Exhibit 4.1
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NATIONAL VISION ASSOCIATES, LTD.,
as Issuer,
each of the Guarantors named herein
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
INDENTURE
Dated as of October 8, 1998
up to $190,000,000
12 3/4% Senior Notes due 2005, Series A
12 3/4% Senior Notes due 2005, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1) . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . 7.08; 7.10;
11.02
(c) . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . 7.06; 11.02
(d) . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . 4.06; 4.08;
11.02
(b) . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . 9.04
317(a)(1) . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . . . . 11.01
N.A. means Not Applicable.
_________________
Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................................ 1
SECTION 1.02. Incorporation by Reference of TIA.......................... 27
SECTION 1.03. Rules of Construction...................................... 27
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating............................................ 28
SECTION 2.02. Execution and Authentication; Aggregate Principal
Amount................................................................... 29
SECTION 2.03. Registrar and Paying Agent................................. 31
SECTION 2.04. Paying Agent To Hold Assets in Trust....................... 32
SECTION 2.05. Holder Lists............................................... 32
SECTION 2.06. Transfer and Exchange...................................... 32
SECTION 2.07. Replacement Notes.......................................... 33
SECTION 2.08. Outstanding Notes.......................................... 33
SECTION 2.09. Treasury Notes............................................. 34
SECTION 2.10. Temporary Notes............................................ 34
SECTION 2.11. Cancellation............................................... 35
SECTION 2.12. Defaulted Interest......................................... 35
SECTION 2.13. CUSIP Numbers.............................................. 36
SECTION 2.14. Deposit of Monies.......................................... 36
SECTION 2.15. Restrictive Legends........................................ 36
SECTION 2.16. Book-Entry Provisions for Global Security.................. 38
SECTION 2.17. Special Transfer Provisions................................ 40
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee......................................... 43
SECTION 3.02. Selection of Notes To Be Redeemed.......................... 43
SECTION 3.03. Optional Redemption........................................ 44
SECTION 3.04. Notice of Redemption....................................... 45
SECTION 3.05. Effect of Notice of Redemption............................. 46
SECTION 3.06. Deposit of Redemption Price................................ 46
SECTION 3.07. Notes Redeemed in Part..................................... 47
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.......................................... 47
SECTION 4.02. Maintenance of Office or Agency........................... 47
SECTION 4.03. Corporate Existence....................................... 48
SECTION 4.04. Payment of Taxes and Other Claims......................... 48
SECTION 4.05. Maintenance of Properties and Insurance................... 48
SECTION 4.06. Compliance Certificate; Notice of Default................. 49
SECTION 4.07. Compliance with Laws...................................... 50
SECTION 4.08. Reports to Holders........................................ 50
SECTION 4.09. Waiver of Stay, Extension or Usury Laws................... 51
SECTION 4.10. Limitation on Restricted Payments......................... 51
SECTION 4.11. Limitations on Transactions with Affiliates............... 53
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness....... 54
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.................................. 55
SECTION 4.14. Change of Control......................................... 56
SECTION 4.15. Limitation on Asset Sales................................. 58
SECTION 4.16. Limitation on Preferred Stock of Restricted
Subsidiaries............................................ 61
SECTION 4.17. Limitation on Liens....................................... 61
SECTION 4.18. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries........................................... 62
SECTION 4.19. Additional Subsidiary Guarantees.......................... 62
SECTION 4.20. Conduct of Business....................................... 62
SECTION 4.21. Special Redemption........................................ 63
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.................. 64
SECTION 5.02. Successor Corporation Substituted......................... 66
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default......................................... 66
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SECTION 6.02. Acceleration.............................................. 68
SECTION 6.03. Other Remedies............................................ 69
SECTION 6.04. Waiver of Past Defaults................................... 69
SECTION 6.05. Control by Majority....................................... 69
SECTION 6.06. Limitation on Suits....................................... 70
SECTION 6.07. Right of Holders To Receive Payment....................... 70
SECTION 6.08. Collection Suit by Trustee................................ 71
SECTION 6.09. Trustee May File Proofs of Claim.......................... 71
SECTION 6.10. Priorities................................................ 71
SECTION 6.11. Undertaking for Costs..................................... 72
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee......................................... 72
SECTION 7.02. Rights of Trustee......................................... 74
SECTION 7.03. Individual Rights of Trustee.............................. 75
SECTION 7.04. Trustee's Disclaimer...................................... 75
SECTION 7.05. Notice of Default......................................... 75
SECTION 7.06. Reports by Trustee to Holders............................. 76
SECTION 7.07. Compensation and Indemnity................................ 76
SECTION 7.08. Replacement of Trustee.................................... 77
SECTION 7.09. Successor Trustee by Merger, Etc.......................... 78
SECTION 7.10. Eligibility; Disqualification............................. 79
SECTION 7.11. Preferential Collection of Claims Against Company......... 79
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations...................... 79
SECTION 8.02. Application of Trust Money................................ 82
SECTION 8.03. Repayment to the Company.................................. 83
SECTION 8.04. Reinstatement............................................. 83
SECTION 8.05. Acknowledgment of Discharge by Trustee.................... 84
ARTICLE NINE
MODIFICATION OF THE INDENTURE
SECTION 9.01. Without Consent of Holders................................ 84
SECTION 9.02. With Consent of Holders................................... 85
SECTION 9.03. Compliance with TIA....................................... 86
SECTION 9.04. Revocation and Effect of Consents......................... 86
SECTION 9.05. Notation on or Exchange of Notes.......................... 87
SECTION 9.06. Trustee To Sign Amendments, Etc........................... 87
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ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Unconditional Guarantee.................................. 88
SECTION 10.02. Limitations on Guarantees................................ 90
SECTION 10.03. Execution and Delivery of Guarantee...................... 90
SECTION 10.04. Release of Guarantors.................................... 90
SECTION 10.05. Waiver of Subrogation.................................... 91
SECTION 10.06. Immediate Payment........................................ 92
SECTION 10.07. No Set-Off............................................... 92
SECTION 10.08. Obligations Absolute..................................... 92
SECTION 10.09. Obligations Continuing................................... 92
SECTION 10.10. Obligations Not Reduced.................................. 92
SECTION 10.11. Obligations Reinstated................................... 93
SECTION 10.12. Obligations Not Affected................................. 93
SECTION 10.13. Waiver................................................... 94
SECTION 10.14. No Obligation To Take Action Against the Company......... 95
SECTION 10.15. Dealing with the Company and Others...................... 95
SECTION 10.16. Default and Enforcement.................................. 96
SECTION 10.17. Amendment, Etc........................................... 96
SECTION 10.18. Acknowledgment........................................... 96
SECTION 10.19. Costs and Expenses....................................... 96
SECTION 10.20. No Merger or Waiver; Cumulative Remedies................. 96
SECTION 10.21. Survival of Obligations.................................. 97
SECTION 10.22. Guarantee in Addition to Other Obligations............... 97
SECTION 10.23. Severability............................................. 97
SECTION 10.24. Successors and Assigns................................... 97
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls............................................. 98
SECTION 11.02. Notices.................................................. 98
SECTION 11.03. Communications by Holders with Other Holders............. 99
SECTION 11.04. Certificate and Opinion as to Conditions Precedent....... 99
SECTION 11.05. Statements Required in Certificate or Opinion............ 100
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar................ 100
SECTION 11.07. Legal Holidays........................................... 100
SECTION 11.08. Governing Law............................................ 101
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SECTION 11.09. No Adverse Interpretation of Other Agreements............ 101
SECTION 11.10. No Personal Liability.................................... 101
SECTION 11.11. Successors............................................... 101
SECTION 11.12. Duplicate Originals...................................... 101
SECTION 11.13. Severability............................................. 202
SECTION 11.14. Independence of Covenants................................ 102
Exhibit A - Form of Initial Note........................................ A-1
Exhibit B - Form of Exchange Note....................................... B-1
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors................... C-1
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S.......................... D-1
Exhibit E-Form of Guarantee............................................. E-1
Note: This Table of Contents shall not, for any purpose, be deemed to
be part of this Indenture
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INDENTURE, dated as of October 8, 1998, among NATIONAL VISION
ASSOCIATES, LTD., a Georgia corporation (the "Company"), each of the
Guarantors named herein (the "Guarantors"), as guarantors, and State
Street Bank and Trust Company, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of
12 3/4% Senior Notes due 2005, Series A, and 12 3/4% Senior Notes due
2005, Series B, to be issued in exchange for the 12 3/4% Senior Notes due
2005, Series A, pursuant to a Registration Rights Agreement (as
defined) and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. All things necessary to
make the Notes (as defined), when duly issued and executed by the
Company and authenticated and delivered hereunder, the valid and
binding obligations of the Company and to make this Indenture a valid
and binding agreement of the Company, have been done.
Each party hereto agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of
the Company's 12 3/4% Senior Notes due 2005, Series A and Series B:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.01. Definitions.
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"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates
with the Company or any of its Subsidiaries or assumed in connection
with the acquisition of assets from such Person and in each case not
incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary of the
Company or such acquisition, merger or consolidation.
"ADDITIONAL INTEREST" has the meaning set forth in the Registration
Rights Agreement.
"AFFILIATE" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
specified Person. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative of the
foregoing.
"AFFILIATE TRANSACTION" has the meaning set forth in Section
4.11.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"AGENT MEMBERS" has the meaning set forth in Section 2.16.
"ASSET ACQUISITION" means (a) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to
which such Person shall become a Restricted Subsidiary of the Company
or any Restricted Subsidiary of the Company, or shall be merged with
or into the Company or any Restricted Subsidiary of the Company, or
(b) the acquisition by the Company or any Restricted Subsidiary of the
Company of the assets of any Person (other than a Restricted
Subsidiary of the Company) which constitute all or substantially all
of the assets of such Person or comprise any division or line of
business of such Person or any other properties or assets of such
Person other than in the ordinary course of the Company's or such
Restricted Subsidiary's business.
"ASSET SALE" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into
in the ordinary course of business), assignment or other transfer for
value by the Company or any of its Restricted Subsidiaries (including
any Sale and Leaseback Transaction) to any Person other than the Company
or a Wholly Owned Restricted Subsidiary of the Company of (a) any
Capital Stock of any Restricted Subsidiary of the Company; or (b) any
other property or assets of the Company or any Restricted Subsidiary
of the Company other than in the ordinary course of business;
provided, however, that Asset Sales shall not include (i) a
transaction or series of related transactions for which the Company or
its Restricted Subsidiaries receive aggregate consideration of less
than $750,000, (ii) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as
permitted under Section 5.01, (iii) the sale, lease, conveyance,
disposition or other transfer by the Company or any Restricted
Subsidiary of assets or property in transactions constituting
Investments that are not prohibited under Section 4.10, (iv) leases or
subleases to third persons not interfering in any material respect
with the business of the Company or any of its Restricted Subsidiaries
or (v) the creation of any Lien not prohibited by this Indenture.
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"AUTHENTICATING AGENT" has the meaning set forth in Section
2.02.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"BOARD OF DIRECTORS" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"BOARD RESOLUTION" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary
of such Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
any other day on which commercial banking institutions in the City of New
York or the city in which the principal corporate trust office of the
Trustee is located are required or authorized by law or other
governmental action to be closed.
"CAPITALIZED LEASE OBLIGATION" means, as to any Person, the
obligations of such Person under a lease that are required to be
classified and accounted for as capital lease obligations under GAAP
and, for purposes of this definition, the amount of such obligations
at any date shall be the capitalized amount of such obligations at
such date, determined in accordance with GAAP.
"CAPITAL STOCK" means (i) with respect to any Person that is
a corporation, any and all shares, interests, participations or other
equivalents (however designated and whether or not voting) of
corporate stock, including each class of Common Stock and Preferred
Stock of such Person, and (ii) with respect to any Person that is not
a corporation, any and all partnership, membership or other equity
interests of such Person.
"CASH EQUIVALENTS" means (i) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government
or issued by any agency thereof and backed by the full faith and credit
of the United States, in each case maturing within one year from the
date of acquisition thereof; (ii) marketable direct obligations issued
by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at
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the time of acquisition, having one of the two highest ratings
obtainable from either S&P or ▇▇▇▇▇'▇; (iii) commercial paper maturing
no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least A-1 from S&P or at
least P-1 from ▇▇▇▇▇'▇; (iv) certificates of deposit or bankers'
acceptances maturing within one year from the date of acquisition
thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition
thereof combined capital and surplus of not less than $500,000,000 and
a ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ Bank Watch Rating of "B" or better; (v) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause
(iv) above; (vi) in the case of any foreign Restricted Subsidiary,
Investments: (a) in direct obligations of the sovereign nation (or any
agency thereof) in which such foreign Restricted Subsidiary is
organized or is conducting a substantial amount of business or in
obligations fully and unconditionally guaranteed by such sovereign
nation (or any agency thereof), (b) of the type and maturity described
in clauses (i) through (v) above of foreign obligors, which
Investments or obligors (or the parents of such obligors) have ratings
described in such clauses or equivalent ratings from comparable
foreign rating agencies or (c) of the type and maturity described in
clauses (i) through (v) above of foreign obligors (or the parents of
such obligors), which Investments or obligors (or the parents of such
obligors) are not rated as provided in such clauses or in clause
(vi)(b) but which are, in the reasonable judgment of the Company,
comparable in investment quality to such Investments and obligors (or
the parents of such obligors); and (vii) investments in money market
funds which invest substantially all their assets in securities of the
types described in clauses (i) through (vi) above.
"Change of Control" means the occurrence of one or more of
the following events: (i) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company to any Person or group
of related Persons for purposes of Section 13(d) of the Exchange Act
(a "Group"), together with any Affiliates thereof (whether or not
otherwise in compliance with the provisions of this Indenture) other
than the creation of a Lien permitted pursuant to this Indenture;
(ii) the approval by the holders of Capital Stock of the Company of
any plan or proposal for the liquidation or dissolution of the Company
(whether or not otherwise in compliance with the provisions of this
Indenture); (iii) any Person or Group shall become the owner, directly
or indirectly, beneficially or of record, of shares representing more
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than 50% of the aggregate ordinary voting power represented by the
issued and outstanding Capital Stock of the Company; or (iv) the
replacement of a majority of the Board of Directors of the Company
over a two-year period from the directors who constituted the Board of
Directors of the Company at the beginning of such period, and such
replacement shall not have been approved by a vote of at least a
majority of the Board of Directors of the Company then still in office
who either were members of such Board of Directors at the beginning of
such period or whose election as a member of such Board of Directors
was previously so approved. Notwithstanding anything to the contrary
contained in the foregoing, a "Change of Control" shall not be deemed
to occur upon the consummation of the merger of the Company with an
Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction or the transfer of assets to a
Restricted Subsidiary of the Company who is or will become
concurrently with such transfer a Guarantor.
"CHANGE OF CONTROL OFFER" has the meaning set forth in Section
4.14.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning set forth in
Section 4.14.
"COMMISSION" means the U.S. Securities and Exchange Commission.
"COMMON STOCK" of any Person means any and all shares, interests
or other participations in, and other equivalents (however designated and
whether voting or non-voting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and
includes, without limitation, all series and classes of such common
stock.
"COMPANY" means National Vision Associates, Ltd., a Georgia
corporation.
"CONSOLIDATED EBITDA" means, with respect to any Person, for
any period, the sum (without duplication) of (i) Consolidated Net Income
and (ii) to the extent Consolidated Net Income has been reduced
thereby, (A) all income taxes of such Person and its Restricted
Subsidiaries paid or accrued in accordance with GAAP for such period
(other than income taxes attributable to extraordinary, unusual or
nonrecurring gains or losses or taxes attributable to sales or
dispositions outside the ordinary course of business),
(B) Consolidated Interest Expense, (C) Consolidated Non-cash Charges
less any non-cash items increasing Consolidated Net Income for such
period, all as determined on a consolidated basis for such Person and
its Restricted Subsidiaries in accordance with GAAP, and (D) after-tax
losses from Asset Sales or abandonments or reserves relating thereto.
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"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during
the four full fiscal quarters for which financial statements are
reasonably available (the "Four Quarter Period") most recently ending
on or prior to the date of the transaction giving rise to the need to
calculate the Consolidated Fixed Charge Coverage Ratio (the
"Transaction Date") to Consolidated Fixed Charges of such Person for
the Four Quarter Period as determined from an Officers' Certificate
delivered to the Trustee at the time that such calculation is required
to be made. In addition to and without limitation of the foregoing,
for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect
on a pro forma basis for the period of such calculation to (i) the
incurrence or repayment of any Indebtedness of such Person or any of
its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of
the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital
purposes pursuant to working capital facilities, occurring during the
Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if
such incurrence or repayment, as the case may be (and the application
of the proceeds thereof), occurred on the first day of the Four
Quarter Period and (ii) any asset sales or other dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired
Indebtedness and also including any Consolidated EBITDA (including any
pro forma expense and cost reductions calculated on a basis consistent
with Regulation S-X under the Exchange Act) attributable to the assets
which are the subject of the Asset Acquisition or asset sale or other
disposition during the Four Quarter Period) occurring during the Four
Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such
asset sale or other disposition or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired
Indebtedness) occurred on the first day of the Four Quarter Period.
If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding
sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Restricted Subsidiary of such
Person had directly incurred or otherwise assumed such guaranteed
Indebtedness; provided that if such guarantee is limited to a
principal amount that is less than the amount of such Indebtedness,
such effect shall be limited to the incurrence of such Indebtedness in
such limited amount. Furthermore, in calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the
numerator) of this "Consolidated Fixed Charge Coverage Ratio," (1)
interest on outstanding Indebtedness determined on a fluctuating basis
as of the Transaction Date and which will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the
Transaction Date; (2) if interest on any Indebtedness actually
incurred on the Transaction Date may optionally be determined at an
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interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest
rate in effect on the Transaction Date will be deemed to have been in
effect during the Four Quarter Period; and (3) notwithstanding clause
(1) above, interest on Indebtedness determined on a fluctuating basis,
to the extent such interest is covered by agreements relating to
Interest Swap Obligations, shall be deemed to accrue at the rate per
annum resulting after giving effect to the operation of such
agreements.
"CONSOLIDATED FIXED CHARGES" means, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated
Interest Expense, plus (ii) the product of (x) the amount of all dividend
payments on any series of Preferred Stock of such Person (other than
dividends paid in Qualified Capital Stock) paid, accrued or scheduled
to be paid or accrued during such period times (y) a fraction, the
numerator of which is one and the denominator of which is one minus
the then current effective consolidated federal, state and local tax
rate of such Person, expressed as a decimal.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person
for any period, the sum of, without duplication: (i) the aggregate of the
interest expense of such Person and its Restricted Subsidiaries for
such period determined on a consolidated basis in accordance with
GAAP, including without limitation, (a) any amortization of debt
discount and amortization or write-off of deferred financing costs,
(b) the net costs under Interest Swap Obligations, (c) all capitalized
interest and (d) the interest portion of any deferred payment
obligation; and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by
such Person and its Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, with respect to any Person,
for any period, the aggregate net income (or loss) of such Person and
its Restricted Subsidiaries for such period on a consolidated basis,
determined in accordance with GAAP; provided that there shall be
-7-
excluded therefrom (a) after-tax gains from Asset Sales or
abandonments or reserves relating thereto, (b) after-tax items
classified as extraordinary or nonrecurring gains, (c) the net income
of any Person acquired in a "pooling of interests" transaction accrued
prior to the date it becomes a Restricted Subsidiary of the referent
Person or is merged or consolidated with the referent Person or any
Restricted Subsidiary of the referent Person, (d) the net income (but
not loss) of any Restricted Subsidiary of the referent Person to the
extent that the declaration of dividends or similar distributions by
that Restricted Subsidiary of that income is restricted by a contract,
operation of law or otherwise, (e) the net income of any Person, other
than a Restricted Subsidiary of the referent Person, except to the
extent of cash dividends or distributions paid to the referent Person
or to a Wholly Owned Restricted Subsidiary of the referent Person by
such Person, (f) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date,
(g) income or loss attributable to discontinued operations (including,
without limitation, operations disposed of during such period whether
or not such operations were classified as discontinued), and (h) in
the case of a successor to the referent Person by consolidation or
merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation,
merger or transfer of assets.
"CONSOLIDATED NET WORTH" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated
basis in accordance with GAAP, less (without duplication) amounts
attributable to Disqualified Capital Stock of such Person.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any
Person, for any period, the aggregate depreciation, amortization and
other non-cash expenses of such Person and its Restricted Subsidiaries
reducing Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such charge which requires an
accrual of or a reserve for cash charges for any future period).
"CONSOLIDATED TANGIBLE ASSETS" means, with respect to any Person,
as of any date of determination, the total assets, less goodwill,
deferred financing costs and other intangibles and less accumulated
amortization, shown on the most recent balance sheet of such Person,
determined on a consolidated basis in accordance with GAAP.
-8-
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture
is located at ▇▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, except that with respect to presentation of Notes for
payment or for registration of transfer or exchange, such term shall
mean any office or agency of the Trustee at which, at any particular
time, its corporate agency business shall be conducted.
"COVENANT DEFEASANCE" has the meaning set forth in Section 8.01.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed
to protect the Company or any Restricted Subsidiary of the Company
against fluctuations in currency values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be,
an Event of Default.
"DEFAULT INTEREST" has the meaning set forth in Section 2.12.
"DEFAULT INTEREST PAYMENT DATE" has the meaning set forth in
Section 2.12.
"DEPOSITORY" means The Depository Trust Company, its nominees
and successors.
"DISQUALIFIED CAPITAL STOCK" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the sole option of
the holder thereof on or prior to the final maturity date of the
Notes.
"DOLLARS" and "$" means U.S. Legal Tender.
"EQUITY OFFERING" means a sale of Qualified Capital Stock of
the Company other than Indebtedness or Disqualified Capital Stock
convertible or exchangeable into Capital Stock of the Company.
-9-
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"EXCHANGE NOTES" means the 12 3/4% Senior Notes due 2005,
Series B to be issued in exchange for the Initial Notes pursuant to
the Registration Rights Agreement or, with respect to Initial Notes
issued under this Indenture subsequent to the Issue Date pursuant to
Section 2.02, a registration rights agreement substantially identical
to the Registration Rights Agreement.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
"EXCHANGE REGISTRATION STATEMENT" means the registration
statement filed by the Company pursuant to the Registration Rights
Agreement.
"FAIR MARKET VALUE" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able
buyer, neither of whom is under undue pressure or compulsion to
complete the transaction. Unless the TIA otherwise requires, fair
market value shall be determined by the Board of Directors of the
Company acting reasonably and in good faith and shall be evidenced by
a Board Resolution of the Board of Directors of the Company delivered
to the Trustee.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a
significant segment of the accounting profession of the United States,
which are in effect as of the Issue Date and consistently applied.
"GLOBAL NOTE" has the meaning set forth in Section 2.01.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters
of credit and reimbursement agreements in respect thereof), of all or any
part of any Indebtedness.
-10-
"GUARANTEE" means the guarantee of the Notes by the Guarantors.
"GUARANTOR" means (i) each domestic Subsidiary of the Company
on the Issue Date other than any Managed Care Entity and (ii) each of
the Company's domestic Restricted Subsidiaries that in the future executes
a supplemental indenture in which such Restricted Subsidiary agrees to
be bound by the terms of this Indenture as a Guarantor; provided that
for each of clauses (i) and (ii), with regard to any domestic
Restricted Subsidiary of the Company formed after the Issue Date which
is or seeks to become a Managed Care Entity such Restricted
Subsidiary's obligations under the Guarantee shall only become
effective if (a) the approval of the requisite regulatory entity is
obtained (if such approval is required) and (b) the granting of the
Guarantee by such Restricted Subsidiary shall not have a material
adverse effect upon the business, operations, assets, condition
(financial or otherwise) or prospects of such Restricted Subsidiary (a
"material adverse effect"); provided that if a Guarantee is not issued
by such Restricted Subsidiary in reliance on the provisions of this
clause (b), the Company shall deliver an Officers' Certificate to the
Trustee stating that the granting of such Guarantee would have a
material adverse effect and provided, further, that such obligation
under the Guarantees shall be limited to the maximum amount which such
Restricted Subsidiary would be permitted to declare or pay as a
dividend in compliance with the applicable rules or regulations of, or
undertakings made to, any regulatory entity having jurisdiction and
authority over such Restricted Subsidiary. Each Managed Care Entity
existing on the Issue Date shall use its reasonable efforts to issue a
Guarantee as promptly as practicable after the Issue Date. Any Person
constituting a Guarantor as described above shall cease to constitute
a Guarantor when its respective Guarantee is released in accordance
with the terms of this Indenture. The documentation evidencing a
Guarantee given by a Managed Care Entity shall be permitted to contain
the text of the restrictions imposed on such Guarantee.
"HOLDER" means the Person in whose name a Note is registered on
the Registrar's books.
"INCUR" has the meaning set forth in Section 4.12.
"INDEBTEDNESS" means with respect to any Person, without
duplication, (i) all Obligations of such Person for borrowed money,
(ii) all Obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (iii) all Capitalized Lease Obligations of
such Person, (iv) all Obligations of such Person issued or assumed as
the deferred purchase price of property, all conditional sale
obligations and all Obligations under any title retention agreement
(but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business that are not overdue by 90
days or more or are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted), (v) all
Obligations for the reimbursement of any obligor on any letter of
credit (other than a letter of credit relating to a trade account
payable that is not considered Indebtedness pursuant to clause (iv)
above), banker's acceptance or similar credit transaction,
-11-
(vi) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (i) through (v) above and clause
(viii) below, (vii) all Obligations of any other Person of the type
referred to in clauses (i) through (vi) which are secured by any lien
on any property or asset of such Person, the amount of such Obligation
being deemed to be the lesser of the fair market value of such
property or asset or the amount of the Obligation so secured,
(viii) all net Obligations of such Person under currency agreements
and interest swap agreements, (ix) all Disqualified Capital Stock
issued by such Person with the amount of Indebtedness represented by
such Disqualified Capital Stock being equal to the greater of its
voluntary or involuntary liquidation preference and its maximum fixed
repurchase price, but excluding accrued dividends, if any. For
purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were
purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value shall be determined reasonably
and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock.
"INDENTURE" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"INITIAL NOTES" means, collectively, (i) the 12 3/4% Senior Notes
due 2005, Series A, of the Company issued on the Issue Date and (ii) one
or more series of 12 3/4% Senior Notes due 2005 that are issued under
this Indenture subsequent to the Issue Date pursuant to Section 2.02,
in each case for so long as such securities constitute Restricted
Notes.
"INITIAL PURCHASERS" means ▇▇▇▇▇▇▇▇ & Co. Inc., NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC and First Union Capital Markets.
-12-
"INTEREST" when used with respect to any Note means the amount
of all interest accruing on such Note, including any applicable Default
Interest pursuant to Section 2.12 and any Additional Interest pursuant
to the Registration Rights Agreement.
"INTEREST PAYMENT DATE" means the stated maturity of an installment
of interest on the Notes.
"INTEREST SWAP OBLIGATIONS" means, with respect to any Person,
the Obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and
(ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
as amended to the date hereof and from time to time hereafter.
"INVESTMENT" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation,
a guarantee) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by,
any Person. "Investment" shall exclude extensions of trade credit by
the Company and its Restricted Subsidiaries on commercially reasonable
terms in accordance with normal trade practices of the Company or such
Restricted Subsidiary, as the case may be. For the purposes of
Section 4.10, (i) "Investment" shall include and be valued at the fair
market value of the net assets of any Restricted Subsidiary at the
time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary and shall exclude the fair market value of the net assets
of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount
of any Investment shall be the original cost of such Investment plus
the cost of all additional Investments by the Company or any of its
Restricted Subsidiaries, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment, reduced by the payment of dividends or
distributions in connection with such Investment or any other amounts
received in respect of such Investment; provided that no such payment
of dividends or distributions or receipt of any such other amounts
shall reduce the amount of any Investment if such payment of dividends
or distributions or receipt of any such amounts would be included in
Consolidated Net Income. If the Company or any Restricted Subsidiary
of the Company sells or otherwise disposes of any Common Stock of any
direct or indirect Restricted Subsidiary of the Company such that,
after giving effect to any such sale or disposition, the Company no
longer owns, directly or indirectly, greater than 50% of the
outstanding Common Stock of such Restricted Subsidiary, the Company
shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Common Stock
of such Restricted Subsidiary not sold or disposed of.
-13-
"ISSUE DATE" means October 8, 1998.
"LEGAL DEFEASANCE" has the meaning set forth in Section
8.01.
"LEGAL HOLIDAY" has the meaning set forth in Section 11.07.
"LIEN" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature
thereof and any agreement to give any security interest).
"MANAGED CARE ENTITY" means (i) NVAL VisionCare Systems of
California, Inc., ProCare Eye Exam, Inc. and NVAL VisionCare Systems
of North Carolina, Inc. and (ii) any other Subsidiary of the Company whose
financial condition or activities are regulated under the laws of any
state in connection with the provision of health or vision care
products or services (or related administrative services) and shall
include, without limitation, a health maintenance organization
(whether single or multi service), third party administrator, or any
entity similar to any of the foregoing.
"MATURITY DATE" means October 15, 2005.
"MERGER AGREEMENT" means the Agreement and Plan of Merger, dated
as of July 13, 1998, by and among National Vision Associates, Ltd., NW
Acquisition Corp. and New West, as amended and in effect as of the
Issue Date.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of
cash or Cash Equivalents (other than the portion of any such deferred
payment constituting interest) received by the Company or any of its
Restricted Subsidiaries from such Asset Sale net of (a) reasonable
out-of-pocket expenses and fees relating to such Asset Sale
(including, without limitation, legal, accounting and investment
banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to
available tax credits or deductions and any tax sharing arrangements,
(c) repayment of Indebtedness that is required to be repaid in
connection with such Asset Sale and (d) appropriate amounts to be
-14-
provided by the Company or any Restricted Subsidiary, as the case may
be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any
Restricted Subsidiary, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such
Asset Sale.
"NET PROCEEDS OFFER" has the meaning set forth in Section 4.15.
"NET PROCEEDS OFFER AMOUNT" has the meaning set forth in Section
4.15.
"NET PROCEEDS OFFER PAYMENT DATE" has the meaning set forth in
Section 4.15.
"NET PROCEEDS OFFER TRIGGER DATE" has the meaning set forth in
Section 4.15.
"NEW CREDIT FACILITY" means the Credit Agreement dated as of
October 8, 1998, between the Company, the Guarantors, the lenders
party thereto in their capacities as lenders thereunder, First Union
National Bank, as administrative agent, and Bank of America, FSB, as
documentation agent, together with the related documents thereto
(including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise
modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring
(including increasing the amount of available borrowings thereunder
(provided that such increase in borrowings is permitted by Section
4.12) or adding Restricted Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group
of lenders.
"NEW WEST" means New West Eyeworks, Inc.
-15-
"NOTES" means, collectively, the Initial Notes, the Private
Exchange Notes, if any, and the Exchange Notes, treated as a single class
of securities, as amended or supplemented from time to time in accordance
with the terms of this Indenture, that are issued pursuant to this
Indenture.
"OBLIGATIONS" means all obligations for principal, premium,
interest, penalties, fees, indemnification, reimbursements, damages and
other liabilities payable under the documentation governing any
Indebtedness.
"OFFERING" means the offering of the Notes or the Issue Date.
"OFFERING MEMORANDUM" means the confidential Offering Memorandum
dated October 5, 1998 of the Company relating to the offering of the Notes.
"OFFICER" means, with respect to any Person, the Chairman of the
Board of Directors, any Vice Chairman of the Board of Directors, the
Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of
such Person, or any other officer designated by the Board of Directors
serving in a similar capacity.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or
any Vice President and the Chief Financial Officer or any Treasurer of
such Person that shall comply with applicable provisions of this
Indenture.
"OPINION OF COUNSEL" means a written opinion, in form and
substance reasonably acceptable to the Trustee, from legal counsel who
is reasonably acceptable to the Trustee complying with the requirements
of Sections 11.04 and 11.05, as they relate to the giving of an
Opinion of Counsel, and delivered to the Trustee.
"PAYING AGENT" has the meaning set forth in Section 2.03.
"PERMITTED INDEBTEDNESS" means, without duplication, each of the
following:
(i) Indebtedness under the Notes issued in the Offering, this
Indenture and the Guarantees not to exceed $125,000,000 in aggregate
principal amount;
(ii) Indebtedness incurred pursuant to or in connection with the
New Credit Facility in an aggregate principal amount at any time
outstanding not to exceed the greater of (x) $30,000,000 and (y) the sum,
at such time, of (I) 85% of the consolidated book value of accounts
receivable of the Company and its Restricted Subsidiaries and (II) 60%
of the consolidated book value of inventory of the Company and its
Restricted Subsidiaries;
-16-
(iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of
any scheduled amortization payments or mandatory prepayments, when
actually paid (except to the extent paid from the proceeds of Refinancing
Indebtedness);
(iv) Interest Swap Obligations of the Company covering Indebtedness
of the Company or any of its Restricted Subsidiaries and Interest Swap
Obligations of any Restricted Subsidiary of the Company covering
Indebtedness of such Restricted Subsidiary; provided, however, that
such Interest Swap Obligations are entered into to protect the Company
and its Restricted Subsidiaries from fluctuations in interest rates on
Indebtedness incurred in accordance with this Indenture;
(v) Indebtedness under Currency Agreements; provided that in the case
of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Company and its
Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(vi) Indebtedness of a Wholly Owned Restricted Subsidiary of the
Company to the Company or to a Wholly Owned Restricted Subsidiary of
the Company for so long as such Indebtedness is held by the Company or
a Wholly Owned Restricted Subsidiary of the Company, in each case
subject to no Lien other than Liens permitted under this Indenture;
provided that if as of any date any Person other than the Company or a
Wholly Owned Restricted Subsidiary of the Company owns or holds any
such Indebtedness or holds a Lien in respect of such Indebtedness
other than a Lien permitted under this Indenture, such date shall be
deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness by the issuer of such Indebtedness;
(vii) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary of the Company for so long as such Indebtedness is held by a
Wholly Owned Restricted Subsidiary of the Company, in each case subject to
no Lien other than a Lien permitted under this Indenture; provided that
-17-
(a) any Indebtedness of the Company to any Wholly Owned Restricted
Subsidiary of the Company is unsecured and subordinated, pursuant to a
written agreement, to the Company's obligations under this Indenture
and the Notes (including any Indebtedness that is pari passu with this
Indenture and the Notes) and (b) if as of any date any Person other
than a Wholly Owned Restricted Subsidiary of the Company owns or holds
any such Indebtedness or any Person holds a Lien in respect of such
Indebtedness other than a Lien permitted under this Indenture, such
date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by the Company;
(viii) Indebtedness arising from the honoring by a bank or other
financial institution of a daylight overdraft or Indebtedness arising
from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient
funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within two business days of incurrence;
(ix) Indebtedness of the Company or any of its Restricted Subsidiaries
represented by reimbursement obligations in respect of letters of
credit for the account of the Company or such Restricted Subsidiary,
as the case may be, which letters of credit were issued in order to
provide security for workers' compensation claims, payment obligations
in connection with self-insurance or similar requirements in the
ordinary course of business;
(x)Indebtedness in respect of trade letters of credit, standby
letters of credit or performance, surety or appeal bonds, in each case
incurred in the ordinary course of business and securing obligations
not constituting Indebtedness;
(xi) Indebtedness represented by Capitalized Lease Obligations and
Purchase Money Indebtedness of the Company and its Restricted
Subsidiaries not to exceed the greater of (i) $7,500,000 and (ii) 5%
of Consolidated Tangible Assets of the Company and its Restricted
Subsidiaries at any one time outstanding;
(xii) Refinancing Indebtedness; and
(xiii) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $7,500,000
at any one time outstanding (which amount may, but need not, be
incurred in whole or in part under the New Credit Facility).
-18-
"PERMITTED INVESTMENTS" means (i) Investments by the Company or
any Restricted Subsidiary of the Company in any Person that is or will
become immediately after such Investment a Wholly Owned Restricted
Subsidiary of the Company or that will merge or consolidate into the
Company or a Wholly Owned Restricted Subsidiary of the Company,
(ii) Investments in the Company by any Restricted Subsidiary of the
Company; provided that any Indebtedness evidencing such Investment is
unsecured and subordinated, pursuant to a written agreement, to the
Company's obligations under the Notes and this Indenture;
(iii) investments in cash and Cash Equivalents; (iv) loans and
advances to employees and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business for bona fide business
purposes not in excess of $1,000,000 at any one time outstanding;
(v) Currency Agreements and Interest Swap Obligations entered into in
the ordinary course of the Company's or its Restricted Subsidiaries'
businesses and otherwise in compliance with this Indenture; (vi)
additional Investments not to exceed $5,000,000 at any one time
outstanding; (vii) Investments in securities of trade creditors or
customers received pursuant to any workout, compromise, plan of
reorganization or similar arrangement upon the bankruptcy or
insolvency or financial distress of such trade creditors or customers;
(viii) Investments made by the Company or its Restricted Subsidiaries
as a result of consideration received in connection with an Asset Sale
made in compliance with Section 4.15; (ix) Investments by the Company
or its Restricted Subsidiaries in joint ventures in an aggregate
amount not in excess of $3,000,000 at any time outstanding; and (x)
Investments by the Company or its Restricted Subsidiaries in at least
a majority of the outstanding common stock of New West pursuant to the
Merger Agreement for the purpose of acquiring New West as a Wholly
Owned Restricted Subsidiary.
"PERMITTED LIENS" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or
claims either (a) not delinquent or (b) contested in good faith by
appropriate action and as to which the Company or its Restricted
Subsidiaries shall have set aside on its books such reserves, if any, as
may be required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for sums
not yet delinquent or being contested in good faith, if such reserve or
other appropriate provision, if any, as shall be required by GAAP shall
have been made in respect thereof;
-19-
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of
borrowed money), including any Lien securing letters of credit issued
in connection with any of the foregoing;
(iv) judgment Liens not giving rise to an Event of Default;
(v) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in
any material respect with the ordinary conduct of the business of the
Company or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property or
asset which is not leased property subject to such Capitalized Lease
Obligation;
(vii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or
other goods;
(viii) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds
thereof;
(ix) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(x) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under
this Indenture;
(xi) Liens securing Purchase Money Indebtedness permitted pursuant
to clause (xi) of the definition of "Permitted Indebtedness"; provided,
however, that (A) the Indebtedness shall not exceed the cost of such
property or assets and shall not be secured by any property or assets
of the Company or any Restricted Subsidiary of the Company other than
the property and assets so acquired or constructed and (B) the Lien
securing such Indebtedness shall be created within 180 days of such
acquisition or construction or, in the case of a refinancing of any
Purchase Money Indebtedness, within 180 days of such refinancing;
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(xii) Liens securing obligations under Currency Agreements;
(xiii) any lease or sublease not interfering in any material respect
with the business of the Company and its Subsidiaries;
(xiv) Liens with respect to obligations that do not in the aggregate
exceed $1,000,000 at any one time outstanding;
(xv) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with
the importation of goods;
(xvi) Liens on the assets of a Managed Care Entity pursuant to the
applicable rules, or regulations of, or undertakings made to, any
regulatory entity having jurisdiction and authority over such Managed
Care Entity;
(xvii) Liens arising under customary provisions in joint venture
agreements and other similar agreements; and
(xviii) Liens securing Acquired Indebtedness incurred in accordance
with Section 4.12; provided that (A) such Liens secured such Acquired
Indebtedness at the time of and prior to the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of the
Company and were not granted in connection with, or in anticipation
of, the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company and (B) such Liens do not extend
to or cover any property or assets of the Company or of any of its
Restricted Subsidiaries other than the property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness became
Acquired Indebtedness of the Company or a Restricted Subsidiary of the
Company and are no more favorable to the lienholders than those
securing the Acquired Indebtedness prior to the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of the
Company.
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"PERSON" means an individual, partnership, corporation, unincor-
porated organization, limited liability company, trust or joint venture, or
a governmental agency or political subdivision thereof.
"PHYSICAL NOTES" has the meaning set forth in Section 2.01.
"PLAN OF LIQUIDATION" means, with respect to any Person, a plan
(including by operation of law) that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (a) the sale, lease, conveyance or
other disposition of all or substantially all of the assets of such
Person otherwise than as an entirety or substantially as an entirety
and (b) the distribution of all or substantially all of the proceeds
of such sale, lease, conveyance or other disposition and all or
substantially all of the remaining assets of such Person to holders of
Capital Stock of such Person.
"PREFERRED STOCK" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"PRINCIPAL" of any Indebtedness (including the Notes) means the
principal amount of such Indebtedness plus the premium, if any, on
such Indebtedness.
"PRIVATE EXCHANGE NOTES" has the meaning set forth in the
Registration Rights Agreement.
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on
the Notes in the form set forth in Section 2.15.
"PRO FORMA" means, with respect to any calculation made or required
to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act,
as determined by the Board of Directors of the Company in consultation
with its independent public accountants.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness of the Company or
its Restricted Subsidiaries incurred for the purpose of financing all or
any part of the purchase price or the cost of installation,
construction or improvement of property or equipment.
"PUT OPTION AGREEMENT" means the Put Option Agreement, dated
October 1, 1997, by and between the Company and ▇▇▇▇▇ ▇▇▇▇▇▇▇, O.D. as such
agreement is effect in all material respects on the Issue Date.
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"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"QUALIFIED PROCEEDS" means any of the following or any combination
of the following: (i) cash, (ii) Cash Equivalents, (iii) assets that are
used or usable in the business of the Company and its Subsidiaries as
existing on the Issue Date or a business reasonably related or
complementary thereto and (iv) Capital Stock of any Person engaged
primarily in the business of the Company and its Subsidiaries as
existing on the Issue Date or a business reasonably related or
complementary thereto if, in connection with the receipt by the
Company or any Restricted Subsidiary of the Company of such Capital
Stock: (A) such Person becomes a Restricted Subsidiary; or (B) such
Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into the Company or any Restricted Subsidiary of the
Company.
"RECORD DATE" means the Record Date specified in the Notes.
"REDEMPTION DATE," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this
Indenture and the Notes.
"REDEMPTION PRICE," when used with respect to any Note to be
redeemed, means the price fixed for such redemption, including principal
and premium, if any, pursuant to this Indenture and the Notes.
"REFERENCE DATE" has the meaning set forth in Section 4.10.
"REFINANCE" means, in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or
retire, or to issue a security or Indebtedness in exchange or
replacement for, such security or Indebtedness in whole or in part.
"Refinanced" and "Refinancing" shall have correlative meanings.
"REFINANCING INDEBTEDNESS" means any Refinancing by the Company
or any Restricted Subsidiary of the Company of Indebtedness incurred
in accordance with Section 4.12 or clauses (i) and (iii) of the
definition of Permitted Indebtedness, in each case that does not (1)
result in an increase in the aggregate principal amount of
Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of any premium and accrued interest
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required to be paid under the terms of the instrument governing such
Indebtedness and plus the amount of reasonable fees and expenses
incurred by the Company in connection with such Refinancing) or (2)
create Indebtedness with (A) a Weighted Average Life to Maturity that
is less than the Weighted Average Life to Maturity of the Indebtedness
being Refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided that (x) if
such Indebtedness being Refinanced is Indebtedness of the Company
only, then such Refinancing Indebtedness shall be Indebtedness solely
of the Company and (y) if such Indebtedness being Refinanced is
subordinate or junior to the Notes, then such Refinancing Indebtedness
shall be subordinate or junior to the Notes at least to the same
extent and in the same manner as the Indebtedness being Refinanced.
"REGISTRAR" has the meaning set forth in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of the Issue Date among the Company, the Guarantors
and the Initial Purchasers.
"REGULATION S" means Regulation S under the Securities Act.
"REPLACEMENT ASSETS" has the meaning set forth in Section 4.15.
"RESTRICTED PAYMENT" shall have the meaning set forth in Section
4.10.
"RESTRICTED SECURITY" has the meaning assigned to such term
in Rule 144(a)(3) under the Securities Act; provided, however, that
the Trustee shall be entitled to request and conclusively rely on an
Opinion of Counsel with respect to whether any Note constitutes a
Restricted Security.
"RESTRICTED SUBSIDIARY" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary.
"RULE 144A" means Rule 144A under the Securities Act.
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party,
providing for the leasing to the Company or a Restricted Subsidiary of
-24-
any property, whether owned by the Company or any Restricted
Subsidiary at the Issue Date or later acquired, which has been or is
to be sold or transferred by the Company or such Restricted Subsidiary
to such Person or to any other Person from whom funds have been or are
to be advanced by such Person on the security of such Property.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc., and its successors.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"SIGNIFICANT SUBSIDIARY," with respect to any Person, means any
Restricted Subsidiary of such Person that satisfies the criteria for a
"Significant Subsidiary" set forth in Rule 1.02(w) of Regulation S-X
under the Exchange Act.
"SPECIAL REDEMPTION" has the meaning set forth in Section 3.01.
"SPECIAL REDEMPTION DATE" means December 15, 1998.
"SPECIAL REDEMPTION NOTICE" has the meaning set forth in Section
4.21.
"SPECIAL REDEMPTION NOTICE DATE" means November 30, 1998.
"SPECIAL REDEMPTION PRICE" has the meaning set forth in Section
4.21.
"SUBSIDIARY," with respect to any Person, means (i) any corporation
of which the outstanding Capital Stock having at least a majority of the
votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by
such Person or (ii) any other Person of which at least a majority of
the voting interest under ordinary circumstances is at the time,
directly or indirectly, owned by such Person.
"SURVIVING ENTITY" shall have the meaning set forth in Section
5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date of this Indenture,
except as otherwise provided in Section 9.03.
"TRUST OFFICER" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer this Indenture, or in the
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case of a successor trustee, an officer assigned to the department,
division or group performing the corporate trust work of such
successor and assigned to administer this Indenture.
"TRUSTEE" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of
this Indenture and thereafter means such successor.
"UNRESTRICTED SUBSIDIARY" of any Person means (i) any Subsidiary
of such Person that at the time of determination shall be or continue to
be designated an Unrestricted Subsidiary by the Board of Directors of
such Person in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary (including any newly acquired or newly formed Subsidiary)
to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, the
Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated; provided that
(x) the Company certifies to the Trustee that such designation
complies with Section 4.10 and (y) each Subsidiary to be so designated
and each of its Subsidiaries has not at the time of designation, and
does not thereafter, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the
assets of the Company or any of its Restricted Subsidiaries. The
Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary only if (x) immediately after giving effect to
such designation, the Company is able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12 and (y) immediately before and
immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the Board
Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. GOVERNMENT OBLIGATIONS" mean direct obligations of,
and obligations guaranteed by, the United States of America for the
payment of which the full faith and credit of the United States of
America is pledged.
"U.S. LEGAL TENDER" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for
the payment of public and private debts.
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"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to
any Indebtedness at any date, the number of years obtained by dividing
(a) the then outstanding aggregate principal amount of such
Indebtedness into (b) the sum of the total of the products obtained by
multiplying (i) the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal,
including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will
elapse between such date and the making of such payment.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means
any Restricted Subsidiary of such Person of which all the outstanding
voting securities (other than in the case of a foreign Restricted
Subsidiary, directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable
law) are owned by such Person or any Wholly Owned Restricted
Subsidiary of such Person.
SECTION 1.02. Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in, and made a part of,
this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by
Commission rule and not otherwise defined herein have the meanings
assigned to them therein.
SECTION 1.03. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP of any date of determination;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(6) any reference to a statute, law or regulation means that statute,
law or regulation as amended and in effect from time to time and
includes any successor statute, law or regulation; provided, however,
that any reference to the Bankruptcy Law shall mean the Bankruptcy Law
as applicable to the relevant case.
ARTICLE TWO
THE NOTES
---------
SECTION 2.01. Form and Dating.
---------------
The Initial Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form of Exhibit A. The
Exchange Notes and the Trustee's certificate of authentication
relating thereto shall be substantially in the form of Exhibit B. The
Notes may have notations, legends or endorsements required by law,
stock exchange rule or depository rule or usage. The Company and the
Trustee shall approve the form of the Notes and any notation, legend
or endorsement on them. If required, the Notes may bear the
appropriate legend regarding any original issue discount for federal
income tax purposes. Each Note shall be dated the date of its
issuance and shall show the date of its authentication. Each Note
shall have an executed Guarantee from each of the Guarantors endorsed
thereon substantially in the form of Exhibit E hereto.
The terms and provisions contained in the Notes, annexed hereto
as Exhibits A and B, shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company, the
Guarantors and the Trustee, by their execution and delivery of this
-28-
Indenture, expressly agree to such terms and provisions and to be
bound thereby.
Notes offered and sold in reliance on Rule 144A and Notes offered
and sold in reliance on Regulation S shall be issued initially in the
form of one or more permanent global Notes in registered form,
substantially in the form set forth in Exhibit A (the "Global Note"),
deposited with the Trustee, as custodian for the Depository, duly
executed by the Company (and having an executed Guarantee from each of
the Guarantors endorsed thereon) and authenticated by the Trustee as
hereinafter provided and shall bear all the legends set forth in
Section 2.15. The aggregate principal amount of the Global Note may
from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Notes issued in exchange for interests in a Global Note pursuant
to Section 2.16 may be issued in the form of permanent certificated Notes
in definitive registered form in substantially the form set forth in
Exhibit A (the "Physical Notes") and shall bear the first legend set
forth in Section 2.15. All Notes offered and sold in reliance on
Regulation S shall remain in the form of a Global Note until the
earlier of the expiration of the "40-day distribution compliance
period," within the meaning of Regulation S, or the consummation of
the Exchange Offer pursuant to the Registration Rights Agreement.
SECTION 2.02. Execution and Authentication;
Aggregate Principal Amount.
-----------------------------
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer or an Assistant Secretary (each of whom shall, in
each case, have been duly authorized by all requisite corporate actions)
shall attest to, the Notes for the Company, and the Guarantees for the
Guarantors, by manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a Note
or a Guarantee, as the case may be, was an Officer or Assistant Secretary
at the time of such execution but no longer holds that office or
position at the time the Trustee authenticates the Note, the Note
shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note.
The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue in the aggregate principal amount not to exceed $190,000,000 in one
or more series, provided that the aggregate principal amount of Initial
Notes on the Issue Date shall not exceed $125,000,000, and further
provided that the Company complies with Section 4.12 of this
Indenture, (ii) Private Exchange Notes from time to time only in
exchange for a like principal amount of Initial Notes and
(iii) Exchange Notes from time to time only in exchange for (A) a like
principal amount of Initial Notes or (B) a like principal amount of
Private Exchange Notes, in each case upon a written order of the
Company in the form of an Officers' Certificate of the Company. Each
such written order shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated,
whether the Notes are to be Initial Notes, Private Exchange Notes or
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Exchange Notes and whether (subject to Section 2.01) the Notes are to
be issued as Physical Notes or Global Notes or such other information
as the Trustee may reasonably request. In addition, with respect to
authentication pursuant to clause (iii) of the first sentence of this
paragraph, the first such written order from the Company shall be
accompanied by an Opinion of Counsel of the Company in a form
reasonably satisfactory to the Trustee stating that the issuance of
the Exchange Notes does not give rise to an Event of Default, complies
with this Indenture and has been duly authorized by the Company. The
aggregate principal amount of Notes outstanding at any time may not
exceed $190,000,000, except as provided in Sections 2.07 and 2.08.
In the event that the Company shall issue and the Trustee shall
authenticate any Notes issued under this Indenture subsequent to the
Issue Date pursuant to clauses (i) and (iii) of the first sentence of
the immediately preceding paragraph, the Company shall use its
reasonable efforts to obtain the same "CUSIP" number for such Notes as
is printed on the Notes outstanding at such time; provided, however,
that if any series of Notes issued under this Indenture subsequent to
the Issue Date is determined, pursuant to an Opinion of Counsel of the
Company in a form satisfactory to the Trustee to be a different class
of security than the Notes outstanding at such time for federal income
tax purposes, the Company may obtain a "CUSIP" number for such Notes
that is different than the "CUSIP" number printed on the Notes then
outstanding.
Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters (as to which
any of such Notes may vote or consent) as one class and no series of
Notes will have the right to vote or consent as a separate class on
any matter.
The Trustee may appoint an authenticating agent (the "Authenti-
cating Agent") reasonably acceptable to the Company to authenticate Notes.
Unless otherwise provided in the appointment, an Authenticating Agent
may authenticate Notes whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes
authentication by such Authenticating Agent. An Authenticating Agent
has the same rights as an Agent to deal with the Company or with any
Affiliate of the Company.
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The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.03. Registrar and Paying Agent.
---------------------------
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New
York) where (a) Notes may be presented or surrendered for registration
of transfer or for exchange ("Registrar"), (b) Notes may be presented
or surrendered for payment ("Paying Agent") and (c) notices and
demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company hereby initially designates the
office of State Street Bank and Trust Company, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Division, as
their office or agency in the Borough of Manhattan, The City of New
York. The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company, upon prior written notice to the
Trustee, may have one or more co-Registrars and one or more additional
paying agents acceptable to the Trustee. The term "Paying Agent"
includes any additional Paying Agent. The Company may act as its own
Paying Agent, except that for the purposes of payments on the Notes
pursuant to Sections 4.14 and 4.15, neither the Company nor any
Affiliate of the Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall incorporate
the provisions of the TIA and implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the
Trustee, in advance, of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or fails to
give the foregoing notice, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar, Paying
Agentand agent for service of demands and notices in connection with the
Notes, until such time as the Trustee has resigned or a successor has
been appointed. Any of the Registrar, the Paying Agent or any other
agent may resign upon 30 days' notice to the Company.
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SECTION 2.04. Paying Agent To Hold Assets in Trust.
-------------------------------------
The Company shall require each Paying Agent other than the
Trustee to agree in writing that such Paying Agent shall hold in trust
for the benefit of the Holders or the Trustee all assets held by the
Paying Agent for the payment of principal of, premium, if any, or interest
on, the Notes (whether such assets have been distributed to it by the
Company or any other obligor on the Notes), and the Company and the
Paying Agent shall notify the Trustee of any Default by the Company
(or any other obligor on the Notes) in making any such payment. The
Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed
and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to
account for any assets distributed. Upon distribution to the Trustee
of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for
such assets.
SECTION 2.05. Holder Lists.
-------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and
addresses of the Holders. If the Trustee is not the Registrar, the
Company shall furnish or cause the Registrar to furnish to the Trustee
five (5) Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing a list as of such
date and in such form as the Trustee may require of the names and
addresses of the Holders, which list may be conclusively relied upon
by the Trustee.
SECTION 2.06. Transfer and Exchange.
----------------------
When Notes are presented to the Registrar or a co-Registrar with
a request to register the transfer of such Notes or to exchange such
Notes for an equal principal amount of Notes or other authorized
denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for
such transaction are met; provided, however, that the Notes presented
or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Registrar or co-
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registration of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Notes (and each of the Guarantors shall execute a
Guarantee thereon). No service charge shall be made for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax, fee or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchanges or transfers pursuant to Sections 2.10, 3.04, 4.14, 4.15 or
9.05, in which event the Company shall be responsible for the payment
of such taxes).
-▇▇-
▇▇▇ ▇▇▇▇▇▇▇▇▇ or co-Registrar shall not be required to register
the transfer of or exchange of any Note (i) during a period beginning
at the opening of business 15 days before the mailing of a notice of
redemption of Notes and ending at the close of business on the day of
such mailing,(ii) selected for redemption in whole or in part pursuant
to Article Three, except the unredeemed portion of any Note being
redeemed in part or (iii) between a Record Date and the next
succeeding Interest Payment Date.
Any Holder of a beneficial interest in a Global Note shall,
by acceptance of such Global Note, agree that transfers of beneficial
interests in such Global Notes may be effected only through a book
entry system maintained by the Holder of such Global Note (or its
agent), and that ownership of a beneficial interest in the Note shall
be required to be reflected in a book entry system.
SECTION 2.07. Replacement Notes.
------------------
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Note and each of the Guarantors shall execute a Guarantee
thereon if the Trustee s requirements are met. If required by the
Trustee or the Company, such Holder must provide satisfactory evidence
of such loss, destruction or taking, and an indemnity bond or other
indemnity of reasonable tenor, sufficient in the reasonable judgment
of the Company, the Guarantors and the Trustee, to protect the
Company, the Guarantors, the Trustee or any Agent from any loss which
any of them may suffer if a Note is replaced. Every replacement Note
shall constitute an obligation of the Company and the Guarantors. The
Company and the Trustee each may charge such Holder for its expenses
in replacing such Note.
SECTION 2.08. Outstanding Notes.
------------------
Notes outstanding at any time are all the Notes that have
been authenticated by the Trustee except those canceled by it, those
delivered to it for cancellation and those described in this Section
as not outstanding. Subject to the provisions of Section 2.09, a Note
does not cease to be outstanding because the Company or any of its
Affiliates holds the Note.
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If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Note
is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof
pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all
of the principal, premium, if any, and interest due on the Notes
payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on
and after that date such Notes shall be deemed not to be outstanding
and interest on them shall cease to accrue.
SECTION 2.09. Treasury Notes.
---------------
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver, consent or
notice, Notes owned by the Company or an Affiliate of the Company shall
be considered as though they are not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which a
Trust Officer of the Trustee actually knows are so owned shall be so
considered. The Company shall notify the Trustee, in writing, when it
or, to its knowledge, any of its Affiliates repurchases or otherwise
acquires Notes, of the aggregate principal amount of such Notes so
repurchased or otherwise acquired and such other information as the
Trustee may request and the Trustee shall be entitled to rely thereon.
SECTION 2.10. Temporary Notes.
----------------
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes and the Guarantors
shall prepare temporary Guarantees thereon upon receipt of a written
order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to
be authenticated and the date on which the temporary Notes are to be
authenticated. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and so indicate in the Officers'
Certificate. Without unreasonable delay, the Company shall prepare
and execute, the Trustee shall authenticate, and the Guarantors shall
execute Guarantees on, upon receipt of a written order of the Company
pursuant to Section 2.02, definitive Notes in exchange for temporary
Notes.
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SECTION 2.11. Cancellation.
-------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Notes surrendered to them for transfer, exchange or
payment. The Trustee, or at the direction of the Trustee, the
Registrar or the Paying Agent, and no one else, shall cancel and, at
the written direction of the Company, shall dispose, in its customary
manner, of all Notes surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new
Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section
2.11.
SECTION 2.12. Defaulted Interest.
------------------
The Company shall pay interest on overdue principal, overdue
premium, if any, and on overdue installments of interest (without regard to
any applicable grace periods), to the extent lawful, from time to time on
demand at the rate borne by the Notes plus 2%. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day
months, and, in the case of a partial month, the actual number of days
elapsed.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted amounts, plus (to the extent lawful) any
interest payable on the defaulted amounts (collectively, "Default
Interest"), to the Persons who are Holders on a subsequent special
record date, which special record date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of Default
Interest or the next succeeding Business Day if such date is not a
Business Day. The Company shall notify the Trustee in writing of the
amount of Default Interest proposed to be paid on each Note and the
date of the proposed payment (a "Default Interest Payment Date"), and
at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect
of such Default Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or 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 Default Interest as provided in this
Section; provided, however, that in no event shall the Company deposit
monies proposed to be paid in respect of Default Interest later than
11:00 a.m. New York City time of the proposed Default Interest Payment
Date. At least 15 days before the subsequent special record date, the
Company shall mail (or cause to be mailed) to each Holder, as of a
recent date selected by the Company, with a copy to the Trustee, a
notice that states the subsequent special record date, the payment
date and the amount of Default Interest to be paid. Notwithstanding
the foregoing, any Default Interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.01(a) shall be
paid to Holders as of the regular record date for the Interest Payment
Date for which interest has not been paid. Notwithstanding the
-35-
foregoing, the Company may make payment of any Default Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange.
SECTION 2.13. CUSIP Numbers.
--------------
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and, if so, the Trustee shall use the CUSIP numbers in notices
of redemption or exchange as a convenience to Holders; provided, however,
that no representation is hereby deemed to be made by the Trustee as
to the correctness or accuracy of the CUSIP number printed in the
notice or on the Notes, and that reliance may be placed only on the
other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP numbers.
SECTION 2.14. Deposit of Monies.
------------------
Prior to 11:00 a.m. New York City time on each Interest Payment
Date, Maturity Date, Redemption Date, Change of Control Payment Date and Net
Proceeds Offer Payment Date, the Company shall have deposited with the
Paying Agent in immediately available funds money sufficient to make
cash payments, if any, due on such Interest Payment Date, Maturity
Date, Redemption Date, Change of Control Payment Date and Net Proceeds
Offer Payment Date, as the case may be, in a timely manner which
permits the Paying Agent to remit payment to the Holders on such
Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Net Proceeds Offer Payment Date, as the case
may be.
SECTION 2.15. Restrictive Legends.
--------------------
Each Global Note and Physical Note that constitutes a Restricted
Security or is sold in compliance with Regulation S shall bear the
following legend (the "Private Placement Legend") on the face thereof
until after the second anniversary of the later of the Issue Date and
the last date on which the Company or any Affiliate of the Company was
the owner of such Note (or any predecessor security) (or such shorter
period of time as permitted by Rule 144(k) under the Securities Act or
any successor provision thereunder) (or such longer period of time as
may be required under the Securities Act or applicable state
securities laws in the opinion of counsel for the Company, unless
otherwise agreed by the Company and the Holder thereof):
-36-
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT
IS TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY THEREOF OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
(AN "ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR
HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
-37-
Each Global Note shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH
SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE INDENTURE GOVERNING
THIS NOTE.
SECTION 2.16. Book-Entry Provisions
for Global Security.
---------------------
(a) The Global Notes initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear legends as
set forth in Section 2.15.
-38-
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note
held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Notes, and the Depository may be
treated by the Company, the Trustee and any Agent of the Company or
the Trustee as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any Agent of the Company or the
Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between
the Depository and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any
Note.
(b) Transfers of a Global Note shall be limited to transfers
in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in a Global Note
may be transferred or exchanged for Physical Notes in accordance with
the rules and procedures of the Depository and the provisions of
Section 2.17. In addition, Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in a
Global Note if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for the Global Notes and
a successor depositary is not appointed by the Company within 90 days
of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a written request from the
Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in a Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are
to be issued) reflect on its books and records the date and a decrease
in the principal amount of such Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and the Company shall execute and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and
amount.
(d) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b), such Global Note shall be
deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, the Guarantors shall execute Guarantees on and
the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest
in the Global Note, an equal aggregate principal amount of Physical
Notes of authorized denominations.
-39-
(e) Any Physical Note constituting a Restricted Security delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) or
(c) shall, except as otherwise provided by paragraphs (a)(i)(x) and
(c) of Section 2.17, bear the Private Placement Legend applicable to
the Physical Notes set forth in Section 2.15.
(f) The Holder of a Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Notes.
SECTION 2.17. Special Transfer Provisions.
----------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors and
-----------------------------------------------------------
Non-U.S. Persons. The following provisions shall apply with respect to
----------------
the registration of any proposed transfer of a Note constituting a
Restricted Security to any Institutional Accredited Investor which is
not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears
the Private Placement Legend, if (x) the requested transfer is after
the second anniversary of the Issue Date (provided, however, that neither
the Company nor any Affiliate of the Company has held any beneficial
interest in such Note, or portion thereof, at any time on or prior to
the second anniversary of the Issue Date) or (y) (1) in the case of a
transfer to an Institutional Accredited Investor which is not a QIB
(excluding Non-U.S. Persons), the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit C and
any legal opinions and certifications required thereby or (2) in the
case of a transfer to a Non-U.S. Person, the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Exhibit D; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
written instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the
date and (if the transfer does not involve a transfer of outstanding
Physical Notes) a decrease in the principal amount of such Global Note
in an amount equal to the principal amount of the beneficial interest
in the Global Note to be transferred, and (b) the Company shall
execute and the Trustee shall authenticate and deliver one or more
Physical Notes of like tenor and amount.
-40-
(b) Transfers to QIBs. The following provisions shall apply
------------------
with respect to the registration of any proposed transfer of a Note
constituting a Restricted Security to a QIB (excluding transfers to
Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Restricted
Note, whether or not such Note bears the Private Placement Legend,
if (x) the requested transfer is after the second anniversary of the
Issue Date; provided, however, that neither the Company nor any
Affiliate of the Company has held any beneficial interest in such
Note, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date or (y) if such transfer is being made by
a proposed transferor who has checked the box provided for on the form
of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes
to be transferred consist of Physical Notes which after transfer are to
be evidenced by an interest in a Global Note, upon receipt by the
Registrar of written instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of such Global Note in an amount equal to the
principal amount of the Physical Notes to be transferred, and the
Trustee shall cancel the Physical Notes so transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
-------------------------
replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement
-41-
Legend. Upon the transfer, exchange or replacement of Notes bearing
the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) the requested
transfer is after the second anniversary of the Issue Date (provided,
however, that neither the Company nor any Affiliate of the Company has
held any beneficial interest in such Note, or portion thereof, prior
to or on the second anniversary of the Issue Date), or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither
such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities
Act.
(d) General. By its acceptance of any Note bearing the
--------
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and
in the Private Placement Legend and agrees that it will transfer such
Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.16 or this
Section 2.17. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at
any reasonable time during the Registrar's normal business hours upon
the giving of reasonable written notice to the Registrar.
(e) Transfers of Notes Held by Affiliates. Any certificate
-------------------------------------
(i) evidencing a Note that has been transferred to an Affiliate of the
Company within two years after the Issue Date, as evidenced by a
notation on the Assignment Form for such transfer or in the
representation letter delivered in respect thereof or (ii) evidencing
a Note that has been acquired from an Affiliate of the Company (other
than by an Affiliate of the Company) in a transaction or a chain of
transactions not involving any public offering, shall, until two years
after the last date on which either the Company or any Affiliate of
the Company was an owner of such Note, in each case, bear a legend in
substantially the form set forth in Section 2.15, unless otherwise
agreed by the Company (with written notice thereof to the Trustee).
-42-
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
-------------------
If the Company elects to redeem Notes pursuant to Paragraph 5
of the Notes and Section 3.03, it shall notify the Trustee and the Paying
Agent in writing of the Redemption Date and the principal amount of
the Notes to be redeemed.
The Company shall give each notice provided for in this Section
3.01 at least 45 but not more than 90 days before the Redemption Date
(unless a shorter notice period shall be satisfactory to the Trustee,
as evidenced in a writing signed on behalf of the Trustee), together
with an Officers' Certificate stating that such redemption shall
comply with the conditions contained herein and in the Notes, the
Redemption Date, the redemption price and the principal amount of the
Notes to be redeemed.
If the Company is required to make an offer to redeem Notes
pursuant to the provisions of Section 4.14 or 4.15 hereof, it shall furnish
to the Trustee at least 45 days but not more than 90 days before a
Redemption Date (or such shorter period as may be agreed to by the
Trustee in writing), an Officers' Certificate setting forth (i) the
Section of this Indenture pursuant to which the redemption shall
occur, (ii) the Redemption Date, (iii) the principal amount of Notes
to be redeemed, (iv) the redemption price and (v) a statement to the
effect that (a) the Company or one of its Subsidiaries has effected an
Asset Sale and the conditions set forth in Section 4.15 have been
satisfied or (b) a Change of Control has occurred and the conditions
set forth in Section 4.14 have been satisfied, as applicable.
The Company shall give notice of a redemption pursuant to
Paragraph 8 of the Notes and Section 4.21 ("Special Redemption") to
the Paying Agent and the Trustee at least fifteen days before the
Special Redemption Date with respect to the Special Redemption (unless
a shorter notice period shall be agreed to by the Trustee in writing),
together with an Officers' Certificate stating that such redemption
will comply with the conditions contained herein.
SECTION 3.02. Selection of Notes To Be Redeemed.
----------------------------------
In the event that less than all of the Notes are to be redeemed
at any time, selection of such Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Notes are listed or, if
such Notes are not then listed on a national securities exchange, on a
-43-
pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate; provided, however, that no Notes of a principal
amount of $1,000 or less shall be redeemed in part; provided, further,
that if a partial redemption is made with the proceeds of an Equity
Offering, selection of the Notes or portions thereof for redemption
shall be made by the Trustee only on a pro rata basis or on as nearly
a pro rata basis as is practicable (subject to DTC procedures), unless
such method is otherwise prohibited. Notice of redemption shall be
mailed by first-class mail at least 30 but not more than 60 days
before the redemption date to each Holder of Notes to be redeemed at
its registered address. If any Note is to be redeemed in part only,
the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed. A new Note in
a principal amount equal to the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation of the
original Note. On and after the redemption date, interest will cease
to accrue on Notes or portions thereof called for redemption as long
as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price pursuant to this
Indenture.
SECTION 3.03. Optional Redemption.
--------------------
(a) The Notes will be redeemable, at the Company's option, in
whole at any time or in part from time to time, on and after October 15,
2003, upon not less than 30 nor more than 60 days' notice, at the
following redemption prices (expressed as percentages of the principal
amount thereof) if redeemed during the twelve-month period commencing
on October 15 of the year set forth below, plus, in each case, accrued
and unpaid interest thereon, if any, to the date of redemption:
Year Percentage
---- ----------
2003............................ 105.000%
2004 and thereafter............. 100.000%
(b) At any time, or from time to time, on or prior to October 15,
2001, the Company may, at its option, redeem up to 35% of the sum of
(i) the initial aggregate principal amount of the Notes issued in the
Offering and (ii) the respective initial aggregate principal amount of
the Notes issued under this Indenture after the Issue Date, on one or
more occasions with the net cash proceeds of one or more Equity
Offerings at a redemption price equal to 112.75% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the
redemption date; provided, however, that immediately after giving
effect to such redemption, at least 65% of the sum of (i) the initial
aggregate principal amount of the Notes issued in the Offering and
(ii) the respective initial aggregate principal amount of the Notes
issued under this Indenture after the Issue Date remain outstanding
(other than any Notes owned by the Company or any of its Affiliates).
In order to effect the foregoing redemption with the proceeds of any
Equity Offering, the Company shall make such redemption not more than
120 days after the consummation of any such Equity Offering.
-44-
SECTION 3.04. Notice of Redemption.
---------------------
At least 30 days but not more than 60 days before the Redemption
Date (other than with respect to a Special Redemption), the Company shall
mail or cause to be mailed a notice of redemption by first class mail
to each Holder of Notes to be redeemed at its registered address, with
a copy to the Trustee and any Paying Agent. At the Company's request,
the Trustee shall give the notice of redemption in the Company's name
and at the Company's expense. The Company shall provide such notices
of redemption to the Trustee at least five days before the intended
mailing date (other than with respect to a Special Redemption). In
any case, failure to give such notice or any defect in the notice to
the holder of any Note shall not affect the validity of the proceeding
for the redemption of any other Note.
Each notice of redemption shall identify (including the CUSIP
number) the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of accrued interest, if
any, to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such redemption
is being made;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price plus accrued interest, if
any;
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes or applicable portions thereof called for
redemption ceases to accrue on and after the Redemption Date, and the
only remaining right of the Holders of such Notes is to receive payment
of the redemption price plus accrued interest as of the Redemption Date,
if any, upon surrender to the Paying Agent of the Notes redeemed;
-45-
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes
in the aggregate principal amount equal to the unredeemed portion thereof
will be issued; and
(8) if fewer than all the Notes are to be redeemed, the identifica-
tion of the particular Notes (or portion thereof) to be redeemed, as well
as the aggregate principal amount of Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding after such
partial redemption.
No representation is made as to the accuracy of the CUSIP numbers
listed in such notice or printed on the Notes.
The Company 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 Notes.
SECTION 3.05. Effect of Notice of Redemption.
-------------------------------
Once notice of redemption is mailed in accordance with Section
3.04, such notice of redemption shall be irrevocable and Notes called for
redemption become due and payable on the Redemption Date and at the
redemption price plus accrued interest as of such date, if any. Upon
surrender to the Trustee or Paying Agent, such Notes called for
redemption shall be paid at the redemption price plus accrued interest
thereon to the Redemption Date, but installments of interest, the
maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant
record dates referred to in the Notes. Interest shall accrue on or
after the Redemption Date and shall be payable only if the Company
defaults in payment of the redemption price.
SECTION 3.06. Deposit of Redemption Price.
----------------------------
On or before 11:00 a.m. New York City time on the Redemption
Date and in accordance with Section 2.14, the Company shall deposit with
the Paying Agent U.S. Legal Tender sufficient to pay the redemption price
plus accrued interest, if any, of all Notes to be redeemed on that
date. The Paying Agent shall promptly return to the Company any U.S.
Legal Tender so deposited which is not required for that purpose,
except with respect to monies owed as obligations to the Trustee
pursuant to Article Seven.
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Unless the Company fails to comply with the preceding paragraph
and defaults in the payment of such redemption price plus accrued
interest, if any, interest on the Notes to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not
such Notes are presented for payment.
SECTION 3.07. Notes Redeemed in Part.
-----------------------
Upon surrender of a Note that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Note or Notes equal in
principal amount to the unredeemed portion of the Note surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
-----------------
(a) The Company shall pay the principal of, premium, if any,
Default Interest, if any, and interest on the Notes on the dates and in
the manner provided in the Notes and in this Indenture.
(b) An installment of principal of or interest on the Notes shall
be considered paid on the date it is due if the Trustee or Paying Agent
(other than the Company or any of its Affiliates) holds, prior to
11:00 a.m. New York City time on that date, U.S. Legal Tender
designated for and sufficient to pay the installment in full and is
not prohibited from paying such money to the Holders pursuant to the
terms of this Indenture or the Notes.
(c) Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by
law, deduct or withhold income or other similar taxes imposed by the
United States of America from principal or interest payments
hereunder.
SECTION 4.02. Maintenance of Office or Agency.
--------------------------------
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior written notice to the Trustee
of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth
in Section 11.02.
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SECTION 4.03. Corporate Existence.
--------------------
Except as provided in Article Five, the Company shall do or
shall cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and the corporate,
partnership or other existence of each of its Restricted Subsidiaries
in accordance with the respective organizational documents of the
Company and each such Restricted Subsidiary and the rights (charter
and statutory) and material franchises of the Company and its
Restricted Subsidiaries.
SECTION 4.04. Payment of Taxes and Other Claims.
----------------------------------
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material
taxes, assessments and governmental charges (including withholding taxes
and any penalties, interest and additions to taxes) levied or imposed upon
the Company or any of the Subsidiaries or properties of the Company or
any of the Subsidiaries and (ii) all material lawful claims for labor,
materials and supplies that, if unpaid, might by law become a Lien
upon the property of the Company or any of the Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in
good faith by appropriate negotiations or proceedings properly
instituted and diligently conducted for which adequate reserves, to
the extent required under GAAP, have been taken.
SECTION 4.05. Maintenance of Properties
and Insurance.
-------------------------
(a) The Company and each of its Subsidiaries shall cause all
material properties owned by or leased to it and used or useful in the
conduct of its business to be maintained and kept in normal condition,
repair and working order and supplied with all necessary equipment and
shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the
Company or such Subsidiary may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this
Section shall prevent the Company or any of its Subsidiaries from
discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors of the Company
or of the Board of Directors of the Subsidiary concerned, or of an
officer (or other agent employed by the Company or any of its
Subsidiaries) of the Company or such Subsidiary having managerial
responsibility for any such property, desirable in the conduct of the
business of the Company or any of its Subsidiaries.
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(b) The Company and the Subsidiaries shall cause to be
provided insurance (including appropriate self-insurance) against loss
or damage of the kinds that, in the good faith judgment of the respective
Boards of Directors or other governing body or officer or other agent
of the Company or such Subsidiaries, as the case may be, are adequate
and appropriate for the conduct of the business of the Company or such
Subsidiaries, as the case may be, with reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as
shall be customary, in the good faith judgment of the respective Boards
of Directors or other governing body or officer or other agent of the
Company or such Subsidiary, as the case may be, for companies similarly
situated in the industry.
SECTION 4.06. Compliance Certificate;
Notice of Default.
-----------------------
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each of the Company's fiscal years, an Officers'
Certificate (signed by the principal executive officer, principal
financial officer and/or principal accounting officer) stating that a
review of its activities and the activities of its Restricted
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing officers with a view to determining whether
it has kept, observed, performed and fulfilled its obligations under
this Indenture and further stating, as to each such officer signing
such certificate, that to the best of such officers' knowledge the
Company during such preceding fiscal year has kept, observed,
performed and fulfilled each and every such obligation and no Default
or Event of Default occurred during such year and at the date of such
certificate there is no Default or Event of Default that has occurred
and is continuing or, if such signers do know of such Default or Event
of Default, the certificate shall describe the Default or Event of
Default and its status with particularity. The Officers' Certificate
shall also notify the Trustee should the Company elect to change the
manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to
Section 4.08 shall be accompanied by a written report of the Company's
independent certified public accountants (who shall be a firm of
established national reputation) stating (A) that their audit
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examination has included a review of the terms of this Indenture and
the form of the Notes as they relate to accounting matters, and (B)
whether, in connection with their audit examination, any Default or
Event of Default has come to their attention and if such a Default or
Event of Default has come to their attention, specifying the nature
and period of existence thereof; provided, however, that, without any
restriction as to the scope of the audit examination, such independent
certified public accountants shall not be liable by reason of any
failure to obtain knowledge of any such Default or Event of Default
that would not be disclosed in the course of an audit examination
conducted in accordance with generally accepted auditing standards.
(c) So long as any of the Notes are outstanding (i) if any
Default or Event of Default has occurred and is continuing or (ii) if
any Holder seeks to exercise any remedy hereunder with respect to a claimed
Default under this Indenture or the Notes, the Company shall promptly
deliver to the Trustee by registered or certified mail or by telegram,
telex or facsimile transmission followed by hard copy by registered or
certified mail an Officers' Certificate specifying such event, notice
or other action promptly of its becoming aware of such occurrence.
SECTION 4.07. Compliance with Laws.
---------------------
The Company shall comply, and shall cause each of its Subsidiaries
to comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and
municipalities thereof and of any governmental department, commission,
board, regulatory authority, bureau, agency and instrumentality of the
foregoing, in respect of the conduct of their respective businesses
and the ownership of their respective properties, except for such
noncompliances as could not singly or in the aggregate reasonably be
expected to have a material adverse effect on the financial condition,
business or results of operations of the Company and its Subsidiaries
taken as a whole.
SECTION 4.08. Reports to Holders.
-------------------
The Company shall deliver to the Trustee within 15 days after
the filing of the same with the Commission, copies of the quarterly and
annual reports and of the information, documents and other reports, if
any, which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act. Notwithstanding
that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with
the Commission after consummation of the Exchange Offer, to the extent
permitted, and provide the Trustee and Holders with such annual
reports and such information, documents and other reports specified in
Sections 13 and 15(d) of the Exchange Act. The Company shall also
comply with the other provisions of TIA Section 314(a).
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SECTION 4.09. Waiver of Stay, Extension
or Usury Laws.
--------------------------
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or
forgive the Company from paying all or any portion of the principal of
or interest on the Notes as contemplated herein, wherever enacted, now
or at any time hereafter in force, or which may affect the covenants
or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power
as though no such law had been enacted.
SECTION 4.10. Limitation on Restricted Payments.
----------------------------------
The Company shall not, and shall not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, (a) declare
or pay any dividend or make any distribution (other than dividends or
distributions payable in Qualified Capital Stock of the Company) on or
in respect of shares of the Company's Capital Stock to holders of such
Capital Stock, (b) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or any warrants, rights or
options to purchase or acquire shares of any class of such Capital
Stock, (c) make any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire for value, prior to
any scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, any Indebtedness of the Company that is subordinate or
junior in right of payment to the Notes or (d) make any Investment
(other than Permitted Investments) (each of the foregoing actions set
forth in clauses (a), (b) (c) and (d) being referred to as a
"Restricted Payment"), if at the time of such Restricted Payment or
immediately after giving effect thereto, (i) a Default or an Event of
Default shall have occurred and be continuing or (ii) the Company is
not able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with Section 4.12 or (iii)
the aggregate amount of Restricted Payments (including such proposed
Restricted Payment) made subsequent to the Issue Date (the amount
expended for such purposes, if other than in cash, being the fair
market value of such property as determined reasonably and in good
faith by the Board of Directors of the Company) shall exceed the sum
of: (w) 50% of the cumulative Consolidated Net Income (or if
cumulative Consolidated Net Income shall be a loss, minus 100% of such
loss) of the Company earned subsequent to the Issue Date and on or
prior to the date the Restricted Payment occurs (the "Reference Date")
(treating such period as a single accounting period); plus (x) 100% of
the aggregate net cash proceeds received by the Company from any
Person (other than a Subsidiary of the Company) from the issuance and
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sale subsequent to the Issue Date and on or prior to the Reference
Date of Qualified Capital Stock of the Company; plus (y) without
duplication of any amounts included in clause (iii)(x) above, 100% of
the aggregate net cash proceeds of any equity contribution received by
the Company from a holder of the Company's Capital Stock (excluding,
in the case of clauses (iii)(x) and (y), any net cash proceeds from an
Equity Offering to the extent used to redeem the Notes); plus (z)
without duplication, the sum of (1) the aggregate amount returned in
cash on or with respect to Investments (other than Permitted
Investments) made subsequent to the Issue Date whether through
interest payments, principal payments, dividends or other
distributions or payments, (2) the net cash proceeds received by the
Company or any of its Restricted Subsidiaries from the disposition of
all or any portion of such Investments (other than to a Subsidiary of
the Company) and (3) upon redesignation of an Unrestricted Subsidiary
as a Restricted Subsidiary, the fair market value of such Subsidiary;
provided, however, that the sum of clauses (1), (2) and (3) above
shall not exceed the aggregate amount of all such Investments made
subsequent to the Issue Date.
Notwithstanding the foregoing, the provisions set forth in
the immediately preceding paragraph do not prohibit: (1) the payment
of any dividend within 60 days after the date of declaration of such
dividend if the dividend would have been permitted on the date of
declaration; (2) if no Default or Event of Default shall have occurred
and be continuing, the acquisition of any shares of Capital Stock of
the Company, either (i) solely in exchange for shares of Qualified
Capital Stock of the Company or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the
Company; (3) if no Default or Event of Default shall have occurred and
be continuing, the acquisition of any Indebtedness of the Company that
is subordinate or junior in right of payment to the Notes either (i)
solely in exchange for shares of Qualified Capital Stock of the
Company, or (ii) through the application of net proceeds of a
-52-
substantially concurrent sale for cash (other than to a Subsidiary of
the Company) of (A) shares of Qualified Capital Stock of the Company
or (B) Refinancing Indebtedness; (4) so long as no Default or Event of
Default shall have occurred and be continuing, repurchases by the
Company of Common Stock of the Company from employees of the Company
or any of its Subsidiaries or their authorized representatives or
successors upon the death, disability or termination of employment of
such employees, in an aggregate amount not to exceed $1,000,000 in any
calendar year; and (5) the repurchase by the Company of Common Stock
of the Company pursuant to the terms of the Put Option Agreement in an
aggregate amount not to exceed $900,000. In determining the aggregate
amount of Restricted Payments made subsequent to the Issue Date in
accordance with clause (iii) of the immediately preceding paragraph,
amounts expended pursuant to clauses (1), (2)(ii), 3(ii)(A), (4) and
(5) shall be included in such calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment complies with this Indenture and setting forth
in reasonable detail the basis upon which the required calculations
were computed, which calculations may be based upon the Company's
latest available internal quarterly financial statements.
SECTION 4.11. Limitations on Transactions
with Affiliates.
---------------------------
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit
to exist any transaction or series of related transactions (including,
without limitation, the purchase, sale, lease or exchange of any property
or the rendering of any service) with, or for the benefit of, any of its
Affiliates (each an "Affiliate Transaction"), other than (x) Affiliate
Transactions permitted under paragraph (b) below and (y) Affiliate
Transactions on terms that are no less favorable than those that might
reasonably have been obtained in a comparable transaction at such time
on an arm's-length basis from a Person that is not an Affiliate of the
Company or such Restricted Subsidiary. All Affiliate Transactions (and
each series of related Affiliate Transactions which are similar or
part of a common plan) involving aggregate payments or other property
with a fair market value in excess of $250,000 shall be approved by a
majority of non-interested directors of the Board of Directors or a
majority of non-interested directors of a committee of the Board of
Directors of the Company or such Restricted Subsidiary, as the case
may be, such approval to be evidenced by a Board Resolution stating
that such majority of non-interested directors of the Board of
-53-
Directors or such majority of non-interested directors of the
committee of the Board of Directors, as the case may be, have
determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company
enters into an Affiliate Transaction (or a series of related Affiliate
Transactions related to a common plan) that involves an aggregate fair
market value of more than $5,000,000, the Company or such Restricted
Subsidiary, as the case may be, shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to the Company or the
relevant Restricted Subsidiary, as the case may be, from a financial
point of view, from an independent nationally recognized investment
banking firm and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply
to (i) reasonable fees and compensation paid to and indemnity provided
on behalf of, officers, directors, employees or consultants of the
Company or any Restricted Subsidiary of the Company as determined in
good faith by the Company's Board of Directors or a committee thereof
or senior management; (ii) transactions exclusively between or among
the Company and any of its Wholly Owned Restricted Subsidiaries or
exclusively between or among such Wholly Owned Restricted
Subsidiaries, provided such transactions are not otherwise prohibited
by this Indenture; (iii) any agreement as in effect as of the Issue
Date or any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement
agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Holders in any material
respect than the original agreement as in effect on the Issue Date;
(iv) Restricted Payments permitted by this Indenture; (v) any payment,
issuance of securities or other payments, awards or grants, in cash or
otherwise, pursuant to, or the funding of, employment arrangements and
stock option and stock ownership plans approved by the Board of
Directors, or the appropriate committee of the Board of Directors, of
the Company; and (vi) loans or advances to officers, directors or
employees of the Company or its Restricted Subsidiaries not in excess
of $1,000,000 at any one time outstanding.
SECTION 4.12. Limitation on Incurrence
of Additional Indebtedness.
---------------------------
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur,
assume, guarantee, acquire, become liable, contingently or otherwise,
with respect to, or otherwise become responsible for payment of
(collectively, "incur") any Indebtedness (other than Permitted
Indebtedness); provided, however, that if no Default or Event of
Default shall have occurred and be continuing at the time of or as a
consequence of the incurrence of any such Indebtedness, the Company
and the Guarantors may incur Indebtedness (including, without
limitation, Acquired Indebtedness) if on the date of the incurrence of
such Indebtedness, after giving effect to the incurrence thereof, the
-54-
Consolidated Fixed Charge Coverage Ratio of the Company is greater
than 2.0 to 1.0 if such incurrence is on or prior to October 15, 2000
and 2.25 to 1.0 if such incurrence is thereafter.
For purposes of determining any particular amount of Indebtedness
under this Section 4.12, guarantees, Liens or obligations with respect
to letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included.
Indebtedness of any Person which is outstanding at the time
such Person becomes a Restricted Subsidiary or is merged with or into
or consolidated with the Company or a Restricted Subsidiary shall be
deemed to have been incurred at the time such Person becomes a
Restricted Subsidiary or is merged with or into or consolidated with
the Company or a Restricted Subsidiary, and Indebtedness which is
assumed at the time of the acquisition of any asset shall be deemed to
have been incurred at the time of such acquisition.
The Company shall not, and shall not permit any Guarantor to,
incur any Indebtedness which by its terms (or by the terms of any agreement
governing such Indebtedness) is subordinated in right of payment to
any other Indebtedness of the Company or such Guarantor, as the case
may be, unless such Indebtedness is also by its terms (or by the terms
of any agreement governing such Indebtedness) made expressly
subordinate in right of payment to the Notes or the Guarantee of such
Guarantor, as the case may be, pursuant to subordination provisions
that are substantively identical to the subordination provisions of
such Indebtedness (or such agreement) that are most favorable to the
holders of any other Indebtedness of the Company or such Guarantor, as
the case may be.
SECTION 4.13. Limitation on Dividend and
Other Payment Restrictions
Affecting Subsidiaries.
--------------------------
The Company shall not, and shall not cause or permit any
of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or permit to exist or become effective any encumbrance
or restriction on the ability of any Restricted Subsidiary of the
Company to (a) pay dividends or make any other distributions on or in
respect of its Capital Stock; (b) make loans or advances or to pay any
Indebtedness or other obligation owed to the Company or any other
-55-
Restricted Subsidiary of the Company; or (c) transfer any of its
property or assets to the Company or any other Restricted Subsidiary
of the Company; except for such encumbrances or restrictions existing
under or by reason of: (1) applicable law; (2) this Indenture; (3) any
instrument governing Acquired Indebtedness, which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person or the properties or
assets of the Person so acquired; (4) agreements existing on the Issue
Date to the extent and in the manner such agreements are in effect on
the Issue Date; (5) any security or pledge agreements, leases or
options (or similar agreements) containing customary restrictions on
transfers of the assets encumbered thereby or leased or subject to
option or on the transfer or subletting of the leasehold interest
represented thereby to the extent such agreements, leases or options
are not otherwise prohibited under this Indenture; (6) restrictions on
cash or other deposits or net worth and prohibitions on assignment
imposed by leases that are permitted under this Indenture; (7)
customary provisions in joint venture agreements and other similar
agreements; (8) the New Credit Facility and any instruments issued
pursuant thereto; (9) any agreement or instrument governing Capital
Stock of any Person that is acquired after the Issue Date; (10) Liens
permitted to be incurred pursuant to Section 4.17; (11) any
restrictions on a Managed Care Entity pursuant to the applicable rules
or regulations of, or undertakings made to, any regulatory entity
having jurisdiction and authority over such Managed Care Entity; or
(12) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement
referred to in clauses (2) through (11) above; provided, however, that
the provisions relating to such encumbrance or restriction contained
in any such Indebtedness are no less favorable to the Company in any
material respect as determined by the Board of Directors of the
Company in their reasonable and good faith judgment than the
provisions relating to such encumbrance or restriction contained in
agreements referred to in such clauses (2) through (11).
SECTION 4.14. Change of Control.
------------------
(a) Upon the occurrence of a Change of Control, each Holder
shall have the right to require that the Company purchase all or a portion
of such Holder's Notes pursuant to the offer described below (the
"Change of Control Offer"), at a purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest, if any,
thereon to the date of purchase.
(b) Within 30 days following the date upon which the Change
of Control occurred, the Company shall send, by first class mail, a
notice to each Holder at such Holder's last registered address, with a
copy to the Trustee, which notice shall govern the terms of the Change
of Control Offer. The notice to the Holders shall contain all
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instructions and materials necessary to enable such Holders to tender
Notes pursuant to the Change of Control Offer. Such notice shall
state:
(i) that the Change of Control Offer is being made pursuant to
this Section 4.14 and that all Notes tendered and not withdrawn shall
be accepted for payment;
(ii) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
(iii) that any Note not tendered shall continue to accrue interest;
(iv) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment
Date;
(v) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day
prior to the Change of Control Payment Date;
(vi) that Holders shall be entitled to withdraw their election if
the Paying Agent receives, not later than the second Business Day prior
to the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Notes the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such
Notes purchased;
(vii) that Holders whose Notes are purchased only in part shall
be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered; provided, however, that each Note
purchased and each new Note issued shall be in an original principal
amount of $1,000 or integral multiples thereof; and
(viii) the circumstances and relevant facts regarding such Change
of Control.
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On the Change of Control Payment Date, the Company shall, to
the extent permitted by law, (i) accept for payment all Notes or portions
thereof properly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent an amount equal to the aggregate
Change of Control Payment in respect of all Notes or portions thereof
so tendered and (iii) deliver, or cause to be delivered, to the
Trustee for cancellation the Notes so accepted together with an
Officers' Certificate stating that such Notes or portions thereof have
been tendered to and purchased by the Company. The Paying Agent shall
promptly either (x) pay to the Holder against presentation and
surrender (or, in the case of partial payment, endorsement) of the
Global Notes or (y) in the case of Physical Notes, mail to each Holder
of Notes the Change of Control Payment for such Notes, and the Trustee
shall promptly authenticate and deliver to the Holder of the Global
Notes a new Global Note or Notes or, in the case of Physical Notes,
mail to each Holder new Physical Notes, as applicable, equal in
principal amount to any unpurchased portion of the Notes surrendered,
if any, provided that each new Physical Note shall be in a principal
amount of $1,000 or an integral multiple thereof. The Company shall
notify the Trustee and the Holders of the results of the Change of
Control Offer on or as soon as practicable after the Change of Control
Payment Date.
Neither the Board of Directors of the Company nor the Trustee
may waive the provisions of this Section 4.14 relating to the Company's
obligation to make a Change of Control Offer or a Holder's right to
redemption upon a Change of Control.
The Company shall 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 repurchase of Notes pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.14, the
Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations
under the provisions of this Section 4.14 by virtue thereof.
SECTION 4.15. Limitation on Asset Sales.
--------------------------
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the
Company or the applicable Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to
the fair market value of the assets sold or otherwise disposed of (as
determined in good faith by the Company's Board of Directors), (ii) at
least 75% of the consideration received by the Company or the
Restricted Subsidiary, as the case may be, from such Asset Sale shall
be in the form of Qualified Proceeds and shall be received at the time
of such disposition; and (iii) upon the consummation of an Asset Sale,
the Company shall apply, or cause such Restricted Subsidiary to apply,
the Net Cash Proceeds relating to such Asset Sale within 360 days of
receipt thereof either (A) to prepay any Indebtedness ranking at least
pari passu with the Notes (including Indebtedness under the New Credit
-58-
Facility) and, in the case of any such Indebtedness under any
revolving credit facility, effect a permanent reduction in the
availability under such revolving credit facility, (B) to make an
investment in properties and assets that replace the properties and
assets that were the subject of such Asset Sale or in properties and
assets that shall be used in the business of the Company and its
Restricted Subsidiaries as existing on the Issue Date or in businesses
reasonably related or complementary thereto ("Replacement Assets"), it
being understood that the receipt of Qualified Proceeds (other than
cash or Cash Equivalents) is deemed to be a valid application of such
Qualified Proceeds pursuant to this clause (iii)(B), or (C) a
combination of repayment and investment permitted by the foregoing
clauses (iii)(A) and (iii)(B). On the 361st day after an Asset Sale or
such earlier date, if any, as the Board of Directors of the Company or
of such Restricted Subsidiary determines not to apply the Net Cash
Proceeds relating to such Asset Sale as set forth in clauses (iii)(A),
(iii)(B) and (iii)(C) of the next preceding sentence (each, a "Net
Proceeds Offer Trigger Date"), such aggregate amount of Net Cash
Proceeds which have not been applied on or before such Net Proceeds
Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and
(iii)(C) of the next preceding sentence (each a "Net Proceeds Offer
Amount") shall be applied by the Company or such Restricted Subsidiary
to make an offer to purchase (the "Net Proceeds Offer") on a date (the
"Net Proceeds Offer Payment Date") not less than 30 nor more than 45
days following the applicable Net Proceeds Offer Trigger Date, from
all Holders on a pro rata basis, that amount of Notes equal to the Net
Proceeds Offer Amount at a price equal to 100% of the principal amount
of the Notes to be purchased, plus accrued and unpaid interest
thereon, if any, to the date of purchase; provided, however, that if
at any time any non-cash consideration received by the Company or any
Restricted Subsidiary of the Company, as the case may be, in
connection with any Asset Sale is converted into or sold or otherwise
disposed of for cash (other than interest received with respect to any
such non-cash consideration), then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Cash
Proceeds thereof shall be applied in accordance with this
Section 4.15. The Company may defer the Net Proceeds Offer until there
is an aggregate unutilized Net Proceeds Offer Amount equal to or in
excess of $5,000,000 resulting from one or more Asset Sales (at which
time, the entire unutilized Net Proceeds Offer Amount, and not just
the amount in excess of $5,000,000, shall be applied as required
pursuant to this paragraph). Upon completion of a Net Proceeds Offer,
the amount of Net Cash Proceeds and the amount of aggregate unutilized
Net Proceeds Offer Amount shall be reset to zero. Accordingly, to the
extent that any Net Cash Proceeds remain after consummation of a Net
Proceeds Offer, the Company may use such Net Cash Proceeds for any
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purpose not prohibited by this Indenture and no Net Proceeds Offer
shall be required until the Net Proceeds Offer amount again
accumulates to $5,000,000. Pending the final application of such Net
Cash Proceeds, the Company or such Restricted Subsidiary may, but
shall not be required to, temporarily reduce the outstanding
Indebtedness under any revolving credit facility under the New Credit
Facility; provided, however, that the final application of such Net
Cash Proceeds shall be as required by this Section 4.15.
In the event of the transfer of substantially all (but not all)
of the property and assets of the Company and its Restricted Subsidiaries
as an entirety to a Person in a transaction permitted pursuant to Section
5.01, the surviving entity shall be deemed to have sold the properties
and assets of the Company and its Restricted Subsidiaries not so
transferred for purposes of this Section 4.15, and shall comply with
the provisions of this Section 4.15 with respect to such deemed sale
as if it were an Asset Sale. In addition, the fair market value of
such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be for cash in an Asset Sale for
purposes of this Section 4.15.
Each Net Proceeds Offer shall be mailed to the record Holders as
shown on the register of Holders within 25 days following the Net Proceeds
Offer Trigger Date, with a copy to the Trustee, and shall comply with
the procedures set forth in this Indenture. Upon receiving notice of
the Net Proceeds Offer, Holders may elect to tender their Notes in
whole or in part in integral multiples of $1,000 in exchange for cash.
To the extent Holders properly tender Notes in an amount exceeding the
Net Proceeds Offer Amount, Notes of tendering Holders shall be
purchased on a pro rata basis (based on amounts tendered). A Net
Proceeds Offer shall remain open for a period of 20 Business Days or
such longer period as may be required by law.
The Company shall 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 repurchase of Notes pursuant to a Net Proceeds Offer. To the
extent that the provisions of any securities laws or regulations
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conflict with this Section 4.15, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 4.15 by virtue
thereof.
SECTION 4.16. Limitation on Preferred Stock
of Restricted Subsidiaries.
-----------------------------
The Company shall not permit any of its Restricted Subsidiaries
to issue any Preferred Stock (other than to the Company or to a Wholly
Owned Restricted Subsidiary of the Company) or permit any Person
(other than the Company or a Wholly Owned Restricted Subsidiary of the
Company) to own any Preferred Stock of any Restricted Subsidiary of
the Company.
SECTION 4.17. Limitation on Liens.
--------------------
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or permit or suffer to exist any Liens of any kind against or
upon any property or assets of the Company or any of its Restricted
Subsidiaries whether owned on the Issue Date or acquired after the
Issue Date, or any proceeds therefrom, or assign or otherwise convey
any right to receive income or profits therefrom unless (i) in the
case of Liens securing Indebtedness that is expressly subordinate or
junior in right of payment to the Notes or any Guarantee, the Notes
and such Guarantee, as the case may be, are secured by a Lien on such
property, assets or proceeds that is senior in priority to such Liens
and (ii) in all other cases, the Notes and the Guarantees are equally
and ratably secured, except for (A) Liens existing as of the Issue
Date to the extent and in the manner such Liens are in effect on the
Issue Date; (B) Liens securing Indebtedness and other obligations
under the New Credit Facility; (C) Liens securing the Notes and the
Guarantees; (D) Liens in favor of the Company or a Wholly Owned
Restricted Subsidiary of the Company on assets of any Restricted
Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness
which is incurred to Refinance any Indebtedness which has been secured
by a Lien permitted under this Indenture and which has been incurred
in accordance with the provisions of this Indenture; provided,
however, that such Liens (I) are no less favorable to the Holders and
are not more favorable to the lienholders with respect to such Liens
than the Liens in respect of the Indebtedness being Refinanced and
(II) do not extend to or cover any property or assets of the Company
or any of its Restricted Subsidiaries not securing the Indebtedness so
Refinanced; and (F) Permitted Liens.
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SECTION 4.18. Limitation on Guarantees of
Indebtedness by Restricted
Subsidiaries.
---------------------------
The Company shall not permit any of its Restricted Subsidiaries
that is not a Guarantor (whether formed or acquired before or after the
Issue Date), directly or indirectly, to guarantee the payment of any
Indebtedness under the New Credit Facility, unless such Restricted
Subsidiary, the Company and the Trustee execute and deliver a
supplemental indenture evidencing such Restricted Subsidiary's
Guarantee of the Notes pursuant to the terms of the Indenture, such
Guarantee of the Notes to be a senior unsecured obligation of such
Subsidiary; provided that if any such Restricted Subsidiary who
becomes a Guarantor as described above is released from its guarantee
with respect to Indebtedness and obligations outstanding under the New
Credit Facility, such Restricted Subsidiary who becomes a Guarantor as
described above shall automatically be released from its obligations
as a Guarantor. Nothing in this Section 4.18 shall be construed to
permit any Restricted Subsidiary of the Company to incur Indebtedness
otherwise prohibited by Section 4.12.
SECTION 4.19. Additional Subsidiary Guarantees.
---------------------------------
If the Company or any of its Restricted Subsidiaries transfers
or causes to be transferred, in one transaction or a series of related
transactions, any property to any domestic Restricted Subsidiary that
is not a Guarantor, or if the Company or any of its Restricted
Subsidiaries shall organize, acquire or otherwise invest in another
domestic Restricted Subsidiary having total assets with a book value
in excess of $500,000, then such transferee or acquired or other
Restricted Subsidiary shall (i) execute and deliver to the Trustee a
supplemental indenture in form reasonably satisfactory to the Trustee
pursuant to which such Restricted Subsidiary shall unconditionally
guarantee all of the Company's obligations under the Notes and this
Indenture on the terms set forth in this Indenture and (ii) deliver to
the Trustee an Opinion of Counsel that such supplemental indenture has
been duly authorized, executed and delivered by such Restricted
Subsidiary and constitutes a legal, valid, binding and enforceable
obligation of such Restricted Subsidiary. Thereafter, such Restricted
Subsidiary shall be a Guarantor for all purposes of this Indenture.
Notwithstanding the foregoing, any Restricted Subsidiary of the
Company which is or seeks to become a Managed Care Entity shall be a
Guarantor only at such time as and then only to the extent provided in
the definition of Guarantor.
SECTION 4.20. Conduct of Business.
--------------------
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The Company and its Restricted Subsidiaries shall not engage in
any businesses which are not the same, similar or reasonably related
to the businesses in which the Company and its Restricted Subsidiaries
are engaged on the Issue Date.
SECTION 4.21. Special Redemption.
-------------------
(a) If the Company has not consummated the tender offer for at
least a majority of the common stock of New West on or prior to the Special
Redemption Notice Date and delivered an Officers' Certificate stating
that such tender offer has been effected in all material respects on
the terms and conditions contemplated by the Merger Agreement and as
disclosed in the Offering Memorandum, the Company shall be required to
effect the Special Redemption on or prior to the Special Redemption
Date at an aggregate redemption price equal to 100% of the principal
amount of the Securities, plus accrued and unpaid interest to the date
of redemption (the "Special Redemption Price").
(b) If the Officers' Certificate contemplated by paragraph
(a) of this Section has not been previously delivered to the Trustee, upon
the earlier to occur of (i) the notice given by the Company of the
Special Redemption pursuant to the last paragraph of Section 3.01 or
(ii) the Special Redemption Notice Date:
(i) Within five days after the Special Redemption Notice Date,
the Trustee shall mail a notice in compliance with Section 3.04 hereof
(the "Special Redemption Notice") to the holders of the Notes stating
that the Notes shall be redeemed on the Special Redemption Date at the
Special Redemption Price, and shall state that the Notes must be
surrendered to the Trustee as paying agent in order to collect the
Special Redemption Price, it being acknowledged and agreed that the
failure of the Company to deliver the Officers' Certificate
contemplated by Section 4.21(a) by 5:00 P.M., New York time, on
November 30, 1998 shall be a request for the Trustee to give the
Special Redemption Notice to the holders of the Notes; and
(ii) The Company shall, on or prior to the Special Redemption Date,
deposit with the Trustee as paying agent an amount of funds such that
on the Special Redemption Date the Trustee shall have immediately
available funds to pay the Special Redemption Price for all
outstanding Notes to be redeemed.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation
and Sale of Assets.
---------------------
(a) The Company shall not, in a single transaction or series
of related transactions, consolidate or merge with or into any Person,
or sell, assign, transfer, lease, convey or otherwise dispose of (or
cause or permit any Restricted Subsidiary of the Company to sell,
assign, transfer, lease, convey or otherwise dispose of) all or
substantially all of the Company's assets (determined on a
consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety
to any Person unless: (i) either (1) the Company shall be the
surviving or continuing corporation or (2) the Person (if other than
the Company) formed by such consolidation or into which the Company is
merged or the Person which acquires by sale, assignment, transfer,
lease, conveyance or other disposition the properties and assets of
the Company and of the Company's Restricted Subsidiaries substantially
as an entirety (the "Surviving Entity") (x) shall be a corporation
organized and validly existing under the laws of the United States or
any State thereof or the District of Columbia and (y) shall expressly
assume, by supplemental indenture (in form and substance satisfactory
to the Trustee), executed and delivered to the Trustee, the due and
punctual payment of the principal of, and premium, if any, and
interest on all of the Notes and the performance of every covenant of
the Notes, this Indenture and the Registration Rights Agreement on the
part of the Company to be performed or observed; (ii) immediately
after giving effect to such transaction and the assumption
contemplated by clause (i)(2)(y) above (including giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such transaction), the
Company or such Surviving Entity, as the case may be, (1) shall have a
Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Company immediately prior to such transaction and (2)
shall be able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 4.12;
(iii) immediately before and immediately after giving effect to such
transaction and the assumption contemplated by clause (i)(2)(y) above
(including, without limitation, giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred and any
Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred or be continuing; and
(iv) the Company or the Surviving Entity shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment, transfer,
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lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating
to such transaction have been satisfied. Notwithstanding the
foregoing clauses (ii) and (iii), (a) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties
and assets to the Company or to another Restricted Subsidiary and (b)
the Company may merge with or transfer all of its properties and
assets to an Affiliate incorporated or formed solely for the purpose
of either reincorporating or reforming the Company in another State of
the United States so long as the amount of Indebtedness of the Company
and its Restricted Subsidiaries is not increased thereby.
(b) For purposes of this Section 5.01, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions but excluding the creation of any Lien permitted to be
incurred pursuant to Section 4.17) of all or substantially all of the
properties or assets of one or more Restricted Subsidiaries of the
Company the Capital Stock of which constitutes all or substantially
all of the properties and assets of the Company, shall be deemed to be
the transfer of all or substantially all of the properties and assets
of the Company.
(c) Each Guarantor (other than any Guarantor whose Guarantee
is to be released in accordance with the terms of the Guarantee and this
Indenture in connection with any transaction complying with the
provisions of Section 4.15) shall not, and the Company shall not cause
or permit any Guarantor to, consolidate with or merge with or into, or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets to, any Person other than the Company
or any other Guarantor unless: (i) the entity formed by or surviving
any such consolidation or merger (if other than the Guarantor) or to
which such sale, lease, conveyance or other disposition shall have
been made is a corporation organized and existing under the laws of
the United States or any State thereof or the District of Columbia;
(ii) such entity assumes by supplemental indenture all of the
obligations of the Guarantor on the Guarantee; (iii) immediately after
giving effect to such transaction, no Default or Event of Default
shall have occurred and be continuing; and (iv) immediately after
giving effect to such transaction and the use of any net proceeds
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therefrom on a pro forma basis, the Company could satisfy the
provisions of clause (ii) of the first paragraph of this Section 5.01.
Any merger or consolidation of a Guarantor with and into the Company
(with the Company being the surviving entity) or another Guarantor
that is a Wholly Owned Restricted Subsidiary of the Company need only
comply with clause (iv) of Section 5.01(a).
(d) The creation of a Lien permitted to be incurred pursuant
to Section 4.17 shall not constitute a disposition for the purposes of
this Section 5.01.
SECTION 5.02. Successor Corporation Substituted.
----------------------------------
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance
with Section 5.01, in which the Company is not the continuing corporation,
the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, lease or transfer is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture and the Notes
with the same effect as if such surviving entity had been named as
such.
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default.
------------------
An "Event of Default" means any of the following events:
(a) the failure to pay interest on any Notes when the same
becomes due and payable and the default continues for a period of
30 days;
(b) the failure to pay the principal on any Notes, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer or a Net Proceeds
Offer);
(c) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default
continues for a period of 30 days after the Company receives written
notice specifying the default (and demanding that such default be remedied)
from the Trustee or the Holders of at least 25% of the outstanding
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principal amount of the Notes (except in the case of a default with
respect to Section 5.01, which shall constitute an Event of Default
with such notice requirement but without such passage of time
requirement);
(d) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted Subsidiary
of the Company, or the acceleration of the final stated maturity of
any such Indebtedness (which acceleration is not rescinded, annulled
or otherwise cured within 20 days of receipt by the Company or such
Restricted Subsidiary of notice of any such acceleration) if the
aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness in default for failure
to pay principal at final maturity or which has been accelerated,
aggregates $5,000,000 or more at any time;
(e) one or more judgments in an aggregate amount in excess of
$5,000,000 shall have been rendered against the Company or any of its
Restricted Subsidiaries and such judgments remain undischarged, unpaid
or unstayed for a period of 60 days after such judgment or judgments
become final and non-appealable;
(f) the Company or any of its Significant Subsidiaries pursuant to
or under or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it
in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property;
(iv) makes a general assignment for the benefit of its
creditors; or
(v) shall generally not pay its debts when such debts become
due or shall admit in writing its inability to pay its debts
generally;
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case or proceeding,
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(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries for all or substantially all of their
properties taken as a whole, or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries,
and in each case the order or decree remains unstayed and in effect
for 60 days; or
(h) any of the Guarantees ceases to be in full force and effect or
any of the Guarantees is declared to be null and void and
unenforceable or any of the Guarantees is found to be invalid, in each
case by a court of competent jurisdiction in a final non-appealable
judgment, or any of the Guarantors denies its liability under its
Guarantee (other than by reason of release of a Guarantor in
accordance with the terms of this Indenture).
SECTION 6.02. Acceleration.
-------------
If an Event of Default (other than an Event of Default specified
in Section 6.01 (f) or (g) relating to the Company) shall occur and be
continuing, the Trustee or the Holders of at least 25% in principal
amount of outstanding Notes may declare the principal of and accrued
interest on all the Notes to be due and payable by notice in writing
to the Company and the Trustee specifying the respective Event of
Default and that it is a declaration of acceleration, and the same
shall become immediately due and payable. If an Event of Default
specified in Section 6.01 (f) or (g) with respect to the Company
occurs and is continuing, then all unpaid principal of, and premium,
if any, and accrued and unpaid interest on all of the outstanding
Notes shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holder.
At any time after a declaration of acceleration with respect
to the Notes as described in the preceding paragraph, the Holders of a
majority in principal amount of the Notes may rescind and cancel such
declaration and its consequences (a) if the rescission would not
conflict with any judgment or decree, (b) if all existing Events of
Default have been cured or waived except nonpayment of principal or
interest that has become due solely because of the acceleration, (c)
to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has
been paid, (d) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses,
disbursements and advances and (e) in the event of the cure or waiver
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of an Event of Default of the type described in Section 6.01, the
Trustee shall have received an Officers' Certificate and an Opinion of
Counsel that such Event of Default has been cured or waived. No such
rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies.
---------------
(a) If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to
collect the payment of the principal of, premium, if any, or interest
or Additional Interest, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
(b) All rights of action and claims under this Indenture or the
Notes may be enforced by the Trustee even if it does not possess any of the
Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
------------------------
Prior to the acceleration of the Notes, the Holders of a majority
in aggregate principal amount of the Notes then outstanding by notice to
the Trustee may, on behalf of the Holders of all the Notes, waive any
existing Default or Event of Default and its consequences under this
Indenture, except a Default or Event of Default specified in Section
6.01(a) or (b) or in respect of any provision hereof which cannot be
modified or amended without the consent of the Holder so affected
pursuant to Section 9.02. When a Default or Event of Default is so
waived, it shall be deemed cured and shall cease to exist. This
Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the TIA and such
Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
SECTION 6.05. Control by Majority.
--------------------
Holders of the Notes may not enforce this Indenture or the Notes
except as provided in this Article Six and under the TIA. The Holders
of a majority in aggregate principal amount of the then outstanding
Notes 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 on the Trustee, provided,
however, that the Trustee may refuse to follow any direction (a) that
conflicts with any rule of law or this Indenture, (b) that the
Trustee, in its sole discretion, determines may be unduly prejudicial
to the rights of another Holder (it being understood that the Trustee
shall have no duty to ascertain whether or not such actions or
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forebearances are unduly prejudicial to such Holders), or (c) that may
expose the Trustee to personal liability for which adequate indemnity
provided to the Trustee against such liability is not reasonably
assured to it; provided, further, however, that the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent
with such direction or this Indenture. This Section 6.05 shall be in
lieu of Section 316(a)(1)(A) of the TIA, and such Section 316(a)(1)(A) of the
TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.
SECTION 6.06. Limitation on Suits.
--------------------
No Holder of any Notes shall have any right to institute any
proceeding with respect to this Indenture or the Notes or any remedy
hereunder, unless the Holders of at least 25% in aggregate principal
amount of the outstanding Notes have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as
Trustee under the Notes and this Indenture, the Trustee has failed to
institute such proceeding within 30 days after receipt of such request
and offer of indemnity and the Trustee, within such 30-day period, has
not received directions inconsistent with such written request by
Holders of a majority in aggregate principal amount of the outstanding
Notes.
The foregoing limitations shall not apply to a suit instituted
by a Holder of a Note for the enforcement of the payment of the principal
of, premium, if any, or interest or Additional Interest, if any, on,
such Note on or after the respective due dates expressed or provided
for in such Note.
A Holder may not use this Indenture to prejudice the rights
of any other Holders or to obtain priority or preference over such other
Holders.
SECTION 6.07. Right of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision in this Indenture, the right
of any Holder of a Note to receive payment of the principal of, premium,
if any, and interest or Additional Interest, if any, on such Note, on
or after the respective due dates expressed or provided for in such
Note, or to bring suit for the enforcement of any such payment on or
after the respective due dates, is absolute and unconditional and
shall not be impaired or affected without the consent of the Holder.
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SECTION 6.08. Collection Suit by Trustee.
---------------------------
If an Event of Default specified in paragraph (a) or (b) of
Section 6.01 occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company,
or any other obligor on the Notes for the whole amount of the principal
of, premium, if any, and accrued interest remaining unpaid, together
with interest on overdue principal, overdue premium, if any, and
interest on overdue installments of interest, to the extent lawful, in
each case at the rate per annum provided for by the Notes and such
further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee pursuant to the provisions of
Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim.
---------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents,
counsel, accountants and experts) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor
upon the Notes), its creditors or its property and shall be entitled
and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts
due the Trustee under Section 7.07. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the
rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
-----------
If the Trustee collects any money pursuant to this Article Six
it shall pay out such money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the
cost and expenses of collection;
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Second: to Holders for interest accrued on the Notes, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Notes for interest (including any Additional
Interest);
Third: to Holders for the principal amounts (including any premium)
owing under the Notes, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for the
principal (including any premium); and
Fourth: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may
fix a record date and payment date for any payment to Holders pursuant to
this Section 6.10.
SECTION 6.11. Undertaking for Costs.
----------------------
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken
or omitted by it as Trustee, a court may in its discretion require the
filing by any party litigant in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to any suit by the Trustee, any suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of
more than 10% in aggregate principal amount of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
-------
SECTION 7.01. Duties of Trustee.
------------------
(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 thereof as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
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(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture that are adverse to the Trustee.
(2) The Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture, but need not verify the contents
thereof.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(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 Sections 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this
Section 7.01 and Section 7.02.
(f) 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
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the Company. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
------------------
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate
or an Opinion of Counsel, which shall conform to Sections 11.04 and
11.05. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel. The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection from liability in respect to
any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled, upon reasonable notice to the Company, to examine the books,
records, and premises of the Company, personally or by agent or
attorney and to consult with the officers and representatives of the
Company, including the Company's accountants and attorneys.
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(f) The Trustee shall be under no obligation to exercise any of its
rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders have offered to the Trustee reasonable
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred by it in compliance with such
request, order or direction.
(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(h) Delivery of reports, information and documents to the Trustee
under Section 4.08 is for informational purposes only and the
Trustee's receipt of the foregoing shall not constitute constructive
notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with
any of their covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers' Certificates).
SECTION 7.03. Individual Rights of Trustee.
-----------------------------
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, or
any of its Subsidiaries, or their respective Affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
---------------------
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Notes, and it shall not be accountable for the
Company's use of the proceeds from the Notes, it shall not be
responsible for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be responsible
for any statement of the Company in this Indenture or the Notes other
than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
------------------
If a Default or an Event of Default occurs and is continuing and
if it is known to a Trust Officer, the Trustee shall mail to each Holder
notice of the uncured Default or Event of Default within 90 days after
obtaining knowledge thereof. Except in the case of a Default or an
Event of Default in payment of principal of, or interest on, any Note,
including an accelerated payment, a Default in payment on the Change
of Control Payment Date pursuant to a Change of Control Offer or on
the Net Proceeds Offer Payment Date pursuant to a Net Proceeds Offer
and a Default in compliance with Article Five hereof, the Trustee may
withhold the notice if and so long as its Board of Directors, the
executive committee of its Board of Directors or a committee of its
directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the Holders. The
foregoing sentence of this Section 7.05 shall be in lieu of the
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proviso to Section 315(b) of the TIA and such proviso to Section 315(b) of
the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
------------------------------
Within 60 days after May 15 of each year beginning with 1998,
the Trustee shall, to the extent that any of the events described in
TIA Section 313(a) occurred within the previous twelve months, but not
otherwise, mail to each Holder a brief report dated as of such date
that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Sections 313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders
shall be mailed to the Company and filed with the Commission and each
stock exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes
become listed on any stock exchange and the Trustee shall comply with
TIA Section 313(d).
SECTION 7.07. Compensation and Indemnity.
---------------------------
The Company shall pay to the Trustee from time to time such
compensation for its services as has been agreed to in writing signed
by the Company and the Trustee. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it in connection
with the performance of its duties under this Indenture. Such
expenses shall include the reasonable fees and expenses of the
Trustee's agents, counsel, accountants and experts.
The Company shall indemnify each of the Trustee (or any
predecessor Trustee) and its agents, employees, stockholders, Affiliates
and directors and officers for, and hold them each harmless against, any
and all loss, liability, damage, claim or expense (including
reasonable fees and expenses of counsel), including taxes (other than
taxes based on the income of the Trustee) incurred by them, except for
such actions to the extent caused by any negligence or willful
misconduct on their part, arising out of or in connection with the
acceptance or administration of this trust including the reasonable
costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of
their rights, powers or duties hereunder. The Trustee shall notify
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the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its Obligations hereunder
except to the extent such failure shall have prejudiced the Company.
The Company shall have the right, upon written notice to the Trustee,
to assume, at its own expense, the defense of such claim, including
the employment of counsel reasonably satisfactory to the Trustee;
provided, however, that any settlement of a claim shall be approved in
writing by the Trustee if such settlement would result in an admission
of liability by the Trustee or if such settlement would not be
accompanied by a full release of the Trustee for all liability arising
out of the events giving rise to such claim. If, however, the Company
declines or fails to assume the defense, or to employ counsel
reasonably satisfactory to the Trustee, in either case in a timely
manner, then the Trustee may employ separate counsel of its own
choosing and the Company shall pay the reasonable fees and expenses of
such counsel.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except
assets or money held in trust to pay principal of or premium, if any,
or interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01 (f) or (g) occurs, such expenses
and the compensation for such services are intended to constitute expenses
of administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the termination
of this Indenture.
SECTION 7.08. Replacement of Trustee.
-----------------------
The Trustee may resign at any time by so notifying the Company.
The Holders of a majority in principal amount of the outstanding Notes may
remove the Trustee and appoint a successor Trustee with the Company's
consent, by so notifying the Company and the Trustee. The Company may
remove the Trustee if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of performing its obligations
under this Indenture.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder
of such event and shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a
majority in aggregate principal amount of the outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
after that, the retiring Trustee shall transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided
in Section 7.07, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. The
Company shall mail notice of such successor Trustee's appointment to
each Holder.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least 10% in aggregate principal
amount of the outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Notwithstanding any resignation or replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section
7.07 shall continue for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business
to, another corporation, the resulting, surviving or transferee
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corporation without any further act shall, if such resulting,
surviving or transferee corporation is otherwise eligible hereunder,
be the successor Trustee; provided, however, that such corporation
shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
------------------------------
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1), (2) and (5). The Trustee (or,
in the case of a Trustee that is a subsidiary of another bank or a
corporation included in a bank holding company system, the related
bank or bank holding company) shall have a combined capital and
surplus of at least $100,000,000 as set forth in its most recent
published annual report of condition, and have a corporate trust
office in the City of New York. In addition, if the Trustee is a
subsidiary of another bank or a corporation included in a bank holding
company system, the Trustee, independently of such bank or bank
holding company, shall meet the capital requirements of TIA
Section 310(a)(2). The Trustee shall comply with TIA Section 310(b);
provided, however, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities,
or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met. The provisions of TIA Section
310 shall apply to the Company, as obligor of the Notes.
SECTION 7.11. Preferential Collection of
Claims Against Company.
--------------------------
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations.
-------------------------------------
This Indenture shall be discharged and shall cease to be of
further effect (except as to surviving rights or registration of transfer
or exchange of the Notes, as expressly provided for in this Indenture)
as to all outstanding Notes when (a) either (i) all Notes, theretofore
authenticated and delivered (except lost, stolen or destroyed Notes
which have been replaced or paid and Notes for whose payment money has
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theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust) have been delivered to the Trustee for cancellation or
(ii) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has
irrevocably deposited or caused to be deposited with the Trustee funds
in an amount sufficient to pay and discharge the entire Indebtedness
on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest and
Additional Interest, if any, on the Notes to the date of deposit
together with irrevocable instructions from the Company directing the
Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be; (b) the Company has paid all other
sums payable under this Indenture by the Company; and (c) the Company
has delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been
complied with; provided, however, that such counsel may rely, as to
matters of fact, on an Officers' Certificate of the Company.
The Company may, at its option and at any time, elect to have
its obligations and the obligations of the Guarantors discharged with
respect to the outstanding Notes ("Legal Defeasance"). Such Legal
Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the outstanding
Notes, except for (a) the rights of Holders to receive payments in
respect of the principal of, premium, if any, and interest and
Additional Interest, if any, on the Notes when such payments are due,
(b) the Company's obligations with respect to the Notes concerning
issuing temporary Notes, registration of Notes, mutilated, destroyed,
lost or stolen Notes and the maintenance of an office or agency for
payments, (c) the rights, powers, trust, duties and immunities of the
Trustee and the Company's obligations in connection therewith and (d)
the Legal Defeasance provisions of this Section 8.01. In addition,
the Company may, at its option and at any time, elect to have the
obligations of the Company released with respect to covenants
contained in Sections 4.04, 4.05, 4.08 and 4.10 through 4.20 and
Article Five ("Covenant Defeasance") and thereafter any omission to
comply with such obligations shall not constitute a Default or Event
of Default with respect to the Notes. In the event of Covenant
Defeasance, those events described under Section 6.01 (except those
events described in Section 6.01(a),(b),(f) and (g)) shall no longer
constitute an Event of Default with respect to the Notes.
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In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders cash in United States
dollars, non-callable U.S. Government Obligations, or a combination
thereof, in such amounts as shall be sufficient, in the opinion of
a nationally recognized firm of independent public accountants, to pay
the principal of, premium, if any, and interest on the Notes on the
stated date for payment thereof or on the applicable Redemption Date,
as the case may be;
(b) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee (which may be counsel to the
Company) confirming that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (ii)
since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such Opinion of Counsel shall confirm that, the
Holders shall not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and shall be subject to
U.S. federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee (which may be counsel to the
Company) confirming that the Holders shall not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant
Defeasance and shall be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default with respect to the Indenture resulting from the incurrence
of Indebtedness, all or a portion of which will be used to defease the
Notes concurrently with such incurrence) or insofar as Events of
Default under Section 6.01 (f) or (g) from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day
after the date of deposit;
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(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under this Indenture
or any other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied
with; and
(h) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit,
the trust funds shall not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (b) with respect to Legal Defeasance need not be delivered if
all the Notes not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, (ii) shall become due
and payable on the maturity date 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 such Trustee
in the name, and at the expense, of the Company.
SECTION 8.02. Application of Trust Money.
---------------------------
The Trustee or Paying Agent shall hold in trust U.S. Legal
Tender or U.S. Government Obligations deposited with it pursuant to
Section 8.01, and shall apply the deposited U.S. Legal Tender and the
money from U.S. Government Obligations in accordance with this
Indenture to the payment of the principal of and interest on the
Notes. The Trustee shall be under no obligation to invest said U.S.
Legal Tender or U.S. Government Obligations, except that, upon request
of the Company, the Trustee shall invest said U.S. Legal Tender in
U.S. Government Obligations.
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The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Legal Tender or
U.S. Government Obligations deposited pursuant to Section 8.01 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 outstanding Notes.
SECTION 8.03. Repayment to the Company.
-------------------------
Subject to Sections 7.07 and 8.01, the Trustee and the Paying
Agent shall promptly pay to the Company upon request any excess U.S. Legal
Tender or U.S. Government Obligations held by them at any time and
thereupon shall be relieved from all liability with respect to such
money. The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or
interest that remains unclaimed for one year after the due date for
payment of such principal or interest; provided, however, that the
Company shall, if requested by the Trustee or Paying Agent, give to
the Trustee or Paying Agent, indemnification reasonably satisfactory
to it against any and all liability which may be incurred by it by
reason of such paying; provided, further, that the Trustee or such
Paying Agent, before being required to make any payment, may at the
expense of the Company cause to be published once in a newspaper of
general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and
that after a date specified therein which shall be at least 30 days
from the date of such publication or mailing any unclaimed balance of
such money then remaining shall be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to
the Company for payment as general creditors unless an applicable law
designates another Person, and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
SECTION 8.04. Reinstatement.
--------------
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 8.01
by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.01 until such
time as the Trustee or Paying Agent is permitted to apply all such
U.S. Legal Tender or U.S. Government Obligations in accordance with
Section 8.01; provided, however, that if the Company has made any
payment of interest on or principal of any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to
the rights of the Holders of such Notes to receive such payment from
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the U.S. Legal Tender or U.S. Government Obligations held by the
Trustee or Paying Agent.
SECTION 8.05. Acknowledgment of Discharge
by Trustee.
---------------------------
After (i) the conditions of Section 8.01 have been satisfied,
(ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company and (iii) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with,
the Trustee upon request shall acknowledge in writing the discharge of
the Company's obligations under this Indenture except for those
surviving obligations specified in Section 8.01, provided the legal
counsel delivering such Opinion of Counsel may rely as to matters of
fact on one or more Officers' Certificates of the Company.
ARTICLE NINE
MODIFICATION OF THE INDENTURE
-----------------------------
SECTION 9.01. Without Consent of Holders.
---------------------------
Subject to the provisions of Section 9.02, the Company, the
Guarantors and the Trustee may amend, waive or supplement this Indenture
without notice to or consent of any Holder: (a) to cure any ambiguity,
defect or inconsistency; (b) to comply with Section 5.01 of this Indenture;
(c) to provide for uncertificated Notes in addition to certificated
Notes; (d) to comply with any requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
TIA; or (e) to make any change that would provide any additional
benefit or rights to the Holders or that does not adversely affect the
rights of any Holder. Notwithstanding the foregoing, the Trustee, the
Guarantors and the Company may not make any change pursuant to this
Section 9.01 that adversely affects the rights of any Holder under
this Indenture without the consent of such Holder. In formulating its
determination on such matters, the Trustee shall be entitled to rely
on such evidence as it deems appropriate, including, without
limitation, solely on an Opinion of Counsel (which may be counsel to
the Company) or an Officers' Certificate, and may not be held liable
therefor.
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Upon the request of the Company and the Guarantors accompanied
by a Board Resolution authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the
documents described in Section 9.06, the Trustee shall join with the
Company and the Guarantors in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee may but
shall not be obligated to enter into such amended or supplemental
Indenture which affects its own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.02. With Consent of Holders.
------------------------
The Company, the Guarantors and the Trustee may amend or supplement
this Indenture or the Notes or any amended or supplemental Indenture
with the written consent of the Holders of Notes of not less than a
majority in aggregate principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or
exchange offer for the Notes).
Upon the request of the Company and the Guarantors accompanied
by a Board Resolution authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of
Notes as aforesaid, and upon receipt by the Trustee of the documents
described in Section 9.06, the Trustee shall join with the Company and
the Guarantors in the execution of such amended or supplemental
Indenture unless such amended or supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its sole discretion, but
shall not be obligated to, enter into such amended or supplemental
Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any
such amended or supplemental Indenture or waiver. Subject to
Sections 6.04 and 6.07, the Holders of a majority in aggregate
principal amount of the Notes then outstanding may waive compliance in
a particular instance by the Company with any provision of this
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Indenture or the Notes. However, without the consent of each Holder
of the Notes affected thereby, an amendment or waiver may not,
directly or indirectly: (i) reduce the amount of Notes whose Holders
must consent to an amendment; (ii) reduce the rate of or change or
have the effect of changing the time for payment of premium, if any,
and interest, including Default Interest, on any Notes; (iii) reduce
the principal of or change or have the effect of changing the fixed
maturity of any Notes, or change the date on which any Notes may be
subject to redemption or repurchase, or reduce the redemption or
repurchase price therefor; (iv) make any Notes payable in money other
than that stated in the Notes; (v) make any change in provisions of
this Indenture protecting the right of each Holder to receive payment
of premium, if any, principal of and interest on such Note on or after
the due date thereof or to bring suit to enforce such payment, or
permitting Holders of a majority in principal amount of the Notes to
waive Defaults or Events of Default; (vi) after the Company's
obligation to purchase Notes arises thereunder, amend, change or
modify in any material respect the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of
Control which has occurred or make and consummate a Net Proceeds Offer
with respect to any Asset Sale that has been consummated or modify any
of the provisions or definitions with respect thereto; (vii) modify or
change any provision of this Indenture or the related definitions
affecting the ranking of the Notes or any Guarantee in a manner which
adversely affects the Holders; or (viii) release any Guarantor from
any of its obligations under its Guarantee or this Indenture otherwise
than in accordance with the terms of this Indenture.
SECTION 9.03. Compliance with TIA.
--------------------
Every amendment, waiver or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect; provided, however,
that this Section 9.03 shall not of itself require that this Indenture
or the Trustee be qualified under the TIA or constitute any admission
or acknowledgment by any party hereto that any such qualification is
required prior to the time this Indenture and the Trustee are required
by the TIA to be so qualified.
SECTION 9.04. Revocation and Effect of Consents.
----------------------------------
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the
same debt as the consenting Holder's Note, even if notation of the
consent is not made on any Note. Subject to the following paragraph,
any such Holder or subsequent Holder may revoke the consent as to such
Holder's Note or portion of such Note by notice to the Trustee or the
Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite
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principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver. An amendment,
supplement or waiver becomes effective upon receipt by the Trustee of
such Officers' Certificate and evidence of consent by the Holders of
the requisite percentage in principal amount of outstanding Notes.
The Company may, but shall not be obligated to, fix a Record
Date for the purpose of determining the Holders entitled to consent to
any amendment, supplement or waiver. If a Record Date is fixed, then
notwithstanding the second sentence of the immediately preceding
paragraph, those Persons who were Holders at such Record Date (or
their duly designated proxies), and only those Persons, shall be
entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such Record Date. No such
consent shall be valid or effective for more than 90 days after such
Record Date unless consents from Holders of the requisite percentage
in principal amount of outstanding Notes required hereunder for the
effectiveness of such consents shall have also been given and not
revoked within such 90 day period.
SECTION 9.05. Notation on or Exchange of Notes.
---------------------------------
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may require the Holder of such Note to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Note
about the changed terms and return it to the Holder. Alternatively,
if the Company or the Trustee so determine, the Company in exchange
for the Note shall issue and the Trustee shall authenticate a new Note
that reflects the changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
--------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided, however, that the
Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture. In executing such
amendment, supplement or waiver the Trustee shall be entitled to
receive indemnity reasonably satisfactory to it, and shall be fully
protected in relying upon an Opinion of Counsel and an Officers'
Certificate of the Company, stating that no Event of Default shall
occur as a result of such amendment, supplement or waiver and that the
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execution of such amendment, supplement or waiver is authorized or
permitted by this Indenture; provided, however, that the legal counsel
delivering such Opinion of Counsel may rely as to matters of fact on
one or more Officers' Certificates of the Company. Such Opinion of
Counsel shall not be an expense of the Trustee.
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01. Unconditional Guarantee.
------------------------
Subject to the provisions of this Article Ten, each Guarantor
hereby, jointly and severally, unconditionally and irrevocably guarantees,
on a senior basis (such guarantee to be referred to herein as a
"Guarantee") to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the
Notes or the obligations of the Company or any other Guarantor to the
Holders or the Trustee hereunder or thereunder, that: (a) the
principal of, premium, if any, and interest on the Notes (and any
Additional Interest payable thereon) shall be duly and punctually paid
in full when due, whether at maturity, upon redemption at the option
of Holders pursuant to the provisions of the Notes relating thereto,
by acceleration or otherwise, and interest on the overdue principal,
overdue premium, if any, and overdue installments of interest, to the
extent lawful, on the Notes and all other obligations of the Company
or the Guarantors to the Holders or the Trustee hereunder or
thereunder (including amounts due the Trustee under Section 7.07) and
all other obligations shall be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (b) in case of
any extension of time of payment or renewal of any Notes or any of
such other obligations, the same shall be promptly paid in full when
due or performed in accordance with the terms of the extension or
renewal, whether at maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, or failing performance
of any other obligation of the Company to the Holders under this
Indenture or under the Notes, for whatever reason, each Guarantor
shall be obligated to pay, or to perform or cause the performance of,
the same immediately. An Event of Default under this Indenture or the
Notes shall constitute an event of default under this Guarantee, and
shall entitle the Holders of Notes to accelerate the obligations of
the Guarantors hereunder in the same manner and to the same extent as
the obligations of the Company.
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Each of the Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity
or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the
Notes with respect to any provisions hereof or thereof, any release of
any other Guarantor, the recovery of any judgment against the Company,
any action to enforce the same, whether or not a Guarantee is affixed
to any particular Note, or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
Guarantor. Each of the Guarantors hereby waives the benefit of
diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that its Guarantee
shall not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture and this Guarantee.
This Guarantee is a guarantee of payment and not of collection. If
any Holder or the Trustee is required by any court or otherwise to
return to the Company or to any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company
or such Guarantor, any amount paid by the Company or such Guarantor to
the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between it, on the one hand, and the
Holders of Notes and the Trustee, on the other hand, (a) subject to
this Article Ten, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Six for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed
hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Six, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for
the purpose of this Guarantee.
No stockholder, officer, director, employee, agent or incorporator,
past, present or future, or any Guarantor , as such, shall have any
personal liability under this Guarantee by reason of his, her or its
status as such stockholder, officer, director, employee, agent or
incorporator.
Each Guarantor that makes a payment or distribution under
its Guarantee shall be entitled to a contribution from each other
Guarantor in an amount pro rata, based on the net assets of each
Guarantor, determined in accordance with GAAP.
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SECTION 10.02. Limitations on Guarantees.
--------------------------
The obligations of any Guarantor under its Guarantee are limited
to the maximum amount which, after giving effect to all other contingent
and fixed liabilities of the Guarantor will result in the obligations
of the Guarantor under the Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under any laws of the United States,
any state of the United States or the District of Columbia.
SECTION 10.03. Execution and Delivery of
Guarantee.
-------------------------
To further evidence the Guarantee set forth in Section 10.01,
each Guarantor hereby agrees that a notation of such Guarantee,
substantially in the form of Exhibit E, shall be endorsed on each Note
authenticated and delivered by the Trustee. Such Guarantee shall be
executed on behalf of each Guarantor by either manual or facsimile
signature of two Officers of the Guarantor, each of whom, in each
case, shall have been duly authorized to so execute by all requisite
corporate action. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any
particular Note. Each of the Guarantors hereby agrees that its
Guarantee set forth in Section 10.01 shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation
of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture
or a Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee is endorsed or at any
time thereafter, such Guarantor's Guarantee of such Note shall be
valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set
forth in this Indenture on behalf of each Guarantor.
SECTION 10.04. Release of Guarantors.
----------------------
(a) If no Default exists or would exist under this Indenture,
upon (i) the sale or other disposition of all of the Capital Stock of any
Guarantor by the Company, or (ii) the sale or disposition of all or
substantially all of the assets of any Guarantor in compliance with
all of the terms of this Indenture, such Guarantor's Guarantee shall
be released, and such Guarantor shall be deemed released from all
obligations under this Article Ten without any further action required
on the part of the Trustee or any Holder. If such Guarantor is not so
released, such Guarantor or the entity surviving such Guarantor, as
applicable, shall remain or be liable under its Guarantee as provided
in this Article Ten until such time as no Default exists or would
exist under this Indenture.
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(b) The Trustee shall deliver an appropriate instrument evidencing
the release of the Guarantor upon receipt of a request by the Company
or the Guarantor accompanied by an Officers' Certificate and an
Opinion of Counsel certifying as to the compliance with this Section
10.04, provided the legal counsel delivering such Opinion of Counsel
may rely as to matters of fact on one or more Officers Certificates of
the Company.
The Trustee shall execute any documents reasonably requested
by the Company or the Guarantor in order to evidence the release of the
Guarantor from its obligations under its Guarantee endorsed on the
Notes and under this Article Eleven.
Except as set forth in Articles Four and Five and this Section
10.04, nothing contained in this Indenture or in any of the Notes shall
prevent any consolidation or merger of the Guarantor with or into the
Company or shall prevent any sale or conveyance of the property of the
Guarantor as an entirety or substantially as an entirety to the
Company.
SECTION 10.05. Waiver of Subrogation.
----------------------
Until this Indenture is discharged and all of the Notes are
discharged and paid in full, each Guarantor hereby irrevocably waives
and agrees not to exercise any claim or other rights which it may now or
hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of the Company's obligations under
the Notes or this Indenture and such Guarantor's obligations under
this Guarantee and this Indenture, in any such instance including,
without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Holders against the Company,
whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in
cash or other property or by set-off or in any other manner, payment
or security on account of such claim or other rights. If any amount
shall be paid to any Guarantor in violation of the preceding sentence
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and any amounts owing to the Trustee or the Holders of Notes under the
Notes, this Indenture, or any other document or instrument delivered
under or in connection with such agreements or instruments, shall not
have been paid in full, such amount shall have been deemed to have
been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Trustee or the Holders and shall forthwith be paid
to the Trustee for the benefit of itself or such Holders to be
credited and applied to the obligations in favor of the Trustee or the
Holders, as the case may be, whether matured or unmatured, in
accordance with the terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Indenture and that the
waiver set forth in this Section 10.05 is knowingly made in
contemplation of such benefits.
SECTION 10.06. Immediate Payment.
------------------
Each Guarantor agrees to make immediate payment to the Trustee
on behalf of the Holders or the Trustee of all Obligations owing or
payable to the respective Holders or the Trustee upon receipt of a
demand for payment therefor by the Trustee to such Guarantor in
writing.
SECTION 10.07. No Set-Off.
-----------
Each payment to be made by a Guarantor hereunder in respect of
the Obligations shall be payable in the currency or currencies in which
such Obligations are denominated, and shall be made without set-off,
counterclaim, reduction or diminution of any kind or nature.
SECTION 10.08. Obligations Absolute.
---------------------
The obligations of each Guarantor hereunder are and shall be
absolute and unconditional and any monies or amounts expressed to be owing
or payable by each Guarantor hereunder which may not be recoverable from
such Guarantor on the basis of a Guarantee shall be recoverable from
such Guarantor as a primary obligor and principal debtor in respect
thereof.
SECTION 10.09. Obligations Continuing.
-----------------------
The obligations of each Guarantor hereunder shall be continuing
and shall remain in full force and effect until all the obligations have
been paid and satisfied in full. Each Guarantor agrees with the
Trustee that it will from time to time deliver to the Trustee suitable
acknowledgments of this continued liability hereunder.
SECTION 10.10. Obligations Not Reduced.
------------------------
The obligations of each Guarantor hereunder shall not be
satisfied, reduced or discharged solely by the payment of such principal,
premium, if any, interest, fees and other monies or amounts as may at
any time prior to discharge of this Indenture pursuant to Article
Eight be or become owing or payable under or by virtue of or otherwise
in connection with the Securities or this Indenture.
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SECTION 10.11. Obligations Reinstated.
-----------------------
The obligations of each Guarantor hereunder shall continue to
be effective or shall be reinstated, as the case may be, if at any time
any payment which would otherwise have reduced the obligations of any
Guarantor hereunder (whether such payment shall have been made by or
on behalf of the Company or by or on behalf of a Guarantor) is
rescinded or reclaimed from any of the Holders upon the insolvency,
bankruptcy, liquidation or reorganization of the Company or any
Guarantor or otherwise, all as though such payment had not been made.
If demand for, or acceleration of the time for, payment by the Company
is stayed upon the insolvency, bankruptcy, liquidation or
reorganization of the Company, all such Indebtedness otherwise subject
to demand for payment or acceleration shall nonetheless be payable by
each Guarantor as provided herein.
SECTION 10.12. Obligations Not Affected.
-------------------------
The obligations of each Guarantor hereunder shall not be
affected, impaired or diminished in any way by any act, omission, matter
or thing whatsoever, occurring before, upon or after any demand for
payment hereunder (and whether or not known or consented to by any
Guarantor or any of the Holders) which, but for this provision, might
constitute a whole or partial defense to a claim against any Guarantor
hereunder or might operate to release or otherwise exonerate any
Guarantor from any of its obligations hereunder or otherwise affect
such obligations, whether occasioned by default of any of the Holders
or otherwise, including, without limitation:
(a) any limitation of status or power, disability, incapacity or
other circumstance relating to the Company or any other Person,
including any insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, winding-up or other proceeding
involving or affecting the Company or any other Person;
(b) any irregularity, defect, unenforceability or invalidity in
respect of any indebtedness or other obligation of the Company or any
other Person under this Indenture, the Notes, the Guarantees or any
other document or instrument;
(c) any failure of the Company, whether or not without fault on its
part, to perform or comply with any of the provisions of this
Indenture or the Securities, or to give notice thereof to a Guarantor;
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(d) the taking or enforcing or exercising or the refusal or neglect
to take or enforce or exercise any right or remedy from or against the
Company or any other Person or their respective assets or the release
or discharge of any such right or remedy;
(e) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to
the Company or any other Person;
(f) any change in the time, manner or place of payment of, or in any
other term of, any of the Notes, or any other amendment, variation,
supplement, replacement or waiver of, or any consent to departure
from, any of the Notes or this Indenture, including, without
limitation, any increase or decrease in the principal amount of or
premium, if any, or interest on any of the Securities;
(g) any change in the ownership, control, name, objects, businesses,
assets, capital structure or constitution of the Company or a
Guarantor;
(h) any merger or amalgamation of the Company or a Guarantor with
any Person or Persons;
(i) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or
otherwise affecting, or purporting to amend, vary, reduce or otherwise
affect, any of the Obligations or the obligations of a Guarantor under
its Guarantee; and
(j) any other circumstance, including release of a Guarantor
pursuant to Section 10.04 (other than by complete, irrevocable payment)
that might otherwise constitute a legal or equitable discharge or defense
of the Company under this Indenture or the Notes or of another
Guarantor in respect of its Guarantee hereunder;
provided, that the provisions of this Section 10.12 are not intended
to affect in any way any release of a Guarantor in accordance with the
provisions of Section 10.04.
SECTION 10.13. Waiver.
-------
Without in any way limiting the provisions of Section 10.01
hereof, each Guarantor hereby waives notice or proof of reliance by the
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Holders upon the obligations of any Guarantor hereunder, and
diligence, presentment, demand for payment on the Company, protest or
notice of dishonor of any of the Obligations, or other notice or
formalities to the Company of any kind whatsoever.
SECTION 10.14. No Obligation To Take Action
Against the Company.
----------------------------
Neither the Trustee nor any other Person shall have any obligation
to enforce or exhaust any rights or remedies or to take any other steps
under any security for the Obligations or against the Company or any
other Person or any property of the Company or any other Person before
the Trustee is entitled to demand payment and performance by any or
all Guarantors of their liabilities and obligations under their
Guarantees or under this Indenture.
SECTION 10.15. Dealing with the Company and Others.
------------------------------------
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any
Guarantor hereunder and without the consent of or notice to any
Guarantor, may
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Company or
any other Person;
(b) take or abstain from taking security or collateral from the
Company or from perfecting security or collateral of the Company;
(c) release, discharge, compromise, realize, enforce or otherwise
deal with or do any act or thing in respect of (with or without
consideration) any and all collateral, mortgages or other security
given by the Company or any third party with respect to the
obligations or matters contemplated by this Indenture or the Notes;
(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or from
any security upon such part of the Obligations as the Holders may see
fit or change any such application in whole or in part from time to
time as the Holders may see fit; and
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(f) otherwise deal with, or waive or modify their right to deal
with, the Company and all other Persons and any security as the Holders
or the Trustee may see fit.
SECTION 10.16. Default and Enforcement.
------------------------
If any Guarantor fails to pay in accordance with Section 10.06,
the Trustee may proceed in its name as trustee hereunder in the
enforcement of the Guarantee of any such Guarantor and such Guarantor
's obligations thereunder and hereunder by any remedy provided by law,
whether by legal proceedings or otherwise, and to recover from such
Guarantor the obligations.
SECTION 10.17. Amendment, Etc.
---------------
No amendment, modification or waiver of any provision of this
Indenture relating to any Guarantor or consent to any departure by any
Guarantor or any other Person from any such provision will in any
event be effective unless it is signed by such Guarantor and the
Trustee.
SECTION 10.18. Acknowledgment.
---------------
Each Guarantor hereby acknowledges communication of the terms
of this Indenture and the Notes and consents to and approves of the same.
SECTION 10.19. Costs and Expenses.
-------------------
Each Guarantor shall pay on demand by the Trustee any and all
costs, fees and expenses (including, without limitation, legal fees on a
solicitor and client basis) incurred by the Trustee, its agents,
advisors and counsel or any of the Holders in enforcing any of their
rights under any Guarantee.
SECTION 10.20. No Merger or Waiver;
Cumulative Remedies.
--------------------
No Guarantee shall operate by way of merger of any of the
obligations of a Guarantor under any other agreement, including, without
limitation, this Indenture. No failure to exercise and no delay in
exercising, on the part of the Trustee or the Holders, any right,
remedy, power or privilege hereunder or under this Indenture or the
Notes, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder or
under this Indenture or the Notes preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges in the
Guarantee and under this Indenture, the Notes and any other document
or instrument between a Guarantor and/or the Company and the Trustee
are cumulative and not exclusive of any rights, remedies, powers and
privilege provided by law.
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SECTION 10.21. Survival of Obligations.
------------------------
Without prejudice to the survival of any of the other obligations
of each Guarantor hereunder, the obligations of each Guarantor under
Section 10.01 shall survive the payment in full of the Obligations and
shall be enforceable against such Guarantor without regard to and
without giving effect to any right of offset or counterclaim available
to or which may be asserted by the Company or any Guarantor.
SECTION 10.22. Guarantee in Addition to Other
Obligations.
------------------------------
The obligations of each Guarantor under its Guarantee and
this Indenture are in addition to and not in substitution for any other
obligations to the Trustee or to any of the Holders in relation to
this Indenture or the Notes (including the purchase agreement by and
among the Company, the Guarantors and the Initial Purchasers, dated
October 5, 1998, and the Registration Rights Agreement) and any
guarantees or security at any time held by or for the benefit of any
of them.
SECTION 10.23. Severability.
-------------
Any provision of this Article Ten which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining
provisions and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction unless its removal would substantially defeat the basic
intent, spirit and purpose of this Indenture and this Article Ten.
SECTION 10.24. Successors and Assigns.
-----------------------
Each Guarantee shall be binding upon and inure to the benefit
of each Guarantor and the Trustee and the other Holders and their respective
successors and permitted assigns, except that no Guarantor may assign
any of its obligations hereunder or thereunder.
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ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control; provided,
however, that this Section 11.01 shall not of itself require that this
Indenture or the Trustee be qualified under the TIA or constitute any
admission or acknowledgment by any party hereto that any such
qualification is required prior to the time this Indenture and the
Trustee are required by the TIA to be so qualified.
SECTION 11.02. Notices.
-------
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telex, by telecopier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
if to the Company or the Guarantors:
National Vision Associates, Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Suite 2800, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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if to the Trustee:
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Division
The Company, the Guarantors and the Trustee by written notice to
the other may designate additional or different addresses for notices to
such Person. Any notice or communication to the Company, the
Guarantors or the Trustee shall be deemed to have been given or made
as of the date so delivered if hand delivered; when answered back, if
telexed; when receipt is acknowledged, if faxed; one (1) Business Day
after mailing by reputable overnight courier and five (5) calendar
days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed
to have been given until actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar ten (10) days prior
to such mailing and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders
with Other Holders.
-------------------------
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and any other Person shall have
the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as
to Conditions Precedent.
--------------------------
Upon any request or application by the Company or the Guarantors
to the Trustee to take any action under this Indenture, the Company shall
furnish to the Trustee:
-99-
(1) an Officers' Certificate, in form and substance satisfactory
to the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed by the Company, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company,
if any, provided for in this Indenture relating to the proposed action
have been complied with (which counsel, as to factual matters, may rely
on an Officers' Certificate).
SECTION 11.05. Statements Required in
Certificate or Opinion.
-----------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the
Officers' Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is reasonably necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee, Paying
Agent, Registrar.
------------------------
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. Legal Holidays.
---------------
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New
York, New York or at such place of payment are not required to be
-100-
open. If a payment date is a Legal Holiday at such place, payment may
be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08. Governing Law.
--------------
THIS INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
SECTION 11.09. No Adverse Interpretation
of Other Agreements.
-------------------------
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.10. No Personal Liability.
---------------------
No director, officer, partner, member, employee, agent or
stockholder, as such, of the Company or any Guarantor, as such, shall
have any liability for any obligations of the Company or any Guarantor
under the Notes, the Guarantees, this Indenture or the Registration Rights
Agreement or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
SECTION 11.11. Successors.
----------
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 11.12. Duplicate Originals.
-------------------
All parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together shall
represent the same agreement.
SECTION 11.13. Severability.
------------
In case any one or more of the provisions in this Indenture or
in the Notes shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall
not in any way be affected or impaired thereby, it being intended that
all of the provisions hereof shall be enforceable to the full extent
permitted by law.
-101-
SECTION 11.14. Independence of Covenants.
-------------------------
All covenants and agreements in this Indenture and the Notes shall
be given independent effect so that if any particular action or condition
is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or otherwise be within the limitations
of, another covenant shall not avoid the occurrence of a Default or an
Event of Default if such action is taken or condition exists.
-102-
SIGNATURES
IN WITNESS WHEREOF, the parties specified below have caused this
Indenture to be duly executed, all as of the date first written above.
NATIONAL VISION ASSOCIATES, LTD.,
as Issuer
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Sr. Vice President
MIDWEST VISION, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
NVAL HEALTHCARE SYSTEMS, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
INTERNATIONAL VISION ASSOCIATES,
LTD., as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FRAME-N-LENS OPTICAL, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
-101-
VISION ADMINISTRATORS, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
INTERNATIONAL VISION ASSOCIATES
OF CANADA LTD., as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
INTERNATIONAL VISION ASSOCIATES
OF ONTARIO LTD., as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
FAMILY VISION CENTERS, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
NW ACQUISITION CORP.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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STATE STEET BANK AND TRUST
COMPANY, as Trustee
By: /s/ ▇▇▇▇▇ ▇. Lanmore
Name: ▇▇▇▇▇ ▇. Lanmore
Title: Assistant Vice President
IN WITNESS WHEREOF, the parties specified below have caused this
Indenture to be duly executed, all as of the date first written above.
Date: October 23, 1998
NEW WEST EYEWORKS, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ALEXIS HOLDING COMPANY, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
VISTA EYECARE NETWORK, LLC,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
-105-
EXHIBIT A
CUSIP No.: [ ]
NATIONAL VISION ASSOCIATES, LTD.
12 3/4% SENIOR NOTE DUE 2005, SERIES A
No. [ ] $
NATIONAL VISION ASSOCIATES, LTD., a Georgia corporation (the
"Company"), for value received promises to pay to Cede & Co. or
registered assigns the principal sum of Dollars on
October 15, 2005.
Interest Payment Dates: April 15 and October 15, commencing
April 15, 1999.
Record Dates: April 1 and October 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as
if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
NATIONAL VISION ASSOCIATES, LTD.
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
Dated: [ ]
A-1
Certificate of Authentication
This is one of the 12 3/4% Senior Notes due 2005 referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:______________________________
Authorized Signatory
Date of Authentication: [ ]
A-2
(REVERSE OF SECURITY)
12 3/4% Senior Note due 2005, Series A
1. Interest. NATIONAL VISION ASSOCIATES, LTD., a Georgia
corporation (the "Company"), promises to pay interest on the principal
amount of this Note at the rate per annum shown above. Interest on
the Notes will accrue from the most recent date on which interest has
been paid or, if no interest has been paid, from October 8, 1998. The
Company will pay interest semiannually in arrears on each Interest
Payment Date, commencing April 15, 1999. Interest will be computed on
the basis of a 360-day year of twelve 30-day months and, in the case
of a partial month, the actual number of days elapsed.
The Company shall pay interest on overdue principal, overdue
premium, if any, and on overdue installments of interest (without
regard to any applicable grace periods), to the extent lawful, from
time to time on demand at the rate borne by the Notes plus 2%.
2. Method of Payment. The Company shall pay interest on
the Notes (except Default Interest) to the Persons who are the
registered Holders at the close of business on the Record Date
immediately preceding the Interest Payment Date even if the Notes are
cancelled on registration of transfer or registration of exchange
(including pursuant to an Exchange Offer (as defined in the
Registration Rights Agreement)) after such Record Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States
that at the time of payment is legal tender for payment of public and
private debts ("U.S. Legal Tender"). However, the Company may pay
principal and interest by its check payable in such U.S. Legal Tender.
The Company may deliver any such interest payment to the Paying Agent
or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar. Initially, State Street
Bank and Trust Company (the "Trustee") will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-
Registrar without notice to the Holders.
4. Indenture. The Company issued the Notes under an
Indenture, dated as of October 8, 1998 (the "Indenture"), among the
Company, each of the Guarantors named therein and the Trustee. This
Note is one of a duly authorized issue of Initial Notes of the Company
designated as its 12 3/4% Senior Notes due 2005, Series A (the
"Initial Notes"). The Notes are limited (except as otherwise provided
in the Indenture) in aggregate principal amount to $190,000,000, which
may be issued under the Indenture; provided the principal amount of
Initial Notes issued on the Issue Date will not exceed $125,000,000.
The Notes include the Initial Notes, Private Exchange Notes and the
Exchange Notes issued in exchange for the Initial Notes pursuant to
the Registration Rights Agreement. The Initial Notes and the Exchange
Notes are treated as a single class of securities under the Indenture.
Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture. Notwithstanding
anything to the contrary herein, the Notes are subject to all such
terms, and Holders of Notes are referred to the Indenture and said Act
A-3
for a statement of them. The Notes are general unsecured obligations
of the Company.
Each Holder, by accepting a Note, agrees to be bound by all
of the terms and provisions of the Indenture, as the same may be
amended from time to time in accordance with its terms.
5. Redemption. The Notes will be redeemable, at the
Company's option, in whole at any time or in part from time to time,
on and after October 15, 2003, upon not less than 30 nor more than 60
days' notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the
twelve-month period commencing on October 15 of the year set forth
below, plus, in each case, accrued and unpaid interest thereon, if
any, to the date of redemption:
Year Percentage
---- ----------
2003 . . . . . . . . . . . . . 105.000%
2004 and thereafter . . . . . . 100.000%
At any time, or from time to time, on or prior to October 15,
2001, the Company may, at its option, redeem up to 35% of the sum
of (i) the initial aggregate principal amount of the Notes issued in
the Offering and (ii) the respective initial aggregate principal
amount of the Notes issued under the Indenture after the Issue Date,
on one or more occasions with the net cash proceeds of one or more
Equity Offerings at a redemption price equal to 112.75% of the
principal amount thereof, plus accrued and unpaid interest, if any, to
the redemption date; provided, however, that immediately after giving
effect to such redemption, at least 65% of the sum of (i) the initial
aggregate principal amount of the Notes issued in the Offering and
(ii) the respective initial aggregate principal amount of the Notes
issued under the Indenture after the Issue Date remain outstanding
(other than any Notes owned by the Company or any of its Affiliates).
In order to effect the foregoing redemption with the proceeds of any
Equity Offering, the Company shall make such redemption not more than
120 days after the consummation of any such Equity Offering.
A-4
6. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address. Notes in denominations larger than
$1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for the
redemption of the Notes called for redemption shall have been
deposited with the Paying Agent for redemption on such Redemption
Date, then, unless the Company defaults in the payment of such
redemption price plus accrued interest, if any, the Notes called for
redemption will cease to bear interest from and after such Redemption
Date and the only right of the Holders of such Notes will be to
receive payment of the redemption price plus accrued interest, if any.
7. Offers to Purchase. Sections 4.14 and 4.15 of the
Indenture provide that, upon the occurrence of a Change of Control and
after Certain Asset Sales, and subject to further limitations
contained therein, the Company will make an offer to purchase certain
amounts of the Notes in accordance with the procedures set forth in
the Indenture.
8. Special Redemption. On the Special Redemption Date, the
Notes will be subject to mandatory redemption at an aggregate
redemption price equal to 100% of the principal amount of the Notes,
plus accrued and unpaid interest to the date of redemption, if the
tender offer for at least a majority of the common stock of New West
is not consummated on or prior to the Special Redemption Notice Date.
9. Registration Rights. Pursuant to a registration rights
agreement among the Company, the Guarantors and the Initial
Purchasers, the Company and the Guarantors will be obligated to
consummate an exchange offer pursuant to which the Holder of this Note
shall have the right to exchange this Note for Exchange Notes, which
have been registered under the Securities Act, in like principal
amount and having terms identical in all material respects as the
Initial Notes. The Holders of the Initial Notes shall be entitled to
receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions,
all pursuant to and in accordance with the terms of the registration
rights agreement.
A-5
10. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, and in denominations of $1,000 and
integral multiples of $1,000. A Holder shall register the transfer of
or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes
or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the
transfer of or exchange of any Notes or portions thereof selected for
redemption.
11. Persons Deemed Owners. The registered Holder of a Note
shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal
or interest remains unclaimed for one year, the Trustee and the Paying
Agent will pay the money back to the Company. After that, all
liability of the Trustee and such Paying Agent with respect to such
money shall cease.
13. Discharge Prior to Redemption or Maturity. If the
Company at any time deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations sufficient to pay the principal of and
interest on the Notes to redemption or maturity and complies with the
other provisions of the Indenture relating thereto, the Company will
be discharged from certain provisions of the Indenture and the Notes
(including certain covenants, but including, under certain
circumstances, its obligation to pay the principal of and interest on
the Notes but without affecting the rights of the Holders to receive
such amounts from such deposits).
14. Amendment; Supplement; Waiver. Subject to certain
exceptions set forth in the Indenture, the Indenture or the Notes may
be amended or supplemented with the written consent of the Holders of
a majority in aggregate principal amount of the Notes then
outstanding, and any past Default or Event of Default or noncompliance
with any provision may be waived with the written consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes,
comply with any requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the TIA or comply
with Article Five of the Indenture or make any other change that does
not adversely affect the rights of any Holder of a Note.
A-6
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to,
among other things, incur additional Indebtedness, pay dividends or
make certain other Restricted Payments, consummate certain Asset
Sales, enter into certain transactions with Affiliates, incur liens,
impose restrictions on the ability of a Subsidiary to pay dividends or
make certain payments to the Company and its Subsidiaries, merge or
consolidate with any other Person or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of the assets
of the Company. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.06 of the
Indenture, the Company must annually report to the Trustee on
compliance with such limitations.
16. Successors. When a successor assumes, in accordance
with the Indenture, all the obligations of its predecessor under the
Notes and the Indenture, the predecessor, subject to certain
exceptions, will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs
and is continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of Notes then outstanding may declare all
the Notes to be due and payable in the manner, at the time and with
the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or
the Notes unless it has received indemnity reasonably satisfactory to
it. The Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of Notes notice
of any continuing Default or Event of Default (except a Default in
payment of principal or interest when due, for any reason or a Default
in compliance with Article Five of the Indenture) if it determines
that withholding notice is in their interest.
18. Trustee Dealings with the Company and Its Subsidiaries.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise
deal with the Company, its Subsidiaries or their respective Affiliates
as if it were not the Trustee.
19. No Recourse Against Others. No partner, director,
officer, employee, member, agent or stockholder, as such, of the
Company or any Guarantor shall have any liability for any obligation
of the Company or any Guarantor under the Notes, the Guarantees, the
Indenture or the Registration Rights Agreement or for any claim based
on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
A-7
20. Guarantees. This Note will be entitled to the benefits
of certain Guarantees, if any, made for the benefit of the Holders.
Reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations
thereunder of the Guarantors, the Trustee and the Holders.
21. Authentication. This Note shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of
authentication on this Note.
22. Governing Law. This Note and the Indenture shall be
governed by and construed in accordance with the laws of the State of
New York, as applied to contracts made and performed within the State
of New York, without regard to principles of conflict of laws. Each
of the parties hereto agrees to submit to the jurisdiction of the
courts of the State of New York in any action or proceeding arising
out of or relating to this Note.
23. Abbreviations and Defined Terms. Customary
abbreviations may be used in the name of a Holder of a Note or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
24. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the
Notes as a convenience to the Holders of the Notes. No representation
is made as to the accuracy of such numbers as printed on the Notes and
reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Note upon
written request and without charge a copy of the Indenture, which has
the text of this Note. Requests may be made to: National Vision
Associates, Ltd., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: General Counsel.
A-8
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
(Print or type name, address and zip code and social security or tax
ID number of assignee)
and irrevocably appoint _______________________________________, agent
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: ____________ Signed: _________________________________
(Sign exactly as your name
appears on the other side of
this Note)
Signature Guarantee:_________________________________________________
In connection with any transfer of this Note occurring prior
to the date which is the earlier of (i) the date of the declaration by
the Commission of the effectiveness of a registration statement under
the Securities Act of 1933, as amended (the "Securities Act") covering
resales of this Note (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the
undersigned confirms that it has not utilized any general solicitation
or general advertising in connection with the transfer:
[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
A-9
(3) __ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the form
of which letter can be obtained from the Trustee); or
(4) __ outside the United states to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(5) __ pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933, as amended; or
(6) __ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(7) __ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that
such Note is not being transferred to an "affiliate" of the Company as
defined in Rule 144 under the Securities Act of 1933, as amended (an
"Affiliate"):
/ / The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of
any person other than the registered Holder thereof; provided,
however, that if item (3), (4), (5) or (7) is checked, the Company or
the Trustee may require, prior to registering any such transfer of the
Notes, in their sole discretion, such written legal opinions,
certifications (including an investment letter in the case of box (3)
or (4)) and other information as the Trustee or the Company has
reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
A-10
If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person
other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in Section 2.17 of
the Indenture shall have been satisfied.
Dated: ____________________ Signed: _______________________________
(Sign exactly as name appears
on the other side of this Note)
Signature Guarantee: _______________________________________________
A-11
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, as amended and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor
is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated: _____________ _______________________________________
NOTICE: To be executed by an executive
officer
A-12
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ]
Section 4.15 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture,
state the amount you elect to have purchased:
$___________________
Dated: ________________ _____________________________________
NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of
the within Note in every particular
without alteration or enlargement
or any change whatsoever and be
guaranteed.
Signature Guarantee: ________________________________________
A-13
EXHIBIT B
CUSIP No.: [ ]
NATIONAL VISION ASSOCIATES, LTD.
12 3/4% SENIOR NOTE DUE 2005, SERIES B
No. [ ] $
NATIONAL VISION ASSOCIATES, LTD., a Georgia corporation (the
"Company"), for value received, promises to pay to Cede & Co. or
registered assigns the principal sum of Dollars on
October 15, 2005.
Interest Payment Dates: April 15 and October 15, commencing
April 15, 1999.
Record Dates: April 1 and October 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as
if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
NATIONAL VISION ASSOCIATES, LTD.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Dated: [ ]
B-1
Certificate of Authentication
This is one of the 12 3/4% Senior Notes due 2005, Series B
referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:________________________________
Authorized Signatory
Date of Authentication: [ ]
B-2
(REVERSE OF SECURITY)
12 3/4% Senior Note due 2005, Series B
1. Interest. NATIONAL VISION ASSOCIATES, LTD. a Georgia
corporation (the "Company"), promises to pay interest on the principal
amount of this Note at the rate per annum shown above. Interest on the
Notes will accrue from the most recent date on which interest has been
paid or, if no interest has been paid, from October 8, 1998. The Company
will pay interest semiannually in arrears on each Interest Payment
Date, commencing April 15, 1999. Interest will be computed on the
basis of a 360-day year of twelve 30-day months and, in the case of
partial month, the actual number of days elapsed.
The Company shall pay interest on overdue principal, overdue
premium, if any, and on overdue installments of interest (without regard
to any applicable grace periods), to the extent lawful, from time to time
on demand at the rate borne by the Notes plus 2%.
2. Method of Payment. The Company shall pay interest on the
Notes (except Default Interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately
preceding the Interest Payment Date even if the Notes are canceled on
registration of transfer or registration of exchange after such Record
Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender
for payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal and interest by its check
payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar. Initially, State Street Bank and
Trust Company (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without
notice to the Holders.
4. Indenture. The Company issued the Notes under an Indenture, dated
as of October 8, 1998 (the "Indenture"), among the Company, each of
the Guarantors named therein and the Trustee. This Note is one of a
duly authorized issue of Exchange Notes of the Company designated as
its 12 3/4% Senior Notes due 2005, Series B (the "Exchange Notes").
The Notes include the 12 3/4% Notes due 2005, Series A (the "Initial
Notes") and the Exchange Notes, issued in exchange for the Initial
Notes pursuant to a registration rights agreement. The Notes are
limited (except as otherwise provided in the Indenture) in aggregate
principal amount to $190,000,000, which may be issued under the
Indenture; provided the principal amount of Initial Notes issued on
the Issue Date will not exceed $125,000,000. The Initial Notes and
the Exchange Notes are treated as a single class of securities under
the Indenture. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes
include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes
are subject to all such terms, and Holders of Notes are referred to
the Indenture and said Act for a statement of them. The Notes are
general unsecured obligations of the Company.
B-3
Each Holder, by accepting a Note, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from
time to time in accordance with its terms.
5. Redemption. The Notes will be redeemable, at the Company's
option, in whole at any time or in part from time to time, on and after
October 15, 2003, upon not less than 30 nor more than 60 days' notice,
at the following redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period
commencing on October 15 of the years set forth below, plus, in each
case, accrued and unpaid interest, if any, thereon to the date of
redemption:
Year Percentage
---- ----------
2003 . . . . . . . . . . . . . 105.000%
2004 and thereafter . . . . . . 100.000%
At any time, or from time to time, on or prior to October 15,
2001, the Company may, at its option, redeem up to 35% of the sum of (i)
the initial aggregate principal amount of the Notes issued in the Offering
and (ii) the respective initial aggregate principal amount of the
Notes issued under the Indenture after the Issue Date, on one or more
occasions with the net cash proceeds of one or more Equity Offerings
at a redemption price equal to 112.75% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the redemption
date; provided, however, that immediately after giving effect to such
redemption, at least 65% of the sum of (i) the initial aggregate
principal amount of the Notes issued in the Offering and (ii) the
respective initial aggregate principal amount of the Notes issued
under the Indenture after the Issue Date remain outstanding (other
than any Notes owned by the Company or any of its Affiliates). In
order to effect the foregoing redemption with the proceeds of any
Equity Offering, the Company shall make such redemption not more than
120 days after the consummation of any such Equity Offering.
B-4
6. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Notes to be redeemed at such Holder's registered address.
Notes in denominations larger than $1,000 may be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption
of the Notes called for redemption shall have been deposited with the
Paying Agent for redemption on such Redemption Date, then, unless the
Company defaults in the payment of such redemption price plus accrued
interest, if any, the Notes called for redemption will cease to bear
interest from and after such Redemption Date and the only right of the
Holders of such Notes will be to receive payment of the redemption
price plus accrued interest, if any.
7. Offers to Purchase. Sections 4.14 and 4.15 of the Indenture
provide that, upon the occurrence of a Change of Control and after certain
Asset Sales, and subject to further limitations contained therein, the
Company will make an offer to purchase certain amounts of the Notes in
accordance with the procedures set forth in the Indenture.
8. Special Redemption. On the Special Redemption Date, the Notes
will be subject to mandatory redemption at an aggregate redemption price
equal to 100% of the principal amount of the Notes, plus accrued and
unpaid interest to the date of redemption, if the tender offer for at
least a majority of the common stock of New West is not consummated on
or prior to the Special Redemption Notice Date.
9. Denominations; Transfer; Exchange. The Notes are in
registered form, without coupons, and in denominations of $1,000 and
integral multiples of $1,000. A Holder shall register the transfer of
or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay certain transfer taxes
or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the
transfer of or exchange of any Notes or portions thereof selected for
redemption.
10. Persons Deemed Owners. The registered Holder of a Note shall
be treated as the owner of it for all purposes.
B-5
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee and the Paying Agent
will pay the money back to the Company. After that, all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity. If the Company
at any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of and interest on the
Notes to redemption or maturity and complies with the other provisions
of the Indenture relating thereto, the Company will be discharged from
certain provisions of the Indenture and the Notes (including certain
covenants, including, under certain circumstances, its obligation to
pay the principal of and interest on the Notes but without affecting
the rights of the Holders to receive such amounts from such deposit).
13. Amendment; Supplement; Waiver. Subject to certain exceptions
set forth in the Indenture, the Indenture or the Notes may be amended or
supplemented with the written consent of the Holders of a majority in
aggregate principal amount of the Notes then outstanding, and any past
Default or Event of Default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in
aggregate principal amount of the Notes then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, provide for uncertificated Notes
in addition to or in place of certificated Notes, comply with any
requirements of the Commission in order to effect or maintain the
qualification of the Indenture under the TIA or comply with Article
Five of the Indenture or make any other change that does not adversely
affect the rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among
other things, incur additional Indebtedness, pay dividends or make certain
other Restricted Payments, consummate certain Asset Sales, enter into
certain transactions with Affiliates, incur liens, impose restrictions
on the ability of a Subsidiary to pay dividends or make certain
payments to the Company and its Subsidiaries, merge or consolidate
with any other Person or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of the assets of the
Company. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.06 of the
Indenture, the Company must annually report to the Trustee on
compliance with such limitations.
B-6
15. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and
the Indenture, the predecessor, subject to certain exceptions, will be
released from those obligations.
16. Defaults and Remedies. If an Event of Default occurs and
is continuing, the Trustee or the Holders of not less than 25% in
aggregate principal amount of Notes then outstanding may declare all
the Notes to be due and payable in the manner, at the time and with
the effect provided in the Indenture. Holders of Notes may not
enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or
the Notes unless it has received indemnity reasonably satisfactory to
it. The Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of Notes notice
of any continuing Default or Event of Default (except a Default in
payment of principal or interest when due, for any reason or a Default
in compliance with Article Five of the Indenture) if it determines
that withholding notice is in their interest.
17. Trustee Dealings with the Company and Its Subsidiaries. The
Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Notes and may otherwise deal with
the Company, its Subsidiaries or their respective Affiliates as if it
were not the Trustee.
18. No Recourse Against Others. No partner, director, officer,
employee, member, agent or stockholder, as such, of the Company or any
Guarantor shall have any liability for any obligation of the Company
or any Guarantor under the Notes, the Guarantees, the Indenture or the
Registration Rights Agreement or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder
of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issuance
of the Notes.
19. Guarantees. This Note will be entitled to the benefits of
certain Guarantees, if any, made for the benefit of the Holders. Reference
is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.
20. Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication
on this Note.
B-7
21. Governing Law. This Note and the Indenture shall be governed
by and construed in accordance with the laws of the State of New York, as
applied to contracts made and performed within the State of New York,
without regard to principles of conflict of laws. Each of the parties
hereto agrees to submit to the jurisdiction of the courts of the State
of New York in any action or proceeding arising out of or relating to
this Note.
22. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as:
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company
has caused CUSIP numbers to be printed on the Notes as a convenience
to the Holders of the Notes. No representation is made as to the
accuracy of such numbers as printed on the Notes and reliance may be
placed only on the other identification numbers printed hereon.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture, which has the text of
this Note. Requests may be made to: National Vision Associates, Ltd., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: General
Counsel.
B-8
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
(Print or type name, address and zip code and social security or tax
ID number of assignee)
and irrevocably appoint_________________________________________,
agent to transfer this Note on the books of the Company. The agent
may substitute another to act for him.
Dated: _________________ Signed: _______________________________
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee:________________________
B-9
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ]
Section 4.15 [ ]
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 4.14 or Section 4.15 of
the Indenture, state the amount you elect to have purchased:
$___________________
Dated: _______________ ________________________________________
NOTICE: The signature on this
assignment must correspond with the name
as it appears upon the face of the
within Note in every particular without
alteration or enlargement or any change
whatsoever and be guaranteed.
Signature Guarantee:_____________________________
B-10
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
[ ], [ ]
State Street Bank and Trust Company
Corporate Trust Division
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed purchase of 12 3/4% Senior
Notes due 2005 (the "Notes") of National Vision Associates, Ltd., a
Georgia corporation (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum (the
"Offering Memorandum"), dated October 5, 1998, relating to the
Notes and such other information as we deem necessary in order to
make our investment decision. We acknowledge that we have read
and agreed to the matters stated in the section entitled "Notice
to Investors" of such Offering Memorandum.
2. We understand that any subsequent transfer of the Notes
is subject to certain restrictions and conditions set forth in
the Indenture relating to the Notes (the "Indenture") as
described in the Offering Memorandum and the undersigned agrees
to be bound by, and not to resell, pledge or otherwise transfer
the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the
"Securities Act"), and all applicable State securities laws.
3. We understand that the offer and sale of the Notes have
not been registered under the Securities Act, and that the Notes
may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except as permitted in
the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Notes, we will do so only (i)
to the Company or any subsidiary thereof, (ii) inside the United
States in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined in Rule 144A
promulgated under the Securities Act), (iii) inside the United
States to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished
on its behalf by a U.S. broker-dealer) to the Trustee (as defined
in the Indenture) a signed letter containing certain
representations and agreements relating to the restrictions on
transfer of the Notes (the form of which letter can be obtained
from the Trustee), (iv) outside the United States in accordance
with Rule 904 of Regulation S promulgated under the Securities
Act to non-U.S. persons, (v) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if
available), or (vi) pursuant to an effective registration
statement under the Securities Act, and we further agree to
C-1
provide to any person purchasing any of the Notes from us a
notice advising such purchaser that resales of the Notes are
restricted as stated herein.
4. We understand that, on any proposed resale of any
Notes, we will be required to furnish to the Trustee and the
Company such certification, legal opinions and other information
as the Trustee and the Company may reasonably require to confirm
that the proposed sale complies with the foregoing restrictions.
We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
5. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) and have such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the
economic risk of our or their investment, as the case may be.
6. We are acquiring the Notes purchased by us for our
account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we
exercise sole investment discretion.
C-2
You, the Company, the Trustee and others are entitled to
rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative
or legal proceeding or official inquiry with respect to the matters
covered hereby.
Very truly yours,
[Name of Transferee]
By:_____________________________
Name:
Title:
C-3
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[ ], [ ]
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: National Vision Associates, Ltd. (the "Company")
12 3/4% Senior Notes due 2005 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of
aggregate principal amount of the Notes, we confirm that such sale has
been effected pursuant to and in accordance with Regulation S under
the U.S. Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction was executed
in, on or through the facilities of a designated off-shore
securities market and neither we nor any person acting on our
behalf knows that the transaction has been pre-arranged with a
buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b)
or Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You, the Company and counsel for the Company are entitled to
rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative
D-1
or legal proceedings or official inquiry with respect to the matters
covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:________________________________
Authorized Signature
D-2
EXHIBIT E
FORM OF GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of
this Note the cash payments in United States dollars of principal of,
premium, if any, and interest on this Note (and including Additional
Interest payable thereon) in the amounts and at the times when due and
interest on the overdue principal, premium, if any, and interest, if
any, of this Note, if lawful, and the payment or performance of all
other obligations of the Company under the Indenture (as defined
below) or the Notes, to the Holder of this Note and the Trustee, all
in accordance with and subject to the terms and limitations of this
Note, Article Ten of the Indenture and this Guarantee. This Guarantee
will become effective in accordance with Article Ten of the Indenture
and its terms shall be evidenced therein. The validity and
enforceability of any Guarantee shall not be affected by the fact that
it is not affixed to any particular Note. Capitalized terms used but
not defined herein shall have the meanings ascribed to them in the
Indenture dated as of October 8, 1998, among National Vision
Associates, Ltd., a Georgia corporation, as Company (the "Company"),
each of the Guarantors named therein and State Street Bank and Trust
Company, as Trustee (the "Trustee"), as amended or supplemented (the
"Indenture").
The obligations of the undersigned to the Holders of Notes and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set
forth in Article Ten of the Indenture and reference is hereby made to
the Indenture for the precise terms of the Guarantee and all of the
other provisions of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICTS OF LAW. Each Guarantor hereby agrees to submit to the
jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth in
the Indenture.
E-1
IN WITNESS WHEREOF, each Guarantor has caused its Guarantee to be
duly executed as of the date of this Note.
Date:______________
MIDWEST VISION, INC., as Guarantor
By:___________________________
Name:
Title:
NVAL HEALTHCARE SYSTEMS, INC.,
as Guarantor
By:___________________________
Name:
Title:
INTERNATIONAL VISION ASSOCIATES, LTD.,
as Guarantor
By:___________________________
Name:
Title:
FRAME-N-LENS OPTICAL, INC., as
Guarantor
By:___________________________
Name:
Title:
VISION ADMINISTRATORS, INC., as
Guarantor
By:___________________________
Name:
Title:
E-2
INTERNATIONAL VISION ASSOCIATES OF
CANADA LTD., as Guarantor
By:___________________________
Name:
Title:
INTERNATIONAL VISION ASSOCIATES
OF ONTARIO LTD., as Guarantor
By:___________________________
Name:
Title:
NW ACQUISITION CORP., as
Guarantor
By:___________________________
Name:
Title:
FAMILY VISION CENTERS, INC., as
Guarantor
By:___________________________
Name:
Title:
IN WITNESS WHEREOF, each Guarantor has caused its Guarantee to be
duly executed as of the date this Note.
Date: October 23, 1998
NEW WEST EYEWORKS, INC., as
Guarantor
By:___________________________
Name:
Title:
E-3
ALEXIS HOLDING COMPANY, INC., as
Guarantor
By:___________________________
Name:
Title:
VISTA EYECARE NETWORK, LLC,
as Guarantor
By:___________________________
Name:
Title:
E-4