EXHIBIT 4.7
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CHEMICAL ▇▇▇▇▇▇ CORPORATION, AS ISSUER
AND
FIRST UNION NATIONAL BANK, AS TRUSTEE
___________________________
INDENTURE
DATED AS OF JUNE 16, 1997
___________________________
$100,000,000
10-3/8% Senior Notes due 2005, Series A
10-3/8% SENIOR NOTES DUE 2005, SERIES B
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TABLE OF CONTENTS
Page
PARTIES......................................................................... 1
RECITALS........................................................................ 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............. 1
Section 1.01. Definitions.................................................... 1
Section 1.02. Rules of Construction.......................................... 19
Section 1.03. Form of Documents Delivered to Trustee......................... 19
Section 1.04. Acts of Holders................................................ 20
Section 1.05. Notices, etc., to the Trustee, the Company and the Guarantors.. 21
Section 1.06. Notice to Holders; Waiver...................................... 21
Section 1.07. Conflict with Trust Indenture Act.............................. 21
Section 1.08. Effect of Headings and Table of Contents....................... 22
Section 1.09. Successors and Assigns......................................... 22
Section 1.10. Separability Clause............................................ 22
Section 1.11. Benefits of Indenture.......................................... 22
Section 1.12. GOVERNING LAW.................................................. 22
Section 1.13. No Recourse Against Others..................................... 22
Section 1.14. Independence of Covenants...................................... 22
Section 1.15. Exhibits....................................................... 22
Section 1.16. Counterparts................................................... 22
Section 1.17. Duplicate Originals............................................ 22
ARTICLE TWO SECURITY FORM....................................................... 23
Section 2.01. Form and Dating................................................ 23
ARTICLE THREE THE SECURITIES.................................................... 23
Section 3.01. Title and Terms................................................ 23
Section 3.02. Registrar and Paying Agent..................................... 23
Section 3.03. Execution and Authentication................................... 24
Section 3.04. Temporary Securities........................................... 25
Section 3.05. Transfer and Exchange.......................................... 26
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities............... 27
Section 3.07. Payment of Interest; Interest Rights Preserved................. 27
Section 3.08. Persons Deemed Owners.......................................... 28
Section 3.09. Cancellation................................................... 28
Section 3.10. Computation of Interest........................................ 29
Section 3.11. Legal Holidays................................................. 29
Section 3.12. CUSIP and CINS Numbers......................................... 29
Section 3.13. Paying Agent To Hold Money in Trust............................ 29
Section 3.14. Deposits of Monies............................................. 30
Section 3.15. Book-Entry Provisions for Global Securities.................... 30
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Section 3.16. Special Transfer Provisions.......................................................................... 31
ARTICLE FOUR DEFEASANCE OR COVENANT DEFEASANCE........................................................................ 34
Section 4.01. Company's Option To Effect Defeasance or Covenant Defeasance......................................... 34
Section 4.02. Defeasance and Discharge............................................................................. 34
Section 4.03. Covenant Defeasance.................................................................................. 35
Section 4.04. Conditions to Defeasance or Covenant Defeasance...................................................... 35
Section 4.05. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions.. 37
Section 4.06. Reinstatement........................................................................................ 37
ARTICLE FIVE REMEDIES................................................................................................. 38
Section 5.01. Events of Default.................................................................................... 38
Section 5.02. Acceleration of Maturity; Rescission and Annulment................................................... 39
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee...................................... 40
Section 5.04. Trustee May File Proofs of Claims.................................................................... 41
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.......................................... 41
Section 5.06. Application of Money Collected....................................................................... 42
Section 5.07. Limitation on Suits.................................................................................. 42
Section 5.08. Unconditional Right of Holders To Receive Principal, Premium and Interest............................ 42
Section 5.09. Restoration of Rights and Remedies................................................................... 43
Section 5.10. Rights and Remedies Cumulative....................................................................... 43
Section 5.11. Delay or Omission Not Waiver......................................................................... 43
Section 5.12. Control by Majority.................................................................................. 43
Section 5.13. Waiver of Past Defaults.............................................................................. 43
Section 5.14. Undertaking for Costs................................................................................ 44
Section 5.15. Waiver of Stay, Extension or Usury Laws.............................................................. 44
ARTICLE SIX THE TRUSTEE............................................................................................... 44
Section 6.01. Certain Duties and Responsibilities.................................................................. 44
Section 6.02. Notice of Defaults................................................................................... 45
Section 6.03. Certain Rights of Trustee............................................................................ 45
Section 6.04. Trustee Not Responsible for Recitals, Dispositions of Securities or Application of Proceeds Thereof.. 46
Section 6.05. Trustee and Agents May Hold Securities; Collections; Etc............................................. 46
Section 6.06. Money Held in Trust.................................................................................. 47
Section 6.07. Compensation and Indemnification of Trustee and Its Prior Claim...................................... 47
Section 6.08. Conflicting Interests................................................................................ 47
Section 6.09. Corporate Trustee Required; Eligibility.............................................................. 47
Section 6.10. Resignation and Removal; Appointment of Successor Trustee............................................ 48
Section 6.11. Acceptance of Appointment by Successor............................................................... 49
Section 6.12. Merger, Conversion, Amalgamation, Consolidation or Succession to Business............................ 50
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE................................................................... 50
ii
Section 7.01. Preservation of Information; Company To Furnish Trustee Names and Addresses of Holders.. 50
Section 7.02. Communications of Holders............................................................... 51
Section 7.03. Reports by Trustee...................................................................... 51
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OF ASSETS, ETC................................................. 51
Section 8.01. Company May Consolidate, etc., Only on Certain Terms.................................... 51
Section 8.02. Successor Substituted................................................................... 53
ARTICLE NINE SUPPLEMENTAL INDENTURES AND WAIVERS......................................................... 53
Section 9.01. Supplemental Indentures, Agreements and Waivers Without Consent of Holders.............. 53
Section 9.02. Supplemental Indentures, Agreements and Waivers with Consent of Holders................. 54
Section 9.03. Execution of Supplemental Indentures, Agreements and Waivers............................ 56
Section 9.04. Effect of Supplemental Indentures....................................................... 56
Section 9.05. Conformity with Trust Indenture Act..................................................... 56
Section 9.06. Reference in Securities to Supplemental Indentures...................................... 56
Section 9.07. Record Date............................................................................. 56
Section 9.08. Revocation and Effect of Consents....................................................... 56
ARTICLE TEN COVENANTS.................................................................................... 57
Section 10.01. Payment of Principal, Premium and Interest............................................. 57
Section 10.02. Maintenance of Office or Agency........................................................ 57
Section 10.03. Money for Security Payments To Be Held in Trust........................................ 57
Section 10.04. Corporate Existence.................................................................... 58
Section 10.05. Payment of Taxes and Other Claims...................................................... 59
Section 10.06. Maintenance of Properties.............................................................. 59
Section 10.07. Insurance.............................................................................. 59
Section 10.08. Books and Records...................................................................... 59
Section 10.09. Provision of Financial Statements...................................................... 59
Section 10.10. Change of Control...................................................................... 60
Section 10.11. Limitation on Indebtedness............................................................. 62
Section 10.12. Statement by Officers as to Default.................................................... 64
Section 10.13. Limitation on Restricted Payments...................................................... 64
Section 10.14. Limitation on Transactions with Affiliates............................................. 67
Section 10.15. Disposition of Proceeds of Asset Sales................................................. 68
Section 10.16. Limitation on Liens.................................................................... 71
Section 10.17. Limitation on Guarantees by Restricted Subsidiaries.................................... 71
Section 10.18. Restrictions on Preferred Stock of Restricted Subsidiaries............................. 72
Section 10.19. Limitation on Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries.......................................................................... 72
Section 10.20. Limitation on Designations of Unrestricted Subsidiaries................................ 72
Section 10.21. Compliance Certificates and Opinions................................................... 74
ARTICLE ELEVEN REDEMPTION OF SECURITIES................................................................. 74
iii
Section 11.01. Right of Redemption................................................ 74
Section 11.02. Applicability of Article........................................... 74
Section 11.03. Election To Redeem; Notice to Trustee.............................. 74
Section 11.04. Selection by Trustee of Securities To Be Redeemed.................. 75
Section 11.05. Notice of Redemption............................................... 75
Section 11.06. Deposit of Redemption Price........................................ 76
Section 11.07. Securities Payable on Redemption Date.............................. 76
Section 11.08. Securities Redeemed in Part........................................ 76
ARTICLE TWELVE SATISFACTION AND DISCHARGE............................................ 77
Section 12.01. Satisfaction and Discharge of Indenture.......................... 77
Section 12.02. Application of Trust Money......................................... 77
ARTICLE THIRTEEN GUARANTEE OF SECURITIES............................................. 78
Section 13.01. Unconditional Guarantee............................................ 78
Section 13.02. Execution and Delivery of Security Guarantee....................... 79
Section 13.03. Release of a Guarantor........................................... 79
Section 13.04. Waiver of Subrogation.............................................. 79
Section 13.05. Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc. of Guarantors.................. 80
Section 13.06. Article Thirteen Applicable to Paying Agents....................... 80
Section 13.07. No Suspension of Remedies.......................................... 80
Section 13.08. Limitation of Subsidiary Guarantor's Liability..................... 80
Section 13.09. Contribution from Other Guarantors................................. 81
Section 13.10. Obligations Reinstated............................................. 81
Section 13.11. No Obligation To Take Action Against the Company................. 81
Section 13.12. Dealing with the Company and Others................................ 81
Exhibit A-1 - Form of Series A Security
Exhibit A-2 - Form of Series B Security
Exhibit B - Form of Legend for Book-Entry Securities
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit E - Form of Security Guarantee
Note: This Table of Contents shall not, for any purpose, be deemed a part of the
Indenture.
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Cross-Reference Table
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Trust Indenture Section Act Indenture Section
----------------------- ---------------------
ss. 310(a)(1)..................................... 6.09
(a)(2)..................................... 6.09
(a)(3)..................................... Not Applicable
(a)(4)..................................... Not Applicable
(b)........................................ 6.05, 6.08, 6.10
ss. 311(a)....................................... 6.05
(b)....................................... 6.05
(c)....................................... Not Applicable
ss. 312(a)........................................ 3.05, 7.01
(b)........................................ 7.02
(c)........................................ 7.02
ss. 313(a)........................................ 7.03
(b)........................................ 7.03
(c)........................................ 7.03
(d)........................................ 7.03
ss. 314(a)(1)..................................... 10.09
(a)(4)..................................... 10.12
(b)........................................ Not Applicable
(c)(1)..................................... 1.03, 4.04, 10.21, 12.01
(c)(2)..................................... 1.03, 4.04, 10.21, 12.01
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INDENTURE, dated as of June 16, 1997, between CHEMICAL ▇▇▇▇▇▇
CORPORATION, a Pennsylvania corporation (the "Company"), as issuer, and FIRST
UNION NATIONAL BANK, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of (i) 10-
3/8% Senior Notes due 2005, Series A, and (ii) 10-3/8% Senior Notes due 2005,
Series B, to be issued in exchange for the 10-3/8% Senior Notes due 2005, Series
A, pursuant to the Registration Rights Agreement (together, the "Securities",
such term to include the Initial Securities, the Private Exchange Securities, if
any, and the Unrestricted Securities, if any, treated as a single class of
securities under this Indenture), of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary have been done to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company and the Trustee in accordance with
the terms hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as hereinafter defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
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"Accounts Receivable Subsidiary" means ▇▇▇▇▇▇▇▇▇ Way Funding Corp. and
any other present or future Subsidiary of the Company that is, directly or
indirectly, wholly owned by the Company (other than director qualifying shares)
and organized for the purpose of and engaged in (i) purchasing, financing, and
collecting accounts receivable obligations of customers of the Company or its
Subsidiaries, (ii) the sale or financing of such accounts receivable or
interests therein and (iii) other activities incident thereto.
"Acquired Indebtedness" means Indebtedness of a Person (i) assumed in
connection with an Asset Acquisition from such Person or (ii) existing at the
time such Person becomes a Restricted Subsidiary of any other Person (other than
any Indebtedness incurred in connection with, or in contemplation of, such Asset
Acquisition or such Person becoming such a Restricted Subsidiary).
"Act" has the meaning set forth in Section 1.04. "Affiliate" means,
with respect to any specified Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Affiliate Transaction" has the meaning set forth in Section 10.14.
"Agent Members" has the meaning set forth in Section 3.15.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary or will be merged or consolidated with or into
the Company or any Restricted Subsidiary or (ii) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of the assets of such Person, or any division or line of
business of such Person, or which is otherwise outside of the ordinary course of
business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease or other disposition (including, without limitation, any merger,
consolidation or sale-leaseback transaction) to any Person other than the
Company or a Restricted Subsidiary, in one or a series of related transactions
of (i) any Capital Stock of any Restricted Subsidiary; (ii) all or substantially
all of the assets of any division or line of business of the Company or any
Restricted Subsidiary; or (iii) any other properties or assets of the Company or
any Restricted Subsidiary other than in the ordinary course of business. For the
purposes of this definition, the term "Asset Sale" will not include (a) any
sale, issuance, conveyance, transfer, lease or other disposition of properties
or assets that is governed by Section 8.01; provided, however, that any
transaction consummated in compliance with Section 8.01 involving a sale,
conveyance, transfer, lease or other disposition of less than all of the
properties or assets of the Company shall be deemed to be an Asset Sale with
respect to the properties or assets of the Company that are not so sold,
conveyed, transferred, leased or otherwise disposed of in such transaction; (b)
sales of property of equipment that have become worn out, obsolete or damaged or
otherwise unsuitable for use in connection with the business of the Company or
any Restricted Subsidiary, as the case may be; (c) any sale, conveyance,
transfer, lease or other disposition of accounts receivables to an Accounts
Receivable Subsidiary in the ordinary course of business; or (d) any transaction
consummated in compliance with Section 10.13. For purposes of Section 10.15, the
term "Asset Sale" shall not include any sale, conveyance, transfer, lease or
other disposition of any property or asset, whether in one transaction or a
series of related transactions, (i) involving assets with a Fair Market Value
not in excess of $250,000 or (ii) constituting a Capitalized Lease Obligation.
"Asset Sale Offer" has the meaning set forth in Section 10.15.
"Asset Sale Offer Purchase Date" has the meaning set forth in Section
10.15.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years from such date to the
date or dates of each successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such Indebtedness multiplied by
(b) the amount of each such principal payment by (ii) the sum of all such
principal payments.
2
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code or any similar
federal or state law relating to bankruptcy, insolvency, receivership, winding-
up, liquidation, reorganization or relief of debtors or the law of any other
jurisdiction relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law.
"Bankruptcy Order" means any court order made in a proceeding pursuant
to or within the meaning of any Bankruptcy Law, containing an adjudication of
bankruptcy or insolvency, or providing for liquidation, receivership, winding-
up, dissolution or reorganization, or appointing a Custodian of a debtor or of
all or any substantial part of a debtor's property, or providing for the
staying, arrangement, adjustment or composition of indebtedness or other relief
of a debtor.
"Board of Directors" means the board of directors of the Company or
any Guarantor, as the case may be, or any duly authorized committee of such
board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or any Guarantor, as the case
may be, to have been duly adopted by its respective Board of Directors and to be
in full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York,
State of New York are authorized or obligated by law, regulation or executive
order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participation, rights in or other equivalents (however designated) of
such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation under a lease of
(or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and, for the purpose of this Indenture, the
amount of such obligation at any date shall be the capitalized amount thereof at
such date, determined in accordance with GAAP consistently applied.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of not more than one year issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of not more than one year of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500,000,000; (iii)
commercial paper with a maturity of not more than one year issued by a
corporation that is not an Affiliate of the Company organized under the laws of
any state of the United States or the District of Columbia and rated at least A-
1 by Standard & Poor's Corporation or at least P-1 by ▇▇▇▇▇'▇ Investors Service,
Inc.; and (iv) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (i) and (ii)
3
above entered into with any financial institution meeting the qualifications
specified in clause (ii) above.
"Cedel" means Cedel Bank, Societe anonyme.
"Change of Control" means the occurrence of any of the following
events (whether or not approved by the Board of Directors of the Company): (i)
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), other than Permitted Holders, is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a Person shall be deemed to have "beneficial ownership" of all securities that
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 50%
of the total voting power of the then outstanding Voting Stock of the Company;
(ii) the Company consolidates with, or merges with or into, another Person
(other than a Wholly-Owned Restricted Subsidiary) or sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets to any Person (other than a Wholly Owned Restricted Subsidiary), other
than any such transaction where the holders of the Voting Stock of the Company
immediately prior to such transaction own, directly or indirectly, not less than
a majority of the total voting power of the then outstanding Voting Stock of the
surviving or transferee corporation immediately after such transaction; (iii)
during any consecutive two-year period, individuals who at the beginning of such
period constituted the Board of Directors of the Company (together with any new
directors whose election by such board or whose nomination for election by the
stockholders of the Company was approved by a vote of 66 2/3% of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the Company
then in office; or (iv) any order, judgment or decree shall be entered against
the Company decreeing the dissolution or split up of the Company and such order
shall remain undischarged or unstayed for a period in excess of sixty days.
"Change of Control Offer" has the meaning set forth in Section 10.10.
"Change of Control Purchase Date" has the meaning set forth in Section
10.10.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, or if at any time after the execution of this
Indenture the Securities and Exchange Commission is not existing and performing
the applicable duties now assigned to it, then the body or bodies performing
such duties at such time.
"Company" means the person named as the "Company" in the first
paragraph of this Indenture, until a successor person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
Vice-Chairman, its Chief Executive Officer, its President or a Vice President,
and by its Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" means, for any
period, (i) the sum of, without duplication, the amounts for such period, taken
as a single accounting period,
4
of (a) Consolidated Net Income, (b) to the extent reducing Consolidated Net
Income, Consolidated Non-cash Charges, (c) to the extent reducing Consolidated
Net Income, Consolidated Interest Expense, and (d) to the extent reducing
Consolidated Net Income, Consolidated Income Tax Expense less (ii) other non-
cash items increasing Consolidated Net Income for such period.
"Consolidated Fixed Charge Coverage Ratio" means the ratio of the
aggregate amount of Consolidated Cash Flow Available for Fixed Charges of the
Company for the four full fiscal quarters immediately preceding the date of the
transaction (the "Transaction Date") giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio for which consolidated financial
information of the Company is available (such four full fiscal quarter period
being referred to herein as the "Four Quarter Period") to the aggregate amount
of Consolidated Fixed Charges of the Company for such Four Quarter Period. For
purposes of this definition, "Consolidated Cash Flow Available for Fixed
Charges" and "Consolidated Fixed Charges" will be calculated, without
duplication, after giving effect on a pro forma basis for the period of such
calculation to (i) the incurrence of any Indebtedness of the Company or any of
the Restricted Subsidiaries during the period commencing on the first day of the
Four Quarter Period to and including the Transaction Date (the "Reference
Period"), including, without limitation, the incurrence of the Indebtedness
giving rise to the need to make such calculation, as if such incurrence occurred
on the first day of the Reference Period, (ii) an adjustment to eliminate or
include, as applicable, the Consolidated Cash Flow Available for Fixed Charges
and Consolidated Fixed Charges of the Company directly attributable to assets
which are the subject of any Asset Sale or Asset Acquisition (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of the Company or one of the Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a result of the
Asset Acquisition) incurring Acquired Indebtedness) occurring during the
Reference Period, as if such Asset Sale or Asset Acquisition occurred on the
first day of the Reference Period and (iii) the retirement of Indebtedness
during the Reference Period which cannot thereafter be reborrowed occurring as
if retired on the first day of the Reference Period. 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 Indebtedness determined on a fluctuating basis as of the Transaction
Date and which will continue to be so determined thereafter will be deemed to
accrue at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date; (2) if interest on any
Indebtedness actually incurred on the Transaction Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Transaction Date shall be deemed to have been in effect during the
Reference 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 Rate Protection Obligations, will be
deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreements. If the Company or any Restricted Subsidiaries
directly or indirectly guarantees Indebtedness of a third Person, the above
definition will give effect to the incurrence of such guaranteed Indebtedness as
if the Company or any Restricted Subsidiary had directly incurred or otherwise
assumed such guaranteed Indebtedness. For purposes of this definition, with
respect to any calculation pursuant to which the Four Quarter Period includes a
fiscal quarter prior to March 30, 1997, "Consolidated Cash Flow Available for
Fixed Charges" and "Consolidated Fixed Charges" will be calculated, without
duplication, as if any Accounts Receivable Subsidiary was an Unrestricted
Subsidiary at all times during such Four Quarter Period.
5
"Consolidated Fixed Charges" means, for any period, the sum of,
without duplication, the amounts for such period of (i) Consolidated Interest
Expense; and (ii) the aggregate amount of cash dividends and other distributions
paid or accrued during such period in respect of Redeemable Capital Stock of the
Company.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes payable by the Company and
the Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the interest expense of the Company and the
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including, without limitation, (i) any amortization of
debt discount attributable to such period, (ii) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts), (iii) the
interest portion of any deferred payment obligation, (iv) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and (v) all capitalized interest and all accrued
interest, and (b) all but the principal component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by the Company
and the Restricted Subsidiaries during such period and as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Company and the Restricted Subsidiaries for such period
as determined in accordance with GAAP, adjusted, to the extent included in
calculating such net income, by excluding, without duplication, (i) all
extraordinary gains or losses (net of fees and expenses relating to the
transaction giving rise thereto), (ii) income of the Company and its Restricted
Subsidiaries derived from or in respect of Investments in Unrestricted
Subsidiaries, except to the extent that cash dividends or distributions are
actually received by the Company or a Restricted Subsidiary, (iii) the portion
of net income (or loss) of the Company and the Restricted Subsidiaries allocable
to minority interests in unconsolidated Persons, except to the extent that cash
dividends or distributions are actually received by the Company or one of the
Restricted Subsidiaries, (iv) net income (or loss) of any Person combined with
the Company or one of the Restricted Subsidiaries in a "pooling of interests"
basis attributable to any period prior to the date of combination, (v) gains or
losses in respect of any Asset Sales by the Company or one of the Restricted
Subsidiaries (net of fees and expenses relating to the transaction giving rise
thereto), and (vi) the net income of any Restricted Subsidiary to the extent
that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulations applicable to that
Restricted Subsidiary or its stockholders.
"Consolidated Net Worth" with respect to any Person means the equity
of the holders of Capital Stock of such Person and its Restricted Subsidiaries
(excluding any Redeemable Capital Stock), as reflected in a balance sheet of
such Person determined on a consolidated basis and in accordance with GAAP.
"Consolidated Non-cash Charges" means, for any period, the aggregate
depreciation, amortization and other non-cash expenses of the Company and the
Restricted Subsidiaries reducing Consolidated Net Income for such period (other
than any non-cash item requiring an accrual or
6
reserve for cash disbursements in any future period), determined on a
consolidated basis in accordance with GAAP.
"consolidation" means, with respect to any Person, the consolidation
of the accounts of its Restricted Subsidiaries with those of such Person, all in
accordance with GAAP; provided, however, that "consolidation" will not include
consolidation of the accounts of any Unrestricted Subsidiary with the accounts
of such Person. The term "consolidated" has a correlative meaning to the
foregoing.
"Consulting Agreement" means the Consultant Agreement between the
Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated as of January 1, 1995, as amended and in
effect from time to time.
"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 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"covenant defeasance" has the meaning set forth in Section 4.03.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company against fluctuations in currency values.
"Custodian" means any receiver, interim receiver, receiver and
manager, receiver-manager, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law or any other law respecting secured
creditors and the enforcement of their security or any other person with like
powers whether appointed judicially or out of court and whether pursuant to an
interim or final appointment.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 3.07.
"defeasance" has the meaning set forth in Section 4.02.
"Defeased Securities" has the meaning set forth in Section 4.01.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Designation" has the meaning set forth in Section 10.20.
"Designation Amount" has the meaning set forth in Section 10.20.
"Domestic Subsidiary" means a Restricted Subsidiary organized under
the laws of the United States, any State or territory thereof or the District of
Columbia.
7
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"Event of Default" has the meaning set forth in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Exchange Offer" has the meaning specified in the Registration Rights
Agreement.
"Exchange Securities" means the 10-3/8% Senior Notes due 2005, Series
B, to be issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction. Fair Market Value shall be
determined by the Board of Directors of the Company acting in good faith
evidenced by a Board Resolution delivered to the Trustee.
"Four Quarter Period" has the meaning set forth in the definition of
"Consolidated Fixed Charge Coverage Ratio."
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States which are applicable at the
date of determination and which are consistently applied for all applicable
periods.
"Global Securities" means one or more Regulation S Global Securities
and 144A Global Securities.
"guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. A guarantee shall include,
without limitation, any agreement to maintain or preserve any other Person's
financial condition or to cause any other Person to achieve certain levels of
operating results.
"Guarantor" means each Domestic Subsidiary, formed, created or
acquired before or after the Issue Date, required to become a Guarantor after
the Issue Date pursuant to Section 10.17.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered in the Security Register.
"incur" has the meaning set forth in Section 10.11. "Incurrence,"
"incurred" and "incurring" shall have the meanings correlative to the foregoing.
8
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payable and other
accrued current liabilities incurred in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit, bankers acceptance or other
similar credit transaction and in connection with any agreement to purchase,
redeem, exchange, convert or otherwise acquire for value any Capital Stock of
such Person, or any warrants, rights or options to acquire such Capital Stock,
now or hereafter outstanding, (ii) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments, (iii) all indebtedness
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), but excluding trade
accounts payable arising in the ordinary course of business, (iv) all
Capitalized Lease Obligations of such Person, (v) all Indebtedness referred to
in the preceding clauses of other Persons and all dividends of other Persons,
the payment of which is secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (vi) all guarantees of Indebtedness by such Person,
(vii) except for purposes of Section 10.13, all Redeemable Capital Stock valued
at the greater of its voluntary or involuntary maximum fixed repurchase price
plus accrued and unpaid dividends, (viii) all obligations under or in respect of
Currency Agreements and Interest Rate Protection Obligations of such Person, and
(ix) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (i) through
(viii) above. For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock which does not have a fixed repurchase price will be
calculated in accordance with the terms of such Redeemable Capital Stock as if
such Redeemable Capital Stock were purchased on any date on which Indebtedness
will 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 Redeemable Capital
Stock, such Fair Market Value is to be determined in good faith by the Board of
Directors of the issuer of such Redeemable Capital Stock. Indebtedness (a) shall
never be calculated taking into account any cash and cash equivalents held by
such Person; (b) shall not include obligations of any Person (x) 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 that such obligations are extinguished
within two Business Days of their incurrence or (y) resulting from the
endorsement of negotiable instruments for collection in the ordinary course of
business and consistent with past business practices; and (c) which provides
that an amount less than the principal amount thereof shall be due upon any
declaration of acceleration thereof shall be deemed to be incurred or
outstanding in an amount equal to the accreted value thereof at the date of
determination.
"Indenture" means this instrument as originally executed (including
all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
9
"Indenture Obligations" means the obligations of the Company and any
other obligor under this Indenture or under the Securities, to pay principal of,
premium, if any, and interest on the Securities when due and payable, whether at
maturity, by acceleration, call for redemption or repurchase or otherwise, and
all other amounts due or to become due under or in connection with this
Indenture, the Securities or the Security Guarantees and the performance of all
other obligations to the Trustee (including, but not limited to, payment of all
amounts due the Trustee under Section 6.07 hereof) and the Holders of the
Securities under this Indenture, the Securities and the Security Guarantees,
according to the terms thereof.
"Independent Financial Advisor" means a nationally recognized
accounting, appraisal or investment banking firm (i) which does not, and whose
directors, officers and employees or Affiliates do not have, a direct or
indirect financial interest in the Company and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Purchasers" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co.
Incorporated.
"Initial Securities" means the 10-3/8% Senior Notes due 2005, Series
A, of the Company.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest," when used with respect to any Security, means the amount
of all interest accruing on such Security, including all additional interest
payable on the Securities pursuant to the Registration Rights Agreement and all
interest accruing subsequent to the occurrence of any events specified in
Sections 5.01(h), (i) and (j) or which would have accrued but for any such
event, whether or not such claims are allowable under applicable law.
"Interest Payment Date" means, when used with respect to any Security,
the Stated Maturity of an installment of interest on such Security, as set forth
in such Security.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount or any other arrangement involving payments by or to such Person
based upon fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan or other extension of credit (including by means of 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 otherwise), 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 other Person. Investments shall exclude extensions
of trade credit on commercially reasonable
10
terms in accordance with normal trade practices. In addition to the foregoing,
any Currency Agreement, Interest Rate Protection Obligation or similar agreement
shall constitute an Investment.
"Issue Date" means June 16, 1997.
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
privilege, security interest, hypothecation, cessation and transfer, lease of
real property, assignment for security, claim, deposit arrangement, or
preference or priority or other encumbrance upon or with respect to any property
of any kind, whether real, personal or mixed, movable or immovable, now owned or
hereafter acquired. A Person shall be deemed to own subject to a Lien any
property which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement.
"Material Subsidiary" means each Restricted Subsidiary of the Company
that is a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X
under the Securities Act and the Exchange Act (as such regulation is in effect
on the Issue Date).
"Maturity Date" means, with respect to any Security, the date on which
any principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof 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 (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary) net of (i)
brokerage commissions and other reasonable fees and expenses (including fees and
expenses of legal counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
amounts required to be paid to any Person (other than the Company or any
Restricted Subsidiary) owning a beneficial interest in or having a Lien on the
assets subject to the Asset Sale and (iv) appropriate amounts to be provided by
the Company or any Restricted Subsidiary, as the case may be, as a reserve
required in accordance with GAAP consistently applied 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 (provided that the amount of any
such reserves shall be deemed to constitute Net Cash Proceeds at the time such
reserves shall have been released or are not otherwise required to be retained
as a reserve).
"New Revolving Credit Facility" means the Credit Agreement dated as of
June 16, 1997 among the Company, CoreStates Bank, N.A., as Administrative Agent
(or any successor administrative agent), and the other financial institutions
signatory thereto from time to time, as in effect on the Issue Date, and as such
agreement may be amended, renewed, extended, refinanced, substituted or replaced
in whole, supplemented or otherwise modified from time to time, and
11
includes (a) related Notes, guarantees and other agreements executed in
connection therewith and (b) any agreement (i) extending the maturity of all or
any portion of the Indebtedness thereunder, (ii) adding guarantors thereunder
and (iii) increasing the amount to be borrowed thereunder; provided, however,
that in the case of clauses (ii) and (iii), any such agreement is not prohibited
by the Indenture.
"Non-U.S. Person" has the meaning assigned to such term in Regulation
S.
"Offering Memorandum" means the Offering Memorandum dated June 10,
1997 pursuant to which the Securities were offered, and any supplement thereto.
"Officer" means, with respect to the Company or any Guarantor, the
Chairman of the Board, a Vice Chairman, the President, a Vice President, the
Secretary or the Treasurer.
"Officers' Certificate" means a certificate complying with the
requirements of Section 10.21 signed by the Chairman of the Board, a Vice
Chairman, the President or a Vice President, and by the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer, of the Company or any
Guarantor, as the case may be, and delivered to the Trustee.
"144A Global Security" means a permanent global security in registered
form representing the aggregate principal amount of Securities sold in reliance
on Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion of counsel complying with
the requirements of Section 10.21 who may be counsel for the Company, a
Guarantor, or the Trustee, and who shall not be unacceptable to the Trustee.
"Other Indebtedness" has the meaning set forth in Section 10.17.
"Other Senior Debt Pro Rata Share" means the amount of the Net Cash
Proceeds obtained by multiplying the amount of such Net Cash Proceeds by a
fraction, (i) the numerator of which is the lesser of the aggregate principal
face amount or accreted value of all Indebtedness (other than (x) the Securities
and (y) Subordinated Indebtedness) of the Company and any Guarantor outstanding
at the time of the applicable Asset Sale with respect to which the Company or a
Guarantor, as the case may be, is required to use Net Cash Proceeds to repay or
make an offer to purchase and repay and (ii) the denominator of which is the sum
of (a) the aggregate principal amount of all Securities outstanding at the time
of the applicable Asset Sale and (b) the lesser of the aggregate principal face
amount or accreted value of all other Indebtedness (other than Subordinated
Indebtedness) of the Company or a Guarantor outstanding at the time of the
applicable Asset Sale with respect to which the Company or a Guarantor, as the
case may be, is required to use the Net Cash Proceeds to repay or to offer to
purchase and repay.
"Outstanding" means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
12
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company
or any Guarantor or any Affiliate thereof) in trust or set aside and
segregated in trust by the Company or any Guarantor or any Affiliate
thereof (if the Company or such Guarantor or Affiliate shall act as
Paying Agent) for the Holders of such Securities; provided, however,
that if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities with respect to which the Company has
effected defeasance or covenant defeasance as provided in Article
Four, to the extent provided in Sections 4.02 and 4.03; and
(iv) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture and in respect of which there shall not have been presented
to the Trustee proof satisfactory to it that such Securities are held
by a bona fide purchaser in whose hands the Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, any Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, any Guarantor or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
The Company shall notify the Trustee, in writing, when it repurchases or
otherwise acquires Securities, of the aggregate principal amount of such
Securities so repurchased or otherwise acquired. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company, any
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, any Guarantor or such other obligor. If the Paying Agent holds, in its
capacity as such, on any Maturity Date or on any optional redemption date money
sufficient to pay all accrued interest and principal with respect to such
Securities 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 Securities shall cease to be Outstanding and interest on them
shall cease to accrue. Securities may also cease to be outstanding to the
extent expressly provided in Article Four.
"Outstanding Preferred Stock" means all shares of Preferred Stock of
the Company issued and outstanding as of the Issue Date.
"Paying Agent or Agent" has the meaning set forth in Section 3.02.
"Permitted Holders" means, at any particular date, (i) each of (A)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and (C) ▇▇▇▇ ▇▇▇▇▇▇▇▇; (ii) the spouse,
ancestors, siblings,
13
descendants (including children or grandchildren by adoption) of (A) any of the
Persons described in clause (i) or (B) any spouse, ancestor, sibling or
descendent (including children or grandchildren by adoption) of any of the
Persons described in clause (i); (iii) in the event of the incompetence or death
of any of the Persons described in clauses (i) and (ii), such Person's estate,
executor, administrator, committee or other personal representative, in each
case who shall beneficially own or have the right to acquire, directly or
indirectly, Capital Stock of the Company; (iv) any trusts created for the
benefit of the Persons described in clause (i), (ii) or (iii) or any trust for
the benefit of any such trust.
"Permitted Indebtedness" has the meaning set forth in Section 10.11.
"Permitted Investments" means (a) Cash Equivalents; (b) Investments in
prepaid expenses, negotiable instruments held for collection and lease, utility
and workers' compensation, performance and other similar deposits; (c) loans and
advances to employees made in the ordinary course of business not to exceed
$250,000 in the aggregate at any one time outstanding; (d) loans and advances to
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ made after the Issue Date not to exceed $350,000 in the
aggregate at any one time outstanding; (e) Interest Rate Protection Obligations
and Currency Agreements permitted under clause (vii) or (viii) of the second
paragraph of Section 10.11; (f) Investments represented by accounts receivable
created or acquired in the ordinary course of business; (g) Investments in the
form of the sale (on a "true-sale" non-recourse basis) of receivables
transferred from the Company or any Restricted Subsidiary to an Accounts
Receivable Subsidiary as a capital contribution or in exchange for Indebtedness
of such Accounts Receivable Subsidiary or cash in the ordinary course of
business; (h) Investments existing on the Issue Date and any renewal or
replacement thereof on terms and conditions no less favorable in any respect
than that existing on the Issue Date; (i) any Investment to the extent that the
consideration therefor is Capital Stock (other than Redeemable Capital Stock) of
the Company; and (j) bonds, Securities, debentures or other securities received
in connection with an Asset Sale permitted under Section 10.15, not to exceed
15% of the total consideration in such Asset Sale.
"Permitted Liens" means (a) Liens on property of (or Capital Stock of)
a Person existing at the time such Person (i) is merged into or consolidated
with the Company or any Restricted Subsidiary or (ii) becomes a Restricted
Subsidiary; provided, however, that such Liens were in existence prior to the
contemplation of such merger, consolidation or acquisition and do not attach to
any property or assets of the Company or any Restricted Subsidiary other than
the property or assets subject to the Liens prior to such merger, consolidation
or acquisition; (b) Liens imposed by law such as landlords', carriers',
warehousemen's and mechanics' Liens and other similar Liens arising in the
ordinary course of business which secure payment of obligations not more than 60
days past due or which are being contested in good faith and by appropriate
proceedings; (c) Liens existing on the Issue Date; (d) Liens securing only the
Securities; (e) Liens in favor of the Company or any Restricted Subsidiary; (f)
Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent for more than 90 days or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded; provided,
however, that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (g) easements, reservation
of rights of way, restrictions and other similar easements, licenses,
restrictions on the use of properties, or imperfections of title that in the
aggregate are not material in amount and do not in any case materially detract
from the properties subject thereto or interfere with the ordinary conduct of
the
14
business of the Company and the Restricted Subsidiaries; (h) Liens resulting
from the deposit of cash or notes in connection with contracts, tenders or
expropriation proceedings, or to secure workers' compensation, surety or appeal
bonds, costs of litigation when required by law, public and statutory
obligations, obligations under franchise arrangements entered into in the
ordinary course of business and other obligations of a similar nature arising in
the ordinary course of business; (i) Liens on property of the Company securing
the New Revolving Credit Facility; (j) Liens securing Indebtedness consisting of
Capitalized Lease Obligations, Purchase Money Indebtedness (other than
Indebtedness incurred in connection with an Asset Acquisition), mortgage
financings, industrial revenue bonds or other monetary obligations, in each case
incurred solely for the purpose of financing all or any part of the purchase
price or cost of construction or installation of assets used in the business of
the Company or the Restricted Subsidiaries, or repairs, additions or
improvements to such assets; provided, however, that (I) such Liens secure
Indebtedness in an amount not in excess of the original purchase price or the
original cost of any such assets or repair, addition or improvement thereto
(plus an amount equal to the reasonable fees and expenses in connection with the
incurrence of such Indebtedness), (II) such Liens do not extend to any other
assets of the Company or the Restricted Subsidiaries (and, in the case of
repairs, additions or improvements to any such assets, such Lien extends only to
the assets (and improvements thereto or thereon) repaired, added to or
improved), (III) the incurrence of such Indebtedness is permitted under Section
10.11 and (IV) such Liens attach prior to 90 days after such purchase,
construction, installation, repair, addition or improvement; (k) Liens to secure
any Refinancings (or successive Refinancings), in whole or in part, of any
Indebtedness secured by Liens referred to in the clauses above so long as such
Lien does not extend to any other property (other than improvements thereto);
(l) Liens securing letters of credit entered into in the ordinary course of
business and consistent with past business practice; (m) Liens on and pledges of
the Capital Stock of any Unrestricted Subsidiary securing any Indebtedness of
such Unrestricted Subsidiary; (n) leases or subleases granted to others that do
not materially interfere with the ordinary course of business of the Company and
the Restricted Subsidiaries, taken as a whole; (o) any interest or title of a
lessor in the property subject to any lease or located on the real property
subject to any lease; (p) Liens arising from the rendering of a final judgment
or order against the Company or any Restricted Subsidiary that does not give
rise to an Event of Default; and (q) Liens on property existing at the time such
property is acquired by the Company or any Restricted Subsidiary so long as such
acquisition (including the assumption of any Indebtedness in connection
therewith) does not violate any of the terms of the Indenture and such Liens
were in existence prior to the contemplation of such acquisition and do not
attach to any other property of the Company or such Restricted Subsidiary.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Securities" has the meaning set forth in Section 3.03.
"Preferred Stock" means, with respect to any Person, Capital Stock of
any class or classes (however designated) of such Person which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Capital Stock of any other class of such Person.
15
"Private Exchange Securities" has the meaning set forth in the
Registration Rights Agreement.
"Private Placement Legend" shall mean the legend initially set forth
in the Securities in the form set forth on Exhibit A-1.
"Purchase Money Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiary incurred for the purpose of financing all or any part of
the purchase price or the cost of construction or improvement of any property,
provided that the aggregate principal amount of such Indebtedness does not
exceed the lesser of the Fair Market Value of such property or such purchase
price or cost.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
Rule 144A under the Securities Act.
"Redeemable Capital Stock" means any class or series of Capital Stock
to the extent that, either by its terms, by the terms of any security into which
it is convertible or exchangeable, or by contract or otherwise, is or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the final Stated Maturity of the Securities or is redeemable at the option of
the holder thereof at any time prior to such Stated Maturity, or is convertible
into or exchangeable for debt securities at any time prior to such Stated
Maturity.
"Redemption Date" means, with respect to any particular Security to be
redeemed, the date fixed for such redemption pursuant to this Indenture and the
terms of the Securities.
"Redemption Price" means, with respect to any particular Security to
be redeemed, the price at which such Security is to be redeemed pursuant to this
Indenture and the terms of the Securities.
"Reference Period" has the meaning set forth in the definition of
"Consolidated Fixed Charge Coverage Ratio."
"Refinance" means, with respect to any Indebtedness, any refinancing,
redemption, retirement, renewal, replacement, extension or refunding of such
Indebtedness.
"Registrable Securities" has the meaning set forth in the Registration
Rights Agreement.
"Registrar" has the meaning set forth in Section 3.02.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of June 16, 1997 by and between the Company and the Initial
Purchasers, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"Regular Record Date" means the Regular Record Date specified in the
Securities.
"Regulation S" means Regulation S under the Securities Act.
16
"Regulation S Global Security" means a permanent global Security in
registered form representing the aggregate principal amount of Securities sold
in reliance on Regulation S under the Securities Act.
"Required Filing Dates" has the meaning set forth in Section 10.09.
"Responsible Officer" means, with respect to the Trustee, the chairman
or vice chairman of the board of directors, the chairman or vice chairman of the
executive committee of the board of directors, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or assistant
trust officer, the controller and any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer of the Trustee to whom such
corporate trust matter is then referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Payment" has the meaning set forth in Section 10.13.
"Restricted Period" has the meaning set forth in Section 3.16.
"Restricted Security" means a Security that constitutes a "restricted
security" within the meaning of 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 Security
constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company (other
than an Accounts Receivable Subsidiary) that has not been designated by the
Board of Directors of the Company, by a Board Resolution delivered to the
Trustee, as an Unrestricted Subsidiary pursuant to and in compliance with
Section 10.20. Any such designation may be revoked by a Board Resolution of the
Company delivered to the Trustee, subject to the provisions of Section 10.20.
"Revocation" has the meaning set forth in Section 10.20.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" has the meaning set forth in the recitals of this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder.
"Security Guarantee" means the guarantee by each of the Guarantors of
the Securities and the Company's obligations under this Indenture.
"Security Register" has the meaning set forth in Section 3.05.
"Service Agreement" means the Service Agreement dated as of December
11, 1995 by and between Chemical ▇▇▇▇▇▇ Tank Lines, Inc. and Acumen Consulting
Group, Inc., as amended and in effect from time to time.
17
"Special Record Date" means, with respect to the payment of any
Defaulted Interest, a date fixed by the Trustee pursuant to Section 3.07 hereof.
"Stated Maturity" means, with respect to any Security or any
installment of interest thereon, the dates specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable, and when used with respect to any other
Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness or
any installment of interest is due and payable.
"Subsidiary" means, with respect to any Person, (a) any corporation of
which the outstanding shares of Voting Capital Stock having at least a majority
of the votes entitled to be cast in the election of directors shall at the time
be owned, directly or indirectly, by such Person, or (b) any other Person of
which at least a majority of the shares of Voting Capital Stock are at the time,
directly or indirectly, owned by such first named Person.
"Subordinated Indebtedness" means, with respect to the Company,
Indebtedness of the Company which is expressly subordinated in right of payment
to the Securities or, with respect to any Guarantor, Indebtedness of such
Guarantor which is expressly subordinated in right of payment to the Security
Guarantee of such Guarantor.
"Surviving Person" means, with respect to any Person involved in any
consolidation or merger, or any sale, assignment, conveyance, transfer, lease or
other disposition of all or substantially all of its properties and assets as an
entirety, the Person formed by or surviving such merger or consolidation or the
Person to which such sale, assignment, conveyance, transfer or lease is made.
"Transaction Date" has the meaning set forth in the definition of
"Consolidated Fixed Charge Coverage Ratio."
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Securities" means one or more Securities that do not and
are not required to bear the Private Placement Legend in the form set forth in
Exhibit A-2, including, without limitation, the Exchange Securities.
"Unrestricted Subsidiary" means each Accounts Receivable Subsidiary
and each other Subsidiary of the Company (other than a Guarantor) designated as
such pursuant to and in compliance with Section 10.20. Any such Designation may
be revoked by a Board Resolution of the Company delivered to the Trustee,
subject to the provisions of Section 10.20.
"Unutilized Net Available Proceeds" has the meaning set forth in
Section 10.15.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii)
18
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof at any time prior to the Stated Maturity of the
Securities, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to
any such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided, however, that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the Board of Directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stock of
any other class or classes shall have, or might have, voting power by reason of
the happening of any contingency).
"Wholly-Owned Restricted Subsidiary" means any Restricted Subsidiary
of which 100% of the outstanding Capital Stock is owned by the Company and/or
another Wholly-Owned Restricted Subsidiary. For purposes of this definition,
any directors' qualifying shares shall be disregarded in determining the
ownership of a Restricted Subsidiary.
Section 1.02. Rules of Construction. For all purposes of this
---------------------
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein" "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(e) all references to "$" or "dollars" refer to the lawful currency
of the United States of America; and
(f) the words "include," "included" and "including" as used herein
are deemed in each case to be followed by the phrase "without limitation."
Section 1.03. Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not
19
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company or any
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or any
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or any Guarantor, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated, with
proper identification of each matter covered therein, and form one instrument.
Section 1.04. Acts of Holders
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution (as provided below in subsection (b) of this Section 1.04) of any
such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01
hereof) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued
upon the transfer thereof or in exchange therefor or in lieu thereof to the
same extent as the original Holder, in respect of anything done, suffered
or omitted to be done by the Trustee, any Paying Agent or the Company or
any Guarantor in reliance thereon, whether or not notation of such action
is made upon such Security.
20
Section 1.05. Notices, etc., to the Trustee, the Company and the
--------------------------------------------------
Guarantors. Any request, demand, authorization, direction, notice, consent,
----------
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed, in writing, to or with the Trustee at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, New York 10004, with a copy to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ 1249, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at any other address
previously furnished in writing to the Holders, the Company and the
Guarantors by the Trustee; or
(b) the Company or a Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose (except as otherwise expressly
provided herein) hereunder if in writing and mailed, first-class postage
prepaid, to the Company or such Guarantor addressed to it at Chemical
▇▇▇▇▇▇ Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.06. Notice to Holders; Waiver. Where this Indenture
-------------------------
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise expressly provided herein) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such Holder whether
or not actually received by such Holder. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.07. Conflict with Trust Indenture Act. If any provision
---------------------------------
hereof limits, qualifies or conflicts with any provision of the Trust Indenture
Act or another provision which is required or deemed to be included in this
Indenture by any of the provisions of the Trust Indenture Act, such provision or
requirement of the Trust Indenture Act shall control.
If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
21
Section 1.08. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 1.09. Successors and Assigns. All covenants and agreements in
----------------------
this Indenture by the Company and the Guarantors, shall bind their respective
successors and assigns, whether so expressed or not.
Section 1.10. Separability Clause. In case any provision in this
-------------------
Indenture or in the Securities or any Security Guarantee issued pursuant hereto
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.11. Benefits of Indenture. Nothing in this Indenture or in
---------------------
the Securities or in any Security Guarantee issued pursuant hereto, express or
implied, shall give to any Person (other than the parties hereto and their
successors hereunder, any Paying Agent and the Holders) any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 1.12. GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND ANY
-------------
SECURITY 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.
Section 1.13. No Recourse Against Others. A director, officer,
--------------------------
employee or stockholder, as such, of the Company or of a Guarantor shall not
have any liability for any obligations of the Company or a Guarantor under the
Securities, the Security Guarantee or this Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation.
Section 1.14. Independence of Covenants. All covenants and agreements
-------------------------
in this Indenture shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or be otherwise within the limitations
of, another covenant shall not avoid the occurrence of a Default if such action
is taken or condition exists.
Section 1.15. Exhibits. All exhibits attached hereto are by this
--------
reference made a part hereof with the same effect as if herein set forth in
full.
Section 1.16. Counterparts. This Indenture may be executed in any
------------
number of counterparts and by telecopier, each of which shall be an original;
but such counterparts shall together constitute but one and the same instrument.
Section 1.17. Duplicate Originals. The parties may sign any number of
-------------------
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
22
ARTICLE TWO
SECURITY FORM
Section 2.01. Form and Dating. The Initial Securities and the
---------------
Exchange Securities and the Trustee's certificate of authentication with respect
thereto shall be in substantially the forms set forth, or referenced, in Exhibit
A-1 and Exhibit A-2, respectively, annexed hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any applicable law or with the rules of the Depository,
any clearing agency or any securities exchange or as may, consistently herewith,
be determined by the officers executing such Securities, as evidenced by their
execution thereof. The definitive Securities shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
Officers executing such Securities, as evidenced by their execution of such
Securities. Each Security shall be dated the date of its issuance and shall show
the date of its authentication. The terms and provisions contained in the
Securities shall constitute, and are expressly made, a part of this Indenture.
ARTICLE THREE
THE SECURITIES
Section 3.01. Title and Terms. The aggregate principal amount of
---------------
Securities which may be authenticated and delivered under this Indenture is
limited to $100,000,000 in aggregate principal amount of Securities, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Sections 3.03, 3.04,
3.05, 3.06, 9.06, 10.10, 10.15 or 11.08.
The final Stated Maturity of the Securities shall be June 15, 2005,
and the Securities shall bear interest at the rate of 10-3/8% per annum from the
Issue Date or from the most recent Interest Payment Date to which interest has
been paid, as the case may be, payable semi-annually thereafter on June 15 and
December 15, in each year, commencing on December 15, 1997, to the Holders of
record at the close of business on the June 1 and December 1, respectively,
immediately preceding such Interest Payment Dates, until the principal thereof
is paid or duly provided for. Interest on any overdue principal, interest (to
the extent lawful) or premium, if any, shall be payable on demand. The
Securities shall be redeemable at the option of the Company as provided in
Article Eleven and paragraphs 2 and 3 on the reverse of the Securities.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
Section 3.02. 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 Securities may be presented for
registration of transfer or for exchange (the
23
"Registrar"), an office or agency (which shall be located in the Borough of
Manhattan in The City of New York, State of New York) where Securities may be
presented for payment (the "Paying Agent" or "Agent") and an office or agency
where notices and demands to or upon the Company in respect of the Securities,
the Security Guarantees and this Indenture may be served. The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" or "Agent" includes any additional paying agent.
The Company may act as its own Paying Agent, except for the purposes of payments
on account of principal on the Securities pursuant to Sections 10.10 and 10.15.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which shall incorporate the provisions of
the Trust Indenture Act. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of
the name and address of 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 6.07. The Company initially appoints the Trustee as the
Registrar and Paying Agent and agent for service of notices and demands in
connection with the Securities.
Section 3.03. Execution and Authentication. The Initial Securities
----------------------------
and the Trustee's certificate of authentication shall be substantially in the
form of Exhibit A-1 hereto. The Exchange Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A-2
hereto. The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. The Company shall approve the form of the
Securities and any notation, legend or endorsement thereon. Each Security shall
be dated the date of issuance and shall show the date of its authentication.
The terms and provisions contained in the Securities annexed hereto as
Exhibits A-1 and A-2 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 Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Securities offered and sold in reliance on Rule 144A and Securities
offered and sold in reliance on Regulation S shall be issued initially in the
form of one or more Global Securities, substantially in the form set forth in
Exhibit A-1, deposited with the Trustee, as custodian for the Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter provided
and shall bear the legend set forth in Exhibit B. The aggregate principal amount
of the Global Securities may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depository,
as hereinafter provided.
Securities offered and sold to institutional "accredited investors"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) shall,
and Securities issued in exchange for interests in a Global Security pursuant to
Section 3.16 may, be issued in the form of permanent certificated Securities in
registered form in substantially the form set forth in Exhibit A-1 hereto (the
"Physical Securities").
24
All Securities offered and sold in reliance on Regulation S shall
remain in the form of a Global Security until the consummation of the Exchange
Offer pursuant to the Registration Rights Agreement; provided, however, that all
of the time periods specified in the Registration Rights Agreement to be
complied with by the Company have been so complied with.
Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer shall sign, and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company, by manual or facsimile
signature.
If an Officer or Assistant Secretary whose signature is on a Security
was an Officer or Assistant Secretary, as the case may be, at the time of such
execution but no longer holds that office or position at the time the Trustee
authenticates the Security, the Security shall nevertheless be valid.
The Trustee shall authenticate (i) Initial Securities for original
issue in an aggregate principal amount not to exceed $100,000,000, (ii) Private
Exchange Securities from time to time only in exchange for a like principal
amount of Initial Securities and (iii) Unrestricted Securities from time to time
only in exchange for (A) a like principal amount of Initial Securities or (B) a
like principal amount of Private Exchange Securities, 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 Securities to be
authenticated and the date on which the Securities are to be authenticated,
whether the Securities are to be Initial Securities, Private Exchange Securities
or Unrestricted Securities and whether (subject to this Section 3.03) the
Securities are to be issued as Physical Securities or Global Securities and such
other information as the Trustee may reasonably request. The aggregate
principal amount of Securities outstanding at any time may not exceed
$100,000,000, except as provided in Section 3.06.
Notwithstanding the foregoing, all Securities issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Securities may vote or consent) as one class and no series of Securities
will have the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Securities shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
Section 3.04. Temporary Securities. Until definitive Securities are
--------------------
prepared and ready for delivery, the Company may execute and upon a Company
Order the Trustee shall authenticate and deliver temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities, in any
authorized denominations, but may have variations that the
25
Company reasonably considers appropriate for temporary Securities as
conclusively evidenced by the Company's execution of such temporary Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay but in no event later than
the date that the Exchange Offer is consummated. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 10.02,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of like tenor and of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
Section 3.05. Transfer and Exchange. The Company shall cause to be
---------------------
kept at the Corporate Trust Office of the Trustee a register (the register
maintained in such office and in any other office or agency designated pursuant
to Section 10.02 being sometimes referred to herein as the "Security Register")
in which, subject to such reasonable regulations as the Registrar may prescribe,
the Company shall provide for the registration of Securities and of transfers
and exchanges of Securities. The Trustee is hereby initially appointed Registrar
for the purpose of registering Securities and transfers of Securities as herein
provided.
Subject to Sections 3.15 and 3.16, when Securities are presented to
the Registrar or a co-Registrar with a request from the Holder of such
Securities to register the transfer or exchange for an equal principal amount of
Securities of other authorized denominations, the Registrar shall register the
transfer or make the exchange as requested; provided, however, that every
Security presented or surrendered for registration of transfer or exchange shall
be duly endorsed or be accompanied by a written instrument of transfer or
exchange in form satisfactory to the Company and the Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing. Whenever any
Securities are so presented for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. No service charge shall be made to the
Securityholder for any registration of transfer or exchange. The Company may
require from the Securityholder payment of a sum sufficient to cover any
transfer taxes or other governmental charge that may be imposed in relation to a
transfer or exchange, but this provision shall not apply to any exchange
pursuant to Sections 9.06, 10.10, 10.15 or 11.08 hereof (in which events the
Company will be responsible for the payment of all such taxes which arise solely
as a result of the transfer or exchange and do not depend on the tax status of
the Holder). The Trustee shall not be required to exchange or register the
transfer of any Security for a period of 15 days immediately preceding the first
mailing of notice of redemption of Securities to be redeemed or of any Security
selected, called or being called for redemption except, in the case of any
Security where public notice has been given that such Security is to be redeemed
in part, the portion thereof not to be redeemed.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
26
Any Holder of a beneficial interest in a Global Security shall, by
acceptance of such Global Security, agree that transfers of beneficial interests
in such Global Securities may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent), and that
ownership of a beneficial interest in the Security shall be required to be
reflected in a book-entry system.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If a
------------------------------------------------
mutilated Security is surrendered to the Trustee or if the Holder of a Security
claims that the Security has been lost, destroyed or wrongfully taken, the
Company shall execute and upon a Company Order, the Trustee shall authenticate
and deliver a replacement Security of like tenor and principal amount, bearing a
number not contemporaneously outstanding, if the Holder of such Security
furnishes to the Company and to the Trustee, in the case of such loss,
destruction or theft, evidence reasonably acceptable to them of the ownership
and the destruction, loss or theft of such Security and, in the case of such
loss, destruction or theft, an indemnity bond shall be posted by such Holder,
sufficient in the judgment of the Company or the Trustee, as the case may be, to
protect the Company, the Trustee or any Agent from any loss that any of them may
suffer if such Security is replaced. The Company may charge such Holder for the
Company's expenses in replacing such Security (including (i) expenses of the
Trustee charged to the Company and (ii) any tax or other governmental charge
that may be imposed) and the Trustee may charge the Company for the Trustee's
expenses in replacing such Security.
Every replacement Security issued pursuant to this Section 3.06 in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
Section 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Security is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the then applicable interest rate borne by the Securities,
to the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the Regular Record Date; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in subsection (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the
27
date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as
provided in this subsection (a). Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company in writing of such Special Record Date. In the name and at the
expense of the Company, the Trustee shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder at its address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities are registered on such Special Record Date and shall no longer
be payable pursuant to the following subsection (b).
(b) The Company may elect to make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after written notice given
by the Company to the Trustee of the proposed payment pursuant to this
subsection (b), such payment shall be deemed practicable by the Trustee.
The Trustee shall be entitled to rely on an Opinion of Counsel regarding
the legality of any proposed payment pursuant to this subsection (b).
Subject to the foregoing provisions of this Section 3.07, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.08. Persons Deemed Owners. Prior to and at the time of due
---------------------
presentment for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the person in whose name any Security is
registered in the Security Register as the owner of such Security for the
purpose of receiving payment of principal of, premium, if any, and (subject to
Section 3.07) interest on such Security and for all other purposes whatsoever,
whether or not such Security shall be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Section 3.09. Cancellation. All Securities surrendered for payment,
------------
redemption, registration of transfer or exchange shall be delivered to the
Trustee and, if not already canceled, shall be promptly canceled by it. The
Company and any Guarantor may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or such Guarantor may have acquired in any manner whatsoever,
and all Securities so delivered shall be promptly canceled by the Trustee. The
Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer or exchange, redemption or
payment. The Trustee and no one else shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section 3.09, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall
28
be destroyed and certification of their destruction delivered to the Company
unless by a Company Order the Company shall direct that the canceled Securities
be returned to it. The Trustee shall provide the Company a list of all
Securities that have been canceled from time to time as requested by the
Company.
Section 3.10. Computation of Interest. Interest on the Securities
-----------------------
shall 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.
Section 3.11. Legal Holidays. In any case where any Interest Payment
--------------
Date, Redemption Date, Change of Control Purchase Date, Asset Sale Purchase
Date, date established for the payment of Defaulted Interest or Stated Maturity
of any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of principal, premium,
if any, or interest need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Change of Control Purchase Date, Asset
Sale Purchase Date, date established for the payment of Defaulted Interest or at
the Stated Maturity, as the case may be. In such event, no interest shall accrue
with respect to such payment for the period from and after such Interest Payment
Date, Redemption Date, Change of Control Purchase Date, Asset Sale Purchase
Date, date established for the payment of Defaulted Interest or Stated Maturity,
as the case may be, to the next succeeding Business Day and, with respect to any
Interest Payment Date, interest for the period from and after such Interest
Payment Date shall accrue with respect to the next succeeding Interest Payment
Date.
Section 3.12. CUSIP and CINS Numbers. The Company in issuing the
----------------------
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and if
the Company does so, the Trustee shall use the CUSIP or CINS numbers, as the
case may be, in notices of redemption or exchange as a convenience to Holders;
provided, however, that any such notice shall state that no representation is
made as to the correctness or accuracy of the CUSIP or CINS number, as the case
may be, printed in the notice or on the Securities, and that reliance may be
placed only on the other identification numbers printed on the Securities. The
Company shall promptly notify the Trustee in writing of any change in the CUSIP
or CINS number of any type of Securities.
Section 3.13. Paying Agent To Hold Money in Trust. Each Paying Agent
-----------------------------------
shall hold in trust for the benefit of the Securityholders or the Trustee all
money held by the Paying Agent for the payment of principal of, premium, if any,
or interest on the Securities, and shall notify the Trustee of any default by
the Company in making any such payment. Money held in trust by the Paying Agent
need not be segregated, except as required by law and except if the Company, any
Guarantor or any of their respective Affiliates is acting as Paying Agent, and
in no event shall the Paying Agent be liable for any interest on any money
received by it hereunder. The Company at any time may require the Paying Agent
to pay all money held by it to the Trustee and account for any funds disbursed
and the Trustee may at any time during the continuance of any Event of Default,
upon a Company Order to the Paying Agent, require such Paying Agent to pay
forthwith all money so held by it to the Trustee and to account for any funds
disbursed. Upon making such payment, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
29
Section 3.14. Deposits of Monies. Prior to 12:00 p.m. noon New York
------------------
City time on each Interest Payment Date, Redemption Date, Stated Maturity,
Change of Control Purchase Date and Asset Sale Offer Purchase Date, the Company
shall deposit with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date,
Redemption Date, Stated Maturity, Change of Control Purchase Date and Asset Sale
Offer Purchase 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,
Redemption Date, Stated Maturity, Change of Control Purchase Date and Asset Sale
Offer Purchase Date, as the case may be.
Section 3.15. Book-Entry Provisions for Global Securities.
-------------------------------------------
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear legends as
set forth in Exhibit B hereto.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or 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 Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global
Securities may be transferred or exchanged for Physical Securities in
accordance with the rules and procedures of the Depository and the
provisions of Sections 3.03 and 3.16. In addition, Physical Securities
shall be transferred to all beneficial owners in exchange for their
beneficial interests in Global Securities if (i) the Depository notifies
the Company that it is unwilling or unable to continue as Depository for
any Global Security, or that it will cease to be a "Clearing Agency" under
the Exchange Act, and in either case a successor Depository 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 Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are
to be issued) reflect on its books and records the date and a decrease in
the principal amount of such Global Security in an amount equal to the
principal amount of the beneficial interest in such Global Security to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Securities of like tenor and
principal amount of authorized denominations.
30
(d) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b), the Global
Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depository in exchange for its beneficial interest in the Global
Securities, an equal aggregate principal amount of Physical Securities of
like tenor of authorized denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
subparagraph (b), (c) or (d) of this Section 3.15 shall, except as
otherwise provided by Section 3.16, bear the Private Placement Legend.
(f) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 3.16. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors. The
-------------------------------------------------------
following additional provisions shall apply with respect to the
registration of any proposed transfer of an Initial Security to any
Institutional Accredited Investor which is not a QIB:
(i) the Registrar shall register the transfer of any Initial
Security, whether or not such Security 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
Security, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date and such transfer can otherwise be
lawfully made under the Securities Act without registering such
Initial Securities thereunder or (y) the proposed transferee has
delivered to the Registrar a certificate substantially in the form of
Exhibit C hereto and any legal opinions and certifications required
thereby; and
(ii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Security, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above,
together with any required legal opinions and certifications, the
Registrar shall register the transfer and reflect on its books and
records the date and a decrease in the principal amount of the Global
Security from which such interests are to be transferred in an amount
equal to the principal amount of the Securities to be transferred and
the Company shall execute, and the Trustee shall authenticate,
Physical Securities in a principal amount equal to the principal
amount of the Global Security to be transferred.
31
(b) Transfers to Non-U.S. Persons. The following additional
-----------------------------
provisions shall apply with respect to the registration of any proposed
transfer of an Initial Security to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Initial
Security, whether or not such Security 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
Security, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date and such transfer can otherwise be
lawfully made under the Securities Act without registering such
Initial Securities thereunder or (y) the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Exhibit D hereto;
(ii) if the proposed transferee is an Agent Member and the
Securities to be transferred consist of Physical Securities which
after transfer are to be evidenced by an interest in the Regulation S
Global Security, upon receipt by the Registrar of (x) written
instructions given in accordance with the Depository's and the
Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, together with any
required legal opinions and certifications, the Registrar shall
register the transfer and reflect on its books and records the date
and an increase in the principal amount of the Regulation S Global
Security in an amount equal to the principal amount of Physical
Securities to be transferred, and the Trustee shall cancel the
Physical Securities so transferred;
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Security, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above,
together with any required legal opinions and certifications, the
Registrar shall register the transfer and reflect on its books and
records the date and (A) a decrease in the principal amount of the
Global Security from which such interests are to be transferred in an
amount equal to the principal amount of the Securities to be
transferred and (B) an increase in the principal amount of the
Regulation S Global Security in an amount equal to the principal
amount of the Global Security to be transferred; and
(iv) Until the 41st day after the Issue Date (the "Restricted
Period"), an owner of a beneficial interest in the Regulation S Global
Security may not transfer such interest to a transferee that is a U.S.
person or for the account or benefit of a U.S. person within the
meaning of Rule 902(o) of the Securities Act. During the Restricted
Period, all beneficial interests in the Regulation S Global Security
shall be transferred only through Cedel or Euroclear, either directly
if the transferor and transferee are participants in such systems, or
indirectly through organizations that are participants therein.
32
(c) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of an Initial Security
to a QIB (excluding Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Initial
Security, whether or not such Security 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
Security, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date and such transfer can otherwise be
lawfully made under the Securities Act without registering such
Initial Security thereunder or (y) such transfer is being made by a
proposed transferor who has checked the box provided for on the form
of Security 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 Security stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Security for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a 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;
(ii) if the proposed transferee is an Agent Member and the
Securities to be transferred consist of Physical Securities which
after transfer are to be evidenced by an interest in the 144A Global
Security, upon receipt by the Registrar of written instructions given
in accordance with the Depository's and the Registrar's procedures,
the Registrar shall register the transfer and reflect on its book and
records the date and an increase in the principal amount of the 144A
Global Security in an amount equal to the principal amount of Physical
Securities to be transferred, and the Trustee shall cancel the
Physical Security so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Security, upon receipt by the
Registrar of written instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall
register the transfer and reflect on its books and records the date
and (A) a decrease in the principal amount of the Global Security from
which interests are to be transferred in an amount equal to the
principal amount of the Securities to be transferred and (B) an
increase in the principal amount of the 144A Global Security in an
amount equal to the principal amount of the Global Security to be
transferred.
(d) Private Placement Legend. Upon the registration of transfer,
------------------------
exchange or replacement of Securities not bearing the Private Placement
Legend, the Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the registration of
33
transfer, exchange or replacement of Securities bearing the Private
Placement Legend, the Registrar shall deliver only Securities that bear the
Private Placement Legend unless (i) the circumstances contemplated by
paragraph (a)(i)(x) of this Section 3.16 exist, (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 or (iii) such Security has been sold
pursuant to an effective registration statement under the Securities Act.
(e) Other Transfers. If a Holder proposes to transfer a Security
---------------
constituting a Restricted Security pursuant to any exemption from the
registration requirements of the Securities Act other than as provided for
by Section 3.16(a), (b) and (c), the Registrar shall only register such
transfer or exchange if such transferor delivers an Opinion of Counsel
satisfactory to the Company and the Registrar that such transfer is in
compliance with the Securities Act and the terms of this Indenture.
(f) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and
in the Private Placement Legend and agrees that it will transfer such
Security only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.15 or this Section 3.16.
The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable prior written notice to the Registrar.
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect Defeasance or Covenant
-------------------------------------------------
Defeasance. The Company may, at its option by Board Resolution, at any time,
----------
with respect to the Securities, elect to have either Section 4.02 or Section
4.03 be applied to all of the Outstanding Securities (the "Defeased
Securities"), upon compliance with the conditions set forth below in this
Article Four.
Section 4.02. Defeasance and Discharge. Upon the Company's exercise
------------------------
under Section 4.01 of the option applicable to this Section 4.02, the Company
and each Guarantor shall be deemed to have been discharged from their
obligations with respect to the Defeased Securities and the related Security
Guarantees on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Defeased Securities, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 4.05 and the other Sections of
this Indenture referred to in clauses (a) and (b) below, and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
and, upon Company Request, shall execute proper
34
instruments acknowledging the same), except for the following, which shall
survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Defeased Securities to receive, solely
from the trust fund described in Section 4.04 and as more fully set forth
in such Section 4.04, payments in respect of the principal of, premium, if
any, and interest on such Defeased Securities when such payments are due,
(b) the Company's obligations with respect to such Defeased
Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03,
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, the Trustee's rights under
Section 6.07, and
(d) this Article Four. Subject to compliance with this Article Four,
the Company may exercise its option under this Section 4.02 notwithstanding
the prior exercise of its option under Section 4.03 with respect to the
Securities.
Section 4.03. Covenant Defeasance. Upon the Company's exercise under
-------------------
Section 4.01 of the option applicable to this Section 4.03, the Company and each
Guarantor shall be released from their obligations under any covenant or
provision contained in Sections 10.06 through 10.21 and the provisions of
Articles Eight shall not apply, with respect to the Defeased Securities, on and
after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Defeased Securities shall thereafter be deemed
not to be "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the Defeased Securities, the Company and each
Guarantor may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in Sections 10.06 through 10.21 or
Article Eight, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.01(c) or (d), but, except as specified above, the
remainder of this Indenture and such Defeased Securities shall be unaffected
thereby.
Section 4.04. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of either Section 4.02 or
Section 4.03 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.09 who shall agree to comply with the provisions of this Article Four
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) cash in an amount, or (b)
U.S. Government Obligations which through the scheduled payment of principal,
premium, if any, and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment, money
in an amount, or (c) a combination thereof, in any such case,
35
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, the principal of, premium, if
any, and interest on the Defeased Securities at the Stated Maturity of such
principal or installment of principal, premium, if any, or interest; provided,
however, that the Trustee shall have been irrevocably instructed to apply such
cash or the proceeds of such U.S. Government Obligations to said payments with
respect to the Securities;
(2) No Default shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 5.01(h), (i) or (j) are concerned, at
any time during the period ending on the ninety-first day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period);
(3) Neither the Company nor any Subsidiary of the Company is an
"insolvent person" within the meaning of any applicable Bankruptcy Law on the
date of such deposit or at any time during the period ending on the ninety-first
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(4) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities to have a conflicting interest in violation of
Section 6.08 and for purposes of the Trust Indenture Act with respect to any
securities of the Company or any Guarantor;
(5) Such 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 Guarantor is
a party or by which it is bound;
(6) In the case of an election under Section 4.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
(7) In the case of an election under Section 4.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant defeasance and will
be subject to Federal income tax 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;
(8) The Company shall have delivered to the Trustee, an Opinion
of Counsel to the effect that, immediately following the ninety-first day after
the deposit, the trust funds established pursuant to this Article Four will not
be subject to the effect of any applicable
36
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally under any applicable U.S. Federal or state law;
(9) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election under Section 4.02 or 4.03 was not made by the Company with the intent
of preferring the Holders or any Guarantor over the other creditors of the
Company or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others; and
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (i) all conditions
precedent (other than conditions requiring the passage of time) provided for
relating to either the defeasance under Section 4.02 or the covenant defeasance
under Section 4.03 (as the case may be) have been complied with as contemplated
by this Section 4.04 and (ii) if any other Indebtedness of the Company or any
Guarantor shall then be outstanding or committed, such defeasance or covenant
defeasance will not violate the provisions of the agreements or instruments
evidencing such Indebtedness. Opinions of Counsel required to be delivered
under this Section 4.04 may have such qualifications as are customary for
opinions of the type required.
Section 4.05. Deposited Money and U.S. Government Obligations To Be
-----------------------------------------------------
Held in Trust; Other Miscellaneous Provisions. Subject to the proviso of the
---------------------------------------------
last paragraph of Section 10.03, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.05, the "Trustee") pursuant
to Section 4.04 in respect of the Defeased Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(other than the Company or any Guarantor) as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee and hold it harmless
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 4.04 or the principal,
premium, if any, and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
Defeased Securities.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 4.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 4.06. Reinstatement. If the Trustee or Paying Agent is unable
-------------
to apply any money or U.S. Government Obligations in accordance with Section
4.02 or 4.03, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Company and of
37
any Guarantor under this Indenture, the Securities and any Security Guarantees
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 4.02 or 4.03, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money and U.S. Government
Obligations in accordance with Section 4.02 or 4.03, as the case may be;
provided, however, that if the Company makes any payment of principal, premium,
if any, or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money and U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default. "Event of Default," wherever used
-----------------
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of the principal of or premium, if any,
when due and payable, on any of the Securities (at its Stated Maturity,
upon optional redemption, required purchase, scheduled principal payment or
otherwise); or
(b) default in the payment of an installment of interest on any of
the Securities, when due and payable, continued for 30 days or more; or
(c) the Company or any Guarantor fails to comply with any of its
obligations described under Article Eight or Section 10.10 or 10.15; or
(d) the Company or any Guarantor fails to perform or observe any
other term, covenant or agreement contained in the Securities, the Security
Guarantees or this Indenture (other than a default specified in (a), (b) or
(c) above) for a period of 30 days after written notice of such failure
requiring the Company to remedy the same shall have been given (x) to the
Company by the Trustee or (y) to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Securities then
Outstanding; or
(e) default or defaults under one or more agreements, indentures or
instruments under which the Company or any Restricted Subsidiary then has
outstanding Indebtedness in excess of $5.0 million individually or in the
aggregate and either (i) such Indebtedness is already due and payable in
full or (ii) such default or defaults results in the acceleration of the
maturity of such Indebtedness; or
(f) any Security Guarantee ceases to be in full force and effect or
is declared null and void or any Guarantor denies that it has any further
liability under any Security Guarantee, or gives notice to such effect
(other than by reason of the termination of this Indenture or the release
of any such Security Guarantee in accordance with Section 13.03); or
38
(g) one or more judgments, orders or decrees of any court or
regulatory or administrative agency for the payment of money in excess of
$5.0 million either individually or in the aggregate shall have been
rendered against the Company or any Restricted Subsidiary or any of their
respective properties and shall not have been discharged and either (a) any
creditor shall have commenced an enforcement proceeding upon such judgment,
order or decree or (b) there shall have been a period of 60 consecutive
days during which a stay of enforcement of such judgment, order or decree,
by reason of a pending appeal or otherwise, shall not be in effect; or
(h) the Company or any Material Subsidiary of the Company pursuant
to or under or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the making of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any case against
it;
(iii) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors;
(v) files an answer or consent seeking reorganization or
relief;
(vi) shall admit in writing its inability to pay its debts
generally; or
(vii) consents to the filing of a petition in bankruptcy; or (i)
a court of competent jurisdiction in any involuntary case or
proceeding enters a Bankruptcy Order against the Company or any
Material Subsidiary, and such Bankruptcy Order remains unstayed and in
effect for 60 consecutive days; or (j) a Custodian shall be appointed
out of court with respect to the Company or any Material Subsidiary or
with respect to all or any substantial part of the assets or
properties of the Company or any Material Subsidiary; or (k) any
holder of at least $10.0 million in aggregate principal amount of
Indebtedness of the Company or any Restricted Subsidiary shall
commence judicial proceedings to foreclose upon assets of the Company
or any of the Restricted Subsidiaries having an aggregate Fair Market
Value, individually or in the aggregate, in excess of $10.0 million or
shall have exercised any right under applicable law or applicable
security documents to take ownership of any such assets in lieu of
foreclosure.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If
--------------------------------------------------
(x) an Event of Default (other than an Event of Default specified in Section
5.01(h), (i) or (j) with respect to the Company) occurs and is continuing, then
and in every such case the Trustee or the Holders of at least 25% in aggregate
principal amount of the Securities then Outstanding may, and the Trustee upon
the request of the Holders of not less than 25% in aggregate principal amount of
the Securities then Outstanding shall, declare the principal of, premium, if
any, and accrued and unpaid interest on all Outstanding Securities to and
including the date such Securities are paid to become due and payable
immediately by a notice in writing to the Company (and to the Trustee, if given
by the
39
Holders) and upon any such declaration such principal, premium, if any, and
interest, shall become immediately due and payable. If an Event of Default
specified in Section 5.01(h), (i) or (j) with respect to the Company occurs and
is continuing, then the principal of, premium, if any, and accrued and unpaid
interest on all the Securities then Outstanding 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 of Securities. At any time after a declaration of
acceleration has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter provided in this
Article Five, the Holders of a majority in aggregate principal amount of the
Securities then Outstanding, by written notice to the Company and the Trustee,
may rescind and annul such declaration of acceleration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all amounts due the Trustee under Section 6.07,
including the reasonable compensation, fees, expenses, disbursements and
advances of the Trustee, its agents and counsel, (ii) all overdue interest
on all Securities, (iii) the principal of and premium, if any, on any
Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate then borne by the Securities,
and (iv) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate then borne by the Securities; and
(b) all Events of Default, other than the non-payment of principal
of, premium, if any, and any accrued and unpaid interest on the Securities
that have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company and each Guarantor covenant that if an Event of Default
-------
specified in Section 5.01(a) or 5.01(b) shall have occurred and be continuing,
the Company and each Guarantor shall, jointly and severally, upon demand of the
Trustee, pay to the Trustee, for the benefit of the Holders of such Securities,
the whole amount then due and payable on such Securities for principal, premium,
if any, and interest, with interest upon the overdue principal, premium, if any,
and, to the extent that payment of such interest shall be legally enforceable,
upon overdue installments of interest, at the rate then borne by the Securities;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company and each Guarantor fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may, but is not obligated under this paragraph to, institute a judicial
proceeding for the collection of the sums so due and unpaid and may, but is not
obligated under this paragraph to, prosecute such proceeding to judgment or
final decree, and may, but is not obligated under this paragraph to, enforce the
same against the Company, any Guarantor or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any Guarantor or any other obligor
upon the Securities, wherever situated.
40
If an Event of Default occurs and is continuing, the Trustee may in
its discretion, but is not obligated under this paragraph to, (i) proceed to
protect and enforce its rights and the rights of the Holders under this
Indenture or any Security Guarantee by such appropriate private or judicial
proceedings as the Trustee shall deem most effectual to protect and enforce such
rights, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted
herein, including, without limitation, seeking recourse against any Guarantor or
(ii) proceed to protect and enforce any other proper remedy, including, without
limitation, seeking recourse against any Guarantor. No recovery of any such
judgment upon any property of the Company or any Guarantor shall affect or
impair any rights, powers or remedies of the Trustee or the Holders.
Section 5.04. Trustee May File Proofs of Claims. In case of the
---------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities,
including each Guarantor or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, fees, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 hereof.
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 Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture, the Securities
----------
or any Security Guarantee may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, fees, expenses,
41
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06. Application of Money Collected. Any money collected by
------------------------------
the Trustee pursuant to this Article Five shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.07;
Second: to Holders for interest accrued on the Securities, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Securities for interest;
Third: to Holders for principal and premium, if any, owing under the
Securities, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for
principal and premium, if any; 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 Securityholders pursuant to this
Section 5.06.
Section 5.07. Limitation on Suits. No Holder of any Securities shall
-------------------
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless (a) such Holder has previously given written
notice to the Trustee of a continuing Event of Default; (b) the Holders of not
less than 25% in principal amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder; (c) such Holder or Holders have
offered to the Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request; (d) the Trustee for
15 days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and (e) no direction inconsistent with
such written request has been given to the Trustee during such 15-day period by
the Holders of a majority in aggregate principal amount of the Outstanding
Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, any Security or any Security Guarantee to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, any Security or any Security Guarantee, except in the manner provided
in this Indenture and for the equal and ratable benefit of all the Holders.
Section 5.08. Unconditional Right of Holders To Receive Principal,
----------------------------------------------------
Premium and Interest. Notwithstanding any other provision in this Indenture,
--------------------
each Holder of a Security shall have the right, which is absolute and
unconditional, to receive cash payment of the principal of, premium, if any, and
(subject to Section 3.07 hereof) interest on such Security on the respective
42
Stated Maturities expressed in such Security (or, in the case of redemption, a
Change of Control Offer or Asset Sale Offer, on the Redemption Date, Change of
Control Purchase Date or Asset Sale Offer Purchase Date, respectively) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture, any Security or any Security Guarantee and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every such case the Company, each
of the Guarantors, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative. No right or remedy
------------------------------
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Majority. The Holders of a majority in
-------------------
aggregate principal amount of the Outstanding Securities shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, provided, however, that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, any Security or any Security Guarantee or expose the
Trustee to personal liability; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults. The Holders of not less than a
-----------------------
majority in aggregate principal amount of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past Default hereunder and
its consequences, except a Default (a) in the payment of the principal of,
premium, if any, or interest on any Security or (b) in respect of a covenant or
provision hereof which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security affected thereby.
43
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 5.14 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, a Change of Control Offer or Asset Sale
Offer, on or after the Redemption Date, Change of Control Purchase Date or Asset
Sale Offer Purchase Date, respectively).
Section 5.15. Waiver of Stay, Extension or Usury Laws. Each of the
---------------------------------------
Company and the Guarantors covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury or other law wherever enacted, now or at any time hereafter in force,
which would prohibit or forgive the Company or any Guarantor from paying all or
any portion of the principal of, premium, if any, or interest on the Securities
contemplated herein or in the Securities or which may affect the covenants or
the performance of this Indenture; and each of the Company and the Guarantors
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities
-----------------------------------
(a) Except during the continuance of an Event of Default, (1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (2)
in the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by the provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a
44
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent person would exercise or use under the circumstances in the
conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that no provision of
this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section 6.01.
Section 6.02. Notice of Defaults. Within 90 days after the
-------------------
occurrence of any Default, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, notice of such
Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in the
payment of the principal of, premium, if any, or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders.
Section 6.03. Certain Rights of Trustee. Subject to Section 6.01
--------------------------
hereof and the provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors of the Company or any Guarantor may be
sufficiently evidenced by a Board Resolution thereof;
(c) the Trustee may consult with counsel and any written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
45
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by the Trustee in
compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than
any liabilities arising out of its own negligence;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, other
evidence of indebtedness or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities then Outstanding; provided, however,
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Company or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Company upon demand;
provided, further, however, the Trustee in its discretion may make such
further inquiry or investigation into such facts or matters as it may deem
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 6.04. Trustee Not Responsible for Recitals, Dispositions of
-----------------------------------------------------
Securities or Application of Proceeds Thereof. The recitals contained herein and
----------------------------------------------
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Company and the Guarantors, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or of any Security Guarantee except that the Trustee represents that
it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility and Qualification on Form T-1, if any, to be
supplied to the Company are true and accurate subject to the qualifications set
forth therein. The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 6.05. Trustee and Agents May Hold Securities; Collections;
----------------------------------------------------
Etc. The Trustee, any Paying Agent, Registrar or any other agent of the Company,
----
in its individual or any
46
other capacity, may become the owner or pledgee of Securities, with the same
rights it would have if it were not the Trustee, Paying Agent, Registrar or such
other agent and, subject to Section 6.08 hereof and Sections 310 and 311 of the
Trust Indenture Act, may otherwise deal with the Company and receive, collect,
hold and retain collections from the Company with the same rights it would have
if it were not the Trustee, Paying Agent, Registrar or such other agent.
Section 6.06. Money Held in Trust. All moneys received by the
--------------------
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required herein or by law. The Trustee shall not be
under any liability for interest on any moneys received by it hereunder.
Section 6.07. Compensation and Indemnification of Trustee and Its
---------------------------------------------------
Prior Claim. The Company and each Guarantor covenant and agree:
-----------
(a) to pay to the Trustee from time to time, and the Trustee shall
be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, fees, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation, fees,
and the expenses and disbursements of its counsel and of all agents and
other persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence or bad faith; and
(c) to indemnify the Trustee and each predecessor Trustee for, and
to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including enforcement of this
The obligations of the Company and each Guarantor under this Section 6.07
to compensate and indemnify the Trustee and each predecessor Trustee and to
pay or reimburse the Trustee and each predecessor Trustee for expenses,
fees, disbursements and advances shall constitute an additional obligation
hereunder and shall survive the satisfaction and discharge of this
Indenture. To secure the obligations of the Company and of each Guarantor
to the Trustee under this Section 6.07, the Trustee shall have a prior Lien
upon all property and funds held or collected by the Trustee as such,
except funds and property paid by the Company or any Guarantor and held in
trust for the benefit of the Holders of particular Securities or for the
purchase price or redemption price of any Securities to be purchased
pursuant to Section 10.10 or 10.15 or to be redeemed pursuant to Article
Eleven.
Section 6.08. Conflicting Interests. The Trustee shall be subject to
----------------------
and comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 6.09. Corporate Trustee Required; Eligibility. There shall
----------------------------------------
at all times be a Trustee hereunder which shall be eligible to act as Trustee
under Trust Indenture Act Sections
47
310(a)(1) and (2) and which shall have a combined capital and surplus of at
least $100,000,000, and have a Corporate Trust Office in the Borough of
Manhattan in The City of New York, State of New York. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of any Federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section 6.09,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article Six.
Section 6.10. Resignation and Removal; Appointment of Successor
-------------------------------------------------
Trustee
-------
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article Six shall become effective
until the acceptance of appointment by the successor Trustee under Section
6.11.
(b) The Trustee, or any trustee or trustees hereinafter appointed,
may at any time resign by giving written notice thereof to the Company at
least 20 Business Days prior to the date of such proposed resignation.
Upon receiving such notice of resignation, the Company shall promptly
appoint a successor Trustee by written instrument executed by authority of
the Board of Directors of the Company, a copy of which shall be delivered
to the resigning Trustee and a copy to the successor Trustee. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 20 Business Days after the giving of such
notice of resignation, the resigning Trustee may, or any Holder who has
been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper,
appoint a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered
to the Trustee and to the Company.
(d) If at any time: (1) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act in accordance with
Section 6.08 hereof after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or (2) the Trustee shall cease to be eligible under Section 6.09
hereof and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for
at least six months, or (3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose or
rehabilitation, conservation or liquidation, then, in any case, (i) the
Company by a Board Resolution may remove the Trustee, or (ii) the Holder of
any Security who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and the
48
appointment of a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution of its Board of Directors, shall
promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders of the
Securities and accepted appointment in the manner hereinafter provided, the
Holder of any Security who has been a bona fide Holder for at least six
months may on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of Securities as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor. Every
---------------------------------------
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Company or the successor Trustee,
upon payment of amounts due it pursuant to Section 6.07, such retiring Trustee
shall duly assign, transfer and deliver to the successor Trustee all moneys and
property at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor Trustee all the rights, powers, duties
and obligations of the retiring Trustee. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to the provisions of Section 6.07.
No successor Trustee with respect to the Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under this
Article Six.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.11, the successor shall give notice thereof to the Holders of the
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice
49
called for by the preceding sentence may be combined with the notice called for
by Section 6.10. If the Company fails to give such notice within 10 days after
acceptance of appointment by the successor Trustee, the successor Trustee shall
cause such notice to be given at the expense of the Company.
Section 6.12. Merger, Conversion, Amalgamation, Consolidation or
--------------------------------------------------
Succession to Business. Any corporation into which the Trustee may be merged or
-----------------------
converted or with which it may be consolidated or amalgamated, or any
corporation resulting from any merger, conversion, amalgamation or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing of any paper
or any further act on the part of any of the parties hereto, provided such
corporation shall be eligible under this Article Six to serve as Trustee
hereunder.
In case at the time such successor to the Trustee under this Section
6.12 shall have succeeded to the trusts created by this Indenture any of the
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities shall not have been authenticated, any successor to the
Trustee under this Section 6.12 may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee; and
in all such cases such certificate shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have been authenticated.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 7.01. Preservation of Information; Company To Furnish
-----------------------------------------------
Trustee Names and Addresses of Holders
--------------------------------------
(a) The Trustee shall preserve the names and addresses of the
Securityholders and otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish or cause the
Registrar to furnish to the Trustee before each Interest Payment Date, and
at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names
and addresses of the Securityholders. Neither the Company nor the Trustee
shall be under any responsibility with regard to the accuracy of such list.
(b) The Company will furnish or cause to be furnished to the
Trustee (i) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and (ii)
at such other times as the Trustee may reasonably request in writing,
within 30 days after receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
50
provided, however, that if and so long as the Trustee shall be the
Registrar, no such list need be furnished pursuant to this Subsection
7.01(b).
Section 7.02. Communications of Holders. Holders may communicate
-------------------------
with other Holders with respect to their rights under this Indenture or under
the Securities pursuant to Section 312(b) of the Trust Indenture Act. The
Company and the Trustee and any and all other persons benefited by this
Indenture shall have the protection afforded by Section 312(c) of the Trust
Indenture Act.
Section 7.03. Reports by Trustee. Within 60 day after May 15 of each
-------------------
year commencing with the first May 15 following the date of this Indenture, the
Trustee shall mail to all Holders, as their names and addresses appear in the
Security Register, a brief report dated as of such May 15, in accordance with,
and to the extent required under Section 313 of the Trust Indenture Act. At the
time of its mailing to Holders, a copy of each such report shall be filed by the
Trustee with the Company, the Commission and with each stock exchange on which
the Securities are listed. The Company shall notify the Trustee when the
Securities are listed on any stock exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. Company May Consolidate, etc., Only on Certain Terms.
-----------------------------------------------------
(a) The Company shall not, in any transaction or series of related
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any Person or Persons, and the
Company shall not permit any of the Restricted Subsidiaries to enter into
any such transaction or series of related transactions if such transaction
or series of related transactions, in the aggregate, would result in a
sale, assignment, conveyance, transfer, lease or other disposition of all
or substantially all of the properties and assets of the Company and the
Restricted Subsidiaries (determined on a consolidated basis for the Company
and the Restricted Subsidiary), to any Person or Persons, unless at the
time and after giving effect thereto:
(i) either (A)(1) if the transaction or transactions is a
merger or consolidation involving the Company, the Company shall be
the Surviving Person of such merger or consolidation or (2) if the
transaction or transactions is a merger or consolidation involving a
Restricted Subsidiary, such Restricted Subsidiary shall be the
Surviving Person of such merger or consolidation, or (B)(1) the
Surviving Person shall be a corporation organized and existing under
the laws of the United States of America, any State thereof or the
District of Columbia and (2)(x) in the case of a transaction involving
the Company, the Surviving Person shall expressly assume by a
supplemental indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture and the Registration Rights
Agreement, and in each case, this Indenture and the Registration
Rights Agreement shall remain in full force and
51
effect, or (y) in the case of a transaction involving a Restricted
Subsidiary that is a Guarantor, the Surviving Person shall expressly
assume by a supplemental indenture executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of
such Restricted Subsidiary under its Security Guarantee and this
Indenture and the Registration Rights Agreement, and in each case,
this Indenture and the Registration Rights Agreement shall remain in
full force and effect;
(ii) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, no Default shall
have occurred and be continuing;
(iii) the Company, or the Surviving Person, as the case may
be, immediately after giving effect to such transaction or series of
related transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions), could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under Section 10.11; and (iv) immediately
after giving effect to such transaction or series of related
transactions on a pro forma basis, the Company, or the Surviving
Person, as the case may be, shall have a Consolidated Net Worth not
less than the Consolidated Net Worth of the Company immediately prior
to such transaction or series of related transactions.
(b) No Guarantor (other than a Guarantor whose Security Guarantee
is to be released in accordance with Section 13.03) shall, in any
transaction or series of related transactions, consolidate with or merge
with or into another Person, whether or not such Person is affiliated with
such Guarantor and whether or not such Guarantor is the Surviving Person,
unless:
(i) the Surviving Person (if other than such Guarantor) is a
corporation organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia;
(ii) the Surviving Person (if other than such Guarantor)
expressly assumes by a supplemental indenture all the obligations of
such Guarantor under its Security Guarantee and the performance and
observance of every covenant of this Indenture and the Registration
Rights Agreement to be performed or observed by such Guarantor;
(iii) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, no Default shall
have occurred and be continuing; and
(iv) immediately after giving effect to such transaction or
series of related transactions on a pro forma basis, such Guarantor,
or the Surviving Person, as the case may be, shall have a Consolidated
Net Worth not less than the Consolidated Net Worth of such Guarantor
immediately prior to such transaction or series of related
transactions.
52
(c) In connection with any consolidation, merger, transfer, lease
or other disposition contemplated hereby, the Company shall deliver, or
cause to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
counsel, each stating that such consolidation, merger, transfer, lease or
other disposition and the supplemental indenture in respect thereof comply
with the requirements of this Indenture. In addition, each Guarantor, in
the case of a transaction described in paragraph (a) of this Section 8.01,
unless it is the other party to the transaction or unless its Security
Guarantee will be released and discharged in accordance with its terms as a
result of the transaction, will be required to confirm, by supplemental
indenture, that its Security Guarantee will continue to apply to the
obligations of the Company or the Surviving Person under the Indenture.
Section 8.02. Successor Substituted. Upon any consolidation or
----------------------
merger of the Company or any Guarantor or any transfer of all or substantially
all of the assets of the Company in accordance with Section 8.01, in which the
Company or a Guarantor is not the Surviving Person, the Surviving Person shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture and the Securities and the Registration Rights
Agreement or such Guarantor under this Indenture, the Security Guarantee of such
Guarantor and the Registration Rights Agreement, as the case may be, with the
same effect as if such successor corporation had been named as the Company or
Guarantor, as the case may be, herein and therein; and thereafter, except in the
case of (a) a lease or (b) any sale, assignment, conveyance, transfer, lease or
other disposition to a Restricted Subsidiary of the Company or such Guarantor,
the Company shall be discharged from all obligations and covenants under this
Indenture and the Securities and such Guarantor shall be discharged from all
obligations and covenants under this Indenture and the Security Guarantee of
such Guarantor, as the case may be.
For all purposes of this Indenture and the Securities (including the
provisions of this Article Eight and the covenants described in Sections 10.11,
10.13 and 10.16), Subsidiaries of any Surviving Person shall, upon such
transaction or series of related transactions, become Restricted Subsidiaries
unless and until designated as Unrestricted Subsidiaries pursuant to and in
accordance with Section 10.20, and all Indebtedness, and all Liens on property
or assets, of the Company and the Restricted Subsidiaries in existence
immediately prior to such transaction or series of related transactions will be
deemed to have been incurred upon such transaction or series of related
transactions.
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and Waivers Without
-------------------------------------------------------
Consent of Holders. Without the consent of any Holders, the Company and the
-------------------
Guarantors, when authorized by a Board Resolution of the Board of Directors of
the Company and each Guarantor, and the Trustee, at any time and from time to
time, may amend, waive, modify or supplement this Indenture or the Securities or
the Security Guarantees for any of the following purposes:
53
(a) to evidence the succession of another person to the Company or
a Guarantor, and the assumption by any such successor of the covenants of
the Company or such Guarantor herein and in the Securities and/or in any
Security Guarantee, as the case may be;
(b) to add to the covenants of the Company or any Guarantor for the
benefit of the Holders, or to surrender any right or power conferred upon
the Company or any Guarantor, as applicable, herein, in the Securities or
in any Security Guarantee, as the case may be;
(c) to cure any ambiguity, to correct or supplement any provision
herein, in the Securities or in any Security Guarantee which may be
defective or inconsistent with any other provision herein or to make any
other provisions with respect to matters or questions arising under this
Indenture, the Securities or any Security Guarantee; provided, however,
that, in each case, such provisions shall not materially adversely affect
the legal rights of the Holders;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 9.05 hereof or otherwise;
(e) to add a Guarantor pursuant to the requirements of Section
10.17 hereof or otherwise;
(f) to evidence and provide the acceptance of the appointment of a
successor Trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security interest
in any property or assets in favor of the Trustee for the benefit of the
Holders as security for the payment and performance of the Indenture
Obligations; or
(h) to make any other change that does not materially adversely
affect the legal rights of any Holder;
provided, however, that the Company has delivered to the Trustee an Opinion
of Counsel stating that such change, agreement or waiver does not
materially adversely affect the legal rights of any Holder.
Section 9.02. Supplemental Indentures, Agreements and Waivers with
----------------------------------------------------
Consent of Holders. With the written consent of the Holders of not less than a
-------------------
majority in aggregate principal amount of the Outstanding Securities delivered
to the Company, each Guarantor and the Trustee, the Company and each Guarantor
when authorized by a Board Resolution, together with the Trustee, may amend,
waive, modify or supplement any other provision of this Indenture or the
Securities or the Security Guarantees; provided, however, that no such
amendment, waiver, modification or supplement may, without the written consent
of the Holder of each Outstanding Security affected thereby:
(i) change the maturity of the principal of or any installment
of interest on any such Security or alter the optional redemption or
repurchase provisions of any such Security or this Indenture in a
manner adverse to the Holders of the Securities;
54
(ii) reduce the principal amount of (or the premium) of any
such Security;
(iii) reduce the rate of or extend the time for payment of
interest on any such Security;
(iv) change the place or currency of payment of principal of
(or premium) or interest on any such Security;
(v) modify any provisions of this Indenture relating to the
waiver of past defaults (other than to add sections to this Indenture
or the Securities subject thereto) or the right of the Holders of
Securities to institute suit for the enforcement of any payment on or
with respect to any such Security or any Security Guarantee or the
modification and amendment provisions of this Indenture and the
Securities (other than to add sections to this Indenture or the
Securities which may not be amended, supplemented or waived without
the consent of each Holder therein affected);
(vi) reduce the percentage of the principal amount of
Outstanding Securities necessary for amendment to or waiver of
compliance with any provision of this Indenture or the Securities or
for waiver of any Default in respect thereof;
(vii) waive a default in the payment of principal of, premium,
if any, or interest on, or redemption payment with respect to, the
Securities (except a rescission of acceleration of the Securities by
the holders thereof as provided in this Indenture and a waiver of the
payment default that resulted from such acceleration);
(viii) modify the ranking or priority of any Security or the
Security Guarantee of any Guarantor;
(ix) modify the provisions of any covenant (or the related
definitions) in this Indenture requiring the Company to make and
consummate a Change of Control Offer upon a Change of Control or an
Asset Sale Offer in respect of an Asset Sale or modify any of the
provisions or definitions with respect thereto in a manner materially
adverse to the Holders of Securities affected thereby otherwise than
in accordance with this Indenture; or
(x) release any Guarantor from any of its obligations under
its Security Guarantee or this Indenture otherwise than in accordance
with this Indenture.
Upon the written request of the Company and each Guarantor accompanied
by a copy of a Board Resolution of the Board of Directors of each of them
authorizing the execution of any such supplemental indenture or other agreement,
instrument or waiver, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, the Trustee shall join with the Company and
each Guarantor in the execution of such supplemental indenture or other
agreement, instrument or waiver.
It shall not be necessary for any Act of Holders under this Section
9.02 to approve the particular form of any proposed supplemental indenture or
other agreement, instrument or waiver, but it shall be sufficient if such Act
shall approve the substance thereof.
55
Section 9.03. Execution of Supplemental Indentures, Agreements and
----------------------------------------------------
Waivers. In executing, or accepting the additional trusts created by, any
-------
supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01 hereof) shall be fully protected in relying upon, an Opinion of Counsel and
an Officers' Certificate from each obligor under the Securities entering into
such supplemental indenture, agreement, instrument or waiver, each stating that
the execution of such supplemental indenture, agreement, instrument or waiver
(a) is authorized or permitted by this Indenture and (b) does not violate the
provisions of any agreement or instrument evidencing any other Indebtedness of
the Company, any Guarantor or any other Subsidiary of the Company. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture,
agreement, instrument or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture, the Securities, any Security Guarantee or
otherwise.
Section 9.04. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental indenture under this Article Nine, this Indenture, the
Securities, if applicable, and/or the applicable Security Guarantee shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture, the Securities, if applicable, and/or the applicable
Security Guarantee, as the case may be, for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section 9.05. Conformity with Trust Indenture Act. Every
------------------------------------
supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the Trust Indenture Act as then in effect.
Section 9.06. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article Nine may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Company, to any such supplemental indenture may be
prepared and executed by the Company and each Guarantor and authenticated and
delivered by the Trustee upon a Company Order in exchange for Outstanding
Securities.
Section 9.07. Record Date. 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 supplemental indenture, agreement or instrument or
any waiver, and shall promptly notify the Trustee of any such record date. If a
record date is fixed, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
consent to such supplemental indenture, agreement or instrument or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date.
Section 9.08. Revocation and Effect of Consents. Until an amendment
----------------------------------
or waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if a notation of the consent is not made on any Security.
However, any such Holder, or subsequent Holder, may revoke the consent as to his
Security or
56
portion of a Security if the Trustee receives the notice of revocation before
the date the amendment or waiver becomes effective. An amendment or waiver shall
become effective in accordance with its terms and thereafter bind every Holder.
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest. The
-------------------------------------------
Company shall duly and punctually pay the principal of, premium, if any, and
interest on the Securities in accordance with the terms of the Securities, this
Indenture and the Registration Rights Agreement.
Section 10.02. Maintenance of Office or Agency. The Company shall
--------------------------------
maintain in the Borough of Manhattan in The City of New York, State of New York,
an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The office of the Trustee at its
Corporate Trust Office shall be such office or agency of the Company, unless the
Company shall designate and maintain some other office or agency for one or more
of such purposes. The Company shall give prompt written notice to the Trustee of
any change in the location of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York, State of New York)
where the Securities may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designation; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in The City of New York, State
of New York for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and any change in the location
of any such other office or agency.
Section 10.03. Money for Security Payments To Be Held in Trust. If
-----------------------------------------------
the Company, any Guarantor or any of their respective Affiliates shall at any
time act as Paying Agent, it shall, and shall cause such Guarantor or Affiliate
to, if applicable, on or before each due date of the principal of, premium, if
any, or interest on any of the Securities, segregate and hold in trust for the
benefit of the Holders entitled thereto a sum sufficient to pay the principal,
premium, if any, or interest so becoming due until such sums shall be paid to
such persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act. If the Company is not
acting as Paying Agent, the Company shall, on or before each due date of the
principal of, premium, if any, or interest on, any Securities, deposit with a
Paying Agent a sum in same day funds sufficient to pay the principal, premium,
if any, or interest so becoming due, such sum to be held in trust for the
benefit of the Holders entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act. If the Company is not acting as
Paying Agent, the Company
57
shall cause each Paying Agent other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent will agree with the
Trustee, subject to the provisions of this Section 10.03, that such Paying Agent
will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company or any
Guarantor (or any other obligor upon the Securities) in the making of any
payment of principal of, premium, if any, or interest on the Securities;
(c) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and liabilities
of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent will be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company upon receipt of a Company Request therefor, or (if then held by
the Company) will be discharged from such trust; and the Holder of such Security
will thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, will thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, at the option of the Company
in the New York Times or the Wall Street Journal (national edition), notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Company.
Section 10.04. Corporate Existence. Subject to Article Eight, the
--------------------
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect the corporate existence, rights (charter and
statutory), licenses and franchises of the Company and each of the Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the
58
Company and the Restricted Subsidiaries as a whole and that the loss thereof is
not adverse in any material respect to the Holders; provided, further, however,
that the foregoing shall not prohibit a sale, transfer or conveyance of a
Restricted Subsidiary of the Company or any of its assets in compliance with the
terms of this Indenture.
Section 10.05. 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, (a) all material taxes, assessments and governmental charges levied
or imposed (i) upon the Company or any of the Restricted Subsidiaries or (ii)
upon the income, profits or property of the Company or any of the Restricted
Subsidiaries and (b) all lawful claims for labor, materials and supplies, which,
if unpaid, could reasonably be expected to become a Lien upon the property of
the Company or any of the Restricted Subsidiaries; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and for which appropriate provision has been
made.
Section 10.06. Maintenance of Properties. The Company shall cause all
-------------------------
material properties owned or leased by the Company or any of the Restricted
Subsidiaries or used or held for use in the conduct of their respective
businesses to be maintained and kept in good 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 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 10.06 shall
prevent the Company from discontinuing the maintenance of any of such properties
if such discontinuance is, in the judgment of the Company (as evidenced by a
Board Resolution of the Board of Directors of the Company), desirable in the
conduct of its business or the business of any of the Restricted Subsidiaries
and is not disadvantageous in any material respect to the Holders.
Section 10.07. Insurance. The Company shall maintain, and shall cause
---------
the Restricted Subsidiaries to maintain, insurance with responsible carriers
against such risks and in such amounts, and with such deductibles, retentions,
self-insured amounts and co-insurance provisions, as are customarily carried by
similar businesses of similar size, including property and casualty loss, and
workers' compensation insurance.
Section 10.08. Books and Records. The Company shall keep proper books
-----------------
of record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Company and each
Restricted Subsidiary of the Company in compliance with GAAP.
Section 10.09. Provision of Financial Statements. For so long as the
---------------------------------
Securities are outstanding, whether or not the Company or any Guarantor is
subject to Section 13(a) or 15(d) of the Exchange Act, or any successor
provision thereto, the Company and the Guarantors shall file with the Commission
(if permitted by Commission practice and applicable law and regulations) the
annual reports, quarterly reports and other documents which the Company or the
Guarantors would have been required to file with the Commission pursuant to such
Section 13(a) or 15(d) or any successor provision thereto if the Company or the
Guarantors were so subject, such documents to
59
be filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company or the Guarantors would have been required
so to file such documents if the Company or the Guarantors were so subject. The
Company and the Guarantors shall also in any event (a) within 15 days after each
Required Filing Date (whether or not permitted or required to be filed with the
Commission) (i) transmit (or cause to be transmitted) by mail to all Holders of
Securities, as their names and addresses appear in the Security Register,
without cost to such Holders, and (ii) file with the Trustee, copies of the
annual reports, quarterly reports and other documents which the Company or the
Guarantors are required to file with the Commission pursuant to the preceding
sentence, or, if such filing is not so permitted, information and data of a
similar nature, and (b) if, notwithstanding the preceding sentence, filing such
documents by the Company and the Guarantors with the Commission is not permitted
by Commission practice or applicable law or regulations, promptly upon written
request supply copies of such documents to any Holder of Securities. In
addition, for so long as any Securities remain outstanding, the Company and the
Guarantors shall furnish to the Holders of Securities and to securities analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act, and, to any
beneficial holder of Securities, if not obtainable from the Commission,
information of the type that would be filed with the Commission pursuant to the
foregoing provisions, upon the request of any such holder.
Section 10.10. Change of Control. Following the occurrence of a
-----------------
Change of Control (the date of such occurrence, the "Change of Control Date"),
the Company shall notify the Holders of Securities in writing of such occurrence
and shall make an offer to purchase (the "Change of Control Offer"), within 20
days after the Change of Control Date, all Securities then Outstanding at a
purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest thereon, if any, to the date fixed for purchase of
Securities validly tendered and not withdrawn, which date shall not be earlier
than the 20th Business Day following the mailing of the Change of Control Offer
or later than the last day such Change of Control Offer is required to remain
open by applicable law (the "Change of Control Purchase Date"). Failure to mail
the notice of a Change of Control Offer on the date specified below or to have
satisfied the foregoing condition precedent by the date that such notice is
required to be mailed will constitute a covenant Default under Section 5.01(c).
Notice of a Change of Control Offer shall be mailed by the Company not
more than 20 days after the Change of Control Date to the Holders of Securities
at their last registered addresses with a copy to the Trustee and the Paying
Agent. The Change of Control Offer shall remain open from the time of mailing
for at least 20 Business Days or such longer period as may be required by
applicable law. The notice, which shall govern the terms of the Change of
Control Offer, shall include such disclosures as are required by law and shall
state:
(a) that the Change of Control Offer is being made pursuant to this
Section 10.10 and that all Securities tendered into the Change of Control
Offer will be accepted for payment; and that the Change of Control Offer
shall remain open for a period of 20 Business Days or such longer period as
may be required by applicable law.
(b) the purchase price (including the amount of accrued interest,
if any) for each Security, the Change of Control Purchase Date and the date
on which the Change of Control Offer expires;
60
(c) that any Security not tendered for payment shall continue to
accrue interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of the
purchase price, any Security accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Purchase Date;
(e) that Holders electing to have Securities purchased pursuant to
a Change of Control Offer shall be required to surrender their Securities
to the Paying Agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the Change of Control Purchase Date and must
complete any form letter of transmittal proposed by the Company and
acceptable to the Trustee and the Paying Agent;
(f) that Holders of Securities shall be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Change of Control Purchase Date, a facsimile transmission
or letter setting forth the name of the Holders, the principal amount of
Securities the Holders delivered for purchase, the Security certificate
number (if any) and a statement that such Holder is withdrawing his
election to have such Securities purchased;
(g) that Holders whose Securities are purchased only in part shall
be issued Securities of like tenor equal in principal amount to the
unpurchased portion of the Securities surrendered;
(h) the instructions that Holders must follow in order to tender
their Securities; and
(i) information concerning the business of the Company, the most
recent annual and quarterly reports of the Company filed with the
Commission pursuant to the Exchange Act (or, if the Company is not
permitted to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 10.09), a description of material
developments in the Company's business, information with respect to pro
forma historical financial position and results of operations after giving
effect to such Change of Control and such other information concerning the
circumstances and relevant facts regarding such Change of Control and
Change of Control Offer as would, in the good faith judgment of the
Company, be material to a Holder of Securities in connection with the
decision of such Holder as to whether or not it should tender Securities
pursuant to the Change of Control Offer.
On the Change of Control Purchase Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Securities or
portions thereof so tendered and accepted and (iii) deliver to the Trustee the
Securities so accepted together with an Officers' Certificate setting forth the
Securities or portions thereof tendered to and accepted for payment by the
Company. The Paying Agent shall promptly mail or deliver to the Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Security of like tenor equal in principal amount to any unpurchased portion of
the Security surrendered. Any
61
Securities not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company shall publicly announce the results of the
Change of Control Offer not later than the first Business Day following the
Change of Control Purchase Date. The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act, and any
other applicable securities laws or regulations and any applicable requirements
of any securities exchange on which the Securities are listed in connection with
the repurchase of Securities pursuant to a Change of Control Offer, and any
violations of this Section 10.10 occurring as a result of such compliance shall
not be deemed a Default.
Section 10.11. Limitation on Indebtedness. The Company shall not, and
--------------------------
shall not cause or permit any of the Restricted Subsidiaries to, directly or
indirectly, create, incur, assume, issue, guarantee or in any manner become
liable for or with respect to, contingently or otherwise (in each case, to
"incur"), the payment of any Indebtedness (including any Acquired Indebtedness);
provided, however, that (i) the Company may incur Indebtedness (including
Acquired Indebtedness) and (ii) a Restricted Subsidiary may incur Acquired
Indebtedness, if, in either case, immediately after giving pro forma effect
thereto, the Consolidated Fixed Charge Coverage Ratio of the Company is at least
equal to (i) if the date of such incurrence is on or prior to December 31, 2000,
2.00:1.0, and (ii) if the date of such incurrence is after December 31, 2000,
2.25:1.0.
Notwithstanding the foregoing, the Company and, to the extent
specifically set forth below, the Restricted Subsidiaries may incur each and all
of the following (collectively, "Permitted Indebtedness"):
(i) Indebtedness of the Company under the New Revolving Credit
Facility in an aggregate principal amount at any time outstanding not
to exceed $20.0 million (it being understood that additional
Indebtedness may be incurred under the New Revolving Credit Facility
pursuant to the other provisions of this Section 10.11);
(ii) Indebtedness of the Company or any Guarantor under the
Indenture and the Securities;
(iii) Indebtedness of the Company or any Restricted Subsidiary
not otherwise referred to in this paragraph that is outstanding on the
Issue Date, except Indebtedness to be repaid as described under "Use
of Proceeds" in the Offering Memorandum;
(iv) Indebtedness of the Company or any Restricted Subsidiary
in respect of performance bonds, bankers' acceptances, letters of
credit of the Company or any Restricted Subsidiary and surety bonds
provided by the Company or any Restricted Subsidiary in the ordinary
course of business, not to exceed $10.0 million in the aggregate at
any time outstanding;
(v) Indebtedness of any Restricted Subsidiary owed to and held
by the Company or any Restricted Subsidiary, and Indebtedness of the
Company owed to and held by any Restricted Subsidiary which is
unsecured and subordinated in right of payment to the payment and
performance of the Company's obligations under this Indenture and the
Securities; provided, however, that an incurrence of Indebtedness
62
that is not permitted by this clause (v) shall be deemed to have
occurred upon (a) any sale or other disposition of any Indebtedness of
the Company or any Restricted Subsidiary referred to in this clause
(v) to a Person (other than the Company or any Restricted Subsidiary),
(b) any sale or other disposition of Capital Stock of any Restricted
Subsidiary which holds Indebtedness of the Company or another
Restricted Subsidiary such that such Restricted Subsidiary ceases to
be a Restricted Subsidiary and (c) the designation of a Restricted
Subsidiary which holds Indebtedness of the Company or any other
Restricted Subsidiary as an Unrestricted Subsidiary;
(vi) any guarantee of Indebtedness by a Restricted Subsidiary
incurred in compliance with Section 10.17;
(vii) Interest Rate Protection Obligations of the Company or
any Restricted Subsidiary covering Indebtedness of the Company or such
Restricted Subsidiary (which Indebtedness (a) bears interest at
fluctuating interest rates and (b) is otherwise permitted to be
incurred under this Section 10.11) to the extent the notional
principal amount of such Interest Rate Protection Obligations does not
exceed the principal amount of the Indebtedness to which such Interest
Rate Protection Obligations relate;
(viii) Indebtedness of the Company or any Restricted Subsidiary
under Currency Agreements relating to (a) Indebtedness of the Company
or such Restricted Subsidiary and/or (b) obligations to purchase or
sell assets or properties, in each case, incurred in the ordinary
course of business of the Company; provided, however, that such
Currency Agreements do not increase the Indebtedness or other
obligations of the Company outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(ix) Purchase Money Indebtedness and Capitalized Lease
Obligations of the Company or any Restricted Subsidiary not to exceed
$10.0 million in the aggregate outstanding at any time;
(x) (a) Indebtedness of the Company or any Guarantor to the
extent the proceeds thereof are used to Refinance Indebtedness of the
Company or any Guarantor or any Restricted Subsidiary and (b)
Indebtedness of any Restricted Subsidiary that is not a Guarantor to
the extent the proceeds thereof are used to Refinance Indebtedness of
any Restricted Subsidiary that is not a Guarantor, in each case
incurred under the first paragraph of this Section 10.11 or
Indebtedness referred to under clause (iii) (other than the
Indebtedness to be repaid as described under "Use of Proceeds" in the
Offering Memorandum) of this paragraph; provided, however, that, in
the case of either clause (a) or (b), (1) the principal amount of
Indebtedness incurred pursuant to this clause (x) (or, if such
Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of
the maturity thereof, the original issue price of such
Indebtedness) shall not exceed the sum of the principal amount of
Indebtedness so
63
refinanced (or, if such Indebtedness provides for an amount less than
the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof, the original issue price of
such Indebtedness, plus any accreted value attributable thereto since
the original issuance of such Indebtedness), plus the amount of any
premium required to be paid in connection with such Refinancing
pursuant to the terms of such Indebtedness or the amount of any
premium reasonably determined by the Company or a Restricted
Subsidiary, as applicable, as necessary to accomplish such Refinancing
by means of a tender offer or privately negotiated purchase, plus the
amount of expenses in connection therewith; and (2) Indebtedness
incurred pursuant to this clause (x) shall not reduce the Average Life
to Stated Maturity of the Indebtedness so refinanced; and
(xi) in addition to the items referred to in clauses (i)
through (x) above, additional Indebtedness of the Company or any
Restricted Subsidiary not to exceed an aggregate principal amount at
any time outstanding of $10.0 million.
For purposes of determining compliance with this Section 10.11, in the
event that an item of Indebtedness meets the criteria of more than one of the
types of Indebtedness permitted by this Section 10.11, the Company in its sole
discretion shall classify such item of Indebtedness and only be required to
include the amount of such Indebtedness as one of such types.
Section 10.12. Statement by Officers as to Default. The Company shall
-----------------------------------
deliver to the Trustee, within 45 days after the end of the first three fiscal
quarters of the Company ending after the date hereof and 90 days after the end
of each fiscal year of the Company ending after the date hereof, a written
statement signed by the chairman or a chief executive officer, the principal
financial officer or principal accounting officer of the Company, stating (i)
that a review of the activities of the Company during the preceding fiscal
quarter or year, as applicable, has been made under the supervision of the
signing officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and (ii)
that, to the knowledge of each officer signing such certificate, the Company has
kept, observed, performed and fulfilled each and every covenant and condition
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions, conditions and covenants hereof (or,
if a Default shall have occurred, describing all such Defaults of which such
officers may have knowledge, their status and what action the Company is taking
or proposes to take with respect thereto). When any Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Company or any Restricted Subsidiary
gives any notice or takes any other action with respect to a claimed default,
the Company shall promptly notify the Trustee of such Default, notice or action
and shall deliver to the Trustee by registered or certified mail or by telegram,
or facsimile transmission followed by hard copy by registered or certified mail
an Officers' Certificate specifying such event, notice or other action within
five Business Days after the Company becomes aware of such occurrence and what
action the Company is taking or proposes to take with respect thereto.
Section 10.13. Limitation on Restricted Payments. The Company shall
---------------------------------
not, and shall not cause or permit any of the Restricted Subsidiaries to,
directly or indirectly:
64
(i) declare or pay any dividend or make any other distribution
or payment on or in respect of Capital Stock of the Company or any
Restricted Subsidiary or any payment made to the direct or indirect
holders (in their capacities as such) of Capital Stock of the Company
or any Restricted Subsidiary (other than dividends or distributions
made to the Company or a Restricted Subsidiary and dividends and
distributions payable solely in Capital Stock of the Company (other
than Redeemable Capital Stock) or in rights to purchase Capital Stock
of the Company (other than Redeemable Capital Stock)); or
(ii) purchase, redeem, defease or otherwise acquire or retire
for value any Capital Stock of the Company or any Restricted
Subsidiary (other than any such Capital Stock owned by the Company or
a Restricted Subsidiary); or
(iii) make any principal payment on, or purchase, defease,
repurchase, redeem or otherwise acquire or retire for value, prior to
any scheduled maturity, scheduled repayment, scheduled sinking fund
payment or other Stated Maturity, any Subordinated Indebtedness (other
than any Subordinated Indebtedness owed to and held by the Company or
a Restricted Subsidiary); or make any Investment (other than a
Permitted Investment) in any Person (other than in the Company, any
Restricted Subsidiary or a Person that becomes a Restricted
Subsidiary, or is merged with or into or consolidated with the Company
or a Restricted Subsidiary (provided the Company or a Restricted
Subsidiary is the survivor), as a result of or in connection with such
Investment) (each such payment or Investment (other than an exception
thereto) described in the preceding clauses (i), (ii), (iii) and (iv)
is referred to as a "Restricted Payment"), unless, at the time of and
after giving effect to the proposed Restricted Payment (the amount of
any such Restricted Payment, if other than in cash, shall be the Fair
Market Value of the asset(s) proposed to be transferred by the Company
or such Restricted Subsidiary, as the case may be, pursuant to such
Restricted Payment): (A) no Default shall have occurred and be
continuing; (B) the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 10.11;
and (C) the aggregate amount of all Restricted Payments declared or
made from and after the Issue Date would not exceed the sum of (1) 50%
of cumulative Consolidated Net Income of the Company during the period
(treated as one accounting period) beginning on the Issue Date and
ending on the last day of the fiscal quarter of the Company
immediately preceding the date of such proposed Restricted Payment for
which consolidated financial information of the Company is available
(or, if such cumulative Consolidated Net Income of the Company for
such period shall be a deficit, minus 100% of such deficit), plus (2)
the aggregate net cash proceeds received by the Company either (x) as
capital contributions in the form of common equity to the Company
after the Issue Date or (y) from the issuance or sale of Capital Stock
(excluding Redeemable Capital Stock but including Capital Stock issued
upon the conversion of convertible Indebtedness, in exchange for
outstanding Indebtedness or from the exercise of options, warrants or
rights to purchase Capital Stock (other than Redeemable Capital
Stock)) of the Company to any Person (other than to a Restricted
Subsidiary of the Company) after the Issue Date (excluding the net
cash proceeds from any issuance and sale of Capital Stock financed,
directly or indirectly, using funds borrowed from the
65
Company or any Restricted Subsidiary until and to the extent such
borrowing is repaid), plus (3) in the case of the disposition or
repayment of any Investment constituting a Restricted Payment made
after the Issue Date, an amount (to the extent not included in
Consolidated Net Income and to the extent such disposition or
repayment does not reduce the amount of Investments outstanding under
clause (viii) of the second succeeding paragraph hereunder) equal to
the lesser of the return of capital with respect to such Investment
and the initial amount of such Investment which was treated as a
Restricted Payment, in either case, less the cost of the disposition
of such Investment and net of taxes, plus (4) so long as the
Designation thereof was treated as a Restricted Payment made after the
Issue Date, with respect to any Unrestricted Subsidiary that has been
redesignated as a Restricted Subsidiary after the Issue Date in
accordance with Section 10.20, the Fair Market Value of the Company's
interest in such Subsidiary calculated in accordance with GAAP,
provided that such amount shall not in any case exceed the Designation
Amount with respect to such Restricted Subsidiary upon its
Designation, minus (5) the Designation Amount (measured as of the date
of Designation) with respect to any Subsidiary of the Company which
has been designated as an Unrestricted Subsidiary after the Issue Date
in accordance with Section 10.20.
For purposes of the preceding clause (C)(2), upon the issuance of
Capital Stock either from the conversion of convertible Indebtedness or
exchange for outstanding Indebtedness or upon the exercise of options,
warrants or rights, the amount counted as net cash proceeds received will
be the cash amount received by the Company at the original issuance of the
Indebtedness that is so converted or exchanged or from the issuance of
options, warrants or rights, as the case may be, plus the incremental
amount of cash received by the Company, if any, upon the conversion,
exchange or exercise thereof. None of the foregoing provisions of this
Section 10.13 will prohibit (i) the payment of any dividend within 60 days
after the date of its declaration, if at the date of declaration such
payment would be permitted by the provisions of the Indenture; (ii) so long
as no Default shall have occurred and be continuing or would arise
therefrom, the redemption, repurchase or other acquisition or retirement of
any shares of any class of Capital Stock of the Company in exchange for, or
out of the net cash proceeds of, a substantially concurrent issue and sale
of other shares of Capital Stock (other than Redeemable Capital Stock) of
the Company to any Person (other than to a Restricted Subsidiary);
provided, however, that any such net proceeds and the value of any Capital
Stock issued in exchange for such retired Capital Stock are excluded from
clause (C)(2) of the second preceding paragraph; (iii) so long as no
Default shall have occurred and be continuing or would arise therefrom, any
redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness made by exchange for, or out of the net cash proceeds of, a
substantially concurrent issue and sale of (A) Capital Stock (other than
Redeemable Capital Stock) of the Company to any Person (other than to a
Restricted Subsidiary); provided, however, that any such net cash proceeds
and the value of any Capital Stock issued in exchange for Subordinated
Indebtedness are excluded from clause (C)(2) of the second preceding
paragraph; or (B) Indebtedness of the Company or any Guarantor so long as
such Indebtedness (1) is subordinated to the Securities and the Security
Guarantees of such Guarantor, as the case may be, at least to the same
extent as the Subordinated Indebtedness so purchased, exchanged, redeemed,
repurchased, acquired or retired, (2) has no Stated Maturity earlier
66
than the Stated Maturity for the final scheduled principal payment of the
Securities and (3) shall not reduce the Average Life to Stated Maturity of
the Subordinated Indebtedness so redeemed, repurchased, acquired or
retired; (iv) Investments constituting Restricted Payments made as a result
of the receipt of non-cash consideration from any Asset Sale made pursuant
to and in compliance with Section 10.15; (v) the purchase, redemption or
other acquisition, cancellation or retirement for value of Capital Stock,
or options, warrants, equity appreciation rights or other rights to
purchase or acquire Capital Stock, of the Company or any Restricted
Subsidiary, or similar securities, held by officers or employees or former
officers or employees of the Company or any Restricted Subsidiary (or their
estates or beneficiaries under their estates), upon death, disability,
retirement or termination of employment, not to exceed $1.0 million in any
consecutive 12-month period; (vi) the payment of dividends on the
Outstanding Preferred Stock as required pursuant to the terms of the
Company's Articles of Incorporation as in effect on the Issue Date; (vii)
the redemption of shares of the Company's Series A Preferred Stock, no par
value per share, outstanding on the Issue Date required by the holder
thereof after August 1, 2002 pursuant to the terms of the Company's Article
of Incorporation as in effect on the Issue Date; or (viii) Investments not
to exceed $5.0 million in the aggregate outstanding at any time. In
computing the amount of Restricted Payments previously made for purposes of
clause (C) of the second preceding paragraph, Restricted Payments under the
immediately preceding clauses (i), (iv), (v), (vi), (vii) and (viii) shall
be included.
Section 10.14. Limitation on Transactions with Affiliates. The
------------------------------------------
Company shall not, and shall not cause or permit any of the Restricted
Subsidiaries to, directly or indirectly, conduct any business or enter into or
suffer to exist any transaction or series of related transactions with, or for
the benefit of, any of their respective Affiliates or any beneficial holder of
10% or more of any class of Capital Stock of the Company or any officer,
director or employee of the Company or any Restricted Subsidiary (each, an
"Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms that
are no less favorable to the Company or the Restricted Subsidiary, as the case
may be, than those which could have been obtained in a comparable transaction at
such time from Persons who do not have such a relationship, (ii) with respect to
any Affiliate Transaction or series of Affiliate Transactions involving
aggregate payments or value equal to or greater than $1.0 million, the Company
shall have delivered an Officers' Certificate to the Trustee certifying that
such Affiliate Transaction or series of Affiliate Transactions has been approved
by a majority of the Board of Directors of the Company, including a majority of
the disinterested directors of the Board of Directors of the Company, and (iii)
with respect to any Affiliate Transaction or series of Affiliate Transactions
involving aggregate payments or value equal to or greater than $5.0 million, the
Company shall have obtained a written opinion from an Independent Financial
Advisor stating that the terms of such Affiliate Transaction or series of
Affiliate Transactions are fair, from a financial point of view, to the Company
or the Restricted Subsidiary involved, as the case may be.
Notwithstanding the foregoing, the restrictions set forth in this
Section 10.14 shall not apply to (i) transactions with or among the Company and
the Restricted Subsidiaries; (ii) customary directors' fees, indemnification and
similar arrangements, consulting fees, employee salaries, bonuses or employment
agreements, compensation or employee benefit arrangements and incentive
arrangements with any officer, director or employee of the Company or any
Restricted Subsidiary entered into in the ordinary course of business (including
customary benefits thereunder) and payments under any indemnification
arrangements permitted by applicable law;
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(iii) the issue and sale by the Company to its stockholders of Capital Stock
(other than Redeemable Capital Stock); (iv) any dividends made in compliance
with Section 10.13; (v) loans and advances to officers, directors and employees
of the Company or any Restricted Subsidiary for travel, entertainment, moving
and other relocation expenses, in each case made in the ordinary course of
business; (vi) the incurrence of intercompany Indebtedness permitted pursuant to
clause (v) of the second paragraph of Section 10.11; (vii) Affiliate
Transactions consummated prior to the Issue Date and any renewal or replacement
thereof on terms and conditions no less favorable in any respect than that
existing on the Issue Date; (viii) payments to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ pursuant to the
Consulting Agreement (as in effect on the Issue Date) not to exceed $1.25
million in any fiscal year (exclusive of reimbursement of expenses); (ix) loans
and advances to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ made after the Issue Date not to exceed
$350,000 in the aggregate at any one time outstanding; and (x) payments to
Acumen Consulting Group, Inc. as required by and pursuant to the terms of the
Service Agreement (as in effect on the Issue Date).
Section 10.15. Disposition of Proceeds of Asset Sales. The Company
shall not, and shall not cause or permit any Restricted Subsidiary to, directly
or indirectly, make any Asset Sale, unless (i) the Company or such 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 and (ii) at least 85% of such consideration consists of (A) cash or
Cash Equivalents, (B) properties and capital assets to be used in the same line
of business being conducted by the Company or any Restricted Subsidiary on the
Issue Date or (C) Capital Stock in any Person which thereby becomes a Restricted
Subsidiary whose assets consist primarily of properties and capital assets used
in the same line of business being conducted by the Company or any Restricted
Subsidiary on the Issue Date. The amount of any (i) Indebtedness (other than any
Subordinated Indebtedness) of the Company or any Restricted Subsidiary that is
actually assumed by the transferee in such Asset Sale and from which the Company
and the Restricted Subsidiaries are fully released shall be deemed to be cash
for purposes of determining the percentage of cash consideration received by the
Company or the Restricted Subsidiaries and (ii) notes or other similar
obligations received by the Company or the Restricted Subsidiaries from such
transferee that are converted, sold or exchanged within thirty days of the
related Asset Sale by the Company or the Restricted Subsidiaries into cash shall
be deemed to be cash, in an amount equal to the net cash proceeds realized upon
such conversion, sale or exchange for purposes of determining the percentage of
cash consideration received by the Company or the Restricted Subsidiaries. The
Company or such Restricted Subsidiary, as the case may be, may (i) apply the Net
Cash Proceeds of any Asset Sale within 365 days of receipt thereof to (x) repay
Indebtedness of the Company or any Restricted Subsidiary which is secured by a
Lien on the assets or property of the Company or a Restricted Subsidiary which
was the subject of such Asset Sale and permanently reduce any related commitment
or (y) repay any Indebtedness (other than Subordinated Indebtedness and other
than any Indebtedness owed to the Company or any Restricted Subsidiary) of the
Company or any Guarantor in an amount not to exceed the Other Senior Debt Pro
Rata Share and permanently reduce any related commitment, or (ii) commit in
writing to acquire, construct or improve properties and capital assets to be
used in the same line of business as being conducted by the Company or any
Restricted Subsidiary on the Issue Date and so apply such Net Cash Proceeds
within 365 days after the receipt thereof. To the extent all or part of the Net
Cash Proceeds of any Asset Sale are not applied, or the Company determines not
to so apply such Net Cash Proceeds, within 365 days of such Asset Sale as
described in clause (i) or (ii) of the immediately preceding paragraph (such Net
Cash Proceeds, the "Unutilized Net Cash Proceeds"), the Company shall,
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within 20 days after such 365th day or at any earlier time after such Asset
Sale, make an offer to purchase (the "Asset Sale Offer") all Outstanding
Securities up to a maximum principal amount (expressed as a multiple of $1,000)
of Securities equal to such Unutilized Net Cash Proceeds, at a purchase price in
cash equal to 100% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the date fixed for purchase of Securities validly
tendered and not withdrawn, which date shall not be earlier than the 20th
Business Day following the mailing of the Asset Sale Offer or later than the
last day such Asset Sale Offer is required to remain open by applicable law (the
"Asset Sale Offer Purchase Date"); provided, however, that the Asset Sale Offer
may be deferred until there are aggregate Unutilized Net Cash Proceeds equal to
or in excess of $10.0 million, at which time the entire amount of such
Unutilized Net Cash Proceeds, and not just the amount in excess of $10.0
million, shall be applied as required pursuant to this paragraph.
With respect to any Asset Sale Offer effected pursuant to this Section
10.15, among the Securities, to the extent the aggregate principal amount of
Securities tendered pursuant to such Asset Sale Offer exceeds the Unutilized Net
Cash Proceeds to be applied to the repurchase thereof, such Securities shall be
purchased pro rata based on the aggregate principal amount of such Securities
tendered by each Holder. To the extent the Unutilized Net Cash Proceeds exceed
the aggregate amount of Securities tendered by the Holders of the Securities
pursuant to such Asset Sale Offer, the Company may retain and utilize any
portion of the Unutilized Net Cash Proceeds not applied to repurchase the
Securities for any purpose consistent with the other terms of this Indenture.
Notice of an Asset Sale Offer shall be mailed by the Company not more than 20
days after the obligation to make such Asset Sale Offer arises to the Holders of
Securities at their last registered addresses with a copy to the Trustee and the
Paying Agent. The Asset Sale Offer shall remain open from the time of mailing
for at least 20 Business Days or such longer period as may be required by
applicable law. The notice, which shall govern the terms of the Asset Sale
Offer, shall include such disclosures as are required by law and shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
10.15 and that all Securities tendered into the Asset Sale Offer shall be
accepted for payment; provided, however, that if the aggregate principal
amount of Securities tendered in the Asset Sale Offer exceeds the
Unutilized Net Cash Proceeds, the Company shall select the Securities to be
purchased on a pro rata basis based upon the aggregate principal amount of
such Securities tendered by each Holder; and that the Asset Sale Offer
shall remain open for a period of 20 Business Days or such longer period as
may be required by applicable law;
(b) the purchase price (including the amount of accrued interest, if
any) for each Security, the Asset Sale Offer Purchase Date and the date on
which the Asset Sale Offer expires;
(c) that any Security not tendered for payment shall continue to
accrue interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of the
purchase price, any Security accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Asset Sale Offer
Purchase Date;
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(e) that Holders electing to have Securities purchased pursuant to an
Asset Sale Offer shall be required to surrender their Securities to the
Paying Agent at the address specified in the notice prior to 5:00 p.m., New
York City time, on the Asset Sale Offer Purchase Date and must complete any
form letter of transmittal proposed by the Company and acceptable to the
Trustee and the Paying Agent;
(f) that Holders of Securities shall be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Asset Sale Offer Purchase Date, a facsimile transmission
or letter setting forth the name of the Holders, the principal amount of
Securities the Holders delivered for purchase, the Security certificate
number (if any) and a statement that such Holder is withdrawing his
election to have such Securities purchased;
(g) that Holders whose Securities are purchased only in part shall
be issued Securities of like tenor equal in principal amount to the
unpurchased portion of the Securities surrendered;
(h) the instructions that Holders must follow in order to tender
their Securities; and
(i) information concerning the business of the Company, the most
recent annual and quarterly reports of the Company filed with the
Commission pursuant to the Exchange Act (or, if the Company is not
permitted to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 10.09), a description of material
developments in the Company's business, information with respect to pro
forma historical financial position and results of operations after giving
effect to such Asset Sale and such other information concerning the
circumstances and relevant facts regarding such Asset Sale and Asset Sale
Offer as would, in the good faith judgment of the Company, be material to a
Holder of Securities in connection with the decision of such Holder as to
whether or not it should tender Securities pursuant to the Asset Sale
Offer. On the Asset Sale Offer Purchase Date, the Company shall (i) accept
for payment (subject to pro ration as described in the second preceding
paragraph) Securities or portions thereof tendered pursuant to the Asset
Sale Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Securities or
portions thereof so tendered and accepted and (iii) deliver to the Trustee
the Securities so accepted together with an Officers' Certificate setting
forth the Securities or portions thereof tendered to and accepted for
payment by the Company. The Paying Agent shall promptly mail or deliver to
the Holders of Securities so accepted payment in an amount equal to the
purchase price, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security of like tenor equal in principal
amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer not later than the first Business Day
following the Asset Sale Offer Purchase Date.
In the event that the Company makes an Asset Sale Offer, the Company
shall comply, to the extent applicable, with the requirements of Section 14(e)
of the Exchange Act, and any other applicable securities laws or regulations and
any applicable requirements of any
70
securities exchange on which the Securities are listed, and any violation of
this Section 10.15 occurring as a result of such compliance shall not be deemed
a Default.
Section 10.16. Limitation on Liens. The Company shall not, and shall
--------------------
not cause or permit any Restricted Subsidiary to, create, incur, assume or
suffer to exist any Lien (except Permitted Liens) of any kind, upon any of its
property or assets, whether now owned or acquired after the Issue Date, or any
proceeds therefrom, or assign or convey any right to receive income therefrom;
provided, however, the Company or any Guarantor may secure either (i)
Subordinated Indebtedness, if the Securities, in the case of the Company, and
the Security Guarantee, in the case of a Restricted Subsidiary that is a
Guarantor, are secured by a Lien on such property, assets or proceeds that is
senior in priority to the Lien securing such Subordinated Indebtedness or (ii)
any other Indebtedness, if the Securities, in the case of the Company, and the
Security Guarantee, in the case of a Restricted Subsidiary that is a Guarantor,
are equally and ratably secured thereby.
Section 10.17. Limitation on Guarantees by Restricted Subsidiaries.
---------------------------------------------------
(a) The Company shall not cause or permit any of the Domestic
Subsidiaries, directly or indirectly, to guarantee the payment of any
Indebtedness of the Company ("Other Indebtedness") unless such Domestic
Subsidiary (A) is a Guarantor or (B) simultaneously executes and delivers a
supplemental indenture to the Indenture pursuant to which it shall become a
Guarantor under the Indenture and complies with the other provisions of
paragraph (b) of this Section 10.17; provided, however, that if such Other
Indebtedness is (i) pari passu in right of payment with the Securities, the
Security Guarantee of such Domestic Subsidiary shall be pari passu in right
of payment with the guarantee of the Other Indebtedness; or (ii)
Subordinated Indebtedness, the Security Guarantee of such Domestic
Subsidiary shall be senior in right of payment to the guarantee of the
Other Indebtedness (which guarantee of such Subordinated Indebtedness shall
provide that such guarantee is subordinated to the Security Guarantee of
such Domestic Subsidiary to the same extent and in the same manner as the
Other Indebtedness is subordinated to the Securities); provided, further,
however, that each Domestic Subsidiary issuing a Security Guarantee shall
be automatically and unconditionally released and discharged from its
obligations under such Security Guarantee upon the release or discharge of
the guarantee of the Other Indebtedness that resulted in the creation of
such Security Guarantee, except a discharge or release by, or as a result
of, any payment under the guarantee of such Other Indebtedness by such
Domestic Subsidiary. The Company may, at any time, cause a Domestic
Subsidiary to become a Guarantor by executing and delivering a supplemental
indenture providing for the guarantee of payment of the Securities by such
Domestic Subsidiary on the basis provided in the Indenture and complying
with the other provisions of paragraph (b) of this Section 10.17.
(b) Any Person required by paragraph (a) of this Section 10.17 to
become, or is at the option of the Company becoming, a Guarantor shall
execute and deliver to the Trustee (a) a supplemental indenture in form and
substance satisfactory to the Trustee, which subjects such person to the
provisions (including the representations and warranties) of this Indenture
as a Guarantor,
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(c) in the event that as of the date of such supplemental indenture
any Registrable Securities are outstanding, an instrument in form and
substance satisfactory to the Trustee which subjects such person to the
provisions of the Registration Rights Agreement with respect to such
outstanding Registrable Securities, and
(d) an Opinion of Counsel to the effect that such supplemental
indenture and such instrument have been duly authorized and executed by
such Person and constitutes the legal, valid and binding obligation of such
Person (subject to customary assumptions and exceptions).
Section 10.18 Restrictions on Preferred Stock of Restricted
---------------------------------------------
Subsidiaries. The Company shall not sell, and shall not cause or permit any of
------------
the Restricted Subsidiaries to issue, any Preferred Stock of any Restricted
Subsidiary (other than to the Company or to a Wholly-Owned Restricted
Subsidiary) or permit any Person (other than the Company or a Wholly-Owned
Restricted Subsidiary) to own any Preferred Stock of any Restricted Subsidiary.
Section 10.19 Limitation on Dividends and Other Payment Restrictions
------------------------------------------------------
Affecting Restricted Subsidiaries. The Company shall not, and shall not cause
---------------------------------
or permit any Restricted Subsidiary to, directly or indirectly, create or
otherwise cause or suffer to exist, or enter into any agreement with any Person
that would cause to become effective, any consensual encumbrance or restriction
of any kind, on the ability of any Restricted Subsidiary to (a) pay dividends,
in cash or otherwise, or make any other distribution on or in respect of its
Capital Stock or any other interest or participation in, or measured by, its
profits, to the Company or any other Restricted Subsidiary, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to, or guarantee any Indebtedness or other obligations of, the
Company or any other Restricted Subsidiary or (d) transfer any of its property
or assets to the Company or any other Restricted Subsidiary, except any
encumbrance or restriction (i) existing under the New Revolving Credit Facility
as in effect on the Issue Date relating to assets subject to a Lien created at
any time thereby; (ii) with respect to a Restricted Subsidiary that is not a
Restricted Subsidiary on the Issue Date, in existence at the time such Person
becomes a Restricted Subsidiary (but not created in contemplation thereof);
provided, however, that such encumbrances and restrictions are not applicable to
the Company or any other Restricted Subsidiary, or the properties or assets of
the Company or any other Restricted Subsidiary; (iii) customary non-assignment
provisions in leases entered into in the ordinary course of business and
consistent with past practices; (iv) Purchase Money Indebtedness for property
acquired in the ordinary course of business that only imposes encumbrances and
restrictions on the property so acquired; (v) any agreement for the sale or
disposition of the Capital Stock or assets of any Restricted Subsidiary;
provided, however, that such encumbrances and restrictions described in this
clause (v) are only applicable to such Restricted Subsidiary or assets, as
applicable, and any such sale or disposition is made in compliance with Section
10.15 to the extent applicable thereto; and (vi) any encumbrance or restriction
existing under any agreement that Refinances the agreements containing the
encumbrance or restrictions in the foregoing clauses (i) and (ii); provided,
however, that the terms and conditions of any such restrictions permitted under
this clause (vi) are not materially less favorable to the holders of the
Securities than those under or pursuant to the agreement evidencing the
Indebtedness Refinanced.
Section 10.20. Limitation on Designations of Unrestricted
------------------------------------------
Subsidiaries.
------------
72
(a) The Company may designate after the Issue Date any Subsidiary
(other than a Guarantor) as an "Unrestricted Subsidiary" under the
Indenture (a "Designation") only if:
(i) no Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(ii) the Company would be permitted to make an Investment
(other than a Permitted Investment) at the time of Designation
(assuming the effectiveness of such Designation) pursuant to the first
paragraph of Section 10.13 in an amount (the "Designation Amount")
equal to the Fair Market Value of the Company's interest in such
Subsidiary on such date calculated in accordance with GAAP; and
(iii) the Company would be permitted under the Indenture to
incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 10.11 at the time of such
Designation (assuming the effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
10.13 for all purposes of this Indenture in the Designation Amount. The Company
shall not, and shall not cause or permit any Restricted Subsidiary to, at any
time (x) provide credit support for or subject any of its property or assets
(other than the Capital Stock of any Unrestricted Subsidiary) to the
satisfaction of, any Indebtedness of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness), (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary (including any
right to take enforcement action against such Unrestricted Subsidiary), except
any non-recourse guarantee given solely to support the pledge by the Company or
any Restricted Subsidiary of the Capital Stock of an Unrestricted Subsidiary. No
Unrestricted Subsidiary shall at any time guarantee or otherwise provide credit
support for any obligation of the Company or any Restricted Subsidiary. All
Subsidiaries of Unrestricted Subsidiaries shall automatically be deemed to be
Unrestricted Subsidiaries.
(b) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(i) no Default shall have occurred and be continuing at the
time of and after giving effect to such Revocation;
(ii) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if
incurred at such time, have been permitted to be incurred for all
purposes of this Indenture; and
(iii) any transaction (or series of related transactions)
between such Subsidiary and any of its Affiliates that occurred while
such Subsidiary was an
73
Unrestricted Subsidiary would be permitted by Section 10.14 as if such
transaction (or series of related transactions) had occurred at the
time of such Revocation.
(c) All Designations and Revocations must be evidenced by Board
Resolutions of the Company delivered to the Trustee certifying compliance
with the foregoing provisions.
Section 10.21 Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company, the Guarantors and any other
obligor on the Securities shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
(including any covenants compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with, and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents,
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished. Every Officer's Certificate or Opinion
of Counsel with respect to compliance with a condition or covenant provided for
in this Indenture shall include:
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether such covenant
or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Right of Redemption. The Securities may be redeemed
-------------------
at the option of the Company, in whole or in part, pursuant to the provisions of
and at the Redemption Prices specified in paragraphs 2 and 3 on the reverse of
the Securities.
Section 11.02. Applicability of Article. Redemption of Securities at
------------------------
the election of the Company or otherwise, as permitted or required by any
provision of this Indenture, shall be made in accordance with such provision and
this Article Eleven.
Section 11.03 Election To Redeem; Notice to Trustee. The election
-------------------------------------
of the Company to redeem any Securities pursuant to Section 11.01 shall be
evidenced by a Board
74
Resolution and an Officers' Certificate. The Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
period shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date and of the principal amount of Securities to be redeemed.
Section 11.04. Selection by Trustee of Securities To Be Redeemed. If
-------------------------------------------------
less than all the Securities are to be redeemed, the particular Securities or
portions thereof to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Securities not
previously called for redemption in compliance with the requirements of the
principal national securities exchange, if any, on which the Securities are
listed, or, if the Securities are not listed on a national security exchange, by
lot or by such method as the Trustee shall deem fair and appropriate; provided,
however, that no Securities of a principal amount of $1,000 or less will be
redeemed in part; provided, further, however, that any such redemption pursuant
to paragraph 3 on the reverse of the Securities shall be made on a pro rata
basis or on as nearly a pro rata basis as practicable (subject to the procedures
of the Depository or any other depository). The Trustee shall promptly notify
the Company and each Security Registrar in writing of the Securities selected
for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 11.05. Notice of Redemption. Notice of redemption shall be
--------------------
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at the address of such Holder appearing in the Security Register;
provided, however, that notice of redemption pursuant to paragraph 3 on the
reverse of the Securities shall be mailed no later than 60 days after the
consummation of the relevant Public Equity Offering (as defined in the
Security).
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all Outstanding Securities are to be redeemed,
the identification of the particular Securities to be redeemed;
(iv) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the
Redemption Date upon surrender of such Security, a new Security or
Securities in the aggregate principal amount equal to the unredeemed
portion thereof shall be issued and authenticated;
(v) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
75
(vi) that on the Redemption Date the Redemption Price shall
become due and payable upon each such Security or portion thereof, and
that (unless the Company shall default in payment of the Redemption
Price) interest thereon shall cease to accrue on and after Redemption
Date;
(vii) the name and address of the Paying Agent where such
Securities are to be surrendered for payment of the Redemption Price;
(viii) the CUSIP number, relating to such Securities; and
(ix) the paragraph of the Securities pursuant to which the
Securities are being redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request,
by the Trustee in the name and at the expense of the Company.
Section 11.06. Deposit of Redemption Price. On or prior to any
---------------------------
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company, a Guarantor or any of their respective Affiliates is
acting as Paying Agent, segregate and hold in trust as provided in Section
10.03) an amount of money in same day funds sufficient to pay the Redemption
Price of, plus accrued and unpaid interest on, if any, all the Securities or
portions thereof which are to be redeemed on the Redemption Date.
Section 11.07 Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, plus accrued and unpaid interest, if any, to the Redemption
Date, and from and after such date (unless the Company shall default in the
payment of the Redemption Price) interest on such Securities shall cease to
accrue. Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption Price,
plus accrued and unpaid interest, if any, to the Redemption Date; provided,
however, that installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities
registered as such on the relevant Regular Record Dates according to the terms
and the provisions of Section 3.07. If any Security called for redemption shall
not be so paid upon surrender thereof for redemption, interest shall continue to
accrue on such Security at the rate then borne by such Security.
Section 11.08 Securities Redeemed in Part. Any Security which is to
---------------------------
be redeemed only in part shall be surrendered to the Paying Agent at the office
or agency maintained for such purpose pursuant to Section 10.02, and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to,
and in exchange for, the unredeemed portion of the principal of the Security so
surrendered that is not redeemed.
76
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge of Indenture. This
---------------------------------------
Indenture shall cease to be of further effect (except as to surviving rights or
registration of transfer or exchange of Securities herein expressly provided
for) and the Trustee, on written demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when either
(a) all Securities theretofore authenticated and delivered (other
than (A) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 hereof and (B)
Securities for whose payment money has 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, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(b) (i) all such Securities not theretofore delivered to the Trustee
for cancellation have become due and payable and the Company or any
Guarantor has irrevocably deposited or caused to be deposited with the
Trustee in trust an amount of money in dollars sufficient to pay and
discharge the entire Indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for the principal of, premium,
if any, and interest to the date of such deposit; (ii)the Company or any
Guarantor has paid or caused to be paid all other sums payable hereunder by
the Company and the Guarantors; and (iii) the Company and each of the
Guarantors have delivered to the Trustee (i) irrevocable instructions to
apply the deposited money toward payment of the Securities at the Stated
Maturities and the Redemption Dates thereof, and (ii) an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with;
provided, however, that such Opinion of Counsel may rely, as to matters of
fact, upon an Officers' Certificate. Notwithstanding the satisfaction and
discharge of this Indenture, the obligations of the Company to the Trustee
under Section 6.07 and, if money shall have been deposited with the Trustee
pursuant to subclause (a)(ii) of this Section 12.01, the obligations of the
Trustee under Section 12.02 and the last paragraph of Section 10.03 shall
survive.
Section 12.02 Application of Trust Money. Subject to the provisions
--------------------------
of the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal of, premium, if any, and interest on the
Securities for whose payment such money has been deposited with the Trustee.
77
ARTICLE THIRTEEN
GUARANTEE OF SECURITIES
Section 13.01. Unconditional Guarantee. Each Guarantor hereby jointly
-----------------------
and severally fully and unconditionally guarantees to each Holder of a Security
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 Securities 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 Securities shall be duly and punctually
paid in full when due, whether at Stated Maturity, upon redemption or
repurchase, by acceleration or otherwise, and interest on the overdue principal
and (to the extent permitted by law) overdue installments of interest, if any,
on the Securities and all other obligations of the Company or the Guarantor to
the Holders or the Trustee hereunder or thereunder (including fees, expenses or
other) and all other Indenture 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 Securities or any of such
other Indenture 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
Stated 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, 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 Securities shall constitute an
event of default under this Security Guarantee, and shall entitle the Holders of
Securities to accelerate the obligations of the Guarantors hereunder in the same
manner and to the same extent as the obligations of the Company.
Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
hereof or thereof, any release of any other Guarantor, the recovery of any
judgment against the Company, any action to enforce the same, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a Guarantor.
Each Guarantor 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
Security Guarantee shall not be discharged except by complete performance of the
obligations contained in the Securities, this Indenture and this Security
Guarantee. This Security 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 Security 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 Securities and the
Trustee, on the other hand, (a) subject to this Article Thirteen, the maturity
of the obligations guaranteed hereby may be accelerated as provided in Article
Five hereof for the purposes of this Security Guarantee, notwithstanding any
stay, injunction or other prohibition
78
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 Five hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of this
Security Guarantee.
Section 13.02. Execution and Delivery of Security Guarantee. To
--------------------------------------------
further evidence the Security Guarantee set forth in Section 13.01, each
Guarantor hereby agrees that a notation of such Security Guarantee in the form
of Exhibit E hereto shall be endorsed on each Security authenticated and
delivered by the Trustee after the time such Guarantor is required to become a
Guarantor hereunder, which notation shall be executed by either manual or
facsimile signature of an Officer of each Guarantor.
Each of the Guarantors hereby agrees that its Security Guarantee set
forth in Section 13.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Security authenticated and delivered by the Trustee
after the time such Guarantor is required to become a Guarantor hereunder a
notation of such Security Guarantee.
If an Officer of a Guarantor whose signature is on a supplemental
indenture or a notation of this Security Guarantee no longer holds that office
at the time the Trustee authenticates such Security or at any time thereafter,
such Guarantor's Security Guarantee of such Security shall be valid
nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Security Guarantee set
forth in this Indenture on behalf of each Guarantor.
Section 13.03. Release of a Guarantor. Subject to Section 8.01(a), (x)
----------------------
upon the sale, exchange, transfer or other disposition (by merger or otherwise),
other than a lease, by the Company of all of the Capital Stock of a Guarantor or
all, or substantially all, the assets of a Guarantor, to any Person that is not
an Affiliate of the Company, and which sale or other disposition is otherwise in
compliance with the terms of this Indenture (including, without limitation,
Section 10.15) or (y) upon the occurrence of the condition in the second proviso
of the first sentence of Section 10.17(a) with respect to a Guarantor, such
Guarantor shall be deemed automatically and unconditionally released and
discharged from all obligations under this Article Thirteen without any further
action required on the part of the Trustee or any Holder. The Trustee shall
deliver an appropriate instrument evidencing such release upon receipt of a
request of the Company accompanied by an Officers' Certificate certifying as to
the compliance with this Section 13.03. Any Guarantor not so released shall
remain liable for the full amount of principal of, premium, if any, and interest
on the Securities as provided in this Article Thirteen.
Section 13.04. Waiver of Subrogation. Until this Indenture is
---------------------
discharged and all of the Securities 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 Securities or this Indenture and such Guarantor's
obligations under this Security Guarantee and this Indenture, in any such
instance including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, and any right to
79
participate in any claim or remedy 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 and any amounts owing to the Trustee or the Holders of Securities under
the Securities, 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 Holders
of the Securities, and shall forthwith be paid to the Trustee for the benefit of
such Holders to be credited and applied to the Securities, 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 13.04 is knowingly made in contemplation of such benefits.
Section 13.05. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent Regarding Dissolution, etc. of Guarantors. Upon any payment or
-----------------------------------------------------------
distribution of assets of any Guarantor referred to in this Article Thirteen,
the Trustee, subject to the provisions of Section 6.01, and the Holders, shall
be entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders,
for the purpose of ascertaining the persons entitled to participate in such
payment or distribution, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Thirteen; provided, however, that the foregoing shall apply only if
such court has been fully apprised of the provisions of this Article Thirteen.
Section 13.06. Article Thirteen Applicable to Paying Agents. In case
--------------------------------------------
at any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article Thirteen shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article Thirteen in addition to or in place of the Trustee.
Section 13.07. No Suspension of Remedies. Nothing contained in this
-------------------------
Article Thirteen shall limit the right of the Trustee or the Holders of
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article Five or to pursue any rights or remedies hereunder or under
applicable law.
Section 13.08. Limitation of Subsidiary Guarantor's Liability. Each
----------------------------------------------
Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is
the intention of all such parties that the Security Guarantee by such Guarantor
pursuant to its Security Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the
80
obligations of such Guarantor under this Security Guarantee shall be limited to
the maximum amount which, after giving effect to all other contingent and fixed
liabilities of such Guarantor, and after giving effect to any collections from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Security Guarantee or pursuant to
its contribution obligations under this Article Thirteen, shall result in the
obligations of such Guarantor under its Security Guarantee not constituting such
fraudulent transfer or conveyance.
Section 13.09. Contribution from Other Guarantors. Each Guarantor that
----------------------------------
makes a payment or distribution under its Security Guarantee shall be entitled
to a contribution from each other Guarantor in a pro rata amount based on the
net assets of each Guarantor, determined in accordance with GAAP.
Section 13.10. 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 13.11. 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 Indenture 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 Security Guarantees or under this Indenture.
Section 13.12. 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 Securities;
(d) accept compromises or arrangements from the Company;
81
(e) apply all monies at any time received from the Company or from
any security upon such part of the Indenture 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
(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.
[Signature Pages Follow]
82
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
CHEMICAL ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President - Administration
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President, CFO and Secretary
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
___________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
83
EXHIBIT A-1
-----------
[FORM OF SECURITY]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN
"OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT IT
WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF
THIS SECURITY AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN ACCREDITED INVESTOR THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
A-1-1 TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE, THE
TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY
A-1
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES
A-2
CHEMICAL ▇▇▇▇▇▇ CORPORATION
---------------------------
10-3/8% SENIOR NOTES DUE 2005, SERIES A
CUSIP No. __________
No. ___________
$ ___________
CHEMICAL ▇▇▇▇▇▇ CORPORATION, a Pennsylvania corporation (herein called
the "Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________ or registered assigns, the principal sum of _______________
Dollars on June 15, 2005, at the office or agency of the Company referred to
below, and to pay interest thereon on June 15 and December 15 (each an "Interest
Payment Date") of each year, commencing on December 15, 1997, accruing from the
Issue Date or from the most recent Interest Payment Date on which interest has
been paid or duly provided for, at the rate of 10-3/8% per annum, until the
principal hereof is paid or duly provided for. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date shall, as provided in the Indenture, be paid to the
person in whose name this Security is registered at the close of business on
June 1 and December 1 (each a "Regular Record Date"), whether or not a Business
Day, as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid, or duly provided for, and interest on such
defaulted interest at the then applicable interest rate borne by the Securities,
to the extent lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the person in whose name this Security
is registered at the close of business on a Special Record Date for the payment
of such defaulted interest to be fixed by the Trustee, notice of which shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Security shall be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained for
such purpose, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address shall appear on the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof. Unless the certificate of authentication
hereon has been duly executed by the Trustee referred to on the reverse hereof
by manual signature, this Security shall not be entitled to any benefit under
the Indenture, or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CHEMICAL ▇▇▇▇▇▇ CORPORATION
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
Dated: ____________________
2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
---------------------------------------
This is one of the 10-3/8% Senior Notes due 2005, Series A, referred
to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:____________________________________
Authorized Officer
Dated: _________________________________
[REVERSE OF SECURITY]
1. Indenture. This Security is one of a duly authorized issue of Securities
of the Company designated as its 10-3/8% Senior Notes due 2005, Series A
(herein called the "Initial Securities"). The Securities are limited
(except as otherwise provided in the Indenture referred to below) in
aggregate principal amount to $100,000,000, which may be issued under an
indenture (herein called the "Indenture") dated as of June 16, 1997, by and
between the Company and First Union National Bank, as trustee (herein
called the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Trustee, any Guarantors and the Holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated
and delivered. The Securities include the Initial Securities, the Private
Exchange Securities and the Unrestricted Securities (including the Exchange
Securities referred to below), issued in exchange for the Initial
Securities pursuant to the Registration Rights Agreement. The Initial
Securities, the Private Exchange Securities and the Unrestricted Securities
are treated as a single class of securities under the Indenture. All
capitalized terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them
in the Indenture.
The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of such terms. No reference herein to the
Indenture and no provisions of this Security or of the Indenture shall alter or
impair the obligation of the Company or any Guarantor, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
2. Optional Redemption. The Securities will be redeemable at the option of
the Company, in whole or in part, at any time on or after June 15, 2001, at
the Redemption Prices (expressed as percentages of principal amount) set
forth below, plus accrued and unpaid interest thereon, if any, to the
Redemption Date, if redeemed during the 12-month period beginning on June
15 of the years indicated below:
REDEMPTION YEAR PRICE
2001.................................................. 105.188%
2002.................................................. 103.458%
2003.................................................. 101.729%
2004 and thereafter................................... 100.000%
3. Optional Redemption upon Public Equity Offering. On or prior to June 15,
2000, the Company may, at its option, use the net proceeds of a Public
Equity Offering to redeem up
2
to 25% of the originally issued aggregate principal amount of the
Securities, at a Redemption Price in cash equal to 110.375% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the Redemption Date; provided, however, that not less than $75.0 million
in aggregate principal amount of Securities is outstanding following such
redemption. Notice of any such redemption must be given not later than 60
days after the consummation of the Public Equity Offering. As used in the
preceding paragraph, a "Public Equity Offering" means an underwritten
public offering of Capital Stock (other than Redeemable Capital Stock) of
the Company made on a primary basis by the Company pursuant to a
registration statement filed with and declared effective by the Commission
in accordance with the Securities Act resulting in net cash proceeds to the
Company (after deducting any underwriting discounts and commissions) of at
least $50.0 million.
4. Offers to Purchase. Sections 10.10 and 10.15 of the Indenture provide that
upon the occurrence of a Change of Control and following certain Asset
Sales, and subject to certain conditions and limitations contained therein,
the Company shall make an offer to purchase all or a portion of the
Securities in accordance with the procedures set forth in the Indenture.
5. Defaults and Remedies. If an Event of Default occurs and is continuing,
the principal and premium, if any, of all of the Outstanding Securities,
plus all accrued and unpaid interest, if any, to and including the date the
Securities are paid, may be declared due and payable in the manner and with
the effect provided in the Indenture.
6. Defeasance. The Indenture contains provisions (which provisions apply to
this Security) for defeasance at any time of (a) the entire Indebtedness of
the Company and the Guarantors on this Security and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain exceptions as
provided therein, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company, the Guarantors and the Trustee with
the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance by the
Company with certain provisions of the Indenture and certain past Defaults
under the Indenture and this Security and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such consent or waiver is made upon this Security.
8. Denominations, Transfer and Exchange. The Securities are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like
aggregate principal amount of Securities of a different authorized
3
denomination, as requested by the Holder surrendering the same. As provided
in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable on the Security Register of the
Company, upon surrender of this Security for registration of transfer at
the office or agency of the Company maintained for such purpose in the
Borough of Manhattan in The City of New York, State of New York, or at such
other office or agency of the Company as may be maintained for such
purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees. No service charge shall be made for any
registration of transfer or exchange or redemption of Securities, but the
Company may, under certain circumstances, require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
9. Persons Deemed Owners. Prior to and at the time of due presentment of this
Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security shall be overdue, and neither the Company, the Trustee nor
any agent shall be affected by notice to the contrary.
10. Registration Rights. Pursuant to the Registration Rights Agreement by and
between the Company and the Initial Purchasers, the Company will be
obligated to consummate an exchange offer pursuant to which the Holder of
this Security shall have the right to exchange this Security for 10-3/8%
Senior Notes due 2005, Series B, of the Company (herein called the
"Exchange Securities"), which have been registered under the Securities
Act, in like principal amount and having identical terms as the Securities
(other than as set forth in this paragraph). The Holders of Securities
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.
11. GOVERNING LAW. THE INDENTURE, THIS SECURITY AND ANY SECURITY GUARANTEE SET
FORTH BELOW 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. The Company will furnish to any Holder of a Security
upon written request and without charge a copy of the Indenture. Requests
may be made to:
CHEMICAL ▇▇▇▇▇▇ CORPORATION
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
4
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below
and have your signature guaranteed: I or we assign and transfer this Security to
_____________________________________________
(Insert assignee's social security or tax ID number)
________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent. In connection with any transfer of
this Security 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 Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the date two years
(or such shorter period of time as permitted by Rule 144(k) under the Securities
Act or any successor provision thereunder) after the later of the original
issuance date appearing on the face of this Security (or any predecessor
thereto) or the last date on which the Company or any Affiliate of the Company
was the owner of this Security (or any predecessor thereto), the undersigned
confirms that it has not utilized any general solicitation or general
advertising in connection with the transfer and that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents, including (i) a transferee certificate substantially in the
form of Exhibit C to the Indenture in the case of a transfer to non-QIB
Accredited Investors or (ii) a transferor certificate substantially in the form
of Exhibit D to the Indenture in the case of a transfer pursuant to Regulation
S, are being furnished which comply with the conditions of transfer set forth in
this Security and the Indenture. If none of the foregoing boxes is checked and,
in the case of (b) above, if the appropriate document is not attached or
otherwise furnished to the Trustee, the Trustee or Registrar shall not be
obligated to register this Security 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 3.16 of the Indenture shall have
been satisfied.
Date: ______________ Your signature: ________________________________
(Sign exactly as your name appears
on the other side of this Security)
By:___________________________________
NOTICE: To be executed by an executive officer
Signature Guarantee:____________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
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 (including the information
specified in Rule 144A(d)(4)) 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
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 10.10 or 10.15 of the Indenture, check the appropriate box:
Section 10.10 [ ] Section 10.15 [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 10.10 or 10.15 of the Indenture, state the amount:
$_________________
Date: ______________ Your signature: __________________________
(Sign exactly as your name appears
on the other side of this Security)
By:___________________________________
NOTICE: To be executed by an executive officer
Signature Guarantee:____________________
EXHIBIT A-2
-----------
CHEMICAL ▇▇▇▇▇▇ CORPORATION
---------------------------
10-3/8% SENIOR NOTES DUE 2005, SERIES B
CUSIP No. __________
No. ___________ $ ___________
CHEMICAL ▇▇▇▇▇▇ CORPORATION, a Pennsylvania corporation (herein called
the "Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________ or registered assigns, the principal sum of _______________
Dollars on June 15, 2005, at the office or agency of the Company referred to
below, and to pay interest thereon on June 15 and December 15 (each an "Interest
Payment Date"), of each year, commencing on December 15, 1997, accruing from the
Issue Date or from the most recent Interest Payment Date on which interest has
been paid or duly provided for, at the rate of 10-3/8% per annum, until the
principal hereof is paid or duly provided for. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture, be paid to the person in whose name this Security is
registered at the close of business on June 1 and December 1 (each a "Regular
Record Date"), whether or not a Business Day, as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid, or duly
provided for, and interest on such defaulted interest at the then applicable
interest rate borne by the Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may be paid
to the person in whose name this Security is registered at the close of business
on a Special Record Date for the payment of such defaulted interest to be fixed
by the Trustee, notice of which shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, and interest on this
Security shall be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained for
such purpose, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address shall appear on the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof. Unless the certificate of authentication
hereon has been duly executed by the Trustee referred to on the reverse hereof
by manual signature, this Security shall not be entitled to any benefit under
the Indenture, or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-2-1
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CHEMICAL ▇▇▇▇▇▇ CORPORATION
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
Dated:
A-2-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
---------------------------------------
This is one of the 10-3/8% Senior Notes due 2005, Series B, referred
to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:____________________________________
Authorized Officer
Dated:
[REVERSE OF SECURITY]
1. Indenture. This Security is one of a duly authorized issue of Securities
of the Company designated as its 10-3/8% Senior Notes due 2005, Series B
(herein called the "Unrestricted Securities"). The Securities are limited
(except as otherwise provided in the Indenture referred to below) in
aggregate principal amount to $100,000,000, which may be issued under an
indenture (herein called the "Indenture") dated as of June 16, 1997, by and
between the Company and First Union National Bank, as trustee (herein
called the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Trustee, any Guarantors and the Holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated
and delivered. The Securities include the Initial Securities, the Private
Exchange Securities and the Unrestricted Securities (including the Exchange
Securities), issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement. The Initial Securities, the Private
Exchange Securities and the Unrestricted Securities are treated as a single
class of securities under the Indenture. All capitalized terms used in
this Security which are defined in the Indenture and not otherwise defined
herein shall have the meanings assigned to them in the Indenture.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture. Notwithstanding anything to the contrary herein, the
Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and the TIA for a statement of such terms. No
reference herein to the Indenture and no provisions of this Security or of
the Indenture shall alter or impair the obligation of the Company or any
Guarantor, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Security at the times, place, and
rate, and in the coin or currency, herein prescribed.
2. Optional Redemption. The Securities will be redeemable at the option of
the Company, in whole or in part, at any time on or after June 15, 2001, at
the Redemption Prices (expressed as percentages of principal amount) set
forth below, plus accrued and unpaid interest thereon, if any, to the
Redemption Date, if redeemed during the 12-month period beginning on June
15 of the years indicated below:
REDEMPTION YEAR PRICE
2001............................... 105.188%
2002............................... 103.458%
2003............................... 101.729%
2004 and thereafter................ 100.000%
3. Optional Redemption upon Public Equity Offering. On or prior to June 15,
2000, the Company may, at its option, use the net proceeds of a Public
Equity Offering to redeem up
2
to 25% of the originally issued aggregate principal amount of the
Securities, at a Redemption Price in cash equal to 110.375% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the Redemption Date; provided, however, that not less than $75.0 million
in aggregate principal amount of Securities is outstanding following such
redemption. Notice of any such redemption must be given not later than 60
days after the consummation of the Public Equity Offering. As used in the
preceding paragraph, a "Public Equity Offering" means an underwritten
public offering of Capital Stock (other than Redeemable Capital Stock) of
the Company made on a primary basis by the Company pursuant to a
registration statement filed with and declared effective by the Commission
in accordance with the Securities Act resulting in net cash proceeds to the
Company (after deducting any underwriting discounts and commissions) of at
least $50.0 million.
4. Offers to Purchase. Sections 10.10 and 10.15 of the Indenture provide that
upon the occurrence of a Change of Control and following certain Asset
Sales, and subject to certain conditions and limitations contained therein,
the Company shall make an offer to purchase all or a portion of the
Securities in accordance with the procedures set forth in the Indenture.
5. Defaults and Remedies. If an Event of Default occurs and is continuing,
the principal and premium, if any, of all of the Outstanding Securities,
plus all accrued and unpaid interest, if any, to and including the date the
Securities are paid, may be declared due and payable in the manner and with
the effect provided in the Indenture.
6. Defeasance. The Indenture contains provisions (which provisions apply to
this Security) for defeasance at any time of (a) the entire Indebtedness of
the Company and the Guarantors on this Security and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain exceptions as
provided therein, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company, the Guarantors and the Trustee with
the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance by the
Company with certain provisions of the Indenture and certain past Defaults
under the Indenture and this Security and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of
such consent or waiver is made upon this Security.
8. Denominations, Transfer and Exchange. The Securities are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the
B-3
Indenture and subject to certain limitations therein set forth, the
Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the
Holder surrendering the same. As provided in the Indenture and subject to
certain limitations therein set forth, the transfer of this Security is
registrable on the Security Register of the Company, upon surrender of this
Security for registration of transfer at the office or agency of the
Company maintained for such purpose in the Borough of Manhattan in The City
of New York, State of New York, or at such other office or agency of the
Company as may be maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may, under certain
circumstances, require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
9. Persons Deemed Owners. Prior to and at the time of due presentment of this
Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security shall be overdue, and neither the Company, the Trustee nor
any agent shall be affected by notice to the contrary.
10. GOVERNING LAW. THE INDENTURE, THIS SECURITY AND ANY SECURITY GUARANTEE SET
FORTH BELOW 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.
The Company will furnish to any Holder of a Security upon written request
and without charge a copy of the Indenture. Requests may be made to:
CHEMICAL ▇▇▇▇▇▇ CORPORATION
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
B-4
ASSIGNMENT FORM
---------------
If you the holder want to assign this Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Security to
_______________________________________________________________________________
(Insert assignee's social security or tax ID number)________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint__________________________________________________ agent
to transfer this Security on the books of the Company. The agent may substitute
another to act for such agent.
Date: __________________ Your signature:_____________________________________
(Sign exactly as your name appears on
the other side of this Security)
By:____________________________________
NOTICE: To be executed by an executive officer
Signature Guarantee:___________________
OPTION OF HOLDER TO ELECT PURCHASE
----------------------------------
If you wish to have this Security purchased by the Company pursuant to
Section 10.10 or 10.15 of the Indenture, check the appropriate box:
Section 10.10 [ ] Section 10.15 [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 10.10 or 10.15 of the Indenture, state the amount:
$_______________
Date:____________________ Your signature:________________________
(Sign exactly as your name appears on
the other side of this Security)
By:__________________________________
NOTICE: To be executed by an executive officer
Signature Guarantee:_________________
EXHIBIT B
---------
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
EXHIBIT C
---------
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
Chemical ▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed purchase of $______ aggregate
principal amount of the 10-3/8% Senior Securities due 2005 (the "Securities" of
Chemical ▇▇▇▇▇▇ Corporation (the "Company"), we confirm that:
1. We understand that the Securities have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and, unless
so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to (x) the date which is two
years (or such shorter period of time as permitted by Rule 144(k)
under the Securities Act) after the later of the date of original
issue of the Securities and the last date on which the Company or any
affiliate of the Company was the owner of the Securities or any
predecessor thereto and (y) such later date, if any, as may be
required by any subsequent change in applicable law (the "Resale
Restriction Termination Date") only (a) to the Company, (b) pursuant
to a registration statement which has been declared effective under
the Securities Act, (c) so long as the Securities are eligible for
resale pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "qualified institutional buyer" under Rule
144A (a "QIB") that purchases for its own account or for the account
of a QIB and to whom notice is given that the transfer is being made
in reliance on Rule 144A, (d) pursuant to offers and sales to non-U.S.
persons that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2),
(3) or (7) of Rule 501 under the Securities Act (an "Accredited
Investor") that is purchasing for its own account or for the account
of such an Accredited Investor for investment purposes and not with a
view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act, or (f) pursuant to any other
available exemption from the registration requirements of the
Securities Act, subject, in each of the foregoing cases, to any
requirement of law that the disposition of our property or the
property of such investor account or accounts be at all times within
our or their control and to compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any
resale or other transfer of the Securities is proposed to be made
pursuant to clause (c) above prior to the Resale Restriction
Termination Date, the transferor shall
C-1
deliver a letter from the transferee substantially in the form of this
letter to the Trustee, which shall provide, among other things, that
the transferee is an Accredited Investor within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act and that it is acquiring such Securities for investment purposes
and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Company, the Trustee and the Transfer
Agent and Registrar reserve the right prior to any offer, sale or
other transfer prior to the Resale Restriction Termination Date of the
Securities pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certification and/or other
information satisfactory to the Company and the Trustee.
2. We are an Accredited Investor or a QIB purchasing Securities for our
own account or for the account of one or more Accredited Investors,
and we are acquiring the Securities for investment purposes and not
with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or the securities laws
of any state of the United States and we have such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Securities,
and we and any accounts for which we are acting are each able to bear
the economic risk of our or its investment in the Securities for an
indefinite period.
3. We are acquiring the Securities purchased by us for our own account or
for one or more accounts as to each of which we exercise sole
investment discretion and we and any such account are (a) a QIB, aware
that the sale is being made in reliance on Rule 144A under the
Securities Act, (b) an Accredited Investor, or (c) a person other than
a U.S. person ("foreign purchasers"), which term shall include dealers
or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an
estate or trust) in offshore transactions meeting the requirements of
Rules 903 and 904 of Regulation S under the Securities Act.
4. We have received a copy of the Offering Memorandum and acknowledge
that we have had access to such financial and other information, and
have been afforded the opportunity to ask such questions of
representatives of the Company and receive answers thereto, as we deem
necessary in order to verify the information contained in the Offering
Memorandum.
We understand that the Trustee and the Transfer Agent will not be
required to accept for registration of transfer any Securities acquired by us,
except upon presentation of evidence satisfactory to the Company and the Trustee
that the foregoing restrictions on transfer have been complied with. We further
understand that the Securities purchased by us will be in the form of definitive
physical certificates and that such certificates will bear a legend reflecting
the substance of this paragraph. We further agree to provide to any person
acquiring any of the Securities from us a notice advising such person that
transfers of such Securities are restricted as stated herein and that
certificates representing such Securities will bear a legend to that effect. We
represent that you, the Company, the Trustee and others are entitled to rely
upon the truth and accuracy of our acknowledgements, representations and
agreements set forth herein, and we agree to notify you
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promptly in writing if any of our acknowledgements, representations or
agreements herein cease to be accurate and complete. You are also 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. We represent to you that we have full power to make the
foregoing acknowledgements, representations and agreements on our own behalf and
on behalf of any investor account for which we are acting as fiduciary agent. As
used herein, the terms "offshore transaction," "United States" and "U.S. person"
have the respective meanings given to them in Regulation S under the Securities
Act. THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:________________________________
Date:______________________________
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name:______________________________
Address:______________________________
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EXHIBIT D
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
------------------------
Date: ______________, ____
First Union National Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10004
Attention: Corporate Trustee Administration
Re: Chemical ▇▇▇▇▇▇ Corporation (the "Company")
10-3/8% Senior Notes due 2005 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the transferee
was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer restrictions applicable
to the Securities;
(6) if the circumstances set forth in Rule 904(c) under the Securities Act
are applicable, we have complied with the additional conditions
therein, including (if applicable) sending a confirmation or other
notice stating that the Securities may be offered and sold during the
restricted period specified in Rule 903(c)(2) or (3), as applicable,
in
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accordance with the provisions of Regulation S; pursuant to
registration of the Securities under the Securities Act; or pursuant
to an available exemption from the registration requirements under the
Securities Act; and
(7) if the sale is made during a restricted period and the provisions of
Rule 903(c)(3) are applicable thereto, we confirm that such sale has
been made in accordance with such provisions.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_____________________________
Authorized Signature
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EXHIBIT E
---------
FORM OF SECURITY GUARANTEE
--------------------------
For value received, the undersigned hereby fully and unconditionally
guarantees to the Holder of this Security the cash payments in United States
dollars of principal of, premium, if any, and interest on this Security in the
amounts and at the time when due and interest on the overdue principal, premium,
if any, and interest, if any, on this Security, if lawful, and the payment or
performance of all other obligations of the Company under the Indenture or the
Securities, to the Holder of this Security and the Trustee, all in accordance
with and subject to the terms and limitations of this Security, Article Thirteen
of the Indenture and this Security Guarantee. This Security Guarantee will
become effective in accordance with Article Thirteen of the Indenture and its
terms shall be evidenced therein. The validity and enforceability of any
Security Guarantee shall not be affected by the fact that it is not affixed to
any particular Security. Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Indenture dated as of June 16, 1997,
by and between Chemical ▇▇▇▇▇▇ Corporation and The First Union National Bank, as
Trustee, as amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Securities and to
the Trustee pursuant to the Security Guarantee and the Indenture are expressly
set forth in Article Thirteen of the Indenture and reference is hereby made to
the Indenture for the precise terms of the Security Guarantee and all of the
other provisions of the Indenture to which this Security Guarantee relates.
THIS SECURITY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. THE GUARANTORS HEREUNDER AGREES TO SUBMIT TO THE NON-
EXCLUSIVE JURISDICTION OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THE INDENTURE, THE SECURITIES OR THIS SECURITY
GUARANTEE.
This Security Guarantee is subject to release upon the terms set forth
in the Indenture.
IN WITNESS WHEREOF, the undersigned Guarantor has caused this Security
Guarantee to be duly executed.
Dated:
[NAME OF GUARANTOR]
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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