EXHIBIT T3C
PENTHOUSE MEDIA GROUP INC.,
AS ISSUER
WILMINGTON TRUST COMPANY,
AS TRUSTEE
INDENTURE
DATED AS OF ____________________, 2004
13% TERM LOAN NOTES DUE 2011
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.................................................................................... 1
SECTION 102. Compliance Certificates and Opinions........................................................... 20
SECTION 103. Form of Documents Delivered to Trustee......................................................... 20
SECTION 104. Acts of Holders; Record Date................................................................... 21
SECTION 105. Notices, Etc., to ▇▇▇▇▇▇▇ and Issuer........................................................... 23
SECTION 106. Notice to Holders; Waiver...................................................................... 23
SECTION 107. Conflict with Trust Indenture Act.............................................................. 23
SECTION 108. Effect of Headings and Table of Contents....................................................... 24
SECTION 109. Successors and Assigns......................................................................... 24
SECTION 110. Separability Clause............................................................................ 24
SECTION 111. Benefits of Indenture.......................................................................... 24
SECTION 112. Governing Law.................................................................................. 24
SECTION 113. Legal Holidays................................................................................. 24
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally................................................................................ 25
SECTION 202. Form of Face of Security....................................................................... 25
SECTION 203. Form of Reverse of Security.................................................................... 27
SECTION 204. Form of Trustee's Certificate of Authentication................................................ 31
SECTION 205. Form of Notation of Subsidiary Guarantee....................................................... 31
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms................................................................................ 32
SECTION 302. Denominations.................................................................................. 33
SECTION 303. Execution, Authentication, Delivery and Dating................................................. 33
SECTION 304. Temporary Securities........................................................................... 34
SECTION 305. Global Securities.............................................................................. 34
SECTION 306. Registration, Registration of Transfer and Exchange Generally.................................. 35
SECTION 307. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Lost and Stolen Securities............................................... 37
SECTION 308. Payment of Interest; Interest Rights Preserved................................................. 37
SECTION 309. Persons Deemed Owners.......................................................................... 38
SECTION 310. Cancellation................................................................................... 39
SECTION 311. CUSIP Numbers.................................................................................. 39
SECTION 312. Computation of Interest........................................................................ 39
SECTION 313. Additional Securities.......................................................................... 39
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture........................................................ 40
SECTION 402. Application of Trust Money..................................................................... 41
SECTION 403. Repayment of the Issuer........................................................................ 41
SECTION 404. Reinstatement.................................................................................. 41
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.............................................................................. 42
SECTION 502. Acceleration of Maturity; Rescission and Annulment............................................. 44
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee................................ 44
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SECTION 504. Trustee May File Proofs of Claim............................................................... 45
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.................................... 45
SECTION 506. Application of Money Collected................................................................. 46
SECTION 507. Limitation on Suits............................................................................ 46
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest............................... 47
SECTION 509. Restoration of Rights and Remedies............................................................. 47
SECTION 510. Rights and Remedies Cumulative................................................................. 47
SECTION 511. Delay or Omission Not Waiver................................................................... 47
SECTION 512. Control by Holders............................................................................. 48
SECTION 513. Postponement of Interest Payments.............................................................. 48
SECTION 514. Waiver of Past Defaults........................................................................ 48
SECTION 515. Undertaking for Costs.......................................................................... 48
SECTION 516. Waiver of Stay, or Extension Laws.............................................................. 49
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities............................................................ 49
SECTION 602. Notice of Defaults............................................................................. 50
SECTION 603. Certain Rights of Trustee...................................................................... 50
SECTION 604. Not Responsible for Recitals or Issuance of Securities......................................... 52
SECTION 605. May Hold Securities............................................................................ 52
SECTION 606. Money Held in Trust............................................................................ 52
SECTION 607. Compensation and Reimbursement................................................................. 52
SECTION 608. Disqualification; Conflicting Interests........................................................ 53
SECTION 609. Corporate Trustee Required; Eligibility........................................................ 53
SECTION 610. Resignation and Removal; Appointment of Successor.............................................. 53
SECTION 611. Acceptance of Appointment by Successor......................................................... 54
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.................................... 55
SECTION 613. Preferential Collection of Claims Against Issuer............................................... 55
SECTION 614. Appointment of Authenticating Agent............................................................ 55
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders....................................... 57
SECTION 702. Preservation of Information; Communications to Holders......................................... 57
SECTION 703. Reports by Trustee............................................................................. 57
SECTION 704. Reports by the Issuer.......................................................................... 58
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Issuer may Consolidate, Etc.................................................................... 58
SECTION 802. Successor Substituted.......................................................................... 59
SECTION 803. When a Subsidiary Guarantor May Merge or Transfer Assets....................................... 59
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders............................................. 60
SECTION 902. Supplemental Indentures with Consent of Holders................................................ 61
SECTION 903. Execution of Supplemental Indentures........................................................... 62
SECTION 904. Effect of Supplemental Indentures.............................................................. 62
SECTION 905. Conformity with Trust Indenture Act............................................................ 63
SECTION 906. Revocation and Effect of Consents.............................................................. 63
SECTION 907. Reference in Securities to Supplemental Indentures............................................. 63
SECTION 908. Payment for Consent............................................................................ 63
ARTICLE TEN
COVENANTS
ii
SECTION 1001. Payment of Principal and Interest............................................................. 63
SECTION 1002. Maintenance of Office or Agency............................................................... 63
SECTION 1003. Money for Security Payments to Be Held in Trust............................................... 64
SECTION 1004. Existence..................................................................................... 65
SECTION 1005. Maintenance of Properties..................................................................... 65
SECTION 1006. Payment of Taxes and Other Claims............................................................. 66
SECTION 1007. Maintenance of Insurance...................................................................... 66
SECTION 1008. Limitation on Debt............................................................................ 66
SECTION 1009. Limitation on Sale-Leaseback Transactions..................................................... 68
SECTION 1010. [Omitted.].................................................................................... 68
SECTION 1011. Limitation on Restricted Payments............................................................. 68
SECTION 1012. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.................. 71
SECTION 1013. Limitation on Liens........................................................................... 73
SECTION 1014. [Omitted.].................................................................................... 74
SECTION 1015. Asset Sales................................................................................... 74
SECTION 1016. [Omitted]..................................................................................... 75
SECTION 1017. Transactions with Affiliates and Related Persons.............................................. 75
SECTION 1018. [Omitted.].................................................................................... 76
SECTION 1019. Provision of Financial Information............................................................ 76
SECTION 1020. Statement by Officers as to Default; Compliance Certificates.................................. 76
SECTION 1021. Waiver of Certain Covenants................................................................... 77
SECTION 1022. Perfection of Security Interests.............................................................. 77
SECTION 1023. Consummation of Plan of Reorganization........................................................ 77
SECTION 1024. Future Subsidiary Guarantors.................................................................. 77
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption........................................................................... 78
SECTION 1102. Applicability of Article...................................................................... 78
SECTION 1103. Election to Redeem; Notice to Trustee......................................................... 78
SECTION 1104. Selection by Trustee of Securities to Be Redeemed............................................. 78
SECTION 1105. Notice of Redemption.......................................................................... 79
SECTION 1106. Deposit of Redemption Price................................................................... 79
SECTION 1107. Securities Payable on Redemption Date......................................................... 79
SECTION 1108. Securities Redeemed in Part................................................................... 80
SECTION 1109. Purchase of Securities by Issuer in the Open Market or by Private Transaction................. 80
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Issuer's Option to Effect Defeasance or Covenant Defeasance................................... 80
SECTION 1202. Defeasance and Discharge...................................................................... 80
SECTION 1203. Covenant Defeasance........................................................................... 81
SECTION 1204. Conditions to Defeasance or Covenant Defeasance............................................... 81
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions.................................................................................................. 83
SECTION 1206. Reinstatement................................................................................. 83
ARTICLE THIRTEEN
SECURITY ARRANGEMENTS
SECTION 1301. Collateral and Security Documents............................................................. 84
SECTION 1302. Release of Collateral......................................................................... 85
SECTION 1303. Opinions as to Recording...................................................................... 85
SECTION 1304. Further Assurances and Security............................................................... 86
SECTION 1305. Authorization of Actions to be Taken by the Trustee or the Collateral Agent Under the Security
Documents................................................................................................... 87
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SECTION 1306. Authorization of Receipt of Funds by the Trustee Under the Security Documents................. 87
SECTION 1307. Trustee Authorization......................................................................... 87
ARTICLE FOURTEEN
SUBSIDIARY GUARANTEES
SECTION 1401. Subsidiary Guarantees......................................................................... 87
SECTION 1402. Limitation on Liability....................................................................... 90
SECTION 1403. Successors and Assigns........................................................................ 90
SECTION 1404. No Waiver..................................................................................... 91
SECTION 1405. Modification.................................................................................. 91
SECTION 1406. Execution of Supplemental Indenture for Future Subsidiary Guarantors.......................... 91
SECTION 1407. Execution and Delivery of Subsidiary Guarantees............................................... 91
SECTION 1408. Release of Subsidiary Guarantor............................................................... 91
ARTICLE FIFTEEN
SUBORDINATION OF SUBSIDIARY GUARANTEES
SECTION 1501. Agreement to Subordinate...................................................................... 92
SECTION 1502. Liquidation, Dissolution, Bankruptcy.......................................................... 92
SECTION 1503. Default on Designated Senior Debt of Subsidiary Guarantor..................................... 93
SECTION 1504. Demand for Payment............................................................................ 93
SECTION 1505. When Distribution Must Be Paid Over........................................................... 93
SECTION 1506. Subrogation................................................................................... 94
SECTION 1507. Relative Rights............................................................................... 94
SECTION 1508. Subordination May Not Be Impaired by Subsidiary Guarantor..................................... 94
SECTION 1509. Rights of Trustee and Paying Agent............................................................ 94
SECTION 1510. Distribution or Notice to Representative...................................................... 95
SECTION 1511. Article Fifteen Not To Prevent Events of Default Under a Subsidiary Guaranty or Limit Right To
Demand Payment.............................................................................................. 95
SECTION 1512. Trustee Entitled To Rely...................................................................... 95
SECTION 1513. Trustee To Effectuate Subordination........................................................... 95
SECTION 1514. Trustee Not Fiduciary for Holders of Designated Senior Debt of Subsidiary Guarantor........... 96
SECTION 1515. Reliance by Holders of Designated Senior Debt on Subordination Provisions..................... 96
iv
Penthouse Media Group Inc.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of __________________, 2004
Trust Indenture Act Section Indenture Section
310 (a)(1)............................................................................ 609
(a)(2)............................................................................ 609
(a)(3)............................................................................ Not Applicable
(a)(4)............................................................................ Not Applicable
(b)............................................................................... 608
.................................................................................. 610
311 (a)............................................................................... 613
(b)............................................................................... 613
312 (a)............................................................................... 701
(b)............................................................................... 702
(c)............................................................................... 702
313 (a)............................................................................... 703
(b)............................................................................... 703
314 (a)............................................................................... 704
(a)(4)............................................................................ 1020
(b)............................................................................... 1303
(c)(1)............................................................................ 102
(c)(2)............................................................................ 102
(c)(3)............................................................................ Not Applicable
(d)............................................................................... Not Applicable
(e)............................................................................... 102
315 (a)............................................................................... 601
(b)............................................................................... 602
(c)............................................................................... 601
(d)............................................................................... 601
(d)(1)............................................................................ 601
(e)............................................................................... 515
316 (a)............................................................................... 512
(a)(1)(A)......................................................................... 512
(a)(1)(B)......................................................................... 514
(a)(2)............................................................................ 513
(b)............................................................................... 508
317 (a)(1)............................................................................ 503
(a)(2)............................................................................ 504
(b)............................................................................... 1003
318 (a)............................................................................... 107
v
INDENTURE, dated as of ______________, 2004, between Penthouse Media Group
Inc., a corporation duly organized and existing under the laws of the State of
Delaware, having its principal executive offices at Two Pennsylvania Plaza, New
York, New York 10001 (the "Issuer"), the Subsidiary Guarantors set forth on the
signature pages hereto, and Wilmington Trust Company, a bank and trust company
organized and existing under the laws of the State of Delaware, as Trustee
(herein called the "Trustee") having its corporate trust office at ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS OF THE ISSUER
A. The Issuer and certain of its subsidiaries filed for reorganization
under chapter 11 of title 11 of the United Stated Code (the "Bankruptcy Code")
in the United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court"); and
B. By order, dated [__________________], 2004, the Bankruptcy Court has
confirmed the Issuer's plan of reorganization (the "Plan") in accordance with
section 1129 of the Bankruptcy Code and such Plan has become effective as of
[_________________], 2004 (the "Effective Date"); and
C. As part of the Plan, the Issuer has agreed, inter alia, to issue up
to $27.0 million principal amount of 13% Term Loan Notes due 2011 (the
"Securities") to holders of the Issuer's outstanding 15% Senior Notes due 2004
(the "15% Senior Notes") in exchange for all of the Issuer's outstanding 15%
Senior Notes and obligations thereunder, and up to $11.0 million principal
amount of the Securities to holders of Allowed General Unsecured Claims (as such
term is defined in the Plan) in payment of their claims.
All actions necessary to make the Securities, when executed by the Issuer and
authenticated and delivered hereunder and duly issued by the Issuer, the valid
Obligations of the Issuer, and to make this Indenture a valid agreement of the
Issuer, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by
the Holders (as defined herein) thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
1
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP (whether or not such is
indicated herein), and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted in the
United States as consistently applied by the Issuer at the Closing
Date;
(4) unless otherwise specifically set forth herein, all calculations or
determinations of a Person shall be performed or made on a
consolidated basis in accordance with generally accepted accounting
principles;
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(6) unless the context otherwise requires, any reference to a "Clause,"
an "Article" or a "Section", or to an "Annex" or a "Schedule",
refers to a Clause, an Article or Section of, or to an Annex or a
Schedule attached to, this Indenture, as the case may be; and
(7) unless the context otherwise requires, any reference to a statute,
rule or regulation refers to the same (including any successor
statute, rule or regulation thereto) as it may be amended from time
to time.
Certain terms, used principally in Article Six, are defined in that
Article.
"Acquisition Debt" means Debt of a Person existing at the time such Person
becomes a Subsidiary or assumed in connection with an Asset Acquisition, and not
Incurred in connection with, or in anticipation of, such Person becoming a
Subsidiary or such Asset Acquisition.
"Act" has the meaning specified in Section 104.
"Additional Securities" has the meaning specified in Section 301.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date means the
amount by which the fair value of the assets and property of such Subsidiary
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under its Subsidiary Guarantee, of such Subsidiary Guarantor at such
date.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of
2
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.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, Euroclear and CEDEL, in each
case to the extent applicable to such transaction and as in effect at the time
of such transfer or transaction.
"Asset Acquisition" means an acquisition by the Issuer or any of its
Subsidiaries of the property and assets of any Person other than the Issuer or
any of its Subsidiaries that constitute substantially all of a division or line
of business of such Person.
"Asset Sale" by any Person means any transfer, conveyance, sale, lease,
license or other disposition by such Person or any of its Subsidiaries
(including a consolidation or merger or other sale of any such Subsidiary with,
into or to another Person in a transaction in which such Subsidiary ceases to be
a Subsidiary) (collectively a "transfer") of (I) shares of Capital Stock (other
than directors' qualifying shares) or other ownership interests of a Subsidiary
of such Person, (II) all or substantially all of the assets of such Person or
any of its Subsidiaries, or (III) any other property, assets or rights
(including intellectual property rights) of such Person or any of its
Subsidiaries outside of the ordinary course of business; provided that "Asset
Sale" shall not include (A) any transfer of all or substantially all of the
assets of the Issuer in a transaction that is made in compliance with the
requirements of provisions of Article Eight of this Indenture, (B) any transfer
by the Issuer to any Wholly Owned Subsidiary of the Issuer or by any Wholly
Owned Subsidiary of the Issuer to any other Wholly Owned Subsidiary of the
Issuer or to the Issuer in a manner that does not otherwise violate the terms of
this Indenture, (C) transfers made in compliance with the requirements of
Section 1011, (D) transfers constituting the granting of a Permitted Lien, and
(E) transfers of assets, property or other rights (including intellectual
property rights) with a fair market value at the date of transfer of less than
$2.0 million.
"Average Life" means, at any date of determination with respect to any
debt security, the quotient obtained by dividing (i) the sum of the products of
(a) the number of years from the date of determination to the dates of each
successive scheduled principal payment of such debt security and (b) the amount
of such principal payment, by (ii) the sum of all such principal payments.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities.
"Bankruptcy Code" has the meaning specified in the paragraph A of the
recitals to this instrument.
"Bankruptcy Court" has the meaning specified in the paragraph A of the
recitals to this instrument.
3
"Board of Directors" means either the board of directors of the Issuer or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Issuer to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York, New
York are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Debt arrangements conveying
the right to use) real or personal property of such Person which is required to
be classified and accounted for as a capital lease or a liability on the face of
a balance sheet of such Person in accordance with GAAP. The principal amount of
such obligation shall be the capitalized amount thereof that would appear on the
face of a balance sheet of such Person in accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof (provided that the full faith and credit
of the United States is pledged in support thereof) having maturities of six
months or less from the date of acquisition, (iii) certificates of deposit and
Eurodollar time deposits with maturities of not more than six months from the
date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any domestic commercial
bank having capital and surplus in excess of $250.0 million, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (ii) and (iii) above entered into with any
financial institution meeting the qualifications specified in clause (iii)
above, (v) municipal securities having the highest rating obtainable from
▇▇▇▇▇'▇ Investors Service, Inc. (or any successor thereto) or Standard & Poor's
Ratings Group (or any successor thereto) and in each case maturing within 60
days or less after the date of acquisition, (vi) commercial paper having the
highest rating obtainable from ▇▇▇▇▇'▇ Investors Service, Inc. (or any successor
thereto) or Standard & Poor's Ratings Group (or any successor thereto) and in
each case maturing within six months after the date of acquisition and (vii)
money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (i) through (vi) of this
definition.
"CEDEL" means CEDEL, S.A., or any successor securities clearing agency.
"Closing Date" means [___________________], 2004.
4
"Collateral" means the collective reference to all assets, whether now
owned or hereafter acquired, upon which a Lien is created or granted from time
to time pursuant to any Security Document.
"Collateral Agent" means the Trustee, in its capacity as collateral agent
under the Security Documents until a successor Collateral Agent shall have
become such pursuant to the Security Documents, and thereafter "Collateral
Agent" shall mean such successor Collateral Agent.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that does
not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Consolidated Accounts Receivable" means the consolidated accounts
receivable (net of the allowance for doubtful accounts calculated in accordance
with GAAP) of the Issuer and its Subsidiaries that are not more than 60 days
past their due date and that were entered into in the ordinary course of
business on normal payment terms as shown on the most recent internal
consolidated balance sheet of the Issuer and such Subsidiaries calculated on a
consolidated basis in accordance with GAAP.
"Consolidated Debt to EBITDA Ratio" means the ratio of (a) the total
consolidated Debt as of the date of calculation (the "Determination Date") to
(b) four times the Consolidated EBITDA for the latest fiscal quarter for which
financial information is available immediately preceding such Determination Date
(the "Measurement Period"). For purposes of calculating Consolidated EBITDA for
the Measurement Period immediately prior to the relevant Determination Date, (i)
any Person that is a Subsidiary on the Determination Date (or would become a
Subsidiary on such Determination Date in connection with the transaction that
requires the determination of such Consolidated EBITDA) will be deemed to have
been a Subsidiary at all times during such Measurement Period, (ii) any Person
that is not a Subsidiary on such Determination Date (or would cease to be a
Subsidiary on such Determination Date in connection with the transaction that
requires the determination of such Consolidated EBITDA) will be deemed not to
have been a Subsidiary at any time during such Measurement Period, and (iii) if
the Issuer or any Subsidiary shall have in any manner (x) acquired (through an
acquisition or the commencement of activities constituting such operating
business) or (y) disposed of (by an Asset Sale or the termination or
discontinuance of activities constituting such operating business) any operating
business during such Measurement Period or after the end of such period and on
or prior to such Determination Date, such calculation will be made on a pro
forma basis in accordance with GAAP as if all such transactions had been
consummated prior to the first day of such Measurement Period (it being
understood that in calculating Consolidated EBITDA the exclusions set forth in
clauses (a) through (f) of the definition of Consolidated Net Income shall apply
to any Person acquired as if it were a Subsidiary).
5
"Consolidated EBITDA" means, with respect to any period, Consolidated Net
Income for such period increased (without duplication), to the extent deducted
in calculating such Consolidated Net Income, by (a) Consolidated Income Tax
Expense for such period; (b) Consolidated Interest Expense for such period
without regard to the proviso therein; and (c) depreciation, amortization and
any other non-cash items for such period, less any non-cash items to the extent
they increase Consolidated Net Income (including the partial or entire reversal
of reserves taken in prior periods) for such period, of the Issuer and any
Subsidiary, including, without limitation, amortization of capitalized debt
issuance costs for such period, all of the foregoing determined on a
consolidated basis for the Issuer and its Subsidiaries in accordance with GAAP;
provided that, if any Subsidiary is not a Wholly Owned Subsidiary of the Issuer,
Consolidated EBITDA shall be reduced (to the extent not otherwise reduced in
accordance with GAAP) by an amount equal to (A) the amount of Consolidated
EBITDA attributable to such Subsidiary multiplied by (B) the percentage
ownership interest in such Subsidiary not owned on the last day of such period
by the Issuer or any of its Subsidiaries.
"Consolidated Income Tax Expense" for any period means the consolidated
provision for income taxes of the Issuer and its Subsidiaries for such period
calculated on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means for any period the consolidated
interest expense included in the consolidated income statement of the Issuer and
its Subsidiaries for such period calculated on a consolidated basis in
accordance with GAAP, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iii) fees (net of any amounts received) with
respect to any Interest Rate or Currency Protection Agreement; (iv) interest on
Debt guaranteed by the Issuer and its Subsidiaries, to the extent paid by the
Issuer or any Subsidiary; and (v) the portion of any Capital Lease Obligation
allocable to interest expense; provided that, if any Subsidiary is not a Wholly
Owned Subsidiary of the Issuer, Consolidated Interest Expense shall be reduced
(to the extent not otherwise reduced in accordance with GAAP) by an amount equal
to (A) the amount of Consolidated Interest Expense attributable to such
Subsidiary multiplied by (B) the percentage ownership interest in such
Subsidiary not owned on the last day of such period by the Issuer or any of its
Subsidiaries.
"Consolidated Net Income" for any period means the consolidated net income
(or loss) of the Issuer and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded therefrom (a) the net income (or loss) of any Person acquired by the
Issuer or a Subsidiary of the Issuer in a pooling-of-interests transaction for
any period prior to the date of such transaction, (b) the net income (or loss)
of any Person that is not a Subsidiary of the Issuer except to the extent of the
amount of dividends or other distributions actually paid to the Issuer or a
Subsidiary of the Issuer by such Person during such period, (c) gains or losses
on Asset Sales by the Issuer or its Subsidiaries, (d) all extraordinary gains
and extraordinary losses, (e) the cumulative effect of changes in accounting
principles and (f) the tax effect of any of the items described in clauses (a)
through (e) above.
6
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less amounts attributable to Disqualified Stock of such
Person; provided that, with respect to the Issuer, adjustments following the
date of this Indenture to the accounting books and records of the Issuer in
accordance with Accounting Principles Board Opinions Nos. 16 and 17 (or
successor opinions thereto), or otherwise resulting from the acquisition of
control of the Issuer by another Person shall not be given effect.
"Consolidated Tangible Assets" means, with respect to the Issuer, the
total consolidated assets of the Issuer and its Subsidiaries, less the total
intangible assets of the Issuer and its Subsidiaries, as shown on the most
recent internal consolidated balance sheet of the Issuer and such Subsidiaries
calculated on a consolidated basis in accordance with GAAP.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which is, at the date as of which this Indenture is dated, located at ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 19890.
"Corporation" means a corporation, association, company, joint-stock
company, limited liability company, partnership or business trust.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person (including reimbursement
obligations with respect thereto, but excluding obligations with respect to
trade letters of credit securing obligations entered into in the ordinary course
of business to the extent such letters of credit are not drawn upon or, if drawn
upon, to the extent such drawing is reimbursed no later than the third Business
Day following receipt by such Person of a demand for reimbursement), (iv) every
obligation of such Person issued or assumed as the deferred purchase price of
property or services (including securities repurchase agreements), (v) every
Capital Lease Obligation of such Person, (vi) all Disqualified Stock issued by
such Person, (vii) if such Person is a Subsidiary, all Preferred Stock issued by
such Person, (viii) every obligation under Interest Rate or Currency Protection
Agreements of such Person and (ix) every obligation of the type referred to in
clauses (i) through (viii) of another Person and all dividends of another Person
the payment of which, in either case, such Person has Guaranteed or is
responsible or liable, directly or indirectly, as obligor, Guarantor or
otherwise. The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by (a) any contingent Debt, shall be
the maximum principal amount thereof, (b) any Debt issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (c) any
Disqualified Stock, shall be the maximum fixed redemption or repurchase price in
respect thereof, and (d) any Preferred Stock, shall be the maximum voluntary or
involuntary liquidation preference plus accrued and unpaid dividends in respect
thereof, in each case as of such time of
7
determination. In no event shall "Debt" include any trade payable or accrued
expenses arising in the ordinary course of business.
"Defaulted Interest" has the meaning specified in Section 308.
"Depositary" means DTC or, if DTC shall cease to be a clearing agency
registered under the Exchange Act, any other clearing agency registered under
the Exchange Act that is designated as the successor Depositary in an Issuer
Order delivered to the Trustee.
"Designated Senior Debt" of any Subsidiary Guarantor means all obligations
under Permitted Senior Secured Debt Incurred by such Subsidiary Guarantor which
has been designated by such Subsidiary Guarantor as "Designated Senior Debt" in
the instrument or agreement pursuant to which such Designated Senior Debt is
issued.
"DIP Credit Facility" means the $7 million revolving credit facility
extended to Issuer and certain of its Subsidiaries pursuant to that certain DIP
Credit Agreement dated as of February 10, 2004, and all related documents,
instruments and agreements, by and among NAFT Ventures I LLC, as agent, the
lenders identified in the agreement, the Issuer and its Subsidiaries identified
in the agreement.
"Disqualified Stock" of any Person means any Capital Stock of such Person
that by its terms, or by the terms of any security into which it is convertible,
or for which it is exchangeable, is, in whole or in part, redeemable at the
option of the holder thereof or otherwise matures or is required to be redeemed
(pursuant to any sinking fund obligation or otherwise, but other than as a
result of the death or disability of the holder thereof or the termination of
the employment with the Issuer or one of its Subsidiaries of the holder thereof)
or is convertible into or exchangeable (in each case at the option of the
holder) for Debt, at any time prior to the final Maturity of the Securities;
provided, however, that any Capital Stock which would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require the Issuer or its Subsidiary to repurchase or redeem such Capital
Stock upon the occurrence of an "asset sale" occurring prior to the final
Maturity date of the Securities shall not constitute Disqualified Stock if such
provisions applicable to such Capital Stock are no more favorable to the holders
of such stock than the corresponding provisions applicable to the Securities
contained in this Indenture and such provisions applicable to such Capital Stock
specifically provide that the Issuer and its Subsidiaries will not repurchase or
redeem any such stock pursuant to such provisions prior to the repurchase of
such Securities as are required to be repurchased pursuant to this Indenture
upon an Asset Sale.
"Dollars" and "$" means such coins or currency of the United States of
America which is legal tender for payment of public and private debts.
"DTC" means The Depository Trust Company, a New York corporation, and its
successors.
"Effective Date" has the meaning specified in the paragraph B of the
recitals to this instrument.
8
"Euroclear" means the Euroclear Clearance System, or any successor
securities clearing agency.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 and any
successor act thereto.
"Excess Proceeds" has the meaning specified in Section 1015.
"Existing Debt" shall mean Debt of the Issuer and its Subsidiaries in
existence on the Closing Date, including the Securities.
"Exit Financing Facility" means the credit facility in the principal
amount of $15.0 million extended to Issuer and certain of its Subsidiaries
pursuant to that certain agreement dated as of the Effective Date, and all
related documents, instruments and agreements, by and among NAFT Ventures I LLC,
as agent, the lenders identified in the agreement, the Issuer and its
Subsidiaries identified in the agreement, the proceeds of which will be used to
repay all of the Issuer's obligations under the DIP Credit Facility, pay the
cash due under the Plan on the Effective Date and provide working capital to
Issuer and its Subsidiaries.
"Expiration Date" has the meaning specified in Section 104.
"15% Senior Notes" means the Issuer's 15% Senior Notes due 2004 issued
under that certain indenture dated December 21, 1993 among the Issuer,
Subsidiary Guarantors and the indenture trustee, as supplemented and amended by
the First Supplemental Indenture dated as of May 19, 1999, the Second
Supplemental Indenture dated as of March 29, 2002, the Third Supplemental
Indenture dated as of August 1, 2002 and the Fourth Supplemental Indenture dated
as of November 12, 2002.
"GAAP" means generally accepted accounting principles in the United States
which are in effect on the date of original issuance of the Securities,
consistently applied.
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person guaranteeing, or having the economic effect of guaranteeing, any
Debt of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, and including, without limitation, any obligation of such Person,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Debt, (ii) to purchase property, securities
or services for the purpose of assuring the holder of such Debt of the payment
of such Debt, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt (and "Guaranteed", "Guaranteeing"
and "Guarantor" shall have meanings correlative to the foregoing); provided,
9
however, that the Guaranty by any Person shall not include endorsements by such
Person for collection or deposit, in either case, in the ordinary course of
business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any Person,
to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
including by acquisition of Subsidiaries or the recording, as required pursuant
to GAAP or otherwise, of any such Debt or other obligation on the balance sheet
of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall
have meanings correlative to the foregoing); provided, however, that a change in
GAAP that results in an obligation of such Person that exists at such time
becoming Debt shall not be deemed an Incurrence of such Debt. For the avoidance
of doubt, the accretion of original issue discount shall not be deemed an
Incurrence.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate or Currency Protection Agreement" of any Person means any
forward contract, futures contract, swap, option or other financial agreement or
arrangement (including, without limitation, caps, floors, collars and similar
agreements) relating to, or the value of which is dependent upon, interest rates
or currency exchange rates or indices.
"Internal Revenue Code" means the Internal Revenue Code of 1986 and any
successor thereto.
"Investment" by any Person means any direct or indirect loan, advance or
other extension of credit or capital contribution (by means of transfers of cash
or other property to others or payments for property or services for the account
or use of others, or otherwise) to, or purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities or evidence of Debt issued by, any
other Person, including any payment on a Guarantee of any obligation of such
other Person. Notwithstanding the foregoing, "Investment" shall not include (i)
deposits, partial payments or "▇▇▇▇▇▇▇ money" made in anticipation of a purchase
or acquisition that would be a Permitted Investment when consummated, (ii)
security deposits or prepayments with respect to operating leases or (iii)
payments made in connection with the renewals or exercise of any option to renew
an operating lease.
"Issuer" means the Person named as the "Issuer" in the first paragraph of
this instrument until a successor Person or Persons shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Issuer"
shall mean such successor Person.
"Issuer Request" or "Issuer Order" means a written request or order signed
in the name of the Issuer by the Issuer's Chairman of the Board, its President
or a Vice President, and by its
10
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Cash Proceeds" means (i) with respect to any Asset Sale by any
Person, cash or Cash Equivalents received (including by way of sale or
discounting of a note, installment receivable or other receivable, but excluding
any other consideration received in the form of assumption of Debt or other
obligations relating to such properties or assets) therefrom by such Person, net
of (A) all legal, title and recording tax expenses, commissions and other fees
and expenses Incurred and all federal, state, foreign and local taxes required
to be accrued as a liability as a consequence of such Asset Sale, (B) all
payments made by such Person or its Subsidiaries on any Debt which is secured by
such assets in accordance with the terms of any Lien upon or with respect to
such assets or which must by the terms of such Lien, or in order to obtain a
necessary consent to such Asset Sale or by applicable law, be repaid out of the
proceeds from such Asset Sale, (C) all distributions and other payments made to
minority interest holders in Subsidiaries of such Person or joint ventures as a
result of such Asset Sale and (D) appropriate amounts to be provided by such
Person or any Subsidiary thereof, as the case may be, as a reserve in accordance
with GAAP against any liabilities associated with such assets and retained by
such Person or any Subsidiary thereof, as the case may be, after such Asset
Sale, including, without limitation, liabilities under any indemnification
obligations and severance and other employee termination costs associated with
such Asset Sale, in each case as determined by the Board of Directors, in its
reasonable good faith judgment evidenced by a Board Resolution; provided,
however, that any reduction in such reserve within twelve months following the
consummation of such Asset Sale will be treated for all purposes of this
Indenture and the Securities as a new Asset Sale at the time of such reduction
with Net Cash Proceeds equal to the amount of such reduction, (ii) with respect
to the issuance or sale of Capital Stock, or options, warrants or rights to
purchase Capital Stock, or debt securities or Disqualified Stock that has been
converted into or exchanged for Capital Stock, the proceeds of such issuance or
sale in the form of cash or Cash Equivalents, including payments in respect of
deferred payment obligations, net of attorney's fees, accountant's fees and
brokerage, consultation, underwriting and other fees and expenses actually
incurred in connection with such issuance or sale, conversion or exchange and
net of any Consolidated Interest Expense attributable to any debt securities
paid to the holders thereof prior to the conversion or exchange and net of taxes
paid or payable as a result thereof.
"Notice of Default" has the meaning specified in Section 602.
11
"Obligations" means, with respect to the Issuer and each Subsidiary
Guarantor, (a) the full and punctual payment of the principal of and interest on
the Securities when due, whether at Maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Issuer and such Subsidiary
Guarantor, as applicable, under this Indenture and the Securities and (b) the
full and punctual performance within applicable grace periods of all other
obligations of the Issuer such Subsidiary Guarantor, as applicable, under this
Indenture and the Securities.
"Offer" has the meaning specified in the definition of Offer to Purchase.
"Offer Expiration Date" has the meaning specified in the definition of
Offer to Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the Issuer
by first class mail, postage prepaid, to each Holder at his address appearing in
the Securities Register on the date of the Offer offering to purchase up to the
principal amount of Securities specified in such Offer at the purchase price
specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Offer Expiration Date") of the Offer to Purchase which shall be, subject
to any contrary requirements of applicable law, not less than 30 days or more
than 60 days after the date of such Offer and a settlement date (the "Purchase
Date") for purchase of Securities within five Business Days after the Offer
Expiration Date. The Issuer shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee) prior to the mailing of
the Offer of the Issuer's obligation to make an Offer to Purchase, and the Offer
shall be mailed by the Issuer or, at the Issuer's request, by the Trustee in the
name and at the expense of the Issuer. The Offer shall contain information
concerning the business of the Issuer and its Subsidiaries which the Issuer in
good faith believes will enable such Holders to make an informed decision with
respect to the Offer to Purchase (which at a minimum will include (i) the most
recent annual and quarterly financial statements contained in the documents
required to be filed with the Trustee pursuant to this Indenture (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Issuer's business
subsequent to the date of the latest of such financial statements referred to in
clause (i) (including a description of the events requiring the Issuer to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the Issuer
to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein). The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities offered
to be purchased by the Issuer pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such has been
determined pursuant to the Section hereof requiring the Offer to
Purchase) (the "Purchase Amount");
12
(4) the purchase price to be paid by the Issuer for each $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a
Security tendered must be tendered in an integral of $1,000
principal amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Securities not tendered or tendered but not
purchased by the Issuer pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to
the Offer to Purchase and that interest thereon shall cease to
accrue on and after the Purchase Date;
(9) that each Holder electing to tender a Security pursuant to the Offer
to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on
the Offer Expiration Date (such Security being, if the Issuer or the
Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Issuer (or its Paying Agent) receives,
not later than the close of business on the Offer Expiration Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Security the Holder
tendered, the certificate number of the Security the Holder tendered
and a statement that such Holder is withdrawing all or a portion of
his tender;
(11) that (a) if Securities in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Issuer shall purchase all
such Securities and (b) if Securities in an aggregate principal
amount in excess of the Purchase Amount are tendered and not
withdrawn pursuant to the Offer to Purchase, the Issuer shall
purchase Securities having an aggregate principal amount equal to
the Purchase Amount on a pro rata basis (with such adjustments as
may be deemed appropriate so that only Securities in denominations
of $1,000 or integral multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Security is purchased only in
part, the Issuer shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a
new Security or Securities, of any authorized
13
denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unpurchased portion of the
Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, Chief Executive Officer, Chief Financial Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Issuer and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1020 shall
be the principal executive, financial or accounting officer of the Issuer.
"Opinion of Counsel" means a written opinion of counsel, who may be inside
or outside counsel for the Issuer, and who shall be reasonably acceptable to the
Trustee.
"Original Securities" means the Securities issued on the Closing Date and
their Successor Securities.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Issuer) in trust or set aside and segregated
in trust by the Issuer (if the Issuer shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(3) Securities which have been paid pursuant to Section 308 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a protected purchaser in whose hands such
Securities are valid Obligations of the Issuer; provided, however,
that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Issuer or any other obligor upon the
Securities shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the
14
▇▇▇▇▇▇▇'s right so to act with respect to such Securities and that
the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or of such other obligor.
"pari passu", when used with respect to the ranking of any Debt of any
Person in relation to other Debt of such Person, means that each such Debt (a)
either (i) is not subordinated in right of payment to any other Debt of such
Person or (ii) is subordinate in right of payment to the same Debt of such
Person as is the other and is so subordinate to the same extent and (b) is not
subordinate in right of payment to the other or to any Debt of such Person as to
which the other is not so subordinate.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Securities on behalf of the Issuer.
"Payment Blockage Notice" has the meaning specified in Section 1503.
"Payment Blockage Period" has the meaning specified in Section 1503.
"Permitted Interest Rate or Currency Protection Agreement" of any Person
means any Interest Rate or Currency Protection Agreement entered into with one
or more financial institutions that is designed to protect such Person against
fluctuations in interest rates or currency exchange rates with respect to Debt
Incurred and which shall have a notional amount no greater than the payments due
with respect to the Debt being hedged thereby and not for purposes of
speculation.
"Permitted Investment" means (i) an Investment in the Issuer or a
Subsidiary or a Person which will, upon the making of such Investment, become a
Subsidiary or be merged or consolidated with or into or transfer or convey all
or substantially all its assets to, the Issuer or a Subsidiary; (ii) Cash
Equivalents; (iii) payroll, travel, relocation and similar advances to cover
matters that are expected at the time of such advances ultimately to be treated
as expenses in accordance with GAAP; (iv) stock, obligations or securities
received (x) in satisfaction of judgments or (y) in connection with the sale or
disposition of a Person, assets or business; (v) Investments in prepaid
expenses, negotiable instruments held for collection and lease, utility and
worker's compensation, performance and other similar deposits; (vi) Permitted
Interest Rate or Currency Protection Agreements; (vii) Strategic Investments;
(viii) loans or advances to officers or employees of the Issuer or any
Subsidiary that do not in the aggregate exceed $5.0 million at any time
outstanding; (ix) Investments in any Person, provided that the aggregate amount
of Investments made pursuant to this clause does not exceed 5% of Consolidated
Tangible Assets; and (x) accounts receivable in the ordinary course of business
(and Investments obtained in exchange or settlement of accounts receivable for
which the Issuer has determined that collection is not likely).
"Permitted Lien" means any Lien on the assets of the Issuer or any
Subsidiary permitted under Section 1013.
"Permitted Senior Secured Debt" means Debt (x) Incurred by Issuer and/or
any Subsidiary (i) pursuant to the Exit Financing Facility, (ii) pursuant to one
or more senior
15
commercial term loan and/or revolving credit facilities (including any letter of
credit subfacility) entered into principally with commercial banks and/or other
financial institutions typically party to commercial loan agreements, (iii) in
the form of, or represented by, bonds or other securities, or (iv) with respect
to any Subsidiary, consisting of a Guarantee of Debt of the Issuer which is
Permitted Senior Secured Debt, and in each case any replacement, extension,
renewal, amendment, restatement, refinancing or refunding thereof; provided that
the aggregate principal amount of all Permitted Senior Secured Debt, at any one
time outstanding, shall not exceed $20.0 million, less any amounts derived from
Asset Sales and applied to the permanent reduction of Permitted Senior Secured
Debt (and a permanent reduction of the related commitment to lend or amount to
be reborrowed in the case of a revolving credit facility) under such credit
facilities as contemplated by Section 1015 and (y) which may be secured by ▇▇▇▇▇
having the same or senior priority to the Liens securing the Securities.
"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 thereof or
any other entity.
"Plan" has the meaning specified in the paragraph B of the recitals to
this instrument.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" of any Person means Capital Stock of such Person of any
class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Purchase Amount" has the meaning specified in the definition of Offer to
Purchase.
"Purchase Date" has the meaning specified in the definition of Offer to
Purchase.
"Purchase Money Secured Debt" of any Person means Debt (whether provided
by a vendor or a third party) of such Person secured by a Lien on real or
personal property of such Person which Debt (a) constitutes all or a part of the
purchase price or construction cost of such property or (b) is Incurred prior
to, at the time of or within 180 days after the latter of the acquisition or the
substantial completion of such property for the purpose of financing all or any
part of the purchase price or construction cost thereof; provided, however, that
(w) the Debt so incurred does not exceed 100% of the purchase price or
construction cost of such property and related expenses, (x) such Lien does not
extend to or cover any property other than such item of property and any
improvements on such item and proceeds thereof, (y) the purchase price or
construction cost for such property is or should be included in "addition to
property, plant and equipment" in accordance with GAAP, and (z) the purchase or
construction of such property is not part of any acquisition of a Person or
business unit or line of business.
16
"Purchase Price" has the meaning specified in the definition of Offer to
Purchase.
"Qualified Consideration" shall mean: (i) cash; (ii) Cash Equivalents;
(iii) assets that are used or useful in the Issuer's line of business; (iv) any
securities or other obligations that are converted into or exchanged for cash or
Cash Equivalents within six months after the Asset Sale or (v) unsubordinated
liabilities of the Issuer or the liabilities of a Subsidiary assumed by the
transferee (or its designee) such that the Issuer or such Subsidiary has no
further liability therefor, the amount of the liability to be determined in
accordance with GAAP.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the _________________ or ________________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 10% or more of the outstanding Common Stock of such Person
(or, in the case of a Person that is not a Corporation, 10% or more of the
equity interest in such Person) or (b) 10% or more of the combined voting power
of the Voting Stock of such Person.
"Required Filing Date" has the meaning specified in Section 1019.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Payment Basket" has the meaning specified in Section 1011.
"Restricted Payments" has the meaning specified in Section 1011.
"Securities" has the meaning specified in paragraph C of the recitals to
this instrument.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor act thereto.
"Security Agreement" means the Security Agreement, dated as of the Closing
Date, by and among the Issuer, the Subsidiary Guarantors and the Collateral
Agent.
"Security Documents" means the Security Agreement, and any other document
or agreement that secures the Securities or the Subsidiary Guarantees, including
those documents or agreements listed on Annex A hereto.
17
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 306.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Strategic Investment" means an Investment in any Person which Investment
is determined by the Board of Directors of the Issuer to promote or
significantly benefit the businesses of the Issuer and its Subsidiaries on the
date of such Investment.
"Subordinated Debt" means Debt of the Issuer as to which the payment of
principal of (and premium, if any) and interest and other payment obligations in
respect of such Debt shall be subordinate to the prior payment in full of the
Securities to at least the following extent: (i) no payments of principal of (or
premium, if any) or interest on, or otherwise due in respect of such Debt, may
be permitted for so long as any default in the payment of principal (or premium,
if any) or interest on the Securities exists; (ii) in the event that any other
default that with the passing of time or the giving of notice, or both, would
constitute an Event of Default with respect to the Securities, upon notice by
25% or more in principal amount of the Securities to the Trustee, the Trustee
shall have the right to give notice to the Issuer and the holders of such Debt
(or trustees or agents therefor) of a payment blockage, and thereafter no
payments of principal of (or premium, if any) or interest on or otherwise due in
respect of such Debt may be made for a period of 179 days from the date of such
notice; and (iii) such Debt may not (x) provide for payments of principal of
such Debt at the Maturity thereof or by way of a sinking fund applicable thereto
or by way of any mandatory redemption, defeasance, retirement or repurchase
thereof by the Issuer (including any redemption, retirement or repurchase which
is contingent upon events or circumstances, but excluding any retirement
required by virtue of acceleration of such Debt upon an event of default
thereunder), in each case prior to the final Maturity date of the Securities or
(y) permit redemption or other retirement (including pursuant to an offer to
purchase made by the Issuer) of such other Debt at the option of the holder
thereof prior to the final Maturity date of the Securities, other than a
redemption or other retirement at the option of the holder of such Debt
(including pursuant to an offer to purchase made by the Issuer) which is
conditioned upon a change of control of the Issuer; provided, however, that any
Debt which would constitute Subordinated Debt but for provisions thereof giving
holders thereof the right to require the Issuer or a Subsidiary to repurchase or
redeem such Subordinated Debt upon the occurrence of an asset sale occurring
prior to the final Maturity of the Securities shall constitute Subordinated Debt
if such provisions applicable to such Subordinated Debt are not more favorable
to the holders of such Debt than the provisions applicable to the Securities
contained in Section 1015 and such provisions applicable to such Debt
specifically provide that the Issuer and its Subsidiaries will not repurchase or
redeem any such Debt pursuant to such provisions prior to the repurchase of such
Securities as are required to be repurchased pursuant to Section 1015.
"Subordinated Obligation" means any Debt of the Issuer or a Subsidiary
Guarantor, as the case may be (whether outstanding on the Closing Date or
thereafter Incurred), which is
18
subordinate or junior in right of payment to the Securities or the Subsidiary
Guarantees, as applicable, whether pursuant to a written agreement to that
effect or by operation of law.
"Subsidiary" of any Person means (i) a Corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof, or (ii) any
other Person (other than a Corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Subsidiary Guarantor" means (i) each of the Subsidiaries of the Issuer
executing this Indenture and (ii) any other Subsidiary that executes a
Subsidiary Guaranty in accordance with the provisions of this Indenture, and
each of their respective successors and assigns.
"Subsidiary Guaranty" means a Guarantee on the terms set forth in this
Indenture by a Subsidiary Guarantor of the Issuer's Obligations with respect to
the Securities.
"Substitute Securities" has the meaning specified in Section 301.
"Successor Entity" has the meaning specified in Section 801.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purpose of this definition, any
Security authenticated and delivered under Section 307 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905; provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"U.S. Government Obligations" has the meaning specified in Section 1204.
"Vice President", when used with respect to the Issuer, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) at such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
19
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Issuer to the Trustee to take any action under any provision of
this Indenture, the Issuer shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate
or opinion shall be given in the form of an Officers' Certificate, if to be
given by an officer of the Issuer, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include (in form reasonably
satisfactory to the Trustee):
(1) statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein
relating thereto;
(2) 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) statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is
necessary to enable such individual to express an informed opinion
as to whether or not such covenant or condition has been complied
with (which, in the case of an Opinion of Counsel and if permitted
under the Trust Indenture Act, may be limited to reliance on an
Officers' Certificate as to matters of fact); and
(4) statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such eligible and
qualified Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual
20
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Issuer stating the information on which counsel is relying
unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee in accordance with
Section 105 hereof, and, where it is hereby expressly required, to the Issuer.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Issuer, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register. Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such
Security.
For purposes of this Indenture, any action by the Holders which may be
taken in writing may be taken by electronic means or as otherwise reasonably
acceptable to the Trustee.
The Issuer may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Issuer may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If not set by the
21
Issuer prior to the first solicitation of a Holder made by any Person in respect
of any such matter referred to in the foregoing sentence, the record date for
any such matter shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 701) prior to such
first solicitation. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Issuer
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Issuer, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 502, (iii) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section 512. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Issuer's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Issuer in writing and to
each Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 106, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
22
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Issuer. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(1) the Trustee, by any Holder or by the Issuer, shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing, to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Issuer, by the Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, or delivered to the Issuer
addressed to it at the address of its principal office specified in the first
paragraph of this instrument, unless the Issuer shall notify the Trustee in
writing of any other address, in which case at such other address.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice, with a copy to the Trustee at the same time mailed or delivered in
accordance with Section 105(1) hereof. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act. If any provision hereof
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be. Until such time as this Indenture shall
be qualified under the Trust
23
Indenture Act, this Indenture, the Issuer and the Trustee shall be deemed for
all purposes hereof to be subject to and governed by the Trust Indenture Act to
the same extent as would be the case if this Indenture were so qualified on the
date hereof.
SECTION 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements in this
Indenture by the Issuer shall bind its respective successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders of Securities, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law. THIS INDENTURE AND THE SECURITIES AND THE
RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Purchase Date or Stated Maturity of any Security shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of interest or principal need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, provided that no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date or Purchase Date or Stated Maturity, as the case may be.
24
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. The Securities and the Trustee's
certificates of authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by its execution of the
Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner provided that such manner is permitted by the rules
of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Upon their original issuance, Securities shall be issued in the form of
one or more Global Securities registered in the name of DTC, as Depositary, or
its nominee and deposited with the Trustee, as custodian for DTC, for credit by
DTC to the respective accounts of beneficial owners of the Securities
represented thereby (or such other accounts as they may direct).
SECTION 202. Form of Face of Security. [IF THE SECURITY IS A GLOBAL
SECURITY, THEN INSERT -- THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR
IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY
OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY AND THE DEPOSITORY TRUST COMPANY IS
TO BE THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS SECURITY IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY 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.]
25
PENTHOUSE MEDIA GROUP INC.
13% Term Loan Notes due 2011
[CUSIP No. [_____ _____]
No. __________
$________
Penthouse Media Group Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Issuer", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promise to pay to __________________, or registered assigns,
the principal sum of _____________________ Dollars (such amount the "principal
amount" of this Security) [IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT --
, or such other principal amount as may be set forth in the records of the
Trustee as referred to in accordance with the Indenture,] on [_________] and to
pay interest thereon from the Closing Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, payable in
arrears annually on [_________] in each year, commencing [_______________] at
the rate of 13% per annum, until the principal hereof is paid or made available
for payment. Interest so payable shall be (a) for the three-year period
following the Closing Date, payable in cash or in kind by the issuance of
additional Securities with terms identical to this Security (other than with
respect to the date of issuance) in such principal amount as shall equal the
interest payment that is then due ("Additional Securities"), or any combination
thereof, at the Issuer's election; and (b) thereafter until the principal hereof
is paid or made available for payment, payable in cash. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the [_________] or
[_________] (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on the relevant
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee in accordance with Section 308 of the Indenture, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or be paid at any time 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, all as more fully provided in said Indenture. Interest on this
Security shall be computed on the basis set forth in the Indenture.
Payment of the principal of and any such interest on this Security [IF
THIS SECURITY IS A GLOBAL SECURITY, THEN INSERT -- shall be made by deposit of
Additional Securities, in the case of interest payable in kind, or by wire
transfer of immediately available funds, in the case of interest payable in
cash, to the accounts specified by the Holder of this Security, provided,
however] [INSERT IF THE SECURITY IS NOT A GLOBAL SECURITY --
26
will be made at the office or agency of the Issuer in the Borough of Manhattan,
The City of New York, New York, maintained for such purpose and at any other
office or agency maintained by the Issuer for such purpose, in Securities, in
the case of interest payable in kind, or in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts, in the case of interest payable in cash; provided,
however, that all payments of the principal and interest on Securities to the
extent paid in cash, the Holders of which hold more than $5.0 million in
principal amount and have given wire transfer instructions to the Issuer or its
agent at least 10 Business Days prior to the applicable payment date, shall be
made by wire transfer of immediately available funds to the accounts specified
by such Holders in such instructions; provided, further,] that at the option of
the Issuer payment of interest may be made by check mailed to the address of the
Person entitled thereto at such address as shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated: _____________ __, 2004. PENTHOUSE MEDIA GROUP INC.
By: ______________________________
Name:
Title:
_________________________________
Name:
Title:
SECTION 203. Form of Reverse of Security. This Security is one of a duly
authorized issue of Securities of the Issuer designated as its 13% Term Loan
Notes due 2011 (herein called the "Securities"), issued and to be issued under
an Indenture, dated as of _____________, 2004 (herein called the "Indenture",
which term shall have the meaning assigned to it in such instrument), among the
Issuer, the Subsidiaries acting as Subsidiary Guarantors and _________________,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
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The Securities are subject to redemption, at the option of the Issuer, in
whole or in part, at any time and from time to time on or after the Closing Date
and prior to Maturity, upon not less than 30 nor more than 60 days' notice
mailed to each Holder of Securities to be redeemed at such Holder's address
appearing in the Security Register, in amounts of $1.00 or an integral multiple
of $1.00, at the Redemption Price of 100% of the principal amount plus accrued
and unpaid interest, if any, to but excluding the Redemption Date (subject to
the right of Holders of record on the immediately preceding Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date). All accrued and unpaid interest must be paid in cash.
The Securities do not have the benefit of any sinking fund obligations.
In the event of redemption or purchase pursuant to an Offer to Purchase of
this Security in part only, a new Security or Securities for the unredeemed or
unpurchased portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default shall occur and be continuing, there may be
declared due and payable the principal amount of (together with accrued and
unpaid interest on) the Securities, in the manner and with the effect provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the Subsidiary Guarantors and the rights of the Holders of the
Securities under the Indenture and the Security Documents at any time by the
Issuer, the Subsidiary Guarantors and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Issuer with certain provisions of the Indenture and the
Security Documents and certain past defaults under the Indenture and its
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default and offered
the Trustee reasonable indemnity and the Trustee shall not have received from
the Holders of a majority in principal amount of Securities at the time
Outstanding a direction inconsistent with such request and shall have failed to
institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to certain suits described
in the Indenture, including any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or interest hereon on or
after the respective due dates expressed herein (or, in the case of redemption,
on or after
28
the Redemption Date or, in the case of any purchase of this Security required to
be made pursuant to an Offer to Purchase, on the Purchase Date).
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly executed by, the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1.00 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer or the Trustee may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and this Security and the rights of the parties thereunder
and hereunder shall be governed by, and construed in accordance with, the laws
of the State of New York.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
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(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________________________________________________ agent
to transfer this Security on the books of the Issuer. The agent may substitute
another to act for him.
Date:________________________
Dated:_______________________ Your Signature: ____________________________
(sign exactly as name
appears on the other side of
this Security)
Signature Guarantee: ___________________________________________________________
(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent Medallion
Program ("STAMP"), the Stock Exchange Medallion Program
("SEMP"), the New York Stock Exchange, Inc. Medallion
Signature Program ("MSP") or such other signature guarantee
program as may be determined by the Security Registrar in
addition to, or in substitution for, STAMP, SEMP, or MSP,
all in accordance with the Securities Exchange Act of 1934,
as amended.)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety by
the Issuer pursuant to Section 1015 of the Indenture, check the box:
[-]
If you want to elect to have only a part of this Security purchased by the
Issuer pursuant to Section 1015 of the Indenture, state the amount:
$_____________
Dated: Your Signature:______________________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee:___________________________________________
(Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15.)
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SECTION 204. Form of Trustee's Certificate of Authentication. The
Certificate of Authentication shall be in substantially the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
Wilmington Trust Company,
as Trustee
By _________________________
Authorized Officer
SECTION 205. Form of Notation of Subsidiary Guarantee. The form of
Notation of Subsidiary Guarantee shall be in substantially the following form:
SUBSIDIARY GUARANTEE
Subject to the limitations set forth in the Indenture, the Subsidiary
Guarantors (as defined in the Indenture referred to in this Security and each
hereinafter referred to as a "Subsidiary Guarantor," which term includes any
successor or additional Subsidiary Guarantor under the Indenture) have jointly
and severally, irrevocably and unconditionally guaranteed (a) the due and
punctual payment of the principal of and interest on the Securities, whether at
Stated Maturity, by acceleration, call for Redemption, upon an Offer to Purchase
or otherwise, (b) the due and punctual payment of interest on the overdue
principal of and interest on the Securities to the extent lawful, (c) the due
and punctual performance of all other Obligations of the Issuer and the
Subsidiary Guarantors to the Holders and the Trustee under the Indenture, the
Securities and the Security Documents and (d) in case of any extension of time
of payment or renewal of any Securities or any of such other Obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at Stated Maturity, by acceleration,
call for Redemption, upon an Offer to Purchase or otherwise. Capitalized terms
used herein shall have the same meanings assigned to them in the Indenture
unless otherwise indicated.
Payment on each Security is guaranteed, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Fourteen of the Indenture and
reference is made to such Indenture for the precise terms of the Subsidiary
Guarantees.
The Obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Subsidiary Guarantor, 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 the Indenture, result in the Obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under any applicable Federal, State or foreign
bankruptcy law or not otherwise being void, voidable or unenforceable under any
such applicable bankruptcy law. Each Subsidiary Guarantor that makes a payment
or distribution under a Subsidiary Guarantee shall be entitled to a contribution
from each other
31
Subsidiary Guarantor in a pro rata amount based on the Adjusted Net Assets of
each Subsidiary Guarantor.
Certain of the Subsidiary Guarantors may be released from their Subsidiary
Guarantees upon the terms and subject to the conditions provided in the
Indenture.
The Subsidiary Guarantee shall be binding upon each Subsidiary
Guarantor listed below and its successors and assigns and shall inure to the
benefit of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions in the
Indenture.
[Remainder of page intentionally left blank.]
____________________________________________
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
____________________________________________
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is limited to
$37.0 million except for Additional Securities and Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 304, 305, 306, 307, 907 or 1108 or in
connection with an Offer to Purchase pursuant to Section 1015 (all Securities
referred to in this exception being deemed "Substitute Securities"). On the
Closing Date, the Issuer shall not issue in excess of $38.0 million in aggregate
principal amount of Securities.
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The Securities shall be known and designated as the "13% Term Loan Notes
due 2011" of the Issuer. Their final Maturity date shall be
[__________________], 2011 and they shall bear interest at the rate of 13% per
annum, from the Closing Date in the case of the Original Securities, the
applicable date of issuance in the case of Additional Securities (an "Issue
Date") or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, regardless of when issued,
payable annually in arrears on [__________], commencing [_____________], 2004
until the principal thereof is paid or made available for payment. Interest so
payable shall be, (a) for the three-year period following the Closing Date,
payable in cash or in kind by the issuance of additional Securities with terms
identical to this Security (other than with respect to the date of issuance) in
such principal amount as shall equal the interest payment that is then due
("Additional Securities"), or any combination thereof, at the Issuer's election;
and (b) thereafter until the principal hereof is paid or made available for
payment, payable in cash. The Securities issued on the Closing Date and any
Additional Securities shall be treated as a single class for all purposes under
this Indenture.
The principal of and interest on the Securities shall be payable at the
office or agency of the Issuer in the Borough of Manhattan, The City of New York
maintained for such purpose and at any other office or agency maintained by the
Issuer for such purpose or, in the case of a Global Security, shall be paid by
wire transfer of immediately available funds to the accounts specified by the
Holders of the Securities; provided, however, that at the option of the Issuer
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
The Securities shall be subject to repurchase by the Issuer pursuant to an
Offer to Purchase as provided in Section 1015.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to defeasance and covenant defeasance as
provided in Article Twelve.
The Securities shall not have the benefit of any sinking fund obligation.
SECTION 302. Denominations. The Securities shall be issuable only in
registered form without coupons and only in denominations of $1.00 and any
integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Issuer by any two of the Chairman
of the Board, Chief Executive Officer, the President, any Vice President, the
Secretary, any Assistant Secretary, the Chief Financial Officer, the Treasurer
or any Assistant Treasurer. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of an Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices at the time of the authentication and delivery of such Securities or did
not hold such offices at the date of issuance of such Securities.
33
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Original Securities executed by the Issuer to
the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Original Securities; and the Trustee in
accordance with the Issuer Order shall authenticate and make available for
delivery such Original Securities as provided in this Indenture and not
otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities. Pending the preparation of definitive
Securities, the Issuer may execute, and upon Issuer Order, the Trustee shall
authenticate and deliver, temporary Securities, which Securities are printed,
lithographed, typewritten, photocopied or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution thereof.
If temporary Securities are issued, the Issuer will cause definitive
Securities to be prepared without unreasonable delay. 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 of the Issuer designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation (which cancellation shall be only by
the Trustee) of any one or more temporary Securities, the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same rights and benefits under this Indenture as definitive Securities.
SECTION 305. Global Securities.
(a) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Issuer for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Issuer that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in either case the Issuer fails to appoint a successor Depositary within 120
days of such notice, (ii) the Issuer executes and delivers to the Trustee an
Issuer Order stating that it elects to cause the issuance of the Securities
34
in certificated form and that all Global Securities shall be exchanged in whole
for Securities that are not Global Securities (in which case such exchange shall
be effected by the Trustee) or (iii) there shall have occurred and be continuing
an Event of Default with respect to the Securities.
(c) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Three. If any Global Security is to be exchanged for
other Securities or cancelled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article Three or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or cancelled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Trustee, as
Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, as otherwise provided in
this Article Three, authenticate and deliver any Securities issuable in exchange
for such Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Depositary or its authorized
representative. Upon the request of the Trustee in connection with the
occurrence of any of the events specified in the preceding paragraph, the Issuer
shall promptly make available to the Trustee a reasonable supply of Securities
that are not in the form of Global Securities. The Trustee shall be entitled to
rely upon any order, direction or request of the Depositary or its authorized
representative which is given or made pursuant to this Article Three if such
order, direction or request is given or made in accordance with the Applicable
Procedures and in accordance with all applicable laws.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
SECTION 306. Registration, Registration of Transfer and Exchange
Generally. The Issuer shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Issuer designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Securities and of transfers and exchanges of Securities. The
Trustee is hereby
35
appointed "Security Registrar" for the purpose of registering Securities and
transfers and exchanges of Securities as herein provided.
Subject to the other provisions of this Indenture regarding restrictions
on transfer, upon surrender for registration of transfer of any Security at an
office or agency of the Issuer designated pursuant to Section 1002 for such
purpose, the Issuer shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations, of a like aggregate principal
amount and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, and subject to the other provisions of this
Section 306, Securities may be exchanged for other Securities of any authorized
denominations, of a like aggregate principal amount and bearing such restrictive
legends as may be required by this Indenture upon surrender of the Securities to
be exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Issuer or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Issuer and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Sections 304, 305, 306, 906, 1015 or 1108 not
involving any transfer.
The Issuer and the Trustee shall not be required (i) to issue, register
the transfer of, or exchange any Security during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 1104 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Each Holder of a Security agrees to indemnify the Trustee against any
liability that may result from the transfer, exchange or assignment of such
▇▇▇▇▇▇'s Security in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.
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
36
law with respect to any transfer of any interest in any Security (including any
transfers between or among Depositary participants or beneficial owners of
interests 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.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Issuer shall execute and
the Trustee shall authenticate and make available for delivery in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Issuer and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by either of them to save each of
them and any agent of either of them completely harmless, then, in the absence
of notice to the Issuer or the Trustee that such Security has been acquired by a
protected purchaser, the Issuer shall execute and upon its written request the
Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount and 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 Issuer in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer and
the Trustee (without duplication) 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
and reasonable attorneys' fees) connected 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 Issuer, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the 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 308. Payment of Interest; Interest Rights Preserved. 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 that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be
37
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder on such date, and such Defaulted Interest may be paid by the
Issuer, at its election in each case, as provided in clause (1) or (2) below:
(1) The Issuer 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 for the payment of such Defaulted Interest,
which shall be fixed in the following manner: The Issuer shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Issuer 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 Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Issuer of such
Special Record Date and, in the name and at the sole expense of the
Issuer, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it
appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid 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 (2).
(2) The Issuer 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 written
notice given by the Issuer to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee in its reasonable judgment.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration, transfer, 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 309. Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Issuer, the Trustee and any agent of the
Issuer or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 308) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and
38
neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee shall
be affected by notice to the contrary.
None of the Issuer, the Trustee or any agent of the Issuer or the Trustee
shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Issuer or the Trustee, or any agent of the Issuer or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any Depositary (or its nominee), as a Holder, with respect to such
Security in global form or impair, as between such Depositary and owners of
beneficial interests in such Security in global form, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as a Holder of such Security in global form.
SECTION 310. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange or pursuant to any Offer to
Purchase pursuant to Section 1015 shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly canceled by, and
only by, the Trustee. The Issuer may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Issuer may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures unless the Trustee is otherwise directed by an
Issuer Order; provided, that in no event shall the Trustee be required to
destroy such canceled Securities.
SECTION 311. CUSIP Numbers. The Issuer in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices as a convenience to Holders; provided 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 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 numbers. The Issuer will promptly notify the Trustee in
writing of any change in the "CUSIP" numbers.
SECTION 312. Computation of Interest. Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 313. Additional Securities. In the event the Issuer issues
Additional Securities pursuant to Section 301, the Issuer shall deliver an
Issuer Order and Additional Securities as required by Section 303 and an
Officer's Certificate setting forth the following information:
(a) the aggregate principal amount of such Additional Securities
to be authenticated and delivered on the applicable Issue Date; and
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(b) the proposed Issue Date of such Additional Securities, which
shall be an Interest Payment Date.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for), and the
Trustee, on written demand of and at the sole expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture (including, but not limited to, Article Twelve hereof), when:
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section
307 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at its Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the sole expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount in cash or U.S. Government Obligations sufficient to pay
and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be
including, without limitation, the payment of all fees and expenses of the
Trustee, its agents and counsel;
(2) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer including, without limitation, the payment
of all fees and expenses of the Trustee, its agents and counsel; and
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(3) the Issuer has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Issuer to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money. Subject to the provisions of last
paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Issuer acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with the
Trustee.
SECTION 403. Repayment of the Issuer. The Trustee and the Paying Agent
shall promptly pay to the Issuer upon written request any excess money or
securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Issuer upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for one year after the date upon which such payment shall have
become due; provided that the Issuer shall have either caused notice of such
payment to be mailed to each Holder of the Securities entitled thereto no less
than 30 days prior to such repayment or within such period shall have published
such notice in a financial newspaper of widespread circulation published in The
City of New York, including, without limitation, The Wall Street Journal
(national edition). After payment to the Issuer, Holders entitled to the money
must look to the Issuer for payment as general creditors unless an applicable
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
SECTION 404. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 401 by
reason of any legal proceeding or by reason of any order or judgment of any
court of governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuer's and Subsidiary Guarantor's obligations under this
Indenture, the Notes, the Security Documents and the Subsidiary Guarantees shall
be revived and reinstated as though no deposit has occurred pursuant to Section
401 until such time as the Trustee or Paying Agent is permitted to apply all
such money or U.S. Government Obligations in accordance with Section 402;
provided, however, that if the Issuer or a Subsidiary Guarantor has made any
payment of interest on or principal of any Securities because of the
reinstatement of their Obligations, the Issuer or such Subsidiary Guarantor
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 FIVE
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REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever used, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(1) failure to pay principal of any Security when due (upon
acceleration, optional or mandatory redemption, required repurchase
or otherwise);
(2) failure to pay interest on any Security when due, and such default
continues for a period of 30 days;
(3) default in the payment of principal and interest on Securities
required to be purchased pursuant to an Offer to Purchase pursuant
to Section 1015 when due and payable;
(4) failure to perform or comply with the provisions contained in
Article Eight;
(5) failure to perform any other covenant or agreement of the Issuer
under this Indenture, the Securities or any Security Document and
such failure continues for 60 days after written notice to the
Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in aggregate principal amount of outstanding
Securities;
(6) (i) any default by the Issuer or any Subsidiary in the payment of
the principal or interest has occurred with respect to amounts in
excess of $10.0 million under any agreement, indenture or instrument
evidencing Debt, which is pari passu with or senior to the
Securities in right of payment, when the same shall become due and
payable in full and such default shall have continued after any
applicable grace period and shall not have been cured or waived and,
if not already matured at its final Maturity in accordance with its
terms, the holders of such Debt shall have the right to accelerate
such Debt, or (ii) any event of default as defined in any agreement,
indenture or instrument of the Issuer or any Subsidiary evidencing
Debt in excess of $10.0 million shall have occurred and the Debt
thereunder, if not already matured at its final Maturity in
accordance with its terms, shall have been accelerated;
(7) the rendering of a final judgment or judgments against the Issuer or
any Subsidiary in an amount in excess of $10.0 million which remains
undischarged or unstayed for a period of 60 days after the date on
which the right to appeal has expired;
(8) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Issuer or any
Subsidiary in an involuntary case or
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proceeding under any applicable U.S. Federal or State or other
applicable bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Issuer or any Subsidiary
as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or
in respect of the Issuer or any Subsidiary under any applicable U.S.
Federal or State, or other applicable law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Issuer or any Subsidiary or of any
substantial part of the property of the Issuer or any Subsidiary, or
ordering the winding up or liquidation of the affairs of the Issuer
or any Subsidiary, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
(9) the commencement by the Issuer or any Subsidiary of a voluntary case
or proceeding under any applicable U.S. Federal or State, or other
applicable bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated as bankrupt
or insolvent, or the consent by the Issuer or any Subsidiary to the
entry of a decree or order for relief in respect of the Issuer or
such Subsidiary in an involuntary case or proceeding under any
applicable U.S. Federal or State, or other applicable bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against the Issuer or a Subsidiary, or the filing by the Issuer or
any Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable U.S. Federal or State,
or other applicable law, or the consent by the Issuer or any
Subsidiary to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Issuer or any
Subsidiary or of substantially all of the property of the Issuer or
any Subsidiary, or the making by the Issuer or any Subsidiary of an
assignment for the benefit of creditors, or the admission by the
Issuer or any Subsidiary in writing of its inability to pay its
debts generally as they become due, or the taking of corporate
action by the Issuer or any Subsidiary in furtherance of any such
action.
(10) the Liens created by the Security Documents shall at any time not
constitute a valid and perfected Lien on the Collateral intended to
be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or
therein) in favor of the Collateral Agent, free and clear of all
other Liens (other than Permitted Liens), or, except for expiration
in accordance with its terms or amendment, modification, waiver,
termination or release in accordance with the terms of this
Indenture, any of the Security Documents shall for whatever reason
be terminated or cease to be in full force and effect, if in either
case, such default continues for 15 days or the enforceability
thereof shall be contested by the Issuer or any Subsidiary
Guarantor; or
(11) any Subsidiary Guarantee ceases to be in full force and effect
(other than in accordance with the terms of this Indenture and such
Subsidiary Guarantee) or a
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Subsidiary Guarantor denies or disaffirms its obligations under its
Subsidiary Guarantee.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Section 501(8) or
(9)) occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
may declare the Securities to be due and payable immediately, by a notice in
writing to the Issuer (and to the Trustee if given by Holders), and upon any
such declaration the principal and any accrued interest on all Outstanding
Securities shall become immediately due and payable. If an Event of Default
specified in Section 501(8) or (9) occurs, the principal of and any accrued
interest on the Securities then Outstanding shall ipso facto become immediately
due and payable without any declaration or other Act on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Issuer and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Issuer has paid or deposited with the Trustee a sum sufficient
to pay:
(A) the principal of any Securities which have become due
otherwise than by such declaration of acceleration (including
any Securities required to have been purchased on the Purchase
Date pursuant to an Offer to Purchase made by the Issuer) and,
to the extent that payment of such interest is lawful, any
interest thereon at the rate provided therefor in the
Securities,
(B) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided therefor
in the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and any other amount
due under Section 6.07; and
(2) all Events of Default, other than the non-payment of the principal
of or interest on, the Securities which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 514.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer covenants that if there is:
(1) a default in the payment of any interest on any Security when such
interest becomes due and payable and such default continues for a
period of 30 days, or
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(2) a default in the payment of the principal of any Security at the
Maturity thereof or, with respect to any Security required to have
been purchased pursuant to an Offer to Purchase made by the Issuer,
at the Purchase Date thereof,
the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate provided therefor in the Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any
amounts due the Trustee under Section 607 hereof.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Issuer or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Issuer or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Issuer or any other obligor upon the Securities, or
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect, receive and distribute any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount owed to the Trustee for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts the Trustee is entitled to receive under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any
45
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any amounts due the Trustee under Section 607 hereof, be for
the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected. Money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts (including, without
limitation, the reasonable compensation, expenses, disbursements and
advances due the Trustee, its agents and counsel and any other amounts)
due to the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities due to the Holders in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and interest,
respectively.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities pursuant to this Section 506. At least 15 days before such
record date, the Issuer shall mail to each Holder and the Trustee a notice that
states the record date, the payment date and amount to be paid. The Trustee may
mail such notice in the name and at the expense of the Issuer.
SECTION 507. Limitation on Suits. No Holder of any Security shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made a written request to the
Trustee to institute proceedings or pursue remedies in respect of
such Event of Default in its own name, as Trustee hereunder;
(3) such Holder or Holders have offered and provided to the Trustee
reasonable indemnity satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such
request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding
or pursued any remedies; and
(5) no direction which is inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 308) interest on
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date or in the case of an
Offer to Purchase made by the Issuer and required to be accepted as to such
Security, on the Purchase Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired or affected without the
consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Issuer,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 307, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 512. Control by Holders. Subject to Section 513, the Holders of a
majority in principal amount of the Outstanding Securities shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred upon the
Trustee, provided that:
(1) the Trustee may refuse to follow any direction which
(i) conflicts with any rule of law or with this Indenture, or
(ii) the Trustee, in its reasonable judgment, determines may be
unduly prejudicial to the rights of other Holders of Securities, or may expose
the Trustee to personal liability, or does not provide adequate indemnification
against any loss or expense resulting from the compliance therewith, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Postponement of Interest Payments. The Holders of not less
than 75% in principal amount of the Outstanding Securities may on behalf of the
Holders of all of the Securities consent to the postponement of any interest
payment for a period not exceeding three years from such interest payment's due
date, provided, however, that such consent shall not be effective unless the
Holders of not less than a majority in principal amount of the Outstanding
Securities not held by PET Capital Partners LLC, ▇▇▇▇ ▇. ▇▇▇▇ and any of their
respective Affiliates (the "PET Affiliates") shall also have consented to such
postponement.
SECTION 514. Waiver of Past Defaults. Subject to Section 502, the Holders
of not less than a majority in principal amount of the Outstanding Securities
may on behalf of the Holders of all the Securities, by written notice to the
Trustee, waive any past default hereunder and its consequences, except a
default:
(1) in the payment of the principal of or interest on any Security
(including any Security which is required to have been purchased pursuant to an
Offer to Purchase which has been made by the Issuer), or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall be cured and shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 515. 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, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the reasonable costs
of such suit, and may assess reasonable costs against any such party
48
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided, that this Section shall not be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Trustee and provided, further that, subject to a court's discretion, this
Section shall not apply to a suit by the Trustee, and as provided in the Trust
Indenture Act.
SECTION 516. Waiver of Stay, or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that they will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liabilities 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 Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 512 hereof; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, 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 or assets
received by it except as the Trustee may agree in writing with the Issuer.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 602. Notice of Defaults. The Trustee shall give the Holders notice
of any default hereunder (a "Notice of Default") of which it has knowledge as
and to the extent provided by the Trust Indenture Act; provided, however, that
in the case of any default specified in Section 501(5), no such notice to
Holders shall be given until at least 90 days after the occurrence of such
default (without regard to any Notice of Default). For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Except in the case of an Event of Default in payment of principal of
(premium, if any) or interest on any Security, the Trustee may withhold notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders.
SECTION 603. Certain Rights of Trustee. Subject to the provisions of
Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties, without any independent investigation of any fact or matter
therein;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel, shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) 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 pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney
upon reasonable advance notice to the Issuer;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action it takes, suffers to
be taken, or omits in good faith;
(i) the Trustee shall not be deemed to have knowledge of any default (as
defined in Section 602) or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event which
is in fact such a default or Event of Default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities
or this Indenture;
(j) the Trustee shall at no time have any responsibility or liability
for or with respect to the legality, validity or enforceability of any
Collateral or any arrangement or agreement between the Issuer, any Subsidiary
Guarantor and/or any Person with respect thereto, or the perfection or priority
of any security interest created in any of the Collateral or the maintenance of
any such perfection and priority, or for or with respect to the sufficiency of
the Collateral following an Event of Default; and
(k) the permissive rights of the Trustee enumerated herein shall not be
construed as duties of the Trustee.
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SECTION 604. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuer,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture,
the Securities, the Subsidiary Guarantees or the Security Documents. The Trustee
shall not be accountable for the use or application by the Issuer of Securities
or the proceeds thereof.
SECTION 605. May Hold Securities. The Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other agent of the Issuer, in
its individual or any other capacity, may become the owner or pledge of
Securities and, subject to Sections 608 and 613, may otherwise deal with the
Issuer and any other obligor upon the Securities with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Issuer.
SECTION 607. Compensation and Reimbursement. The Issuer agrees:
(1) to pay to the Trustee from time to time such reasonable compensation
for all services rendered by it hereunder as may be agreed in writing from time
to time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the compensation, expenses
and disbursements of its agents, accountants, experts and counsel), except any
such expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee and any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claims,
liability or expense (including, without limitation, reasonable attorneys' fees
and expenses and taxes (other than taxes based upon, measured by or determined
by the income of such Person) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself against any
claim or liability (not arising from negligence or bad faith) in connection with
the exercise or performance of any of its powers or duties hereunder.
The Trustee shall have a Lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 607, except with respect to funds held in trust
for the benefit of the Holders of particular Securities.
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The obligations of the Issuer under this Section 607 shall survive the
resignation or removal of the Trustee and/or satisfaction and discharge of this
Indenture.
The obligations of the Issuer under this Section 607 shall not be
subordinated to the payment of Designated Senior Debt pursuant to Article
Fifteen and shall constitute additional indebtedness hereunder.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(8) or (9) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
applicable bankruptcy law.
SECTION 608. Disqualification; Conflicting Interests. If the Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest within 90 days,
apply to the Commission for permission to continue, or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has (or, in the case of a
Corporation included in a bank holding company system, the related bank holding
company has) a combined capital and surplus of at least $100.0 million and its
Corporate Trust Office or agency in The Borough of Manhattan, City of New York.
If such Person or bank holding company publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person or bank holding company shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof
to the Issuer.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Issuer.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Issuer or by any ▇▇▇▇▇▇ who
has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the
Issuer or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Issuer by Board
Resolutions of the Issuer may remove the Trustee, or (ii)
subject to Section 515, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer, by Board Resolution of the Issuer, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Issuer and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Issuer.
If, within 30 days after the retiring Trustee resigns, no successor Trustee
shall have been so appointed by the Issuer or the Holders of a majority in
principal amount of the Outstanding Securities and accepted appointment in the
manner hereinafter provided, the retiring Trustee or any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer
and to the retiring Trustee a written instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Issuer or the successor Trustee,
such retiring Trustee shall, upon payment of all sums owing to the retiring
Trustee hereunder and subject to the Lien provided for in Section 607 hereof,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such
54
retiring Trustee hereunder. Upon request of any such successor Trustee, the
Issuer shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts. Notwithstanding the replacement of the Trustee pursuant to this Section
611, the Issuer's obligations under Section 607 hereof shall continue for the
benefit of the retiring Trustee.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any Corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any Corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee, or any Corporation
into which all or substantially all of its corporate trust business is
transferred, may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Issuer. If and when
the Trustee shall be or become a creditor of the Issuer (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Issuer (or
any such other obligor).
SECTION 614. Appointment of Authenticating Agent. The Trustee may appoint
an Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon original issue and upon
exchange, registration of transfer, partial conversion or partial redemption or
pursuant to Section 307, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
reasonably acceptable to the Issuer and shall at all times be a corporation
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having (or, in the case of a Corporation included in a
bank holding company system, the related bank holding company has) a combined
capital and surplus of not less than $100.0 million and subject to supervision
or examination by Federal or State authority. If such Authenticating Agent or
bank holding company publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent or bank holding company shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If
55
at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Issuer. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be reasonably acceptable to the Issuer and shall mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
as their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Issuer agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY, as Trustee
By: [NAME OF AUTHENTICATING AGENT]
By________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
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SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders. The
Issuer will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each ___________
and ________, commencing _____________, 2004, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; provided, however, that no such list need be furnished
to the Trustee so long as the Trustee is serving as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee shall be provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15th of each year commencing with the
first May 15th after the issuance of Securities, the Trustee, if so required
under the Trust Indenture Act, shall transmit by mail to all Holders, in the
manner and to the extent provided in Trust Indenture Act Section 313(c), a brief
report dated as of such May 15th in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(a). The Trustee shall also
transmit by mail to all Holders, in the manner and to the extent provided in
Trust Indenture Act Section 313(c), a brief report in accordance with and with
respect to the matters required by Trust Indenture Act Section 313(b)(2).
(b) A copy of each such report shall, at the time of such mailing
or transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, if any, with the Commission and with the
Issuer. The Issuer shall notify the Trustee in writing when the Securities are
listed on any stock exchange, or any delisting thereof.
57
SECTION 704. Reports by the Issuer. The Issuer shall file with the Trustee
and the Commission, and mail or transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to, the
Trust Indenture Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuer's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates and written notices delivered to the Trustee in accordance with the
terms of this Indenture).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Issuer may Consolidate, Etc. The Issuer may not, in a single
transaction or a series of related transactions, (i) consolidate or merge with
or into any other Person or permit any other Person to consolidate or merge with
or into the Issuer or (ii) directly or indirectly, transfer, sell, lease or
otherwise dispose of all or substantially all of its assets unless:
(1) in a transaction in which the Issuer does not survive or in which
the Issuer transfers, sells, leases or otherwise disposes of all or
substantially all of its assets, the successor entity to the Issuer
(for purposes of this Article Eight, a "Successor Entity"), shall be
organized and validly existing under the laws of the United States
of America, any State thereof, or the District of Columbia (except
if the purpose of such consolidation, merger or transfer of assets
is to effect a change in jurisdiction of the Issuer and the
ownership of the Successor Entity is not materially different from
the ownership of the Issuer prior to such consolidation, merger or
transfer of assets);
(2) the Successor Entity shall expressly assume by an indenture
supplemental hereto executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the Issuer's obligations under
the Indenture;
(3) immediately before and after giving effect to such transaction and
treating any Debt which becomes an obligation of the Issuer or a
Subsidiary as a result of such transaction as having been Incurred
by the Issuer or such Subsidiary at the time of the transaction, no
Event of Default or event that with the passing of time or the
giving of notice, or both, would constitute an Event of Default
shall have occurred and be continuing;
(4) except in the case of any such consolidation or merger of the Issuer
with or into, or any such transfer, sale, lease or other disposition
of assets to, a Wholly Owned
58
Subsidiary of the Issuer, immediately after giving effect to such
transaction, the Consolidated Net Worth of the Issuer (or other
Successor Entity) is equal to or greater than the Consolidated Net
Worth of the Issuer immediately prior to the transaction; and
(5) except in the case of any such consolidation or merger of the Issuer
with or into, or any such transfer, sale, lease or other disposition
of assets to, a Wholly Owned Subsidiary of the Issuer, immediately
after giving effect to such transaction and treating any Debt which
becomes an obligation of the Issuer or a Subsidiary as a result of
such transaction as having been Incurred by the Issuer or such
Subsidiary at the time of the transaction, the Issuer (including any
Successor Entity) (a) could Incur at least $1.00 of additional Debt
pursuant to the provisions of the Indenture described in the first
paragraph of Section 1008 or (b) the Issuer (including any successor
entity to the Issuer) would have a Consolidated Debt to EBITDA Ratio
immediately after giving effect to the transaction that is (i) less
than or equal to the Consolidated Debt to EBITDA Ratio of the Issuer
immediately prior to the transaction, if the ratio immediately prior
to the transaction is positive, or (ii) greater than or equal to the
Consolidated Debt to EBITDA Ratio of the Issuer immediately prior to
the transaction, if the ratio immediately prior to the transaction
is negative.
SECTION 802. Successor Substituted. Upon any consolidation of the Issuer
with, or merger of the Issuer into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or substantially all of the
properties and assets of the Issuer as an entirety in accordance with Section
801, the Successor Entity shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such successor Person had been named herein as the Issuer herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
SECTION 803. When a Subsidiary Guarantor May Merge or Transfer Assets. The
Issuer shall not permit any Subsidiary Guarantor to merge or consolidate with or
into any other Person (other than a merger of a Wholly Owned Subsidiary or
another Subsidiary Guarantor into such Subsidiary Guarantor) or sell, transfer,
assign, lease, convey or otherwise dispose of all or substantially all such
Subsidiary Guarantor's property in any one transaction or series of transactions
unless:
(a) the surviving Person (if not such Subsidiary Guarantor) formed by
such merger or consolidation or to which such sale, transfer, assignment, lease,
conveyance or disposition is made shall be a corporation organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia (except if the purpose of such consolidation, merger or
transfer of assets is to effect a change in jurisdiction of such Subsidiary
Guarantor of the surviving Person and the ownership of the surviving Person is
not materially different from the ownership of the Subsidiary Guarantor prior to
such consolidation, merger or transfer of assets);
59
(b) the surviving Person (if other than such Subsidiary Guarantor)
expressly assumes, by supplemental indenture in form satisfactory to the
Trustee, executed and delivered to the Trustee by such surviving Person, the due
and punctual performance and observance of all the obligations of such
Subsidiary Guarantor under its Subsidiary Guaranty and all Security Documents;
and
(c) in the case of a sale, transfer, assignment, lease, conveyance or
other disposition of all or substantially all the property of such Subsidiary
Guarantor, such property shall have been transferred as an entirety or virtually
as an entirety to one Person and all Liens on such property created by the
Security Documents remain valid, enforceable and perfected.
The foregoing provisions shall not apply to any transactions which
constitute an Asset Sale if the Issuer has complied with Section 1015.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Issuer, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the Issuer or a
Subsidiary Guarantor and the assumption by any such successor of the
covenants of the Issuer herein and in the Securities and the
Security Documents and of such Subsidiary Guarantor contained herein
and in the Security Documents; or
(2) to add to the covenants of the Issuer or the Subsidiary Guarantors
for the benefit of the Holders, or to surrender any right or power
herein conferred upon the Issuer; or
(3) to secure the Securities pursuant to the requirements of Section
1013 or otherwise; or
(4) to comply with any requirements of the Commission in order to effect
and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision herein
or in the Security Documents which may be inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture or the Security
Documents which shall not be inconsistent with the provisions of
this Indenture, provided that such action pursuant to this clause
(5) shall not adversely affect the interests of the Holders in any
material respect;
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(6) to evidence and provide for the acceptance and appointment hereunder
of a successor ▇▇▇▇▇▇▇ with respect to the Securities;
(7) to mortgage, pledge, hypothecate or ▇▇▇▇▇ ▇ ▇▇▇▇ in favor of the
Collateral Agent for the benefit of Trustee and the Holders of the
Securities as additional security for the payment of principal of
and interest on the Securities by the Issuer or on the Subsidiary
Guarantees by the Subsidiary Guarantors under this Indenture in any
property or assets, including any which are required to be
mortgaged, pledged or hypothecated, or in which a Lien is required
to be granted to the Collateral Agent, pursuant to this Indenture or
the Security Documents;
(8) to add Guarantees with respect to the Securities, to secure the
Securities or to release Subsidiary Guarantors from Subsidiary
Guarantees as provided by the terms of this Indenture; or
(9) to add additional Events of Default.
An amendment under this Section may not make any change that adversely
affects the rights under Article Fifteen of any holder of Permitted Senior
Secured Debt or Designated Senior Debt then outstanding unless the holders of
such Permitted Senior Secured Debt or Designated Senior Debt (or their
authorized representatives), as the case may be, consent to such change.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Issuer and the
Trustee, the Issuer, when authorized by Board Resolutions of the Issuer, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture, the Subsidiary Guarantees, or the Security
Documents or of modifying in any manner the rights of the Holders under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof
or the rate of interest thereon, or change the place of payment
where, or the coin or currency in which, any Security or the
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of an Offer to Purchase which has
been made, on or after the applicable Purchase Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and its consequences)
provided for in this Indenture, or
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(3) modify any of the provisions of this Section, Section 508, Section
514 or Section 1021, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) amend or modify any of the provisions of this Indenture or the
Securities or any of the Security Documents relating to the
Collateral in any manner adverse to the Holders of the Securities,
or
(5) make any change in Article Fifteen that adversely affects the rights
of any Holders of Securities under Article Fifteen, or
(6) subordinate in right of payment the Securities or the Subsidiary
Guarantees to any Debt other than Designated Senior Debt, or
(7) make any change in any Subsidiary Guaranty that would adversely
affect the holders of Securities;
provided, further, that no such supplemental indenture shall, without the
consent of the Holders of not less than 95% in principal amount of the
Outstanding Securities, increase the $20.0 million amount in the definition of
"Permitted Senior Secured Debt".
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
An amendment under this Section may not make any change that adversely
affects the rights under Articles Fourteen or Fifteen of any holder of Permitted
Senior Secured Debt or Designated Senior Debt then outstanding unless the
holders of such Permitted Senior Secured Debt or Designated Senior Debt (or
their authorized representatives), as the case may be, consent to such change.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, in addition to the documents
required by Section 102, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, the
Subsidiary Guarantees, or the Security Documents. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture, the Subsidiary
Guarantees, or the Security Documents or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
SECTION 906. Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder of a Security and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting ▇▇▇▇▇▇'s Security, even if notation of the consent is not
made on any Security. However, any such Holder of a Security or subsequent
Holder of a Security may revoke the consent as to its Security if the Trustee
receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
SECTION 907. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
such supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 908. Payment for Consent. Neither the Issuer nor any Affiliate of
the Issuer shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Securities or the Security Documents unless
such consideration is offered to be paid to all Holders that so consent, waive
or agree to amend in the time frame set forth in solicitation documents relating
to such consent, waiver or agreement.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest. The Issuer will duly and
punctually pay the principal of and interest on the Securities in accordance
with the terms of the Securities and this Indenture. Principal and interest
shall be considered paid on the date due if the Trustee or the Paying Agent, if
other than the Issuer or a Subsidiary thereof, holds as of 10:00 a.m., New York
time, on the due date money deposited by the Issuer in immediately available
funds and designated for and sufficient to pay all principal, and interest then
due or an aggregate principal amount of Additional Securities, if applicable, to
pay such interest on such date.
SECTION 1002. Maintenance of Office or Agency. The Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or agency (which may
be an office of the Trustee or an affiliate of the Trustee) where Securities may
be presented or surrendered for
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payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer in respect of the
Securities and this Indenture may be served. The Issuer will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Issuer 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 Issuer hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Issuer may also from time to time designate one or more other offices
or agencies (in or outside the Borough of Manhattan, 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 such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Issuer will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The Issuer hereby designates
Trustee's drop agent, Computershare Trust Company of New York, Wall Street
Plaza, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as one such office
or agency of the Issuer in accordance with this Section and Section 301 hereof.
SECTION 1003. Money for Security Payments to Be Held in Trust. If the
Issuer shall at any time act as its own Paying Agent, it will, on or before each
due date of the principal of or interest on any of the Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum (or in the
case of interest payable in Additional Securities pursuant to Section 301 and
Section 313 hereof, an amount of Additional Securities) sufficient to pay the
principal or interest so becoming due until such sums (or Additional Securities,
as the case may be) shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Issuer shall have one or more Paying Agents, it will, on or
before 10:00 a.m., New York City time, on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum (or in the case of
interest payable in Additional Securities pursuant to Section 301 and Section
313 hereof, an aggregate principal amount of Additional Securities) sufficient
to pay the principal or interest so becoming due, such sum (or Additional
Securities, as the case may be) to be held as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the Issuer will promptly
notify the Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will (i) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent (or, until such time as this Indenture shall be
qualified under the Trust Indenture Act, which would be applicable to it as
Paying Agent if this Indenture were so qualified) and (ii) in the event and
during the continuance of any default by the Issuer (or any other obligor upon
the Securities) in the making of any payment in respect
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of the Securities, upon the written request of the Trustee, forthwith pay to the
Trustee all sums (or Additional Securities, as the case may be) held in trust by
such Paying Agent as such.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Issuer or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Issuer, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for one year after such principal or interest
has become due and payable shall be paid to the Issuer on Issuer Request, or (if
then held by the Issuer) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Issuer for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money and all liability of the Issuer as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 1004. Existence. Subject to Article Eight and Section 1015, the
Issuer will do or cause to be done all things necessary to preserve and keep in
full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of the Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of each of the Issuer or any such Subsidiary and (ii) the rights (charter
and statutory), material licenses and franchises of each of the Issuer and its
Subsidiaries; provided, however, that Issuer shall not be required to preserve
any such right or franchise if the Issuer in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuer and the Subsidiaries taken as a whole and that the loss thereof is
not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties. The Issuer will cause all
material properties used or useful in the conduct of its business or the
business of any Subsidiary of the Issuer to be maintained and kept in good
condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Issuer may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section shall prevent an Issuer or any of its Subsidiaries
from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, as determined by the Issuer or Subsidiary in good faith,
desirable in (or not adverse to) the conduct of its business or the business of
any Subsidiary and not adverse in any material respect to the Holders.
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SECTION 1006. Payment of Taxes and Other Claims. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon the Issuer or any of its Subsidiaries or upon the income,
profits or property of the Issuer or any of its Subsidiaries, and (2) all
material lawful claims for labor, materials and supplies which, if unpaid, might
by law become a Lien upon the property of the Issuer or any of its Subsidiaries;
provided, however, that the Issuer shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate negotiations or proceedings.
SECTION 1007. Maintenance of Insurance. The Issuer shall, and the Issuer
shall cause its Subsidiaries to, keep at all times all of its properties which
are of an insurable nature insured (which may include self-insurance) against
loss or damage with insurers believed by the Issuer to be responsible to the
extent that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice.
SECTION 1008. Limitation on Debt. The Issuer will not, and will not permit
any of its Subsidiaries to, Incur any Debt; provided that the Issuer may Incur
Debt and its Subsidiaries may Incur Debt if, after giving effect to the
Incurrence of such Debt and the receipt and application of the proceeds
therefrom, the Consolidated Debt to EBITDA Ratio, commencing March 31, 2005,
would be greater than zero and less than 6:1.
Notwithstanding the foregoing limitation, the following Debt may be
Incurred:
(1) Permitted Senior Secured Debt;
(2) Debt owed (A) by a Subsidiary to the Issuer which is evidenced by a
promissory note, or (B) to any Subsidiary which is evidenced by a
promissory note; provided that (i) if the Issuer is the obligor,
such Debt is expressly subordinated to the prior payment in full in
cash of all obligations with respect to the Securities and (ii) in
each case any event which results in any such Subsidiary ceasing to
be a Subsidiary or any subsequent transfer of such Debt (other than
to the Issuer or another Subsidiary) shall be deemed, in each case,
to constitute the Incurrence of such Debt not permitted by this
clause (2);
(3) Debt: (A) in respect of performance, surety or appeal bonds or
letters of credit in the ordinary course of business, (B) under
Permitted Interest Rate or Currency Protection Agreements, or (C)
arising under, or arising from, agreements providing for
indemnification, adjustment of purchase price or similar
obligations, or from Guarantees or letters of credit, surety bonds
or performance bonds securing any obligations of the Issuer Incurred
in connection with the disposition of any business, assets or
Subsidiary (other than Guarantees of Debt Incurred by any Person
acquiring all or any portion of such business, assets or Subsidiary
for the purpose of financing such acquisition), in a principal
amount not to exceed the gross proceeds actually received by the
Issuer or any Subsidiary in connection with such disposition;
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(4) Debt which is exchanged for or the proceeds of which are used to
replace, refinance or refund, or any extension or renewal (including
as a result of an amendment or restatement) of (each a
"refinancing"), Debt Incurred pursuant to clause (6) of this Section
and this clause (4), in each case in an aggregate principal amount
not to exceed the principal amount of the Debt so refinanced
(together with any accrued interest and other payment required to be
made with respect to the Debt being refinanced or refunded, and any
fees, costs, expenses, underwriting discounts or commissions and
other payments paid or payable with respect to the Debt Incurred
pursuant to this clause (4)); provided, however, that (A) Debt, the
proceeds of which are used to replace, refinance or refund the
Securities, or Debt which is pari passu with or subordinate in right
of payment to the Securities, shall only be permitted if (x) in the
case of any refinancing of the Securities or Debt which is pari
passu to the Securities, the refinancing Debt is Incurred by the
Issuer and made pari passu to the Securities or subordinated to the
Securities, and (y) in the case of any refinancing of Debt which is
subordinated to the Securities, the refinancing Debt is Incurred by
the Issuer and is subordinated to the Securities in a manner that is
at least as favorable to the Holders as that of the Debt refinanced;
(B) the replacement, refinancing or refunding Debt by its terms, or
by the terms of any agreement or instrument pursuant to which such
Debt is issued, does not have a final maturity prior to the final
Maturity of the Securities and has an Average Life longer than the
Average Life of the Securities refinanced; and (C) in the case of
any refinancing of Debt Incurred by the Issuer, the refinancing of
Debt may be Incurred only by the Issuer, and in the case of any
refinancing of Debt Incurred by a Subsidiary, the refinancing Debt
may be Incurred only by such Subsidiary or the Issuer;
(5) Debt of the Issuer or Debt of Subsidiaries not to exceed, at any
time outstanding, 2.0 times the Net Cash Proceeds received by the
Issuer after the Closing Date (x) from the issuance and sale of its
Capital Stock (other than Disqualified Stock) or (y) from the
issuance and sale of convertible Debt upon the conversion of that
Debt into Capital Stock, other than Disqualified Stock, in each case
to a Person that is not a Subsidiary of the Issuer, to the extent
that such Net Cash Proceeds have not been used pursuant to clause
(C)(3) of the Restricted Payment Basket calculation in the first
paragraph or clauses (iii), (iv) or (vi) of the second paragraph of
Section 1011 to make a Restricted Payment; provided that such Debt
does not have a final maturity prior to the final Maturity of the
Securities and has an Average Life longer than the Average Life of
the Securities;
(6) Existing Debt;
(7) Debt, including, but not limited to, Capital Lease Obligations and
Purchase Money Secured Debt, Incurred to finance the purchase or
other acquisition of any property, inventory, asset or business
directly or indirectly, by the Issuer or any Subsidiary used in, or
to be used in, the Issuer's line of business, provided, that the
total amount of Debt outstanding at any one time under this clause
(7) does not exceed $15.0 million; and
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(8) Debt not to exceed $15.0 million in an aggregate principal amount
outstanding at any time.
Notwithstanding the prior two paragraphs of this Section 1008, the Issuer
shall not Incur any Debt if the proceeds thereof are used, directly or
indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any
Subordinated Obligations unless such Debt shall be subordinated to the
Securities and the Subsidiary Guarantees to at least the same extent as such
Subordinated Obligations.
For purposes of determining compliance with this Section 1008, in the
event that an item of Debt meets the criteria of more than one of the types of
Debt described in the above clauses, or is permitted in part under the first
paragraph of this Section 1008 and in part under one or more of the above
clauses, the Issuer, in its sole discretion, shall classify, and from time to
time may reclassify, such item of Debt in whole or in part.
For purposes of determining any particular amount of Debt under Section
1008, Guarantees, Liens or obligations with respect to letters of credit
supporting Debt otherwise included in the determination of such particular
amount shall not be included.
SECTION 1009. Limitation on Sale-Leaseback Transactions. The Issuer will
not, and will not permit any Subsidiary to, enter into any sale-leaseback
transaction involving any of its assets or properties, whether now owned or
hereafter acquired, whereby the Issuer or a Subsidiary sells or transfers such
assets or properties and then or thereafter leases such assets or properties or
any part thereof or any other assets or properties that the Issuer or such
Subsidiary, as the case may be, intends to use for substantially the same
purpose or purposes as the assets or properties sold or transferred.
The foregoing restriction does not apply to any sale-leaseback transaction
if (i) the lease is for a period, including renewal rights, of not in excess of
three years; (ii) the sale-leaseback transaction is consummated within 180 days
after the purchase of the assets subject to such transaction; (iii) the
transaction is solely between the Issuer and any Wholly Owned Subsidiary of the
Issuer or solely between Wholly Owned Subsidiaries of the Issuer; or (iv) the
Issuer or such Subsidiary, within 12 months after the sale or transfer of any
assets or properties is completed, applies an amount no less than the Net Cash
Proceeds received from such sale in accordance with the second paragraph of
Section 1015(1).
SECTION 1010. [Omitted.]
SECTION 1011. Limitation on Restricted Payments. The Issuer will not, and
will not permit any Subsidiary directly or indirectly to:
(1) declare or pay any dividend or make any distribution on or with
respect to its Capital Stock to Persons other than the Issuer or any
of its Subsidiaries (other than (x) pro rata dividends or
distributions payable solely in shares of its Capital Stock (other
than Disqualified Stock), or in options, warrants or other rights to
acquire shares of such Capital Stock; (y) pro rata dividends or
distributions on Common
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Stock of Subsidiaries held by minority stockholders; or (z)
dividends in respect of Disqualified Stock);
(2) purchase, redeem, retire or otherwise acquire for value any shares
of Capital Stock of (A) the Issuer (including options, warrants or
other rights to acquire such shares of Capital Stock) held by any
Person, or (B) a Subsidiary (including options, warrants or other
rights to acquire such shares of Capital Stock) held by any Person
other than the Issuer or a Wholly Owned Subsidiary of the Issuer,
provided, however that this clause (2) shall not prohibit an
Investment which would be considered a Permitted Investment under
clause (i) of the definition of Permitted Investment or the purchase
by a Subsidiary of its Capital Stock;
(3) make any voluntary or optional principal payment, or voluntary or
optional redemption, repurchase, defeasance, or other acquisition or
retirement for value, of Debt that is subordinated in right of
payment to the Securities; or
(4) make any Investment, other than a Permitted Investment, in any
Person (such payments or any other actions described in clauses (1)
through (4) above being collectively "Restricted Payments"),
if, at the time of, and after giving effect to, the proposed Restricted
Payment:
(A) a Default or Event of Default shall have occurred and be continuing;
(B) the Issuer could not Incur at least $1.00 of Debt under the first
paragraph of Section 1008; or
(C) the aggregate amount of all Restricted Payments (which amount, if
other than cash, is to be determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by
a Board Resolution) made after the Closing Date shall exceed the sum
(the "Restricted Payment Basket") of: (1) cumulative Consolidated
EBITDA since the first full fiscal quarter after the fiscal quarter
during which the Closing Date occurs through the last day of the
last full fiscal quarter ending immediately preceding the date of
such Restricted Payment for which quarterly or annual financial
statements are available; minus (2) 1.5 times the cumulative
Consolidated Interest Expense of the Issuer since the Closing Date
of the Securities through the last day of the last full fiscal
quarter ending immediately preceding the date of such Restricted
Payment for which quarterly or annual financial statements are
available; plus (3) the aggregate Net Cash Proceeds received by the
Issuer after the Closing Date from the issuance and sale of its
Capital Stock (other than Disqualified Stock) to a Person who is not
a Subsidiary of the Issuer, including an issuance or sale permitted
by this Indenture of convertible Debt of the Issuer for cash
subsequent to the Closing Date upon the conversion of such Debt into
Capital Stock (other than Disqualified Stock) of the Issuer, or from
the issuance to a Person who is not a Subsidiary of the Issuer of
any options, warrants or other rights to acquire Capital Stock
(other than Disqualified Stock) of the Issuer exclusive of any
options, warrants or other rights
69
that are redeemable at the option of the holder, or are required to
be redeemed, prior to the stated final Maturity date of the
Securities), in each case except to the extent such Net Cash
Proceeds are used to Incur Debt pursuant to clause (5) of the second
paragraph of Section 1008; plus (4) an amount equal to the net
reduction in Investments (other than reductions in Permitted
Investments) in any Person resulting from payments of interest on
Debt, dividends, repayments of loans or advances, or other transfers
of assets, in each case to the Issuer or any Subsidiary or from the
Net Cash Proceeds from the sale of any such Investment (except, in
each case, to the extent any such payment or proceeds are included
in the calculation of Consolidated EBITDA), not to exceed, in each
case, the amount of Investments previously made by the Issuer or
Subsidiary in such Person or Subsidiary.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date of
declaration thereof if, at said date of declaration, such payment would comply
with the foregoing paragraph;
(ii) the redemption, repurchase, repayment, prepayment, defeasance
or other acquisition or retirement for value of Subordinated Obligations
including premium, if any, and accrued and unpaid interest, with the proceeds
of, Subordinated Obligations which are permitted to be Incurred under Section
1008.
(iii) the repurchase, redemption or other acquisition of Capital
Stock of the Issuer or a Subsidiary of the Issuer (or options, warrants or other
rights to acquire such Capital Stock) in exchange for (including upon exercise
of a conversion right), or out of the proceeds of a capital contribution or a
substantially concurrent offering of, shares of Capital Stock (other than
Disqualified Stock) of the Issuer (or options, warrants or other rights to
acquire such Capital Stock, other than Disqualified Stock);
(iv) the making of any principal payment or the repurchase,
redemption, retirement, defeasance or other acquisition for value of Debt of the
Issuer which is subordinated in right of payment to the Securities in exchange
for, or out of the proceeds of, a capital contribution or a substantially
concurrent offering of, shares of the Capital Stock (other than Disqualified
Stock) of the Issuer (or options, warrants or other rights to acquire such
Capital Stock other than Disqualified Stock);
(v) payments or distributions to dissenting stockholders pursuant to
applicable law pursuant to or in connection with a consolidation, merger or
transfer of assets that complies with the provisions of this Indenture
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of the Issuer, and payments of cash in lieu of
fractional shares;
(vi) Investments in any Person provided that the aggregate amount of
Investments made pursuant to this clause (vi) does not exceed the sum of: (a)
the amount of Net Cash Proceeds received by the Issuer after the Closing Date
from the sale of its Capital Stock (other than Disqualified Stock) to a Person
who is not a Subsidiary of the Issuer, except to the
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extent such Net Cash Proceeds are used to Incur Debt pursuant to clause (5) of
the second paragraph of Section 1008 or to make Restricted Payments pursuant to
clause (C)(3) of the Restricted Payment Basket calculation of the first
paragraph, or clauses (iii) or (iv) of this paragraph, of this Section 1011,
plus (b) the net reduction in Investments made pursuant to this clause (vi),
other than reductions in Permitted Investments, resulting from distributions on
or repayments of such Investments or from the Net Cash Proceeds from the sale of
any such Investment (except in each case to the extent any such payment or
proceeds is included in the calculation of Consolidated EBITDA) or from such
Person becoming a Subsidiary; provided that the net reduction in any Investment
shall not exceed the amount of such Investment;
(vii) Investments acquired in exchange for Capital Stock (other than
Disqualified Stock) of the Issuer;
(viii) the purchase, redemption or other acquisition or retirement
of Common Stock of the Issuer or any warrant, option or other right to acquire
shares of Common Stock of the Issuer from employees of the Issuer or its
Subsidiaries in an amount not to exceed $2.0 million in any fiscal year;
provided that, amounts not paid for any such purchase, redemption or other
acquisition or retirement in any fiscal year may be accumulated and paid in any
subsequent fiscal year;
(ix) additional Restricted Payments not to exceed $15.0 million in
the aggregate; or
(x) the acquisition of Capital Stock of the Issuer by the Issuer in
connection with the cashless exercise of any options, warrants or similar rights
issued by the Issuer.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payment referred to in clause (ii) thereof and an
exchange of Capital Stock for Capital Stock or Debt referred to in clause (iii)
or (iv) thereof), and the Net Cash Proceeds from any issuance of Capital Stock
referred to in clauses (iii), (iv) and (vi), shall be included in calculating
whether any subsequent Restricted Payment would exceed the Restricted Payment
Basket contained in the first paragraph of this Section 1011. In the event the
proceeds of an issuance of Capital Stock of the Issuer are used for the
redemption, repurchase or other acquisition of the Securities, or Debt that is
pari passu with the Securities, then the Net Cash Proceeds of such issuance
shall be included in clause (C) of the first paragraph of this Section 1011 only
to the extent such proceeds are not used for such redemption, repurchase or
other acquisition of such Debt.
SECTION 1012. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries. The Issuer may not, and may not permit any Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
(i) to pay dividends (in cash or otherwise) or make any other distributions in
respect of its Capital Stock owned by the Issuer or any other Subsidiary or pay
any Debt or other obligation owed to the Issuer or any other Subsidiary; (ii) to
make loans or advances to the Issuer or any other Subsidiary; or (iii) to
transfer any of its property or assets to the Issuer or any other Subsidiary.
Notwithstanding the foregoing, the Issuer may, and may permit any Subsidiary to,
suffer to exist any such encumbrance or restriction:
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(1) pursuant to this Indenture or any agreement in effect on the Closing
Date, and any amendments, extensions, refinancings, refundings,
renewals, restatements or replacements of such agreements, provided
that the amendments, encumbrances and restrictions in any such
extensions, refinancings, renewals, restatements or replacements are
no less favorable in any material respect to the Holders, than those
encumbrances or restrictions that are then in effect and that are
being extended, refinanced, renewed, restated or replaced;
(2) existing under or by reason of applicable law;
(3) existing or arising in connection with any Permitted Senior Secured
Debt or any Acquisition Debt;
(4) pursuant to an agreement entered into in connection with Debt
Incurred under clause (4) of the second paragraph of Section 1008;
provided, however, that the provisions contained in such agreement
related to such encumbrance or restriction are no more restrictive
in any material respect than the provisions contained in the
agreement that is the subject of the refinancing;
(5) contained in any agreement relating to a Lien on any property or
assets of a Subsidiary or the Issuer otherwise permitted under this
Indenture, but only to the extent such restrictions restrict the
transfer of the property subject to such Lien;
(6) pursuant to customary nonassignment provisions entered into in the
ordinary course of business in leases, licenses and other contracts
to the extent such provisions restrict the transfer, sublicensing or
any such license or subletting of any such lease or the assignment
of rights under any such contract;
(7) with respect to a Subsidiary imposed pursuant to an agreement which
has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary;
provided that consummation of such transaction would not result in
an Event of Default or an event that, with the passing of time or
the giving of notice, or both, would constitute an Event of Default,
that such restriction terminates if such transaction is closed or
abandoned and that the closing or abandonment of such transaction
occurs within one year of the date such agreement was entered into;
(8) imposed pursuant to contracts for the sale of assets with respect to
the transfer of the assets to be sold pursuant to such contract;
(9) arising or agreed to in the ordinary course of business, not
relating to any Debt, and that do not, individually, or in the
aggregate, detract from the value of property or assets of the
Issuer or any Subsidiary in any manner material to the Issuer or any
Subsidiary; or
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(10) if such encumbrance or restriction is contained in the terms of any
agreement entered into in connection with the Incurrence of Debt if
(A) the encumbrance or restriction applies only in the event of a
payment default or a default with respect to a financial covenant
contained in such Debt or agreement, (B) the encumbrance or
restriction is not materially more disadvantageous to the Holders of
the Securities than is customary in comparable financings, and (C)
the Issuer determines that any such encumbrance or restriction will
not materially affect the Issuer's ability to make principal or
interest payments on the Securities.
SECTION 1013. Limitation on Liens. The Issuer may not, and may not permit
any Subsidiary to, Incur or suffer to exist any Lien, on or with respect to any
property or assets now owned or hereafter acquired to secure any Debt without
making, or causing such Subsidiary to make, effective provision for securing the
Securities (x) equally and ratably with such Debt as to such property or assets
for so long as such Debt will be so secured or (y) in the event such Debt is
Debt of the Issuer which is subordinate in right of payment to the Securities,
prior to such Debt as to such property or assets for so long as such Debt will
be so secured.
The foregoing restrictions shall not apply to:
(1) Liens in existence on the Closing Date;
(2) Liens securing only the Securities or the Subsidiary Guarantees and
any Lien in favor of the Collateral Agent for the benefit of the
Trustee and the Holders arising under the provisions in this
Indenture or the Security Documents;
(3) Liens granted by a Subsidiary in favor of the Issuer or any
Subsidiary;
(4) Liens to secure Permitted Senior Secured Debt;
(5) Liens securing Purchase Money Secured Debt;
(6) Liens on property existing immediately prior to the time of
acquisition thereof (and not Incurred in anticipation of the
financing of such acquisition), provided that such Lien extends only
to the acquired property;
(7) Liens on property of a Person existing at the time such Person
becomes a Subsidiary and not incurred in anticipation of becoming a
Subsidiary, provided that such Lien extends only to the acquired
property;
(8) any interest in or title of a lessor to any property subject to a
Capital Lease Obligation which is permitted under this Indenture;
(9) Liens on the property or assets of a Subsidiary securing Debt of
such Subsidiary, which Debt is permitted under this Indenture; or
(10) Liens to secure Debt Incurred pursuant to clause (4) of the second
paragraph of Section 1008; provided that such Lien does not extend
to any property other than
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the property securing the Debt being replaced, refunded or
refinanced pursuant to clause (4) of the second paragraph of Section
1008.
SECTION 1014. [Omitted.]
SECTION 1015. Asset Sales.
(1) The Issuer will not, and will not permit any Subsidiary to, (i)
sell, lease, convey or otherwise dispose of any assets (including by way of a
sale-and-leaseback) other than sales of inventory or the licensing of trademarks
(but not the sale of any trademark) in the ordinary course of business (provided
that the sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Issuer shall be governed by the provisions of Section
801 hereof), or (ii) consummate an Asset Sale unless: (i) the Issuer or the
applicable Subsidiary, as the case may be, receives consideration at the time of
such Asset Sale at least equal to the fair market value of the assets sold or
otherwise disposed of (as evidenced by a resolution of the Board of Directors),
and (ii) at least 75% of the consideration received by the Issuer or the
Subsidiary, as the case may be, from such Asset Sale shall be Qualified
Consideration.
The Issuer or any Subsidiary may, within 365 days of the Asset Sale,
invest the Net Cash Proceeds thereof (A) in property or assets used, or to be
used, in the Issuer's line of business, or in a company engaged primarily in the
Issuer's line of business (if and to the extent otherwise permitted under this
Indenture), or (B) to repay any Debt of the Issuer, other than subordinated
debt, or any Debt of a Subsidiary. The amount of such Net Cash Proceeds not used
or invested within 365 days of the Asset Sale in the manner described in clauses
(A) and (B) above shall constitute "Excess Proceeds."
In the event that Excess Proceeds exceed $10.0 million, the Issuer shall
make an Offer to Purchase that amount of Securities equal to the amount of
Excess Proceeds at a price equal to 100% of the principal amount of the
Securities to be purchased, plus accrued and unpaid interest, if any, to the
date of purchase and, to the extent required by the terms thereof, any other
Debt of the Issuer that is pari passu with the Securities or Debt of a
Subsidiary. Each Offer to Purchase shall be mailed within 30 days following the
date that the Issuer shall become obligated to purchase Securities with any
Excess Proceeds. Following the completion of an Offer to Purchase, the amount of
Excess Proceeds shall be deemed to be reset at zero and, to the extent there are
any remaining Excess Proceeds the Issuer may use such Excess Proceeds for any
use which is not otherwise prohibited by this Indenture.
The Issuer will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Securities pursuant to such Offer to Purchase.
(2) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 1015, the Issuer shall deliver to the Trustee
an Officers' Certificate as to (i) the Purchase Amount, (ii) the allocation of
the Net Cash Proceeds from the Asset Sale(s) pursuant to which such Offer is
being made, including, if amounts are invested in assets related to the business
of the Issuer, the actual assets acquired and a statement indicating the
relationship of
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such assets to the business of the Issuer and (iii) the compliance of such
allocation with the provisions of Section 1015(1).
The Issuer shall perform its obligations specified in the Offer for the
Offer to Purchase. On or prior to the Purchase Date, the Issuer shall (i) accept
for payment (on a pro rata basis, if necessary) Securities or portions thereof
tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or, if the
Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the purchase price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Issuer. The Paying Agent (or the Issuer, if so acting) shall promptly mail
or deliver to Holders of Securities so accepted payment in an amount equal to
the purchase price, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Security not accepted for
payment shall be promptly mailed or delivered by the Issuer to the Holder
thereof. The Issuer shall publicly announce the results of the Offer on or as
soon as practicable after the Purchase Date.
SECTION 1016. [Omitted].
SECTION 1017. Transactions with Affiliates and Related Persons. The Issuer
may not, and may not permit any Subsidiary to, enter into any transaction (or
series of related transactions) not in the ordinary course of business with an
Affiliate or Related Person of the Issuer (other than the Issuer or a Wholly
Owned Subsidiary of the Issuer) involving aggregate consideration in excess of
$2.0 million, including any Investment, either directly or indirectly, unless
such transaction is on terms no less favorable to the Issuer or such Subsidiary
than those that could be obtained in a comparable arm's-length transaction with
an entity that is not an Affiliate or Related Person and is in the best
interests of the Issuer or such Subsidiary. For any transaction (or series of
related transactions) that involves aggregate consideration in excess of $2.0
million but less than or equal to $10.0 million, the Chief Executive Officer,
President, Chief Financial Officer, or Chief Operating Officer of the Issuer
shall determine that the transaction satisfies the above criteria and shall
evidence such a determination by an Officer's Certificate filed with the
Trustee. For any transaction that involves aggregate consideration in excess of
$10.0 million, (a) a majority of the disinterested members of the Board of
Directors shall determine that the transaction satisfies the above criteria or
(b) the Issuer shall obtain a written opinion of a nationally recognized
investment banking or appraisal firm stating that the transaction is fair to the
Issuer or such Subsidiary.
The foregoing limitation does not apply, and shall not apply, to (i) any
transaction solely between the Issuer and any Wholly Owned Subsidiary of the
Issuer or solely between any of the Issuer's Wholly Owned Subsidiaries; (ii) the
payment of reasonable and customary regular fees to directors of the Issuer who
are not employees of the Issuer; (iii) licensing or sublicensing or the use of
any intellectual property by the Issuer or any Wholly Owned Subsidiary of the
Issuer to the Issuer or any Wholly Owned Subsidiary of the Issuer; (iv) any
transaction entered into for the purpose of granting or altering registration
rights with respect to any Capital Stock of the Issuer; (v) any Restricted
Payments not prohibited by Section 1011 or (vi) compensation, severance and
employee benefit arrangements with any officer, director or employee of the
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Issuer or any Subsidiary, including under any stock option or stock incentive
plans, in the ordinary course of business.
SECTION 1018. [Omitted.]
SECTION 1019. Provision of Financial Information. Whether or not the
Issuer is required to be subject to Section 13(a) or 15(d) of the Exchange Act,
the Issuer shall file with the Commission the annual reports, quarterly reports
and other documents which the Issuer would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor provision
thereto if the Issuer were so required, such documents to be filed with the
Commission on or prior to the respective dates (each a "Required Filing Date,"
collectively, the "Required Filing Dates") by which the Issuer would have been
required so to file such documents if the Issuer were so required. The Issuer
shall also in any event (a) within 15 days of each Required Filing Date (i)
transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders, and (ii) file with the Trustee,
copies of the annual reports, quarterly reports and other documents which the
Issuer files with the Commission pursuant to such Section 13(a) or 15(d) or any
successor provision thereto or would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d) or any successor provisions
thereto if the Issuer were required to be subject to such Sections and (b) if
filing such documents by the Issuer with the Commission is not permitted under
the Exchange Act, promptly upon written request supply copies of such documents
to any prospective Holder.
Delivery of such reports to the Trustee is for informational purposes only
and the Trustee's receipt of such reports shall not constitute constructive
notice of any information contained therein or determinable from information
contained therein, including the Issuer's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 1020. Statement by Officers as to Default; Compliance
Certificates.
(1) The Issuer will deliver to the Trustee, within 90 days after the end
of its fiscal year, which initially shall be December 31, of the
Issuer ending after the date hereof an Officers' Certificate,
stating whether or not to the best knowledge of the signers thereof
the Issuer is in default in the performance and observance of any of
the terms, provisions and conditions of Section 801 or Sections 1004
to 1017, inclusive, and if the Issuer shall be in default,
specifying all such defaults and the nature and status thereof of
which they may have knowledge.
(2) The Issuer shall deliver to the Trustee, as soon as possible and in
any event within 10 days after the Issuer becomes aware of the
occurrence of an 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 Issuer proposes to take
with respect thereto.
(3) The Issuer shall deliver to the Trustee within 90 days after the end
of each fiscal year a written statement by the Issuer's independent
public accountants stating (A)
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that their audit examination has included a review of the terms of
this Indenture and the Securities as they relate to accounting
matters, and (B) whether, in connection with their audit
examination, any event which, with notice or the lapse of time or
both, would constitute an Event of Default under Section 1008 and
Section 1011 has come to their attention and, if such a default has
come to their attention, specifying the nature and period of the
existence thereof.
SECTION 1021. Waiver of Certain Covenants. The Issuer may omit in any
particular instance to comply with any covenant or condition set forth in
Section 801 and Sections 1004 to 1017, if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
Obligations of the Issuer and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect; provided, however,
with respect to an Offer to Purchase as to which an Offer has been mailed, no
such waiver may be made or shall be effective against any Holder tendering
Securities pursuant to such Offer, and the Issuer may not omit to comply with
the terms of such Offer as to such Holder.
SECTION 1022. Perfection of Security Interests. The Issuer shall preserve
the security interests granted under the Security Documents and undertake all
actions which are required by applicable law to (a) maintain the security
interest of the Trustee in the Collateral in full force and effect at all times
(including the priority thereof), and (b) preserve and protect the Collateral
and protect and enforce the Issuer's rights and title and the rights of the
Trustee to the Collateral, including, without limitation, the making or delivery
of all filings and recordations, the payment of fees and other charges and the
issuance of supplemental documentation for such purposes.
SECTION 1023. Consummation of Plan of Reorganization. No provision of this
Indenture shall prevent the Issuer from consummating the Plan and the
transactions contemplated thereby.
SECTION 1024. Future Subsidiary Guarantors. The Issuer shall cause each
Person that becomes a Subsidiary following the Closing Date to become a
Subsidiary Guarantor by causing such Person to execute and deliver to the
Trustee a Supplemental Indenture as provided in Section 1406 at the time such
Person becomes a Subsidiary. In addition, the Issuer shall cause each Person
that is a Subsidiary on the date hereof and is not a party to this Agreement to
(a) become a Subsidiary Guarantor by causing such Person to execute and deliver
to the Trustee a Supplemental Indenture as provided in Section 1406 and (b) to
execute such Security Documents as necessary to secure the due and punctual
payment of principal of and interest on the Securities as provided in Article
Thirteen, in each case as soon as practicable following the date on which such
Subsidiary is no longer party or subject to any Debt or other agreements or
arrangements, in each case to the extent existing on the date hereof, which
restrict or limit such Subsidiary's ability to guarantee the Securities or
secure the due and punctual payment of principal of and interest on the
Securities as provided in Articles Thirteen and Fourteen, respectively;
provided, however, that in no event shall any such Subsidiary be required to
become a Subsidiary
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Guarantor solely as a result of any extension, renewal, amendment, refinancing
or refunding of any such Debt in accordance with the terms of this Agreement.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption. The Issuer may at any time redeem up to
100% of the aggregate outstanding principal amount of the Securities at a
Redemption Price equal to 100% of the aggregate principal amount thereof, plus
accrued and unpaid interest thereon, to but excluding the date of redemption.
All accrued and unpaid interest must be paid in cash.
SECTION 1102. Applicability of Article. Redemption of Securities at the
election of the Issuer, as permitted by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee. The election of the
Issuer to redeem any Securities pursuant to Section 1101 shall be evidenced by a
Board Resolution of the Issuer. In case of such redemption at the election of
the Issuer of the Securities, the Issuer shall, at least 45 days prior to the
Redemption Date fixed by the Issuer (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of Securities to be redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities are to be redeemed, 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 national
securities exchange, if any, on which the Securities are listed, or, if the
Securities are not so listed, on a pro rata basis, by lot among all the
Outstanding Securities, by lot among only those Outstanding Securities not held
by PET Affiliates or by such other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $1.00 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1.00.
The Trustee shall promptly notify the Issuer and each Security Registrar
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 the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
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SECTION 1105. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date by the Issuer, or at its request by the Trustee, to
each Holder of Securities to be redeemed (with a copy to the Trustee, delivered
or mailed to the Corporate Trust Office) at his address appearing in the
Security Register.
All notices of redemption shall include the CUSIP number and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and that interest thereon will
cease to accrue on and after said date, and
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the sole expense of the
Issuer.
SECTION 1106. Deposit of Redemption Price. On or prior to 10:00 a.m., New
York City time, on any Redemption Date, the Issuer shall deposit with the
Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1107. 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, and from and after such date (unless the Issuer shall default in the
payment of the Redemption Price and any 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 Issuer at the
Redemption Price, together with any applicable accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to its terms and
the provisions of Section 308.
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If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate provided by the Security.
SECTION 1108. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at an office or agency of the Issuer
designated for that purpose pursuant to Section 1002 (with, if the Issuer or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Issuer and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Issuer shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
SECTION 1109. Purchase of Securities by Issuer in the Open Market or by
Private Transaction. Nothing in this Article Eleven shall be deemed to prohibit
the Issuer from purchasing Securities in the open market or by private
transaction for less than 100% of the principal amount.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Issuer's Option to Effect Defeasance or Covenant Defeasance.
The Issuer may at its option by Board Resolution, at any time, elect to have
either Section 1202 or Section 1203 applied to the Outstanding Securities upon
compliance with the conditions set forth below in this Article Twelve.
SECTION 1202. Defeasance and Discharge. Upon the Issuer's exercise of the
option provided in Section 1201 applicable to this Section, the Issuer shall be
deemed to have been discharged from its Obligations with respect to the
Outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities and to have satisfied all its other
Obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Issuer, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1204 and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities when such payments are due, (B)
the Issuer's Obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Twelve. Subject to compliance with
this Article Twelve, the Issuer may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203.
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SECTION 1203. Covenant Defeasance. Upon the Issuer's exercise of the
option provided in Section 1201 applicable to this Section, (i) the Issuer shall
be released from its Obligations under Sections 1005 through 1017, inclusive,
and Clauses (3) and (4) of Section 801 and (ii) the occurrence of an event
specified in Sections 501(3), 501(4) (with respect to Clauses (3) or (4) of
Section 801), 501(5) (with respect to any of Sections 1005 through 1017,
inclusive), 501(6), 501(7), 501(10) and 501(11) shall not be deemed to be an
Event of Default on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Clause, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Clause or by reason of any reference in
any such Section or Clause to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 1202 or
Section 1203 to the then Outstanding Securities:
(1) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (A) money in an amount,
or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, and each
installment of interest on the Securities on the Redemption Date or
on the Stated Maturity, as the case may be, of such principal or
installment of interest in accordance with the terms of this
Indenture and of such Securities. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the
United States of America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
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custodian in respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1202, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (x) the
Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) 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 shall confirm that, the Holders of the Outstanding
Securities will not recognize gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge 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, defeasance and discharge had not occurred.
(3) In the case of an election under Section 1203, the Issuer shall have
delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the Outstanding Securities will not recognize 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.
(4) The Issuer shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such
deposit.
(5) Such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any securities
of the Issuer.
(6) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections
501(8) and (9) are concerned, at any time during the period ending
on the 121st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the
expiration of such period).
(7) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement
or instrument to which the Issuer or any Subsidiaries is a party or
by which it is bound.
(8) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1202 or the covenant defeasance under Section 1203 (as
the case may be) have been complied with.
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(9) Such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such act or exempt from regulation
thereunder.
SECTION 1205. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee (or other qualifying
trustee--collectively, for purposes of this Section 1205, the "Trustee")
pursuant to Section 1204 in respect of the Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request
any money or U.S. Government Obligations held by it as provided in Section 1204
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 1206. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money in accordance with Section 1202 or 1203 by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Issuer's Obligations under
this Indenture, the Securities, and the Security Documents, and the Subsidiary
Guarantors' Obligations under the Subsidiary Guarantees, shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Twelve
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 1202 or 1203; provided, however, that if the
Issuer makes any payment of principal of or interest on any Security following
the reinstatement of its Obligations, the Issuer shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or the Paying Agent.
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ARTICLE THIRTEEN
SECURITY ARRANGEMENTS
SECTION 1301. Collateral and Security Documents. (a) To secure the due and
punctual payment of principal of and interest on the Securities by the Issuer
when and as the same shall be due and payable, whether on an Interest Payment
Date, at Stated Maturity, by acceleration, call for redemption, upon an Offer to
Purchase, or otherwise, and interest on the overdue principal of and interest
(to the extent permitted by law), on the Securities and performance of all other
Obligations of the Issuer and the Subsidiary Guarantors to the Holders of the
Securities, the Trustee or the Collateral Agent under this Indenture, the
Securities, the Subsidiary Guarantees, and the Security Documents, according to
the terms hereunder or thereunder, each of the Issuer and the Subsidiary
Guarantors will enter into the Security Documents, to create the security
interests with respect to the Collateral (except to the extent that granting
such Liens is precluded by the provisions of the documents evidencing Existing
Debt as in effect on the Closing Date). The Trustee, the Collateral Agent, the
Subsidiary Guarantors and the Issuer hereby acknowledge and agree that the
Collateral Agent holds the Collateral in trust for the benefit of the Holders
and the Trustee, among others, pursuant to the terms of the Security Documents.
(b) Each Holder, by accepting a Security, agrees to all of the terms and
provisions of the Security Documents (including, without limitation, the
provisions providing for foreclosure and release of Collateral) as the same may
be in effect or may be amended from time to time in accordance with the terms
thereof and hereof, and authorizes and directs the Collateral Agent and the
Trustee to perform their respective obligations and exercise their respective
rights under the Security Documents in accordance therewith; provided, however,
that if any provisions of the Security Documents limit, qualify or conflict with
the duties imposed by the provisions of the Trust Indenture Act, the Trust
Indenture Act will control.
(c) As more fully set forth in, and subject to the provisions of, the
Security Documents, the Holders, and the Trustee on behalf of such Holders, will
have rights in and to the Collateral that are subject to the rights that have
been or may be created in favor of the holders of other Debt and Obligations of
the Issuer.
(d) As among the Holders, the Collateral shall be held for the equal and
ratable benefit of the Holders without preference, priority or distinction of
any thereof over any other.
(e) With respect to the Trustee acting as Collateral Agent, the Trustee
(i) shall not be deemed to have breached its fiduciary duty as Trustee to the
Holders as a result of the performance of its duties as Collateral Agent to the
extent it acts in compliance with the Security Documents and (ii) shall not be
liable to the Holders for any such action or inaction. The rights and interests
created under this Indenture shall be subject to the terms of the Security
Documents.
(f) The Issuer and the Subsidiary Guarantors shall do or cause to be
done all such acts and things as may be necessary or proper, or as may be
required by the provisions of the Security Documents to which it is a party, to
assure and confirm to the Collateral Agent and the
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Trustee the Liens on the Collateral contemplated hereby and by the Security
Documents to which it is a party, as from time to time constituted, so as to
render the same available for the security and benefit of this Indenture and of
the Securities and each Subsidiary Guarantee secured thereby, as applicable,
according to the intent and purposes herein and therein expressed. The Issuer
shall take, as required by applicable law, any and all actions reasonably
required to cause the Security Documents to which it is a party to create and
maintain, as security for the Obligations of the Issuer under this Indenture and
the Securities and the Security Documents to which it is a party, to be valid
and enforceable, perfected (except as expressly provided herein and therein)
Liens in and on all the Collateral in favor of the Trustee or Collateral Agent
for the benefit of the Trustee and for the equal and ratable benefit of the
Holders of the Securities. Each Subsidiary Guarantor shall take, as required by
applicable law, any and all actions reasonably required to cause the Security
Documents to which it is a party for its Obligations under each Subsidiary
Guarantee and the Security Document related thereto, to be valid and
enforceable, perfected, (except as expressly provided herein or therein), Liens
in favor of the Trustee or Collateral Agent for the benefit of the Trustee and
for the equal and ratable benefit of the Holders of the Securities.
SECTION 1302. Release of Collateral. Collateral may be released from the
security interest created by the Security Documents at any time or from time to
time, and the Security Documents may be terminated, in accordance with the
provisions of the Security Documents. The release of any Collateral from the
terms hereof and of the Security Documents or the release of, in whole or in
part, the Liens created by the Security Documents, or the termination of the
Security Documents, will not be deemed to impair the Lien on the Collateral in
contravention of the provisions hereof if and to the extent the Collateral or
Liens are released, or the Security Documents are terminated, pursuant to the
applicable Security Documents. The Trustee and each of the Holders acknowledge
that a release of Collateral or a Lien strictly in accordance with the terms of
the Security Documents will not be deemed for any purpose to be an impairment of
the Lien on the Collateral in contravention of the terms of this Indenture. To
the extent applicable, the Issuer and each obligor on the Securities shall cause
Section 314(d) of the Trust Indenture Act relating to the release of property or
securities from the Lien hereof and of the Security Documents to be complied
with. Any certificate or opinion required by Section 314(d) of the Trust
Indenture Act may be made by an officer of the Issuer, except in cases which
Section 314(d) of the Trust Indenture Act requires that such certificate or
opinion be made by an independent person.
In the event the Issuer wishes to release Collateral in accordance with
the Security Documents and has delivered the certificates and documents required
by the Security Documents and this Section 1302, including, without limitation,
an Opinion of Counsel, which may be rendered by internal counsel to the Issuer,
to the effect that such accompanying documents constitute all documents required
by Section 314(d) of the Trust Indenture Act, the Trustee shall deliver a
certificate to the Collateral Agent stating that, based on aforementioned
Opinion of Counsel, it has received all documentation required by Section 314(d)
of the Trust Indenture Act in connection with such release.
SECTION 1303. Opinions as to Recording.
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(a) Each of the Issuer and the Subsidiary Guarantors represents that it
has caused or will promptly cause to be executed and delivered, filed and
recorded and covenants that it will promptly cause to be executed and delivered
and filed and recorded, all instruments and documents, and represents that it
has done and will do or will cause to be done all such acts and other things, at
the Issuer's or the Subsidiary Guarantors' expense, as applicable, as are
necessary to subject the applicable Collateral to valid Liens and to perfect
those Liens to the extent contemplated by the Security Documents. Each of the
Issuer and the Subsidiary Guarantors shall, as promptly as practicable, cause to
be executed and delivered, filed and recorded all instruments and do all acts
and other things as may be required by law to perfect, maintain and protect the
Liens under the applicable Security Documents to which it is party (except as
otherwise expressly provided herein and therein) to the extent contemplated by
the Security Documents.
(b) The Issuer and the Subsidiary Guarantors shall furnish to the
Trustee and the Collateral Agent promptly after the execution and delivery of
this Indenture an Opinion of Counsel either (i) stating that in the opinion of
such counsel all action has been taken with respect to the recording,
registering and filing of this Indenture, financing statements or other
instruments or otherwise necessary to make effective the Liens intended to be
created by the Security Documents and reciting the details of such action, or
(ii) stating that, in the opinion of such counsel, no such action is necessary
to make such Lien effective. Such Opinion of Counsel shall cover the necessity
for recordings, registrations and filings required in all relevant
jurisdictions.
(c) The Issuer and the Subsidiary Guarantors shall furnish to the
Trustee and the Collateral Agent within 3 months after each anniversary of the
Closing Date, an Opinion of Counsel, dated as of such date, stating either that
(i) in the opinion of such counsel, all action has been taken with respect to
the recording, registering, filing, re-recording, re-registering and refiling of
all supplemental indentures, financing statements, continuation statements or
other instruments of further assurance or otherwise as is necessary to maintain
the effectiveness of the Liens intended to be created by the Security Documents
and reciting the details of such action or (ii) in the opinion of such counsel,
no such action is necessary to maintain the effectiveness of such Liens. Such
opinion of counsel shall cover the necessity of recordings, registrations,
filing, re-recordings, re-registrations and refilings in all relevant
jurisdictions.
(d) The Issuer and the Subsidiary Guarantors shall otherwise comply with
the provisions of Section 314(b) and, as applicable Sections 314(c), (d) and (e)
of the Trust Indenture Act.
SECTION 1304. Further Assurances and Security. The Issuer and the
Subsidiary Guarantors will execute, acknowledge and deliver to the Trustee, at
the Issuer's and/or such Subsidiary Guarantor's expense, at any time and from
time to time such further assignments, transfers, assurances or other
instruments as may be reasonably required to effectuate the terms of this
Indenture and the Security Documents, and will at any time and from time to time
do or cause to be done all such acts and things as may be necessary or proper,
or as may be reasonably required by the Trustee or the Collateral Agent, to
assure and confirm to the Trustee the Liens in the Collateral contemplated
hereby and by the Security Documents, all to the extent contemplated by the
Security Documents.
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SECTION 1305. Authorization of Actions to be Taken by the Trustee or the
Collateral Agent Under the Security Documents. The Trustee and the Collateral
Agent may, in their sole discretion and without the consent of the Holders, on
behalf of the Holders, take all actions such Person deems necessary or
appropriate in order to (a) enforce any of the terms of the Security Documents
and (b) collect and receive any and all amounts payable in respect of the
Obligations of the Issuer and the Subsidiary Guarantors hereunder. The Trustee
and the Collateral Agent shall have the power to institute and to maintain such
suits and proceedings as such Person may deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation of
the Security Documents, or this Indenture, and such suits and proceedings as the
Trustee or the Collateral Agent may deem expedient to preserve or protect its
interests and the interests of the Trustee and Holders in the Collateral
(including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other government enactment,
rule or order that may be unconstitutional or otherwise invalid if the
enforcement of, or compliance with, such enactment, rule or order would impair
the security interest hereunder or be prejudicial to the interests of the
Holders or of the Trustee).
SECTION 1306. Authorization of Receipt of Funds by the Trustee Under the
Security Documents. The Trustee and the Collateral Agent are authorized to
receive any funds for the benefit of the Holders distributed under the Security
Documents, and to make further distributions of such funds to the Holders
according to the provisions of this Indenture and the Security Documents.
SECTION 1307. Trustee Authorization. The Trustee is hereby authorized and
directed to enter into each of the Security Documents contemplated hereby and to
perform its duties and obligations thereunder.
ARTICLE FOURTEEN
SUBSIDIARY GUARANTEES
SECTION 1401. Subsidiary Guarantees. Subject to Article Fifteen, each
Subsidiary Guarantor, together with any Subsidiary which in accordance with
Section 1024 hereof is required in the future to guarantee the Obligations of
the Issuer under the Securities and this Indenture, upon execution of a
supplemental indenture, hereby jointly and severally and irrevocably and
unconditionally guarantees to the Trustee and to each Holder irrespective of the
validity or enforceability of this Indenture or the Securities or the
Obligations of the Issuer and the Subsidiary Guarantors under this Indenture and
the Security Documents, that: (i) the principal of, any interest, on the
Securities (including, without limitation, any interest that accrues after, or
would accrue but for, the commencement of a proceeding of the type described in
Sections 501(8) and (9)) and any fees, expenses and other amounts owing under
this Indenture will be duly and punctually paid in full when due, whether at
Stated Maturity, by acceleration, mandatory redemption, call for redemption,
upon an Offer to Purchase or otherwise, and interest on the overdue principal
and (to the extent permitted by law) interest, if any, on the Securities and any
other amounts due in respect of the Securities and the Security Documents, and
all other Obligations of the Issuer, including the Issuer's Obligations to the
Holders of the Securities under
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this Indenture, the Securities and the Security Documents and Subsidiary
Guarantors under this Indenture, the Security Documents and the Subsidiary
Guarantees, whether now or hereafter existing, will be promptly paid in full or
performed, all strictly in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any Securities or
any of such other Obligations, the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at Stated Maturity, by acceleration, mandatory redemption, call for redemption,
upon an Offer to Purchase or otherwise. If payment is not made when due (after
taking into account any applicable grace period) of any amount so guaranteed for
whatever reason, each Subsidiary Guarantor shall be jointly and severally
obligated to pay the same individually whether or not such failure to pay has
become an Event of Default which could cause acceleration pursuant to Section
502. An Event of Default under this Indenture or the Securities shall constitute
an Event of Default under each Subsidiary Guarantee, and shall entitle the
Holders to accelerate the Obligations of each Subsidiary Guarantor hereunder in
the same manner and to the same extent as the Obligations of the Issuer. Each
Subsidiary Guarantee is intended to be superior to or pari passu in right of
payment with all Debt of the respective Subsidiary Guarantor other than
Permitted Senior Secured Debt and Designated Senior Debt and each Subsidiary
Guarantor's Obligations are independent of any Obligation of the Issuer or any
other Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Subsidiary Guarantor, and that such Subsidiary
Guarantor will remain bound under this Article Fourteen notwithstanding any
extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment from
and protest to the Issuer 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 or
the Trustee to assert any claim or demand or to enforce any right or remedy
against the Issuer 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, the Collateral Agent or the Trustee
for the Obligations or any of them; (e) the failure of any Holder, the Trustee
or the Collateral Agent to exercise any right or remedy against any other
guarantor of the Obligations; or (f) any change in the ownership of such
Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Obligations.
Each Subsidiary Guaranty is, to the extent and in the manner set forth in
Article Fifteen, subordinated and subject in right of payment to the prior
payment in full of all Designated Senior Debt of the Subsidiary Guarantor giving
such Subsidiary Guaranty and is made subject to such provisions of this
Indenture.
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Except as expressly set forth in Sections 803 and 1201, the Obligations of
each Subsidiary Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, 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 Guaranteed
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 or the Trustee 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, 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 such Subsidiary
Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor
as a matter of law or equity, except for any gross negligence, willful
misconduct or bad faith by such Holder or the Trustee.
Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty
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
Obligation is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Issuer or otherwise.
In furtherance of the foregoing and not in limitation of any other right
which any Holder or the Trustee has at law or in equity against any Subsidiary
Guarantor by virtue hereof, and subject in all instances to Article Fifteen
hereof, upon the failure of the Issuer to pay the principal of or interest on
any Obligation when and as the same shall become due, whether at Stated
Maturity, by acceleration, by redemption or otherwise, or to perform or comply
with any other Obligation, 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 or the Trustee an amount equal to the sum of
(i) the unpaid amount of such Obligations, (ii) accrued and unpaid interest on
such Obligations (but only to the extent not prohibited by law) and (iii) all
other monetary Obligations of the Issuer to the Holders, the Trustee, and the
Collateral Agent.
Subject to Article Fifteen, until such time as the Securities and the
other Obligations of the Issuer guaranteed hereby have been satisfied in full,
each Subsidiary Guarantor hereby irrevocably waives any claim or other rights
that it may now or hereafter acquire against the Issuer or any other Subsidiary
Guarantor that arise from the existence, payment, performance or enforcement of
such Subsidiary Guarantor's Obligations under its Subsidiary Guarantee
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Holders, the Trustee or the Collateral Agent against the
Issuer or any other Subsidiary Guarantor or any security, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from the Issuer
or any other Subsidiary Guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right. If any amount shall be paid to such Subsidiary
Guarantor in violation of the preceding sentence at any time prior to the later
of the payments in full of the Securities and all other amounts payable under
this Indenture and each Subsidiary Guarantee upon the Maturity of the
Securities, such amount shall be held in trust for the benefit of the Holders
and the Trustee and shall forthwith be paid to the Trustee to
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be credited and applied to the Securities and all other amounts payable under
each Subsidiary Guarantee, whether matured or unmatured, in accordance with the
terms of this Indenture, or to be held as security for any Obligations or other
amounts payable under any Subsidiary Guarantee thereafter arising.
Each Subsidiary Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that the waiver set forth in this Section 1401 is knowingly made in
contemplation of such benefits. Each Subsidiary Guarantor further agrees that,
as between it, on the one hand, and the Holders and the Trustee, on the other
hand, (x) subject to this Article Fourteen, the Maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article Five for the
purposes of each Subsidiary Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any acceleration of such Obligations
guaranteed hereby as provided in Article Five, such Obligations (whether or not
due and payable) shall, subject to Article Fifteen hereof, forthwith become due
and payable by the Subsidiary Guarantor for the purposes of each Subsidiary
Guarantee.
A Subsidiary Guarantor that makes a distribution or payment under a
Subsidiary Guarantee shall be entitled to contribution from each other
Subsidiary Guarantor in a pro rata amount based on the Adjusted Net Assets of
each such other Subsidiary Guarantor for all payments, damages and expenses
incurred by that Subsidiary Guarantor in discharging the Issuer's Obligations
with respect to the Securities and this Indenture or any other Subsidiary
Guarantor with respect to its Subsidiary Guarantee, so long as the exercise of
such right does not impair the rights of the Holders of the Securities under the
Subsidiary Guarantees.
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section 1401.
SECTION 1402. Limitation on Liability. The Obligations of each Subsidiary
Guarantor will be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Subsidiary Guarantor 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 or
otherwise not being void, voidable or unenforceable under any bankruptcy,
reorganization, receivership, insolvency, liquidation or other similar
legislation or legal principles under any applicable foreign law.
SECTION 1403. Successors and Assigns. This Article Fourteen shall be
binding upon each Subsidiary Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
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SECTION 1404. No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article Fourteen shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Trustee and
the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article
Fourteen at law, in equity, by statute or otherwise.
SECTION 1405. Modification. No modification, amendment or waiver of any
provision of this Article Fourteen, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 1406. Execution of Supplemental Indenture for Future Subsidiary
Guarantors. Each Subsidiary which is required to become a Subsidiary Guarantor
pursuant to Section 1024 shall promptly execute and deliver to the Trustee a
supplemental indenture in the form of Exhibit A hereto pursuant to which such
Subsidiary shall become a Subsidiary Guarantor under this Article Fourteen and
shall guarantee the Obligations, subject in all respects to Article Fifteen
hereof. Concurrently with the execution and delivery of such supplemental
indenture, the Issuer shall deliver to the Trustee an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or transfer and other similar laws
relating to creditors' rights generally and to the principles of equity, whether
considered in a proceeding at law or in equity, the Subsidiary Guaranty of such
Subsidiary Guarantor is a legal, valid and binding obligation of such Subsidiary
Guarantor, enforceable against such Subsidiary Guarantor in accordance with its
terms.
SECTION 1407. Execution and Delivery of Subsidiary Guarantees. To further
evidence the Subsidiary Guarantee set forth in Section 1401 hereof, each
Subsidiary Guarantor hereby agrees that notation of the Subsidiary Guarantee
shall be endorsed on each Security authenticated and delivered by the Trustee
and executed by either manual or facsimile signature of an authorized officer of
such Subsidiary Guarantor. Each Subsidiary Guarantor hereby agrees that its
Subsidiary Guarantee set forth in Section 1401 hereof shall remain in full force
and effect notwithstanding any failure to endorse on each Security a notation of
the Subsidiary Guarantee. If an officer of the Subsidiary Guarantor whose
signature is on this Indenture or a Security no longer holds that office at the
time the Trustee authenticates such Security or at any time thereafter, the
Subsidiary Guarantor's Subsidiary Guarantee of such Security shall be valid
nevertheless. The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of such Subsidiary
Guarantor, whether or not the notation of Subsidiary Guarantee is endorsed
thereon.
SECTION 1408. Release of Subsidiary Guarantor. Upon the sale or other
disposition (by merger or otherwise) of a Subsidiary Guarantor, or the sale of
all or substantially all of the assets
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of a Subsidiary Guarantor, to a Person other than the Issuer or a Subsidiary and
pursuant to a transaction that is otherwise in compliance with this Indenture
(including as described in Section 803 hereof and as described in Section 1015
hereof), such Subsidiary Guarantor shall be deemed released from its Subsidiary
Guarantee and the related Obligations set forth in this Indenture; provided that
any such termination shall occur only to the extent that all Obligations of such
Subsidiary Guarantor under all of its Guarantees of and under all of its pledges
of assets or other security interests which secure, other Debt of the Issuer or
any other Subsidiary shall also terminate or be released upon such sale or other
disposition and the Issuer delivers to the Trustee an Officer's Certificate and
an Opinion of Counsel, in each case stating that the release of such Subsidiary
Guarantor is authorized or permitted under this Indenture and that all
conditions precedent provided for herein relating to the release of such
Subsidiary Guarantor have been complied with.
ARTICLE FIFTEEN
SUBORDINATION OF SUBSIDIARY GUARANTEES
SECTION 1501. Agreement to Subordinate. Each Subsidiary Guarantor agrees,
and each Holder by accepting a Security agrees, that the Obligations of such
Subsidiary Guarantor are subordinated in right of payment, to the extent and in
the manner provided in this Article Fifteen, to the payment when due of all
Designated Senior Debt of such Subsidiary Guarantor and that the subordination
is for the benefit of and enforceable by the holders of such Designated Senior
Debt. Subject to the foregoing, the Obligations of each Subsidiary Guarantor
shall in all respects rank pari passu with all existing and future senior Debt
of such Subsidiary Guarantor and senior to all existing and future subordinated
Debt of such Subsidiary Guarantor, and only Designated Senior Debt shall rank
senior to the Obligations of such Subsidiary Guarantor in accordance with the
provisions set forth herein.
SECTION 1502. Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of any Subsidiary Guarantor to creditors upon a total
or partial liquidation or a total or partial dissolution of such Subsidiary
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to such Subsidiary Guarantor or its property:
(1) holders of Designated Senior Debt of such Subsidiary Guarantor shall
be entitled to receive payment in full in cash of such Designated
Senior Debt before Holders shall be entitled to receive any payment
pursuant to any Obligations of such Subsidiary Guarantor; and
(2) until the Designated Senior Debt of any Subsidiary Guarantor is paid
in full in cash, any distribution made by or on behalf of such
Subsidiary Guarantor to which Holders would be entitled but for this
Article Fifteen shall be made to holders of the Designated Senior
Debt as their interests may appear, except that all Holders may
receive and retain shares of stock and any debt securities of such
Subsidiary Guarantor that are subordinated to Designated Senior Debt
of such
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Subsidiary Guarantor to at least the same extent as the Obligations
of such Subsidiary Guarantor are subordinated to Designated Senior
Debt of such Subsidiary Guarantor.
SECTION 1503. Default on Designated Senior Debt of Subsidiary Guarantor.
No Subsidiary Guarantor may make any payment pursuant to any of its Obligations
or repurchase, redeem or otherwise retire or defease any Securities or other
Obligations (collectively, "pay its Subsidiary Guaranty") if (i) any principal,
premium or interest in respect of the Designated Senior Debt of such Subsidiary
Guarantor is not paid when due (including at maturity) or (ii) any other default
on Designated Senior Debt of such Subsidiary Guarantor occurs and the maturity
of such Designated Senior Debt is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Designated Senior Debt has been paid
in full in cash; provided, however, that any Subsidiary Guarantor may pay its
Subsidiary Guaranty without regard to the foregoing if such Subsidiary Guarantor
and the Trustee receive written notice approving such payment from the holders
of such Designated Senior Debt (or the authorized representative therefor) of
such Subsidiary Guarantor. In addition, during the continuance of any default
(other than a default described in clause (i) or (ii) of the preceding sentence)
with respect to any Designated Senior Debt pursuant to which the maturity
thereof may be accelerated immediately without further notice (except any notice
required to effect the acceleration) or the expiration of any applicable grace
period, no Subsidiary Guarantor may make any payment pursuant to its Subsidiary
Guaranty for a period (a "Payment Blockage Period") commencing upon the receipt
by such Subsidiary Guarantor and the Trustee of written notice of such default
from a representative under the Permitted Senior Secured Debt specifying an
election to effect a Payment Blockage Period (a "Payment Blockage Notice") and
ending 179 days thereafter (unless such Payment Blockage Period is earlier
terminated (a) by written notice to the Trustee and such Subsidiary Guarantor
from such authorized representative or the holders of such Designated Senior
Debt, (b) because such default is no longer continuing or (c) because all such
Designated Senior Debt has been repaid in full in cash). Unless the holders of
Designated Senior Debt shall have accelerated the maturity of such Designated
Senior Debt and not rescinded such acceleration, any Subsidiary Guarantor may
(unless otherwise prohibited as described in Section 1502 or the first or second
sentences of this paragraph) resume payments pursuant to its Subsidiary Guaranty
after such Payment Blockage Period. Not more than one Payment Blockage Notice
may be given in any consecutive 360-day period, irrespective of the number of
defaults during such period.
SECTION 1504. Demand for Payment. If a demand for payment is made on a
Subsidiary Guarantor pursuant to Article Fourteen, such Subsidiary Guarantor may
not pay its Subsidiary Guaranty, and neither the Trustee nor any Holder may
retain any such payment, until ten Business Days after the holders of Designated
Senior Debt (or their authorized representative) receive notice of such demand
and, thereafter, may pay its Subsidiary Guaranty only if this Indenture
otherwise permits payment at that time.
SECTION 1505. When Distribution Must Be Paid Over. If a distribution is
made to the Trustee or any Holders that because of this Article Fifteen should
not have been made to them, the Trustee or such Holders who receive the
distribution shall hold it in trust for holders of the Designated Senior Debt
and promptly pay it over to them or their authorized representative as their
interests may appear.
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SECTION 1506. Subrogation. After all Designated Senior Debt of a
Subsidiary Guarantor is paid in full in cash and until the Securities are paid
in full in cash, Holders shall be subrogated to the rights of holders of
Designated Senior Debt to receive distributions applicable to Designated Senior
Debt. A distribution made under this Article Fifteen to holders of such
Designated Senior Debt that otherwise would have been made to Holders is not, as
between the relevant Subsidiary Guarantor and Holders, a payment by such
Subsidiary Guarantor on such Designated Senior Debt.
SECTION 1507. Relative Rights. This Article Fifteen defines the relative
rights of Holders and holders of Designated Senior Debt of a Subsidiary
Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Subsidiary Guarantor and the Holders of
Securities, the obligation of such Subsidiary Guarantor, which is
absolute and unconditional, to pay the Obligations to the extent set
forth in Article Fourteen or the relevant Subsidiary Guaranty; or
(2) prevent the Trustee or any Holder of Securities from exercising its
available remedies upon a default by such Subsidiary Guarantor under
the Obligations, subject to the rights of holders of Designated
Senior Debt of such Subsidiary Guarantor to receive distributions
otherwise payable to Holders of Securities.
SECTION 1508. Subordination May Not Be Impaired by Subsidiary Guarantor.
No right of any holder of Designated Senior Debt of any Subsidiary Guarantor to
enforce the subordination of the Obligation of such Subsidiary Guarantor shall
be impaired by any act or failure to act by such Subsidiary Guarantor or the
Issuer or by any of their failure to comply with this Indenture.
SECTION 1509. Rights of Trustee and Paying Agent. Notwithstanding Section
1503, the Trustee or Paying Agent may continue to make payments on any
Subsidiary Guaranty and shall not, absent gross negligence or bad faith, be
charged with knowledge of the existence of facts that would prohibit the making
of any such payments unless, not less than three (3) Business Days prior to the
date of such payment, the Trustee receives written notice satisfactory to it
that payments may not be made under this Article Fifteen. The Issuer, the
relevant Subsidiary Guarantor, the registrar or co-registrar, the Paying Agent,
an authorized representative or a holder of Designated Senior Debt of any
Subsidiary Guarantor may give the notice; provided, however, that, if any
Designated Senior Debt of any Subsidiary Guarantor has an authorized
representative, only such authorized representative may give the notice.
The Trustee in its individual or any other capacity may hold Designated
Senior Debt with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article Fifteen with respect to any Designated Senior Debt of any Subsidiary
Guarantor that may at any time be held by it, to the same extent as any other
holder of Designated Senior Debt; and nothing in Article Six shall deprive the
Trustee of any of its rights
94
as such holder. Nothing in this Article Fifteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1510. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Designated Senior
Debt of any Subsidiary Guarantor, the distribution may be made and the notice
given to the authorized representative, if any, of such Designated Senior Debt.
SECTION 1511. Article Fifteen Not To Prevent Events of Default Under a
Subsidiary Guaranty or Limit Right To Demand Payment. The failure to make a
payment pursuant to a Subsidiary Guaranty by reason of any provision in this
Article Fifteen shall not be construed as preventing the occurrence of a default
under such Subsidiary Guaranty. Nothing in this Article Fifteen shall have any
effect on the right of the Holders or the Trustee to make a demand for payment
on any Subsidiary Guarantor pursuant to Article Fourteen or the relevant
Subsidiary Guaranty.
SECTION 1512. Trustee Entitled To Rely. Upon any payment or distribution
pursuant to this Article Fifteen, the Trustee and the Holders shall be entitled
to rely, except to the extent such reliance would constitute gross negligence or
bad faith, (i) upon any order or decree of a court of competent jurisdiction in
which any proceedings of the nature referred to in Section 1502 are pending,
(ii) upon a certificate of the liquidating trustee or agent or other Person
making such payment or distribution to the Trustee or to the Holders or (iii)
upon the authorized representative, if any, for the holders of Designated Senior
Debt of any Subsidiary Guarantor for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of
Designated Senior Debt and other Debt of such Subsidiary Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Fifteen. In the event
that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Designated Senior Debt of any
Subsidiary Guarantor to participate in any payment or distribution pursuant to
this Article Fifteen, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Designated Senior
Debt of such Subsidiary Guarantor held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and other
facts pertinent to the rights of such Person under this Article Fifteen, and, if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 601 and 603 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article Fifteen.
Notwithstanding anything to the contrary contained in this Section 1512, the
provisions of this Section 1512 shall not change, modify or otherwise affect the
rights of the holders of Designated Senior Debt.
SECTION 1513. Trustee To Effectuate Subordination. Each Holder by
accepting a Security authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Designated Senior Debt of
any Subsidiary Guarantor as provided in this Article Fifteen and appoints the
Trustee as attorney-in-fact for any and all such purposes.
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SECTION 1514. Trustee Not Fiduciary for Holders of Designated Senior Debt
of Subsidiary Guarantor. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Designated Senior Debt of any Subsidiary Guarantor and,
absent gross negligence or bad faith, shall not be liable to any such holders if
it shall mistakenly pay over or distribute to Holders or the Issuer or any other
Person, money or assets to which any holders of such Designated Senior Debt
shall be entitled by virtue of this Article Fifteen or otherwise.
SECTION 1515. Reliance by Holders of Designated Senior Debt on
Subordination Provisions. Each Holder by accepting a Security acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Designated Senior Debt
of any Subsidiary Guarantor, whether such Designated Senior Debt was created or
acquired before or after the issuance of the Securities, to acquire and continue
to hold, or to continue to hold, such Designated Senior Debt and such holder of
Designated Senior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Designated Senior Debt.
[Signature pages to follow.]
96
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
PENTHOUSE MEDIA GROUP INC.
By ______________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By ______________________________
Name:
Title:
SUBSIDIARY GUARANTORS:
GENERAL MEDIA ART HOLDING, INC.
GENERAL MEDIA COMMUNICATIONS, INC.
GENERAL MEDIA ENTERTAINMENT, INC.
GENERAL MEDIA (UK), LTD.
GMCI INTERNET OPERATIONS, INC.
GMI ON-LINE VENTURES, LTD.
PENTHOUSE IMAGES ACQUISITIONS, LTD.
PURE ENTERTAINMENT
TELECOMMUNICATIONS, INC.
By ______________________________
Name:
Title:
97
EXHIBIT A
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
________, among [GUARANTOR] (the "New Subsidiary Guarantor"), a subsidiary of
PENTHOUSE MEDIA GROUP INC. (or its successor), a Delaware corporation (the
"Issuer"), the Issuer, on behalf of itself and the Subsidiary Guarantors (the
"Existing Subsidiary Guarantors") under the indenture referred to below, and
WILMINGTON TRUST COMPANY, as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H :
WHEREAS the Issuer and the Existing Subsidiary Guarantors have heretofore
executed and delivered to the Trustee an Indenture (the "Indenture") dated as of
[___________], providing for the initial issuance of an aggregate principal
amount at Maturity of up to $38 million of 13% Term Loan Notes due 2011 (the
"Securities");
WHEREAS Section 1024 of the Indenture provides that under certain
circumstances the Issuer is required to cause the New Subsidiary Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Subsidiary Guarantor shall unconditionally guarantee all the Issuer's
Obligations under the Securities pursuant to a Subsidiary Guaranty on the terms
and conditions set forth herein; and
WHEREAS pursuant to Section 901 of the Indenture, the Trustee, the Issuer
and the Existing Subsidiary Guarantors are authorized to execute and deliver
this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor, the Issuer, the Existing Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Securities as follows:
1. Agreement to Guarantee. The New Subsidiary Guarantor hereby agrees,
jointly and severally with all other Subsidiary Guarantors, to unconditionally
guarantee the Issuer's Obligations under the Securities on the terms and subject
to the conditions set forth in Articles Fourteen and Fifteen of the Indenture
and to be bound by all other applicable provisions of the Indenture and to
execute amendments to the Security Documents, or new Security Documents, as
required by Article Thirteen of the Indenture.
2. 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.
Annex A-1
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND NOT THE LAWS OF CONFLICTS
(OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK) OF THE STATE OF NEW YORK.
4. Trustee Makes No Representation. The Trustee shall not be responsible
in any manner whatsoever for, or in respect of, the validity or sufficiency of
this Supplemental Indenture or for, or in respect of, the recitals contained
herein, all of which are made solely by the Issuer, the Existing Subsidiary
Guarantors and the New Subsidiary Guarantor.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR],
By ___________________________
Name:
Title:
PENTHOUSE MEDIA GROUP INC., on behalf of
itself and the Existing Subsidiary
Guarantors,
By __________________________
Name:
Title:
WILMINGTON TRUST COMPANY, as Trustee
By __________________________
Name:
Title:
Annex A-2
ANNEX A
SECURITY DOCUMENTS
Annex A-1