receivables Entity) or a group of
Restricted Subsidiaries (other than Receivables
Entities) that, taken together (as of the latest
audited consolidated financial statements for the
Company and its Restricted Subsidiaries), would
constitute a Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or
proceeding;
(ii) consents to the entry of judgment,
decree or order for relief against
it in an involuntary case or
proceeding;
(iii) consents to the appointment of a
Custodian of it or for any
substantial part of its property;
(iv) makes a general assignment for the
benefit of its creditors;
(v) consents to or acquiesces in the
institution of a bankruptcy or an
insolvency proceeding against it;
or
(vi) takes any corporate action to
authorize or effect any of the
foregoing;
or takes any comparable action under any foreign
laws relating to insolvency; or
(b) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
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(i) is for relief against the Company
or any Significant Subsidiary
(other than any Receivables
Entity) or a group of Restricted
Subsidiaries (other than
Receivables Entities) that, taken
together (as of the latest audited
consolidated financial statements
for the Company and its Restricted
Subsidiaries), would constitute a
Significant Subsidiary in an
involuntary case;
(ii) appoints a Custodian of the
Company or any Significant
Subsidiary (other than any
Receivables Entity) or a group of
Restricted Subsidiaries (other
than Receivables Entities) that,
taken together (as of the latest
audited consolidated financial
statements for the Company and its
Restricted Subsidiaries), would
constitute a Significant
Subsidiary or for any substantial
part of its property; or
(iii) orders the winding up or
liquidation of the Company or any
Significant Subsidiary (other than
any Receivables Entity) or a group
of Restricted Subsidiaries (other
than Receivables Entities) that,
taken together (as of the latest
audited consolidated financial
statements for the Company and its
Restricted Subsidiaries) would
constitute a Significant
Subsidiary;
or any similar relief is granted under any foreign
laws and the order, decree or relief remains
unstayed and in effect for 60 days;
(8) failure by the Company or any Significant Subsidiary
or group of Restricted Subsidiaries that, taken
together (as of the latest audited consolidated
financial statements for the Company and its
Restricted Subsidiaries), would constitute a
Significant Subsidiary to pay final judgments
aggregating in excess of $25.0 million (net of any
amounts that a reputable and creditworthy insurance
company has acknowledged liability for in writing),
which judgments are not paid, bonded, discharged or
stayed for a period of 60 days (the "judgment
default provision"); or
(9) any Subsidiary Guarantee of a Significant Subsidiary
or group of Restricted Subsidiaries that taken
together as of the latest audited consolidated
financial statements for the Company and its
Restricted Subsidiaries would constitute a
Significant Subsidiary ceases to be in full force
and effect (except as contemplated by the terms of
this Indenture) or is declared null and void in a
judicial proceeding or any Subsidiary Guarantor that
is a Significant Subsidiary or group of Subsidiary
Guarantors that taken together as of the latest
audited consolidated
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financial statements for the Company and its
Restricted Subsidiaries would constitute a
Significant Subsidiary denies or disaffirms its
obligations under this Indenture or its Subsidiary
Guarantee.
However, a Default under clauses (4) and (5) of this Section
6.1 will not constitute an Event of Default until the Trustee or the Holders of
25% in principal amount of the outstanding Securities notify the Company of the
Default and the Company does not cure such Default within the time specified in
clauses (4) and (5) of this Section 6.1 after receipt of such notice.
SECTION 6.2. Acceleration. If an Event of Default (other
than an Event of Default described in clause (7) of Section 6.1) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least
25% in principal amount of the outstanding Securities by notice to the Company
and the Trustee, may, and the Trustee at the request of such Holders shall,
declare the principal of, premium, if any, and accrued and unpaid interest, if
any, on all the Securities to be due and payable. Upon such a declaration, such
principal, premium and accrued and unpaid interest will be due and payable
immediately. In the event of a declaration of acceleration of the Securities
because an Event of Default described in clause (6) of Section 6.1 has occurred
and is continuing, the declaration of acceleration of the Securities shall be
automatically annulled if the event of default or payment default triggering
such Event of Default pursuant to clause (6) of Section 6.1 shall be remedied
or cured by the Company or a Restricted Subsidiary of the Company or waived by
the holders of the relevant Indebtedness within 20 days after the declaration
of acceleration with respect thereto and if (1) the annulment of the
acceleration of the Securities would not conflict with any judgment or decree
of a court of competent jurisdiction and (2) all existing Events of Default,
except nonpayment of principal, premium or interest on the Securities that
became due solely because of the acceleration of the Securities, have been
cured or waived. If an Event of Default described in clause (7) of Section 6.1
above occurs and is continuing, the principal of, premium, if any, and accrued
and unpaid interest on all the Securities will become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holders. The Holders of a majority in principal amount of the outstanding
Securities may waive any or all past defaults (except with respect to
nonpayment of principal, premium or interest) and rescind any such acceleration
with respect to the Securities and its consequences if rescission would not
conflict with any judgment or decree of a court of competent jurisdiction.
SECTION 6.3. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal of (or premium, if any) or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
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SECTION 6.4. Waiver of Past Defaults. The Holders of a
majority in principal amount of the outstanding Securities by notice to the
Trustee may (a) waive, by their consent (including, without limitation consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Securities), an existing Default or Event of Default and its consequences
except (i) a Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on a Security or (ii) a Default or Event of
Default in respect of a provision that under Section 9.2 cannot be amended
without the consent of each Securityholder affected and (b) rescind any such
acceleration with respect to the Securities and its consequences if rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction. When a Default or Event of Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any consequent right.
SECTION 6.5. Control by Majority. The Holders of a
majority in principal amount of the outstanding Securities may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Sections 7.1 and 7.2, that the Trustee determines is
unduly prejudicial to the rights of other Securityholders or would involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.6. Limitation on Suits. Subject to Section
6.7, a Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(1) such Holder has previously given to the Trustee
written notice stating that an Event of Default is
continuing;
(2) Holders of at least 25% in principal amount of the
outstanding Securities make requested in writing
that the Trustee pursue the remedy;
(3) such Holders have offered to the Trustee reasonable
security or indemnity against any loss, liability or
expense;
(4) the Trustee has not complied with such request
within 60 days after receipt of the request and the
offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the
outstanding Securities have not given the Trustee a
direction that, in the opinion of the Trustee, is
inconsistent with such request within such 60-day
period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including, without
limitation, Section 6.6), the right of any Holder to receive payment of
principal of, premium (if any) or interest on the Securities held by
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such Holder, on or after the respective due dates expressed in the Securities,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of
Default specified in clauses (1) or (2) of Section 6.1 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the Company,
its Subsidiaries or its or their respective creditors or properties and, unless
prohibited by law or applicable regulations, may vote on behalf of the Holders
in any election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make 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, its agents
and its counsel, and any other amounts due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any
money or property pursuant to this Article VI, it shall pay out the money or
property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Securities for principal and interest,
respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section does not apply
to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to
Section 6.7 or a suit by Holders of more than 10% in outstanding principal
amount of the Securities.
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SECTION 6.12. Additional Payments. 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 Securities pursuant to the optional redemption
provisions of this Indenture or was required to repurchase the Securities, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Securities. If an Event of
Default occurs prior to
May 1, 2006 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 Securities prior to May 1, 2006, the premium specified in
this Indenture shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Securities.
ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee. (a) If an Event of
Default has occurred and is continuing, the Trustee shall exercise 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 such Person's own affairs; provided that if an
Event of Default occurs and is continuing, the Trustee will be under no
obligation to exercise the rights or powers under this Indenture at the request
or direction of any of the holders unless such holders have offered to the
Trustee reasonable indemnity or security against loss, liability or expense.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in
this Indenture and no implied covenants or
obligations shall be read into this Indenture
against 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, opinions or
orders furnished to the Trustee and conforming to
the requirements of this Indenture. However, in the
case of any such certificates or opinions which by
any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall
examine such certificates and opinions to determine
whether or not they conform on their face to the
requirements of this Indenture (but need not confirm
or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
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(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 6.5.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
(i) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(j) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses (including reasonable attorneys' fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document
(whether in its original or facsimile form) reasonably believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate and/or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on an Officers' Certificate or Opinion 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.
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(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, unless the Trustee's conduct constitutes willful
misconduct or negligence.
(e) The Trustee may consult with counsel of its
selection, and the advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Securities shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
SECTION 7.3. Individual Rights of Trustee. The Trustee
in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not
be responsible for and makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company in this Indenture or in any
document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event
of Default occurs and is continuing and if a Trust Officer has actual knowledge
thereof, the Trustee shall mail to each Securityholder notice of the Default or
Event of Default within the earlier of 90 days after it occurs or 30 days after
the Trustee has knowledge of such default. Except in the case of a Default or
Event of Default in payment of principal of, premium (if any), or interest on
any Security (including payments pursuant to the optional redemption or
required repurchase provisions of such Security, if any), the Trustee may
withhold the notice if and so long a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of
Securityholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly
as practicable after each May 15 beginning with the May 15, following the date
of this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA ss. 313(a). The Trustee also shall comply with TIA ss.
313(b). The Trustee shall also transmit by mail all reports required by TIA ss.
313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company
shall pay to the Trustee from time to time reasonable compensation for its
acceptance of this Indenture and services hereunder as the Company and the
Trustee shall from time to time agree in writing. The
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Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing of notices
to Securityholders, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Company shall indemnify the Trustee against any and all loss, liability,
damages, claims or expense (including reasonable attorneys' fees and expenses)
incurred by it without negligence or willful misconduct on its part in
connection with the administration of this trust and the performance of its
duties hereunder, including the costs and expenses of enforcing this Indenture
(including this Section 7.7) and of defending itself against any claims
(whether asserted by any Securityholder, the Company or otherwise). The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the claim and the
Trustee shall provide reasonable cooperation at the Company's expense in the
defense. The Trustee may have separate counsel and the Company shall pay the
fees and expenses of such counsel provided that the Company shall not be
required to pay such fees and expenses if it assumes the Trustee's defense,
and, in the reasonable judgment of outside counsel to the Trustee, there is no
conflict of interest between the Company and the Trustee in connection with
such defense. The Company shall not be under any obligation to pay for any
written settlement without its consent, which consent shall not be unreasonably
delayed, conditioned or withheld. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee
through the Trustee's own willful misconduct or negligence.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in clause (7) of Section 6.1 with
respect to the Company, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may
resign at any time by so notifying the Company. The Holders of a majority in
principal amount of the Securities may remove the Trustee by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
88
If the Trustee resigns or is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of at least 10% in principal amount of the Securities may petition, at
the Company's expense, any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA,
any Securityholder who has been a bona fide Holder of a Security for at least
six months may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.7 shall continue for
the benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA ss. 310(a). The Trustee
shall have a combined capital and surplus of at least $100 million as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA ss. 310(b); provided, however, that there shall be excluded
from the operation of TIA ss. 310(b)(1) any indenture or indentures under which
other securities or
89
certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Securities;
Defeasance. (a) Subject to Section 8.1(c), when (i)(x) the Company delivers to
the Trustee all outstanding Securities (other than Securities replaced pursuant
to Section 2.9) for cancellation or (y) all outstanding Securities not
theretofore delivered for cancellation have become due and payable, whether at
maturity or upon redemption or will become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption pursuant to Article V
hereof and the Company or any Subsidiary Guarantor irrevocably deposits or
causes to be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders money in U.S. dollars, non-callable U.S. Government
Obligations, or a combination thereof, in such amounts as will be sufficient
without consideration of any reinvestment of interest to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation for principal, premium, if any, and accrued interest to the
date of maturity or redemption; (ii) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which the
Company or any Subsidiary Guarantor is a party or by which the Company or any
Guarantor is bound; (iii) the Company or any Subsidiary Guarantor has paid or
caused to be paid all sums payable under this Indenture and the Securities; and
(iv) the Company has delivered irrevocable instructions to the Trustee under
this Indenture to apply the deposited money toward the payment of such
Securities at maturity or the Redemption Date, as the case may be, then the
Trustee shall acknowledge satisfaction and discharge of this Indenture on
demand of the Company (accompanied by an Officers' Certificate and an Opinion
of Counsel stating that all conditions precedent specified herein relating to
the satisfaction and discharge of this Indenture have been complied with) and
at the cost and expense of the Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company at
any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option"), and after giving effect to such legal
defeasance, any omission to comply with such obligations shall no longer
constitute a Default or Event of Default or (ii) its obligations under Sections
3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.18 and 4.1(3)
and the Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply with such
covenants shall no
90
longer constitute a Default or an Event of Default under Section 6.1(3), 6.1(4)
and 6.1(5) and the operation of Sections 6.1(6), 6.1(7) (but only with respect
to a Significant Subsidiary or group of Restricted Subsidiaries that would
constitute a Significant Subsidiary), 6.1(8) and 6.1(9), and the events
specified in such Sections shall no longer constitute an Event of Default
(clause (ii) being referred to as the "covenant defeasance option"), but except
as specified above, the remainder of this Indenture and the Securities shall be
unaffected thereby. The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. If the
Company exercises its covenant defeasance option, the Company may elect to have
any Subsidiary Guarantees in effect at such time terminate.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default, and
the Subsidiary Guarantees in effect at such time shall terminate. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.1(4)
(as such Section relates to 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11,
3.12, 3.13 and 3.18), 6.1(5), 6.1(6), 6.1(7) (but only with respect to a
Significant Subsidiary or group of Restricted Subsidiaries that would
constitute a Significant Subsidiary), 6.1(8) or 6.1(9) or because of the
failure of the Company to comply with Section 4.1(3).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Sections 8.1(a)
and (b), the Company's obligations in Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.9,
2.10, 2.11, 3.1, 3.15, 3.16, 3.17, 3.19, 3.20, 3.21, 6.7, 7.7, 7.8 and in this
Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.7, 8.4 and 8.5 shall
survive.
SECTION 8.2. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the
Trustee for the benefit of the Holders money in U.S. dollars or U.S.
Government Obligations or a combination thereof for the payment of
principal, premium, if any, and interest on the Securities to maturity
or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate
from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and interest
when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without investment will provide
cash at such times and in such amounts as will be sufficient to pay
principal and interest when due on all the Securities to maturity;
(3) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or, with respect to
certain bankruptcy or insolvency Events of Default, on the 91st day
after such date of deposit;
91
(4) such legal defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a Default under,
this Indenture or any other material agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(5) the Company shall have delivered to the Trustee an
Opinion of Counsel (subject to customary assumptions and exclusions)
to the effect that (A) the Securities and (B) assuming no intervening
bankruptcy of the Company between the date of deposit and the 91st day
following the deposit and that no Holder of the Securities is an
insider of the Company, after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' right generally;
(6) the Company delivers to the Trustee an Opinion of
Counsel (subject to customary assumptions and exclusions) to the
effect that the trust resulting from the deposit does not constitute,
or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(7) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel
(subject to customary assumptions and exclusions) in the United States
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the applicable
federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the
Securityholders will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such legal defeasance
had not occurred;
(8) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel
(subject to customary assumptions and exclusions) in the United States
to the effect that the Securityholders will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would
have been the case if such deposit and covenant defeasance had not
occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the Securities
and this Indenture as contemplated by this Article VIII have been
complied with.
SECTION 8.3. Application of Trust Money. The Trustee
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to this Article VIII. It shall apply the deposited money and the money
from U.S. Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal of and interest on the
Securities.
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SECTION 8.4. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money,
U.S. Government Obligations or securities held by them upon payment of all the
obligations under this Indenture.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal of or interest on the Securities that remains
unclaimed for two years, and, thereafter, Securityholders entitled to the money
must look to the Company for payment as general creditors.
SECTION 8.5. Indemnity for U.S. Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
the Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article IV in respect of the
assumption by a Successor Company of an obligation of the Company under
this Indenture;
(3) to provide for uncertificated Securities in addition
to or in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
93
(4) to add Guarantees with respect to the Securities or
to release a Subsidiary Guarantor in accordance with this Indenture;
provided, however, that the designation is in accord with the
applicable provisions of the Indenture;
(5) to secure the Securities;
(6) to add to the covenants of the Company and the
Subsidiary Guarantors for the benefit of the Holders or to surrender
any right or power herein conferred upon the Company;
(7) to make any change that does not materially adversely
affect the rights of any Securityholder;
(8) to comply with any requirements of the SEC in
connection with qualifying, or maintaining the qualification of, this
Indenture under the TIA; or
(9) to provide for the issuance of the Exchange
Securities, which will have terms substantially identical in all
material respects to the Initial Securities or the Additional
Securities, as the case may be (except that the transfer restrictions
contained in the Initial Securities or the Additional Securities, if
any, will be modified or eliminated, as appropriate), and which will be
treated, together with any outstanding Initial Securities or Additional
Securities, as a single issue of securities.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.2. With Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to any Securityholder but with the written consent of the Holders
of at least a majority in principal amount of the Securities then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities). However, without the
consent of each Securityholder affected, an amendment may not:
(1) reduce the principal amount of Securities whose
Holders must consent to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or extend the Stated Maturity
of any Security;
(4) reduce the premium payable upon the redemption or
repurchase of any Security or change the time at which any Security may
or shall be redeemed or repurchased as described under Article V;
94
(5) make any Security payable in currency other than that
stated in the Security;
(6) impair the right of any Holder to receive payment of
principal of, premium, if any, and interest on such Holder's Securities
on or after the due dates therefor (other than a repurchase required
under Section 3.7 or Section 3.9) or to institute suit for the
enforcement of any payment on or with respect to such Holder's
Securities; or
(7) make any change to the amendment provisions which
require each Holder's consent or to the waiver provisions.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof. A consent to
any amendment or waiver under this Indenture by any Holder of the Securities
given in connection with a tender of such Holder's Securities will not be
rendered invalid by such tender.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver shall become effective upon receipt by the Trustee of the
requisite number of written consents under Section 9.1 or 9.2 as applicable.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall become
valid or effective more than 120 days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the
95
changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Sections 7.1 and 7.2) shall
be fully protected in relying upon an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
ARTICLE X
Subsidiary Guarantee
SECTION 10.1. Subsidiary Guarantee. Each Subsidiary Guarantor
hereby fully, unconditionally and irrevocably guarantees, as primary obligor and
not merely as surety, jointly and severally with each other Subsidiary
Guarantor, to each Holder of the Securities and the Trustee the full and
punctual payment when due, whether at maturity, by acceleration, by redemption
or otherwise, of the principal of, premium, if any, and interest on the
Securities and all other monetary obligations of the Company under this
Indenture (all the foregoing being hereinafter collectively called the
"Obligations"). Each Subsidiary Guarantor further agrees (to the extent
permitted by law) that the Obligations may be extended or renewed, in whole or
in part, without notice or further assent from it, and that it will remain bound
under this Article X notwithstanding any extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of
payment from and protest to the Company of any of the Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice
of any default under the Securities or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder to assert any claim or demand or to enforce any right or remedy against
the Company or any other person under this Indenture, the Securities or any
other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Obligations or
any of them; (e) the failure of any Holder to exercise any right or remedy
against any other Subsidiary Guarantor; or (f) any change in the ownership of
the Company.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein constitutes a Guarantee of payment when due (and not a
Guarantee of collection) and waives any right to require that any resort be had
by any Holder to any security held for payment of the Obligations.
96
Except as expressly set forth in Sections 8.1(b) and 10.2, the
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than
payment of the Obligations in full), including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to any defense of
setoff, counterclaim, recoupment or termination whatsoever or by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Subsidiary Guarantor herein shall not be discharged or impaired or otherwise
affected by the failure of any Holder to assert any claim or demand or to
enforce any remedy under this Indenture, the Securities or any other agreement,
by any waiver or modification of any thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of any Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of law
or equity.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest
on any of the Obligations is rescinded or must otherwise be restored by any
Holder upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder has at law or in equity against any Subsidiary
Guarantor by virtue hereof, upon the failure of the Company to pay any of the
Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby
promises to and will, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of
(i) the unpaid amount of such Obligations then due and owing and (ii) accrued
and unpaid interest on such Obligations then due and owing (but only to the
extent not prohibited by law).
Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (x)
the maturity of the Obligations guaranteed hereby may be accelerated as provided
in this Indenture for the purposes of its Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby and (y) in the
event of any such declaration of acceleration of such Obligations, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantor for the purposes of this Subsidiary
Guarantee.
Each Subsidiary Guarantor also agrees to pay any and all
reasonable costs and expenses (including reasonable attorneys' fees) incurred by
the Trustee or the Holders in enforcing any rights under this Section.
SECTION 10.2. Limitation on Liability; Termination, Release
and Discharge.
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(a) The obligations of each Subsidiary Guarantor
hereunder will be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Subsidiary Guarantor
(including, without limitation, any guarantees under the Senior Credit
Agreement) and after giving effect to any collections from or payments made by
or on behalf of any other Subsidiary Guarantor in respect of the obligations of
such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to
its contribution obligations under this Indenture, result in the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law.
(b) Each Subsidiary Guarantor may consolidate with or
merge into or sell its assets to the Company or another Subsidiary Guarantor
without limitation. Subject to Article III and Article IV, each Subsidiary
Guarantor may consolidate with or merge into or sell all or substantially all
its assets to a corporation, partnership or trust other than the Company or
another Subsidiary Guarantor (whether or not affiliated with the Subsidiary
Guarantor), except that if the surviving corporation of any such merger or
consolidation is a Subsidiary of the Company, such merger, consolidation or sale
shall not be permitted unless (i) the Person formed by or surviving any such
consolidation or merger assumes all the obligations of such Subsidiary under the
Subsidiary Guarantee pursuant to a supplemental indenture in form and substance
reasonably satisfactory to the Trustee in respect of the Securities, this
Indenture and the Subsidiary Guarantee; (ii) immediately after giving effect to
such transaction, no Default or Event of Default exists; and (iii) the Company
delivers to the Trustee an Officers' Certificate and an Opinion of Counsel
addressed to the Trustee with respect to the foregoing matters. Upon the sale or
disposition of a Subsidiary Guarantor (by merger, consolidation, the sale of its
Capital Stock or the sale of all or substantially all of its assets (other than
by lease)) and whether or not the Subsidiary Guarantor is the surviving
corporation in such transaction to a Person (whether or not an Affiliate of the
Subsidiary Guarantor) which is not the Company or a Restricted Subsidiary of the
Company (other than a Receivables Entity), which sale or disposition is
otherwise in compliance with this Indenture (including, without limitation,
Sections 3.4, 3.7 and 3.10), such Subsidiary Guarantor will be deemed released
from all its obligations under this Indenture and its Subsidiary Guarantee and
such Subsidiary Guarantee will terminate; provided, however, that any such
termination will occur only to the extent that all obligations of such
Subsidiary Guarantor under the Senior Credit Agreement and any other agreements
relating to any other Indebtedness of the Company or its Restricted Subsidiaries
will also terminate upon such release, sale or transfer.
(c) Each Subsidiary Guarantor will be deemed released
from all its obligations under this Indenture, its Subsidiary Guarantee and the
Registration Rights Agreement and such Subsidiary Guarantee will terminate (i)
upon the legal defeasance or covenant defeasance of the Notes pursuant to the
provisions of Article VIII hereof; or (ii) upon the release of such Subsidiary
Guarantor from its Guarantee of the Company's and other Restricted Subsidiaries'
obligations under the Senior Credit Agreement; provided that a Subsidiary
Guarantor shall not be released from its Subsidiary Guarantee if (x) it is a
borrower under the Senior Credit Agreement, (y) it has Incurred in excess of
$2.0 million of Indebtedness that remains outstanding or (z) after giving effect
to the release of such Subsidiary Guarantor from its Subsidiary Guarantee the
aggregate outstanding Indebtedness of Restricted Subsidiaries that have been
released from their respective Subsidiary Guarantees would be in excess of $25.0
million. Notwithstanding the foregoing, a Restricted Subsidiary that previously
was released
98
from its Subsidiary Guarantee that becomes an obligor or issues a Guarantee of
obligations under the Senior Credit Agreement shall reexecute a Subsidiary
Guarantee pursuant to Section 3.12.
(d) A Subsidiary Guarantor will be deemed released and
relieved of its obligations under this Indenture and its Subsidiary Guarantee
without any further action required on the part of the Company or such
Subsidiary Guarantor upon the designation of such Subsidiary Guarantor as an
Unrestricted Subsidiary in accordance with the terms of this Indenture.
(e) Notwithstanding the provisions of Section 10.2(c) and
(d), ▇▇▇▇▇▇▇ Co-op shall not be permitted to be discharged from its Subsidiary
Guarantee except in the event all other Subsidiary Guarantors have been released
from their respective Subsidiary Guarantees.
SECTION 10.3. Right of Contribution. Each Subsidiary Guarantor
hereby agrees that to the extent that any Subsidiary Guarantor shall have paid
more than its proportionate share of any payment made on the obligations under
the Subsidiary Guarantees, such Subsidiary Guarantor shall be entitled to seek
and receive contribution from and against the Company or any other Subsidiary
Guarantor who has not paid its proportionate share of such payment. Each
Subsidiary Guarantor's right of contribution shall be subject to the terms and
conditions of Section 3.6. The provisions of this Section 10.3 shall in no
respect limit the obligations and liabilities of each Subsidiary Guarantor to
the Trustee and the Holders and each Subsidiary Guarantor shall remain liable to
the Trustee and the Holders for the full amount guaranteed by such Subsidiary
Guarantor hereunder.
SECTION 10.4. No Subrogation. Notwithstanding any payment or
payments made by each Subsidiary Guarantor hereunder, no Subsidiary Guarantor
shall be entitled to be subrogated to any of the rights of the Trustee or any
Holder against the Company or any other Subsidiary Guarantor or any collateral
security or guarantee or right of offset held by the Trustee or any Holder for
the payment of the Obligations, nor shall any Subsidiary Guarantor seek or be
entitled to seek any contribution or reimbursement from the Company or any other
Subsidiary Guarantor in respect of payments made by such Subsidiary Guarantor
hereunder, until all amounts owing to the Trustee and the Holders by the Company
on account of the Obligations are paid in full. If any amount shall be paid to
any Subsidiary Guarantor on account of such subrogation rights at any time when
all of the Obligations shall not have been paid in full, such amount shall be
held by such Subsidiary Guarantor in trust for the Trustee and the Holders,
segregated from other funds of such Subsidiary Guarantor, and shall, forthwith
upon receipt by such Subsidiary Guarantor, be turned over to the Trustee in the
exact form received by such Subsidiary Guarantor (duly indorsed by such
Subsidiary Guarantor to the Trustee, if required), to be applied against the
Obligations.
ARTICLE XI
Miscellaneous
SECTION 11.1. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this
99
Indenture by the TIA, the provision required by the TIA shall control. Each
Subsidiary Guarantor in addition to performing its obligations under its
Subsidiary Guarantee shall perform such other obligations as may be imposed upon
it with respect to this Indenture under the TIA.
SECTION 11.2. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP &
Affiliates
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
if to the Trustee:
Wachovia Bank, National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a registered
Securityholder shall be mailed to the Securityholder at the Securityholder's
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.3. Communication by Holders with other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
100
SECTION 11.4. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company 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 complied with; 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 complied with.
SECTION 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to
factual matters on an Officers' Certificate or on certificates of public
officials.
SECTION 11.6. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by, or a meeting of,
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
101
SECTION 11.8. Legal Holidays. A "Legal Holiday" is a Saturday,
a Sunday or other day on which commercial banking institutions are authorized or
required to be closed in New York City. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday, the record date shall not be affected.
SECTION 11.9. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 11.10. No Recourse Against Others. An incorporator,
director, officer, employee, stockholder or controlling person, as such, of the
Company or any Subsidiary Guarantor shall not have any liability for any
obligations of the Company under the Securities, this Indenture or the
Subsidiary Guarantees or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Security, each Securityholder
shall waive and release all such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
SECTION 11.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 11.13. 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 reasonable costs and
expenses (including attorneys' fees and expenses for the Company, the Trustee
and the Holders) incurred in connection therewith, including, but not limited
to, costs and expenses of qualification of this Indenture and the Securities and
printing this Indenture and the Securities. The Trustee shall be entitled to
receive from the Company any such Officers' Certificates or other documentation
as it may reasonably request in connection with any such qualification of this
Indenture under the TIA.
SECTION 11.14. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
102
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
▇▇▇▇▇▇▇ CORPORATION
By:
----------------------------------
Name:
Title:
CROSS CREEK HOLDINGS, INC.
By
-----------------------------------
Title:
CROSS CREEK APPAREL, LLC
By
-----------------------------------
Title:
DESOTO ▇▇▇▇▇, INC.
By
-----------------------------------
Title:
JERZEES APPAREL, LLC
By
-----------------------------------
Title:
MOSSY OAK APPAREL COMPANY
By
-----------------------------------
Title:
103
RINTEL PROPERTIES, INC.
By
-----------------------------------
Title:
▇▇▇▇▇▇▇ CO-OP, LLC
By
-----------------------------------
Title:
▇▇▇▇▇▇▇ APPAREL, LLC
By
-----------------------------------
Title:
▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC.
By
-----------------------------------
Title:
▇▇▇▇▇▇▇ ATHLETIC, INC.
By
-----------------------------------
Title:
▇▇▇▇▇▇▇ ATHLETIC WEST, INC.
By
-----------------------------------
Title:
104
▇▇▇▇▇▇▇ FINANCIAL SERVICES, INC.
By
-----------------------------------
Title:
▇▇▇▇▇▇▇ YARN LLC
By
-----------------------------------
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:
---------------------------------
Name:
Title:
EXHIBIT A
[FORM OF FACE OF SERIES A NOTE]
[Applicable Restricted Securities Legend]
[Depository Legend, if applicable]
No. [___] Principal Amount $[___________]
CUSIP NO. ________
▇▇▇▇▇▇▇ CORPORATION
9.25% Senior Note, Series A, due 2010
▇▇▇▇▇▇▇ Corporation, an Alabama corporation, promises to pay
to [__________], or registered assigns, the principal sum of [_______________]
Dollars, on May 1, 2010.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth on the
other side of this Security.
A-1
▇▇▇▇▇▇▇ CORPORATION
By:
-----------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
WACHOVIA BANK, NATIONAL ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By
---------------------------------
Authorized Signatory Date:
A-2
[FORM OF REVERSE SIDE OF SERIES A NOTE]
9.25% Senior Note, Series A, due 2010
1. Interest
▇▇▇▇▇▇▇ Corporation, an Alabama Corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on May 1 and
November 1 of each year commencing November 1, 2002. Interest on the Securities
will accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from April 18, 2002. The Company
shall pay interest on overdue principal or premium, if any (plus interest on
such interest to the extent lawful), at the rate borne by the Securities to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date
on which any principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal, premium, if any, and/or interest. The Company
will pay interest (except Defaulted Interest) to the Persons who are registered
Holders of Securities at the close of business on the April 15 or October 15
next preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of Securities represented by a Global
Security (including principal, premium, if any, and interest) will be made by
the transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
Definitive Security (including principal, premium, if any, and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Securities may also be made, in the case of a
Holder of a least $1,000,000 aggregate principal amount of Securities, by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 15 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Wachovia Bank, National Association (the
"Trustee"), will act as Trustee, Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice to
any Securityholder. The Company or any of its Restricted Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
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4. Indenture
The Company issued the Securities under an Indenture dated as
of April 18, 2002 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb) as in effect on the
date of the Indenture (the "Act"). Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms.
The Securities are general unsecured senior obligations of the Company. The
aggregate principal amount of securities that may be authenticated and delivered
under the Indenture is unlimited. This Security is one of the 9.25% Senior
Notes, Series A, due 2010 referred to in the Indenture. The Securities include
(i) $250,000,000 aggregate principal amount of the Company's 9.25% Senior Notes,
Series A, due 2010 issued under the Indenture on April 18, 2002 (herein called
"Initial Securities"), (ii) if and when issued, additional 9.25% Senior Notes,
Series A, due 2010 or 9.25% Senior Notes, Series S, due 2010 of the Company that
may be issued from time to time under the Indenture subsequent to April 18, 2002
(herein called "Additional Securities") and (iii) if and when issued, the
Company's 9.25% Senior Notes, Series S, due 2010 that may be issued from time to
time under the Indenture in exchange for Initial Securities or Additional
Securities in an offer registered under the Securities Act as provided in the
Registration Rights Agreement. The Initial Securities, Additional Securities and
Exchange Securities are treated as a single class of securities under the
Indenture. This Indenture imposes certain limitations on, among other things,
the Incurrence of Indebtedness by the Company and its Subsidiaries, the payment
of dividends and other distributions on the Capital Stock of the Company and its
Subsidiaries, the purchase or redemption of Capital Stock of the Company and
Capital Stock of such Subsidiaries, certain purchases or redemptions of
Subordinated Indebtedness, the sale or transfer of assets and Capital Stock of
Subsidiaries, certain sale/leaseback transactions involving the Company or any
Restricted Subsidiary, the issuance or sale of Capital Stock of Subsidiaries,
the incurrence of certain liens, certain payment guarantees, the business
activities and investments of the Company and its Subsidiaries and transactions
with Affiliates, provided, however, certain of such limitations will no longer
be in effect if the Securities receive a rating of "BBB-" or higher from
Standard & Poor's Rating Service (or its successors) and "Baa3" or higher from
▇▇▇▇▇'▇ Investors Service, Inc. (or its successors). Notwithstanding the
foregoing, if at any time the Company's credit rating is downgraded from
Investment Grade Status, such limitations shall be reinstated in full force and
effect to the same extent as though the Company had never attained Investment
Grade Status. In addition, the Indenture limits the ability of the Company and
its Subsidiaries to enter into agreements that restrict distributions and
dividends from Subsidiaries.
To guarantee the due and punctual payment of the principal,
premium, if any, and interest on the Securities and all other amounts payable by
the Company under the Indenture and the Securities when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according to
the terms of the Securities and the Indenture, the Subsidiary Guarantors have
unconditionally guaranteed (and future Subsidiary Guarantors,
A-4
together with the Subsidiary Guarantors, will unconditionally guarantee),
jointly and severally, such obligations on a senior basis pursuant to the terms
of the Indenture.
5. Redemption
Except as set forth below, the Securities will not be
redeemable at the option of the Company prior to May 1, 2006. On and after such
date, the Securities will be redeemable, at the Company's option, in whole or in
part, at any time upon not less than 30 nor more than 60 days prior notice
mailed by first-class mail to each Holder's registered address, at the following
redemption prices (expressed in percentages of principal amount), plus accrued
and unpaid interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date):
If redeemed during the 12-month period commencing on May 1 of
the years set forth below:
REDEMPTION
PERIOD PRICE
------ ----------
2006 104.6250%
2007 102.3125%
2008 and thereafter 100.0000%
In addition, at any time and from time to time prior to May 1,
2005, the Company may redeem in the aggregate up to 35% of the original
principal amount of the Securities with the Net Cash Proceeds of one or more
Equity Offerings received by the Company at a redemption price (expressed as a
percentage of principal amount) of 109.25% plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that at least 65% of the original principal amount of
the Securities must remain outstanding after each such redemption; provided
further, that each such redemption occurs within 90 days of the date of closing
of such Equity Offering.
If the optional redemption date is on or after an interest
record date and on or before the related interest payment date, the accrued and
unpaid interest, if any, will be paid to the Person in whose name the Security
is registered at the close of business on such record date, and no additional
interest will be payable to Holders whose Securities will be subject to
redemption by the Company.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not listed, then on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Securities of $1,000 in
original principal amount or less will be redeemed in part. If any Security is
to be redeemed in part only, the notice of
A-5
redemption relating to such Security shall state the portion of the principal
amount thereof to be redeemed. A new Security in principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Security. On and after the redemption date,
interest will cease to accrue on Securities or portions thereof called for
redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price pursuant to the Indenture.
6. Repurchase Provisions
(a) Upon a Change of Control any Holder of Securities will
have the right to cause the Company to repurchase all or any part of the
Securities of such Holder at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date) as provided
in, and subject to the terms of, the Indenture.
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section 3.7 (b) of the Indenture, the Company
will be required to apply such Excess Proceeds to the repayment of the
Securities and any Pari Passu Notes in accordance with the procedures set forth
in Section 3.7 of the Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or 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 (i) any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Securities to
be redeemed and ending on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
8. Persons Deemed Owners
The registered Holder of this Security 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 or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
A-6
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, to release a Subsidiary Guarantor in accordance with the Indenture
or to secure the Securities, or to add additional covenants of the Company and
the Subsidiary Guarantors, or surrender rights and powers conferred on the
Company, or to comply with any request of the SEC in connection with qualifying
the Indenture under the Act, or to make any change that does not materially
adversely affect the rights of any Securityholder, or to provide for the
issuance of Exchange Securities.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest or additional interest when due on the
Securities; (ii) default in payment of principal or premium, if any, on the
Securities at Stated Maturity, upon required repurchase or upon optional
redemption pursuant to paragraphs 5 and 6 of the Securities, upon declaration or
otherwise; (iii) the failure by the Company or any Subsidiary Guarantor to
comply with its obligations under Article IV or Section 10.2 of the Indenture;
(iv) failure by the Company to comply for 30 days after notice with any of its
obligations under the covenants described under Sections 3.2 through 3.13
inclusive and Sections 3.15 through 3.18 inclusive of the Indenture (in each
case, other than a failure to purchase Securities when required pursuant to
Section 3.7 or 3.9 or Article V, which failure shall constitute an Event of
Default under clause (ii) above); (v) the failure by the Company to comply for
60 days after notice with its other agreements contained in the Indenture or
under the Securities (other than those referred to in (i), (ii), (iii) or (iv)
above); (vi) subject to certain exceptions contained in the Indenture, 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 of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries), other than
Indebtedness owed to the Company or a Restricted Subsidiary, whether such
Indebtedness or guarantee now exists, or is created after the date of the
Indenture, which default (a) is caused by a failure to pay principal of, or
interest or premium, if any, on such
A-7
Indebtedness before the expiration of the grace period provided in such
Indebtedness ("Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its maturity (the "cross acceleration provision") and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$25.0 million or more; (vii) certain events of bankruptcy, insolvency or
reorganization of the Company or a Significant Subsidiary (other than any
Receivables Entity) or group of Restricted Subsidiaries (other than any
Receivables Entity) that, taken together (as of the latest audited consolidated
financial statements for the Company and its Restricted Subsidiaries), would
constitute a Significant Subsidiary (the "bankruptcy provisions"); (viii)
failure by the Company or any Significant Subsidiary (other than any Receivables
Entity) or group of Restricted Subsidiaries (other than any Receivables Entity)
that, taken together (as of the latest audited consolidated financial statements
for the Company and its Restricted Subsidiaries) would constitute a Significant
Subsidiary to pay final judgments aggregating in excess of $25.0 million (net of
any amounts with respect to which a reputable and creditworthy insurance company
has acknowledged liability in writing), which judgments are not paid, bonded,
discharged or stayed for a period of 60 days (the "judgment default provision")
or (ix) any Subsidiary Guarantee of a Significant Subsidiary or group of
Restricted Subsidiaries that taken together as part of the latest consolidated
financial statements for the Company and its Restricted Subsidiaries would
constitute a Significant Subsidiary ceases to be in full force and effect
(except as contemplated by the terms of the Indenture) or is declared null and
void in a judicial proceeding or any Subsidiary Guarantor that is a Significant
Subsidiary or group of Restricted Subsidiaries that taken together as part of
the latest consolidated financial statements for the Company and its Restricted
Subsidiaries would constitute a Significant Subsidiary denies or disaffirms its
obligations under the Indenture or its Subsidiary Guarantee. However, a default
under clauses (iv) and (v) will not constitute an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the outstanding
Securities notify the Company of the default and the Company does not cure such
default within the time specified in clauses (iv) and (v) hereof after receipt
of such notice.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare
all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
A-8
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or
controlling person, as such, of each of the Company, or any Subsidiary Guarantor
shall not have any liability for any obligations of the Company under the
Securities, the Indenture or any Subsidiary Guarantees or for any claim based
on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with rights of survivorship
and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to
Minors Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
18. Governing Law
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture, which
has in it the text of this Security in larger type. Requests may be made to:
A-9
▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
A-10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
----------------------------------------------------------
(Print or type assignee's name, address and zip code)
------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for
him.
--------------------------------------------------------------------------------
Date: Your Signature:
------------------------- -------------------------
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities
evidenced by this certificate occurring prior to the date that is two years
after the later of the date of original issuance of such Securities and the last
date, if any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Securities are
being:
CHECK ONE BOX BELOW:
1[ ] acquired for the undersigned's own account, without transfer;
or
2[ ] transferred to the Company; or
3[ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act");
or
4[ ] transferred pursuant to an effective registration statement
under the Securities Act; or
5[ ] transferred pursuant to and in compliance with Regulation S
under the Securities Act; or
A-11
6[ ] transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act), that has furnished to the Trustee a signed
letter containing certain representations and agreements (the
form of which letter appears as Section 2.7 of the Indenture);
or
7[ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
------------------------------
Signature
Signature Guarantee:
------------------------------ ------------------------------
(Signature must be guaranteed) Signature
--------------------------------------------------------------------------------
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
-----------------------
Dated:
A-12
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Security this Global Security decrease or increase Securities Custodian
-------- --------------------- --------------------- --------------------- --------------------
A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 3.7 or 3.9 of the Indenture, check either box:
[ ] [ ]
3.7 3.9
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, state
the amount in principal amount (must be integral multiple of $1,000): $
Date: Your Signature
---- -------------------------------------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
A-14
EXHIBIT B
[FORM OF FACE OF SERIES S NOTE]
[Depository Legend, if applicable]
No. [___] Principal Amount $[___________]
CUSIP NO. ________
▇▇▇▇▇▇▇ CORPORATION
9.25% Senior Note, Series S, due 2010
▇▇▇▇▇▇▇ Corporation, an Alabama Corporation, promises to pay
to [__________], or registered assigns, the principal sum of [_______________]
Dollars, on May 1, 2010.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Additional provisions of this Security are set forth on the
other side of this Security.
B-1
▇▇▇▇▇▇▇ CORPORATION
By:
------------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
WACHOVIA BANK, NATIONAL ASSOCIATION
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By
----------------------------------
Authorized Signatory Date:
B-2
[FORM OF REVERSE SIDE OF SERIES S NOTE]
9.25% Senior Note, Series S, due 2010
1. Interest
▇▇▇▇▇▇▇ Corporation, an Alabama Corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on May 1 and
November 1 of each year commencing November 1, 2002. Interest on the Securities
will accrue from the most recent date to which interest has been paid on the
Securities or, if no interest has been paid, from April 18, 2002. The Company
shall pay interest on overdue principal or premium, if any (plus interest on
such interest to the extent lawful), at the rate borne by the Securities to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
By no later than 10:00 a.m. (New York City time) on the date
on which any principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal, premium, if any, and/or interest. The Company
will pay interest (except Defaulted Interest) to the Persons who are registered
Holders of Securities at the close of business on the April 15 or October 15
next preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Payments in respect of Securities represented by a Global
Security (including principal, premium, if any, and interest) will be made by
the transfer of immediately available funds to the accounts specified by The
Depository Trust Company. The Company will make all payments in respect of a
Definitive Security (including principal, premium, if any, and interest) by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Securities may also be made, in the case of a
Holder of a least $1,000,000 aggregate principal amount of Securities, by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 15 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Wachovia Bank, National Association (the
"Trustee"), will act as Trustee, Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice to
any Securityholder. The Company or any of its Restricted Subsidiaries may act as
Paying Agent, Registrar or co-registrar.
B-3
4. Indenture
The Company issued the Securities under an Indenture dated as
of April 18, 2002 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb) as in effect on the
date of the Indenture (the "Act"). Capitalized terms used herein and not defined
herein have the meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the Act for a statement of those terms.
The Securities are general unsecured senior obligations of the
Company. The aggregate principal amount of securities that may be authenticated
and delivered under the Indenture is unlimited. This Security is one of the
9.25% Senior Notes, Series S, due 2010 referred to in the Indenture. The
Securities include (i) $250,000,000 aggregate principal amount of the Company's
9.25% Senior Notes, Series A, due 2010 issued under the Indenture on April 18,
2002 (herein called "Initial Securities"), (ii) if and when issued, additional
9.25% Senior Notes, Series A, due 2010 or 9.25% Senior Notes, Series S, due 2010
of the Company that may be issued from time to time under the Indenture
subsequent to April 18, 2002 (herein called "Additional Securities") and (iii)
if and when issued, the Company's 9.25% Senior Notes, Series S, due 2010 that
may be issued from time to time under the Indenture in exchange for Initial
Securities or Additional Securities in an offer registered under the Securities
Act as provided in the Registration Rights Agreement. The Initial Securities,
Additional Securities and Exchange Securities are treated as a single class of
securities under the Indenture. This Indenture imposes certain limitations on,
among other things, the Incurrence of Indebtedness by the Company and its
Subsidiaries, the payment of dividends and other distributions on the Capital
Stock of the Company and its Subsidiaries, the purchase or redemption of Capital
Stock of the Company and Capital Stock of such Subsidiaries, certain purchases
or redemptions of Subordinated Indebtedness, the sale or transfer of assets and
Capital Stock of Subsidiaries, certain sale/leaseback transactions involving the
Company or any Restricted Subsidiary, the issuance or sale of Capital Stock of
Subsidiaries, the incurrence of certain liens, certain payment guarantees, the
business activities and investments of the Company and its Subsidiaries and
transactions with Affiliates, provided, however, certain of such limitations
will no longer be in effect if the Securities receive a rating of "BBB-" or
higher from Standard & Poor's Rating Service (or its successors) and "Baa3" or
higher from ▇▇▇▇▇'▇ Investors Service, Inc. (or its successors). Notwithstanding
the foregoing, if at any time the Company's credit rating is downgraded from
Investment Grade Status, such limitations shall be reinstated in full force and
effect to the same extent as though the Company had never attained Investment
Grade Status. In addition, the Indenture limits the ability of the Company and
its Subsidiaries to enter into agreements that restrict distributions and
dividends from Subsidiaries.
To guarantee the due and punctual payment of the principal,
premium, if any, and interest on the Securities and all other amounts payable by
the Company under the Indenture and the Securities when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according to
the terms of the Securities and the Indenture, the Subsidiary Guarantors have
unconditionally guaranteed (and future Subsidiary Guarantors,
B-4
together with the Subsidiary Guarantors, will unconditionally guarantee),
jointly and severally, such obligations on a senior basis pursuant to the terms
of the Indenture.
5. Redemption
Except as set forth below, the Securities will not be
redeemable at the option of the Company prior to May 1, 2006. On and after such
date, the Securities will be redeemable, at the Company's option, in whole or in
part, at any time upon not less than 30 nor more than 60 days prior notice
mailed by first-class mail to each Holder's registered address, at the following
redemption prices (expressed in percentages of principal amount), plus accrued
and unpaid interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date):
If redeemed during the 12-month period commencing on May 1 of
the years set forth below:
REDEMPTION
PERIOD PRICE
------ ----------
2006 104.6250%
2007 102.3125%
2008 and thereafter 100.0000%
In addition, at any time and from time to time prior to May 1,
2005, the Company may redeem in the aggregate up to 35% of the original
principal amount of the Securities with the Net Cash Proceeds of one or more
Equity Offerings received by the Company at a redemption price (expressed as a
percentage of principal amount) of 109.25% plus accrued and unpaid interest, if
any, to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date); provided, however, that at least 65% of the original principal amount of
the Securities must remain outstanding after each such redemption; provided
further, that each such redemption occurs within 90 days of the date of closing
of such Equity Offering.
If the optional redemption date is on or after an interest
record date and on or before the related interest payment date, the accrued and
unpaid interest, if any, will be paid to the Person in whose name the Security
is registered at the close of business on such record date, and no additional
interest will be payable to Holders whose Securities will be subject to
redemption by the Company.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not listed, then on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Securities of $1,000 in
original principal amount or less will be redeemed in part. If any Security is
to be redeemed in part only, the notice of redemption relating to such Security
shall state the portion of the principal amount thereof to be redeemed. A new
Security in principal amount equal to the unredeemed portion thereof will be
B-5
issued in the name of the Holder thereof upon cancellation of the original
Security. On and after the redemption date, interest will cease to accrue on
Securities or portions thereof called for redemption as long as the Company has
deposited with the Paying Agent funds in satisfaction of the applicable
redemption price pursuant to the Indenture..
6. Repurchase Provisions
(a) Upon a Change of Control any Holder of Securities will
have the right to cause the Company to repurchase all or any part of the
Securities of such Holder at a purchase price in cash equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date) as provided
in, and subject to the terms of, the Indenture.
(b) In the event of an Asset Disposition that requires the
purchase of Securities pursuant to Section 3.7 (b) of the Indenture, the Company
will be required to apply such Excess Proceeds to the repayment of the
Securities and any Pari Passu Notes in accordance with the procedures set forth
in Section 3.7 of the Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or 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 (i) any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Securities to
be redeemed and ending on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
8. Persons Deemed Owners
The registered Holder of this Security 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 or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the
B-6
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, to release a Subsidiary Guarantor in accordance with the Indenture
or to secure the Securities, or to add additional covenants of the Company and
the Subsidiary Guarantors, or surrender rights and powers conferred on the
Company, or to comply with any request of the SEC in connection with qualifying
the Indenture under the Act, or to make any change that does not materially
adversely affect the rights of any Securityholder, or to provide for the
issuance of Exchange Securities.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest when due on the Securities; (ii) default in
payment of principal or premium, if any, on the Securities at Stated Maturity,
upon required repurchase or upon optional redemption pursuant to paragraphs 5
and 6 of the Securities, upon declaration or otherwise; (iii) the failure by the
Company or any Subsidiary Guarantor to comply with its obligations under Article
IV or Section 10.2 of the Indenture; (iv) failure by the Company to comply for
30 days after notice with any of its obligations under the covenants described
under Sections 3.2 through 3.13 inclusive and Sections 3.15 through 3.18
inclusive of the Indenture (in each case, other than a failure to purchase
Securities when required pursuant to Section 3.7 or 3.9 or Article V, which
failure shall constitute an Event of Default under clause (ii) above); (v) the
failure by the Company to comply for 60 days after notice with its other
agreements contained in the Indenture or under the Securities (other than those
referred to in (i), (ii), (iii) or (iv) above); (vi) subject to certain
exceptions contained in the Indenture, 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 of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries), other than Indebtedness owed to the Company
or a Restricted Subsidiary, whether such Indebtedness or guarantee now exists,
or is created after the date of the Indenture, which default (a) is caused by a
failure to pay principal of, or interest or premium, if any, on such
Indebtedness before the expiration of the grace period provided in such
Indebtedness ("Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its maturity (the "cross acceleration provision") and, in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has
B-7
been so accelerated, aggregates $25.0 million or more; (vii) certain events of
bankruptcy, insolvency or reorganization of the Company or a Significant
Subsidiary (other than any Receivables Entity) or group of Restricted
Subsidiaries (other than any Receivables Entity) that, taken together (as of the
latest audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant Subsidiary (the
"bankruptcy provisions"); (viii) failure by the Company or any Significant
Subsidiary (other than any Receivables Entity) or group of Restricted
Subsidiaries (other than any Receivables Entity) that, taken together (as of the
latest audited consolidated financial statements for the Company and its
Restricted Subsidiaries) would constitute a Significant Subsidiary to pay final
judgments aggregating in excess of $25.0 million (net of any amounts with
respect to which a reputable and creditworthy insurance company has acknowledged
liability in writing), which judgments are not paid, bonded, discharged or
stayed for a period of 60 days (the "judgment default provision") or (ix) any
Subsidiary Guarantee of a Significant Subsidiary or group of Restricted
Subsidiaries that taken together as part of the latest consolidated financial
statements for the Company and its Restricted Subsidiaries would constitute a
Significant Subsidiary ceases to be in full force and effect (except as
contemplated by the terms of the Indenture) or is declared null and void in a
judicial proceeding or any Subsidiary Guarantor that is a Significant Subsidiary
or group of Restricted Subsidiaries that taken together as part of the latest
consolidated financial statements for the Company and its Restricted
Subsidiaries would constitute a Significant Subsidiary denies or disaffirms its
obligations under the Indenture or its Subsidiary Guarantee. However, a default
under clauses (iv) and (v) will not constitute an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the outstanding
Securities notify the Company of the default and the Company does not cure such
default within the time specified in clauses (iv) and (v) hereof after receipt
of such notice.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare
all the Securities to be due and payable immediately. Certain events of
bankruptcy or insolvency are Events of Default which will result in the
Securities being due and payable immediately upon the occurrence of such Events
of Default.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
B-8
14. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or
controlling person, as such, of each of the Company, or any Subsidiary Guarantor
shall not have any liability for any obligations of the Company under the
Securities, the Indenture or any Subsidiary Guarantees or for any claim based
on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenants with rights of survivorship
and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gift to
Minors Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
18. Governing Law
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
B-9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
------------------------------------------------------------
(Print or type assignee's name, address and zip code)
-----------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature
------------- ---------------------------------------------
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
B-10
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Security this Global Security decrease or increase Securities Custodian
-------- --------------------- --------------------- -------------------- --------------------
B-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 3.7 or 3.9 of the Indenture, check either box:
[ ] [ ]
3.7 3.9
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 3.7 or 3.9 of the Indenture, state
the amount in principal amount (must be integral multiple of $1,000): $
Date: Your Signature:
-------------- ------------------------------------------
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee:
------------------------------------------------------------
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
B-12
EXHIBIT C
FORM OF SUBSIDIARY GUARANTEE
This Supplemental Indenture, dated as of (this "Supplemental
Indenture" or "Guarantee"), among [name of future Subsidiary Guarantor] (the
"Guarantor"), ▇▇▇▇▇▇▇ Corporation (together with its successors and assigns, the
"Company"), each other then existing Subsidiary Guarantor under the Indenture
referred to below, and Wachovia Bank, National Association, as Trustee under the
Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors and the
Trustee have heretofore executed and delivered an Indenture, dated as of April
18, 2002 (as amended, supplemented, waived or otherwise modified, the
"Indenture"), providing for the issuance of an aggregate principal amount of
$250,000,000 of 9.25% Senior Notes due 2010 of the Company (the "Securities");
WHEREAS, Section 3.12 of the Indenture provides that unless
such Subsidiary has previously issued a Subsidiary Guarantee which is then in
full force and effect, the Company is required to cause each Subsidiary that
issues a Guarantee in respect of obligations under a Credit Facility to execute
and deliver to the Trustee a Subsidiary Guarantee pursuant to which such
Subsidiary to execute and deliver to the Trustee a Subsidiary Guarantee pursuant
to which such Restricted Subsidiary will unconditionally Guarantee, on a joint
and several basis with the other Subsidiary Guarantors, the full and prompt
payment of the principal of, premium, if any, and interest on the Securities on
a senior basis; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee
and the Company are authorized to execute and deliver this Supplemental
Indenture to amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guarantor, the Company, the other Subsidiary Guarantors and
the Trustee mutually covenant and agree for the equal and ratable benefit of the
Holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Subsidiary
Guarantee, terms defined in the Indenture or in the preamble or recital hereto
are used herein as therein defined, except that the term "Holders" in this
Guarantee shall refer to the term "Securityholders" as defined in the Indenture
and the Trustee acting on behalf or for the benefit of such Holders. The words
"herein," "hereof" and "hereby" and other words of similar import used in this
C-1
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1 Agreement to be Bound. The Guarantor hereby
becomes a party to the Indenture as a Subsidiary Guarantor and as such will have
all of the rights and be subject to all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture. The Guarantor agrees to be bound by
all of the provisions of the Indenture applicable to a Subsidiary Guarantor and
to perform all of the obligations and agreements of a Subsidiary Guarantor under
the Indenture.
SECTION 2.2 Guarantee. The Guarantor hereby fully,
unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, jointly and severally with each other Subsidiary Guarantor, to each
Holder of the Securities and the Trustee, the full and punctual payment when
due, whether at maturity, by acceleration, by redemption or otherwise, of the
Obligations pursuant to Article X of the Indenture on a senior basis.
ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to
the Guarantor shall be given as provided in the Indenture to the Guarantor, at
its address set forth below, with a copy to the Company as provided in the
Indenture for notices to the Company.
SECTION 3.2 Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.3 Governing Law. This Supplemental Indenture shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 3.4 Severability Clause. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby and such provision shall be ineffective only to the
extent of such invalidity, illegality or unenforceability.
SECTION 3.5 Ratification of Indenture; Supplemental Indentures
Part of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
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The Trustee makes no representation or warranty as to the validity or
sufficiency of this Supplemental Indenture.
SECTION 3.6 Counterparts. The parties hereto may sign one or
more copies of this Supplemental Indenture in counterparts, all of which
together shall constitute one and the same agreement.
SECTION 3.7 Headings. The headings of the Articles and the
sections in this Guarantee are for convenience of reference only and shall not
be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[SUBSIDIARY GUARANTOR],
as a Subsidiary Guarantor
By:
--------------------------------
Name:
Title:
WACHOVIA BANK NATIONAL
ASSOCIATION, as Trustee
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇▇ CORPORATION
By:
--------------------------------
Name:
Title:
[EXISTING SUBSIDIARY GUARANTORS]
By
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Title:
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