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Exhibit 4.1
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▇.▇. ▇▇▇▇▇▇▇▇▇ INC.,
as Issuer
and
The Guarantors Named Herein
as Guarantors
TO
THE BANK OF NEW YORK
As Trustee
--------------------------
Indenture
Dated as of June 5, 1998
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$150,000,000
% Senior Subordinated Notes due 2008
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Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of June 5, 1998
Trust Indenture Indenture
Act Section Section
----------- -------
ss. 310 (a)(1) ................................... 609
(a)(2) ................................... 609
(a)(3) ................................... Not Applicable
(a)(4) ................................... Not Applicable
(b) ................................... 608
610
ss. 311 (a) ................................... 613(a)
(b) ................................... 613(b)
(b)(2) ................................... 703(a)(2)
703(b)
ss. 312 (a) ................................... 701
702(a)
(b) ................................... 702(b)
(c) ................................... 702(c)
ss. 313 (a) ................................... 703(a)
(b) ................................... 703(b)
(c) ................................... 703(a)
703(b)
(d) ................................... 703(c)
ss. 314 (a) ................................... 704
(b) ................................... Not Applicable
(c)(1) ................................... 102
(c)(2) ................................... 102
(c)(3) ................................... Not Applicable
(d) ................................... Not Applicable
(e) ................................... 102
ss. 315 (a) ................................... 601(a)
(b) ................................... 602
703(a)(6)
(c) ................................... 601(b)
(d) ................................... 601(c)
(d)(1) ................................... 601(a)(1)
(d)(2) ................................... 601(c)(2)
(d)(3) ................................... 601(c)(3)
(e) ................................... 514
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Trust Indenture Indenture
Act Section Section
----------- -------
ss. 316 (a) ................................... 101
(a)(1)(A)................................... 502
512
(a)(1)(B)................................... 513
(a)(2) ................................... Not Applicable
(b) ................................... 508
ss. 317 (a)(1) ................................... 503
(a)(2) ................................... 504
(b) ................................... 1003
ss. 318 (a) ................................... 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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Page
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.......................................2
SECTION 1.02. Compliance Certification and Opinions............27
SECTION 1.03. Form of Documents Delivered to Trustee...........28
SECTION 1.04. Acts of Holders; Record Date.....................29
SECTION 1.05. Notices, Etc., to Trustee, Company and
Guarantors.......................................30
SECTION 1.06. Notice to Holders; Waiver........................30
SECTION 1.07. Conflict with Trust Indenture Act................31
SECTION 1.08. Effect of Headings and Table of Contents.........31
SECTION 1.09. Successors and Assigns...........................31
SECTION 1.10. Separability Clause..............................31
SECTION 1.11. Benefits of Indenture............................31
SECTION 1.12. Governing Law....................................31
SECTION 1.13. Legal Holidays...................................31
ARTICLE 2
NOTE AND SENIOR SUBORDINATED GUARANTEE FORMS
SECTION 2.01. Forms Generally; Initial Forms of Rule 144A
and Regulation S Notes...........................32
SECTION 2.02. Form of Face of Note.............................33
SECTION 2.03. Form of Reverse of Note..........................37
SECTION 2.04. Form of Trustee's Certificate of Authentication..42
ARTICLE 3
THE NOTES
SECTION 3.01. Title and Terms..................................46
SECTION 3.02. Denominations....................................47
SECTION 3.03. Execution, Authentication, Delivery and Dating...47
SECTION 3.04. Temporary Notes..................................49
SECTION 3.05. Global Notes.....................................49
SECTION 3.06. Registration, Registration of Transfer and
Exchange; Securities Act Legends.................51
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Notes......55
SECTION 3.08. Payment of Interest; Interest Rights Preserved...56
SECTION 3.09. Persons Deemed Owners............................57
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SECTION 3.10. Cancellation.....................................58
SECTION 3.11. Computation of Interest..........................58
SECTION 3.12. Cusip Numbers....................................58
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture..........59
SECTION 4.02. Application of Trust Money.......................60
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default................................60
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment........................................63
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee...........................64
SECTION 5.04. Trustee May File Proofs of Claim.................65
SECTION 5.05. Trustee May Enforce Claims Without Possession
of Notes.........................................65
SECTION 5.06. Application of Money Collected...................65
SECTION 5.07. Limitation on Suits..............................66
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest..................66
SECTION 5.09. Restoration of Rights and Remedies...............67
SECTION 5.10. Rights and Remedies Cumulative...................67
SECTION 5.11. Delay or Omission Not Waiver.....................67
SECTION 5.12. Control by Holders...............................67
SECTION 5.13. Waiver of Past Defaults..........................68
SECTION 5.14. Undertaking for Costs............................68
SECTION 5.15. Waiver of Stay or Extension Laws.................68
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities..............69
SECTION 6.02. Notice of Defaults...............................69
SECTION 6.03. Certain Rights of Trustee........................69
SECTION 6.04. Not Responsible for Recitals or Issuance
of Notes.........................................71
SECTION 6.05. May Hold Notes...................................71
SECTION 6.07. Compensation and Reimbursement...................71
SECTION 6.08. Disqualification; Conflicting Interest...........72
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SECTION 6.09. Corporate Trustee Required; Eligibility..........72
SECTION 6.10. Resignation and Removal; Appointment of
Successor........................................73
SECTION 6.11. Acceptance of Appointment by Successor...........74
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business...........................75
SECTION 6.13. Preferential Collection of Claims Against
Company..........................................75
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders.......................................75
SECTION 7.02. Preservation of Information; Communications
to Holders.......................................75
SECTION 7.03. Reports by Trustee...............................76
SECTION 7.04. Reports by Company and the Parent Guarantor......76
SECTION 7.05. Officers' Certificate with Respect to Change
in Interest Rates................................77
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Mergers, Consolidations and Certain
Transfers, Leases and Acquisition of Assets......77
SECTION 8.02. Successor Substituted............................78
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
Holders..........................................78
SECTION 9.02. Supplemental Indentures with Consent of Holders..79
SECTION 9.03. Execution of Supplemental Indentures.............80
SECTION 9.04. Effect of Supplemental Indentures................80
SECTION 9.05. Conformity with Trust Indenture Act..............80
SECTION 9.06. Reference in Notes to Supplemental Indentures....81
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest......81
SECTION 10.02. Maintenance of Office or Agency.................81
SECTION 10.03. Money for Note Payments to Be Held in Trust.....82
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SECTION 10.04. Existence.......................................83
SECTION 10.05. Maintenance of Properties.......................83
SECTION 10.06. Payment of Taxes and Other Claims...............83
SECTION 10.07. Maintenance of Insurance........................84
SECTION 10.08. Limitation on Consolidated Debt.................84
SECTION 10.09. Limitation on Senior Subordinated Debt..........86
SECTION 10.10. Limitation on Issuance of Guarantees of
Subordinated Debt...............................86
SECTION 10.11. Limitation on Liens.............................86
SECTION 10.12. Limitation on Restricted Payments...............86
SECTION 10.13. Limitations on Dividend and Other Payment
Restrictions Affecting Subsidiaries.............88
SECTION 10.14. Limitation on Asset Disposition.................89
SECTION 10.15. Transactions with Affiliates and Related
Persons.........................................90
SECTION 10.16. Change of Control...............................91
SECTION 10.17. Provision of Financial Information..............92
SECTION 10.18. Unrestricted Subsidiaries.......................92
SECTION 10.19. Statement by Officers as to Default;
Compliance Certificates.........................93
SECTION 10.20. Waiver of Certain Covenants.....................93
ARTICLE 11
REDEMPTION OF NOTES
SECTION 11.01. Right of Redemption.............................94
SECTION 11.02. Applicability of Article........................95
SECTION 11.03. Election to Redeem; Notice to Trustee...........95
SECTION 11.04. Selection by Trustee of Notes to Be Redeemed....95
SECTION 11.05. Notice of Redemption............................95
SECTION 11.06. Deposit of Redemption Price.....................96
SECTION 11.07. Notes Payable on Redemption Date................96
SECTION 11.08. Notes Redeemed in Part..........................97
ARTICLE 12
SENIOR SUBORDINATED GUARANTEE
SECTION 12.01. Senior Subordinated Guarantee...................97
SECTION 12.02. Execution and Delivery of Senior Subordinated
Guarantees.....................................100
SECTION 12.03. Subsidiary Guarantors May Consolidate, Etc.,
on Certain Terms...............................101
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SECTION 12.04. Release of Guarantors..........................102
SECTION 12.05. Additional Guarantors..........................102
ARTICLE 13
SUBORDINATION OF NOTES AND SENIOR SUBORDINATED GUARANTEES
SECTION 13.01. Notes Subordinate to Senior Debt...............103
SECTION 13.02. Payment over of Proceeds upon Dissolution,
Etc............................................103
SECTION 13.03. No Payment When Senior Debt in Default.........105
SECTION 13.04. Payment Permitted If No Default................108
SECTION 13.05. Subrogation to Rights of Holders of Senior
Debt...........................................108
SECTION 13.06. Provisions Solely to Define Relative Rights....108
SECTION 13.07. Trustee to Effectuate Subordination............109
SECTION 13.08. No Waiver of Subordination Provisions..........109
SECTION 13.09. Notice to Trustee..............................110
SECTION 13.10. Reliance on Judicial Order or Certificate of
Liquidating Agent..............................110
SECTION 13.11. Trustee Not Fiduciary for Holders of
Senior Debt....................................111
SECTION 13.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights...............111
SECTION 13.13. Article Applicable to Paying Agents............111
SECTION 13.14. Defeasance of this Article ....................111
ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Company's Option to Effect Defeasance or
Covenant Defeasance............................112
SECTION 14.02. Defeasance and Discharge.......................112
SECTION 14.03. Covenant Defeasance............................112
SECTION 14.04. Conditions to Defeasance or Covenant
Defeasance.....................................113
SECTION 14.05. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions.......................115
SECTION 14.06. Reinstatement..................................116
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ANNEX A Form of Regulation S Certificate..................A-1
ANNEX B Form of Restricted Securities Certificate.........B-1
ANNEX C Form of Unrestricted Securities Certificate.......C-1
ANNEX D Form of Certification to Be Given by Holders
of Beneficial Interest in a Regulation S
Temporary Global Note.............................D-1
ANNEX E Form of Certification to Be Given by the
Euroclear Operator or Cedel S.A...................E-1
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INDENTURE, dated as of June 5, 1998, between ▇.▇. ▇▇▇▇▇▇▇▇▇ Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the Guarantor (as hereinafter defined) and The
Bank of New York, a New York banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY AND THE GUARANTORS
The Company has duly authorized the creation of an issue of its % Senior
Subordinated Notes due 2008 (the "Notes") 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.
The Dun & Bradstreet Corporation (the "Parent Company") owns beneficially
and of record 100% of the Capital Stock of the Company; the Parent Company and
the Company are members of the same consolidated group of companies and are
engaged in related businesses and the Parent Company, as Guarantor, will derive
direct and indirect economic benefit from the issuance of the Securities.
Accordingly, the Guarantor has duly authorized the execution and delivery of
this Indenture to provide for its Senior Subordinated Guarantees with respect to
the Securities as set forth in this Indenture.
All things necessary (i) 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, (ii) to make the Senior
Subordinated Guarantees of the Guarantor, when executed by the Guarantor and
endorsed on the Securities executed, authenticated and delivered hereunder, the
valid obligations of the Guarantor, and (iii) to make this Indenture a valid
agreement of the Company and the Guarantor, all in accordance with their
respective terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. 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 generally accepted accounting principles
(whether or not such is indicated herein), and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted as consistently applied by the
Company at the date of such computation;
(d) unless otherwise specifically set forth herein, all calculations or
determinations of a Person shall be performed or made on a consolidated basis in
accordance with generally accepted accounting principles; and
(e) 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.
Certain terms, used principally in Article 6, are defined in that Article.
"Acquired Debt" of any particular Person means Debt of any other Person
existing at the time such other Person merged with or into or became a
Subsidiary of such particular Person or assumed by such particular Person in
connection with the acquisition of assets from any other Person, and not
Incurred by such other Person in connection with, or in contemplation of, such
other Person merging with or into such particular Person or becoming a
Subsidiary of such particular Person or such acquisition.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.04.
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"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing; provided however, that,
for the purposes of the covenant described in Section 10.15, a joint venture,
partnership or similar Person which is engaged in a principal business of The
Company and its Restricted Subsidiaries or in a business related thereto and all
of the equity interests in which are held by the Company or a Restricted
Subsidiary and another Person or Persons that are not Related Persons of the
Company or such Restricted Subsidiary shall not be deemed an "Affiliate" of the
Company or such Restricted Subsidiary.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Note or beneficial interest therein, the rules and procedures
of the Depositary for such Note, Euroclear and Cedel, in each case to the extent
applicable to such transaction and as in effect at the time of such transfer or
transaction.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Restricted Subsidiaries
(including any issuance or sale by a Restricted Subsidiary of Capital Stock of
such Restricted Subsidiary, and including a consolidation or merger or other
sale of any such Restricted Subsidiary with, into or to another Person in a
transaction in which such Restricted Subsidiary ceases to be a Restricted
Subsidiary, but excluding a disposition by a Restricted Subsidiary of such
Person to such Person or a Wholly Owned Restricted Subsidiary of such Person or
by such Person to a Wholly Owned Restricted Subsidiary of such Person) of (i)
shares of Capital Stock (other than directors' qualifying shares) or other
ownership interests of a Restricted Subsidiary of such Person, (ii)
substantially all of the assets of such Person or any of its Restricted
Subsidiaries representing a division or line of business or (iii) other assets
or rights of such Person or any of its Restricted Subsidiaries outside of the
ordinary course of business, provided in each case that the aggregate
consideration for such transfer, conveyance, sale, lease or other disposition is
equal to $5.0 million or more.
"Average Life" means, as of the date of determination, with respect to any
Debt, the quotient obtained by dividing (i) the sum of the products of the
numbers of years from the date of determination to the dates of each successive
scheduled
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principal payment of such Debt multiplied by the amount of such payment by (ii)
the sum of all such payments.
"Board of Directors" means either the board of directors of the Company or
any Guarantor or any duly authorized committee of that board. Except as
otherwise provided or unless context otherwise requires, each reference herein
to the "Board of Directors" shall mean the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company or any Guarantor to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee. Except as otherwise
expressly provided or unless the context otherwise requires, each reference
herein to a "Board Resolution" shall mean a Board Resolution of the Company.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York or in the
city in which the Corporate Trust Office is located are authorized or obligated
by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Debt arrangements conveying
the right to use) real or personal property of such Person which is required to
be classified and accounted for as a capital lease or a liability on the face of
a balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty. The principal amount of such obligation shall be the capitalized amount
thereof that would appear on the face of a balance sheet of such Person in
accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations, including partnership interests, whether general or
limited, of such Person.
"Cash Equivalents" means (i) direct obligations of the United States of
America or any agency thereof having maturities of not more than one year from
the date of acquisition, (ii) time deposits and certificates of deposit of any
domestic commercial bank of recognized standing having capital and surplus in
excess of $500 million, with maturities of not more than one year from the date
of acquisition, (iii) repurchase obligations issued by any bank described in
clause
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(ii) above with a term not to exceed 30 days; (iv) commercial paper rated at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's, in each case maturing within one year after the date of
acquisition and (v) shares of any money market mutual fund, or similar fund, in
each case having excess of $500 million, which invests predominantly in
investments of the types describes in clauses (i) through (iv) above.
"Cedel" means Cedel Bank, S.A. (or any successor securities clearing
agency).
"CenDon" means the partnership formed pursuant to the CenDon Partnership
Agreement in which the Company and Centel Directory Company each have a 50%
interest.
"CenDon Partnership Agreement" means the agreement entered into as of May
5, 1988 between the Company and Centel Directory Company.
"Closing Date" means June 5, 1998.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that does
not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" means for any period
the Consolidated Net Income of the Company and its Restricted Subsidiaries for
such period increased by the sum of (i) Consolidated Interest
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Expense of the Company and its Restricted Subsidiaries for such period, plus
(ii) Consolidated Income Tax Expense of the Company and its Restricted
Subsidiaries for such period, plus (iii) the consolidated depreciation and
amortization expense included in the income statement of the Company and its
Restricted Subsidiaries for such period, plus (iv) all other non-cash items
reducing Consolidated Net Income of the Company and its Restricted Subsidiaries,
unless and until such time as cash disbursements are made in respect of such
items (at which time the amount of any such disbursements shall be deducted from
Consolidated Cash Flow Available for Fixed Charges), and, less all non-cash
items increasing Consolidated Net Income of the Company and its Restricted
Subsidiaries; provided, however, that there shall be excluded therefrom the
Consolidated Cash Flow Available for Fixed Charges (if positive) of any
Restricted Subsidiary of the Company (calculated separately for such Restricted
Subsidiary in the same manner as provided above for the Company) that is subject
to a restriction which prevents the payment of dividends or the making of
distributions to the Company or another Restricted Subsidiary of the Company to
the extent of such restriction, except to the extent of the amount of dividends
or other distributions actually paid by such Restricted Subsidiary to the
Company or to a Restricted Subsidiary not subject to such a restriction during
such period. Notwithstanding any other provision of the Indenture to the
contrary, Consolidated Cash Flow Available for Fixed Charges of the Company for
any period will be deemed to include 100% of the cash distributions to The
Company or any of its Restricted Subsidiaries not subject to such a restriction
in respect of such period from DonTech, CenDon or any similar partnership or
joint venture, to the extent not otherwise included in Consolidated Cash Flow
Available for Fixed Charges in respect of such period.
"Consolidated Cash Flow Coverage Ratio" as of any date of determination
means the ratio of (i) Consolidated Cash Flow Available for Fixed Charges of the
Company and its Restricted Subsidiaries for the period of the most recently
completed four consecutive fiscal quarters for which quarterly or annual
financial statements are available to (ii) Consolidated Fixed Charges of the
Company and its Restricted Subsidiaries for such period; provided, however, that
Consolidated Fixed Charges shall be adjusted to give effect on a pro forma basis
to any Debt that has been Incurred by the Company or any Restricted Subsidiary
since the beginning of such period that remains outstanding and to any Debt that
is proposed to be Incurred by the Company or any Restricted Subsidiary as if in
each case such Debt had been Incurred on the first day of such period and as if
any Debt that (i) is or will no longer be outstanding as the result of the
Incurrence of any such Debt or (ii) had been repaid or retired during such
period had not been outstanding as of the first day of such period; provided,
however, that in making such computation, the Consolidated Interest Expense of
the Company and its Restricted Subsidiaries attributable to interest on any
proposed Debt bearing a
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floating interest rate shall be computed on a pro forma basis as if the rate in
effect on the date of computation had been the applicable rate for the entire
period; and provided further that, in the event the Company or any of its
Restricted Subsidiaries has made Asset Dispositions or acquisitions of assets
not in the ordinary course of business (including acquisitions of other Persons
by merger, consolidation or purchase of Capital Stock) during or after such
period, such computation shall be made on a pro forma basis as if the Asset
Dispositions or acquisitions had taken place on the first day of such period.
"Consolidated Fixed Charges" for any period means the sum of (i)
Consolidated Interest Expense and (ii) the consolidated amount of interest
capitalized by the Company and its Restricted Subsidiaries during such period
calculated in accordance with generally accepted accounting principles.
"Consolidated Income Tax Expense" for any period means the consolidated
provision for income taxes of the Company and its Restricted Subsidiaries for
such period calculated on a consolidated basis in accordance with generally
accepted accounting principles.
"Consolidated Interest Expense" means for any period the consolidated
interest expense included in a consolidated income statement (without deduction
of interest income) of the Company and its Restricted Subsidiaries for such
period calculated on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iii) fees with respect to interest rate swap
or similar agreements or foreign currency hedge, exchange or similar agreements;
(iv) Preferred Stock dividends of Restricted Subsidiaries of the Company (other
than with respect to Redeemable Stock) declared and paid or payable to persons
other than the Company or any Restricted Subsidiary; (v) accrued Redeemable
Stock dividends of the Company and its Restricted Subsidiaries payable to
persons other than the Company or any Restricted Subsidiary, whether or not
declared or paid; (vi) interest on Debt guaranteed by the Company and its
Restricted Subsidiaries; and (vii) the portion of any rental obligation
allocable to interest expense.
"Consolidated Net Income" for any period means the consolidated net income
(or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (a) the
net income (or loss) of any Person acquired by the Company or a Restricted
Subsidiary of the Company in a pooling-of-interests transaction for any period
prior to the date of such transaction, (b) the net income (or loss) of any
Person that
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is not a Subsidiary of the Company except to the extent of the amount of
dividends or other distributions actually paid to the Company or a Subsidiary of
the Company by such Person during such period, (c) gains or losses on Asset
Dispositions by the Company or its Restricted Subsidiaries, (d) all
extraordinary gains and extraordinary losses, (e) the cumulative effect of
changes in accounting principles and (f) the tax effect of any of the items
described in clauses (a) through (e) above; provided, further, that for purposes
of any determination pursuant to the provisions described under Section 10.12
hereof, there shall further be excluded therefrom the net income (but not net
loss) of any Restricted Subsidiary of the Company that is subject to a
restriction which prevents the payment of dividends or the making of
distributions to the Company or another Restricted Subsidiary of the Company to
the extent of such restriction, except to the extent of the amount of dividends
or other distributions actually paid to The Company or a Restricted Subsidiary
not subject to such a restriction by such Restricted Subsidiary during such
period.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with generally accepted accounting principles, less amounts
attributable to Redeemable Stock of such Person; provided that, with respect to
the Company, adjustments following the date of this Indenture to the accounting
books and records of the Company in accordance with Accounting Principles Board
Opinions Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting
from the acquisition of control of the Company by another Person shall not be
given effect to.
"Consolidated Tangible Assets" of any Person means, as of any date, the
amount which, in accordance with generally accepted accounting principles, would
be set forth under the caption "Total Assets" (or any like caption) on a
consolidated balance sheet of such Person and its Restricted Subsidiaries, less
all intangible assets, including, without limitation, goodwill, organization
costs, patents, trademarks, copyrights, franchises, and research and development
costs.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which is, at the date as of which this Indenture is dated, located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
"corporation" means a corporation, association, company, joint-stock
company, partnership or business trust.
"Credit Facility" means, with respect to the Company or any Restricted
Subsidiary, one or more debt or commercial paper facilities with banks or other
9
18
institutional lenders (including the New Credit Facility) providing for
revolving credit loans, term loans, receivables or inventory financing
(including through the sale of receivables or inventory to such lenders or to
special purpose, bankruptcy remote entities formed to borrow from such lenders
against such receivables or inventory) letters of credit, in each case together
with any amendments, supplements, modifications (including by any extension of
the maturity thereof), refinancing or replacements thereof by a lender or
syndicate of lenders in one or more successive transactions (including any such
transaction that changes the amount available thereunder, replaces such
agreement or document, or provides for other agents or lenders).
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations Incurred in connection with the acquisition
of property, assets or businesses, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(including securities repurchase agreements but excluding trade accounts payable
or accrued liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith), (v) every Capital Lease
Obligation of such Person, (vi) all Receivables Sales of such Person, together
with any obligation of such Person to pay any discount, interest, fees,
indemnities, penalties, recourse, expenses or other amounts in connection
therewith, (vii) all Redeemable Stock issued by such Person, (viii) Preferred
Stock of Restricted Subsidiaries of such Person held by Persons other than such
Person or one of its Wholly Owned Restricted Subsidiaries, (ix) every obligation
under Interest Rate, Currency or Commodity Price Agreements of such Person and
(x) every obligation of the type referred to in clauses (i) through (ix) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has Guaranteed or is responsible or liable, directly or
indirectly, as obligor, Guarantor or otherwise. The "amount" or "principal
amount" of Debt at any time of determination as used herein represented by (a)
any Receivables Sale, shall be the amount of the unrecovered capital or
principal investment of the purchaser (other than the Company or a Wholly Owned
Restricted Subsidiary of the Company) thereof, excluding amounts representative
of yield or interest earned on such investment and (b) any Redeemable Stock,
shall be the maximum fixed redemption or repurchase price in respect thereof.
"Depositary" means, with respect to any Notes, a clearing agency that is
registered as such under the Exchange Act and is designated by the Company to
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19
act as Depositary for such Notes (or any successor securities clearing agency so
registered).
"Distribution" means the separation of the Parent Company into two
independent, publicly-traded companies by means of a pro rata tax-free
distribution of all of the outstanding common shares of New D&B to holders of
the common shares of the Parent Company.
"DonTech" means the partnership formed pursuant to the DonTech II
Partnership Agreement in which the Company and Ameritech Publishing of Illinois,
Inc. each have a 50% interest.
"DonTech II Partnership Agreement" means the agreement entered into as of
August 19, 1997 between the Company and Ameritech Publishing of Illinois Inc.
"DTC" means The Depository Trust Company, a New York corporation.
"Equity Offering" means a primary public or private offering of Common
Stock of the Company or (if the Parent Company owns all the outstanding Common
Stock of the Company) of the Parent Company pursuant to an effective
registration statement under the Securities Act or pursuant to an exemption to
the registration requirements of the Securities Act.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning specified in Section 5.01.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement, dated as of June 5, 1998, among the Company, the
Parent Company, ▇▇▇▇▇▇▇, Sachs & Co. and Chase Securities Inc., as
representatives of the Initial Purchasers, and the Holders from time to time as
provided therein, as such agreement may be amended from time to time.
"Exchange Offer" means an offer made by the Company pursuant to the
Exchange and Registration Rights Agreement under the effective registration
statement under the Securities Act to exchange securities substantially
identical to Outstanding Notes (except for the differences provided for herein)
for Outstanding Notes.
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20
"Exchange Registration Statement" means a registration statement of the
Company under the Securities Act registering Exchange Notes for distribution
pursuant to the Exchange Offer.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may be
amended and any successor act thereto.
"Exchange Notes" means the Notes issued pursuant to the Exchange Offer and
their Successor Notes.
"Global Note" means a Note that is registered in the Security Register in
the name of a Depositary or a nominee thereof.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person guaranteeing, or having the economic effect of guaranteeing, any
Debt of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, and including, without limitation, any obligation of such Person,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Debt, (ii) to purchase property, securities
or services for the purpose of assuring the holder of such Debt of the payment
of such Debt, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Debt (and "Guaranteed", "Guaranteeing"
and "Guarantor" shall have meanings correlative to the foregoing); provided,
however, that the Guarantee by any Person shall not include endorsements by such
Person for collection or deposit, in either case, in the ordinary course of
business.
"Guarantor Senior Debt" means (i) the principal of (and premium, if any)
and interest on Debt of the Guarantor for money borrowed, whether incurred on or
prior to the date of original issuance of the Notes or thereafter, and any
amendments, renewals, extensions, modifications, refinancings and refundings of
any such Debt and (ii) Permitted Interest Rate Agreements and Permitted Currency
Agreements entered into with respect to Debt described in clause (i) above;
provided, however, that the following shall not constitute Guarantor Senior
Debt: (1) any Debt as to which the terms of the instrument creating or
evidencing the same provide that such Debt is not superior in right of payment
to the applicable Senior Subordinated Guarantee, (2) any Debt which is
subordinated in right of payment in any respect to any other Debt of the
Company, (3) any Debt owed to a Person when such Person is a Subsidiary of the
Company, (4) that portion of any Debt which is Incurred in violation of the
Indenture and (5) Debt
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21
which, when Incurred and without respect to any election under Section 1111(b)
of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without recourse to such Guarantor.
"Guarantors" means the Parent Company and any future Restricted Subsidiary
of the Company.
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Incur" means, with respect to any Debt or other obligation of any Person,
to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring"
shall have meanings correlative to the foregoing); provided, however, that a
change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Initial Purchasers" means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and Chase Securities Inc.,
as purchasers of the Notes from the Company pursuant to the Note Purchase
Agreement.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Interest Rate, Currency or Commodity Price Agreement" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates, currency exchange rates or commodity prices or indices
(excluding contracts for the purchase or sale of goods in the ordinary course of
business).
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22
"Investment" by any Person means any direct or indirect loan, advance or
other extension of credit or capital contribution to (by means of transfers of
cash or other property to others or payments for property or services for the
account or use of others, or otherwise) to, or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by any other Person, including any payment on a Guarantee of any
obligation of such other Person.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Maturity", when used with respect to any Note, means the date on which
the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Moodys" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of Debt or other obligations relating to such properties or assets)
therefrom by such Person, net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred and all federal,
state, provincial, foreign and local taxes required to be accrued as a liability
as a consequence of such Asset Disposition, (ii) all payments made by such
Person or its Restricted Subsidiaries on any Debt which is secured by such
assets in accord ance with the terms of any Lien upon or with respect to such
assets or which must by the terms of such Lien, or in order to obtain a
necessary consent to such Asset Disposition or by applicable law, be repaid out
of the proceeds from such Asset Disposition, (iii) all distributions and other
payments made to minority interest holders in Restricted Subsidiaries of such
Person or joint ventures as a result of such Asset Disposition and (iv)
appropriate amounts to be provided by such Person or any Restricted Subsidiary
thereof, as the case may be, as a reserve in accordance with generally accepted
accounting principles against any liabilities associated with such assets and
retained by such Person or any Restricted
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Subsidiary thereof, as the case may be, after such Asset Disposition, including,
without limitation, liabilities under any indemnification obligations and
severance and other employee termination costs associated with such Asset
Disposition, in each case as determined by the Board of Directors, in its
reasonable good faith judgment evidenced by a resolution of the Board of
Directors filed with the Trustee; provided, however, that any reduction in such
reserve following the consummation of such Asset Disposition will be treated for
all purposes of the Indenture and the Notes as a new Asset Disposition at the
time of such reduction with Net Available Proceeds equal to the amount of such
reduction.
"New D&B" means The New Dun & Bradstreet Corporation.
"Note Purchase Agreement" means the Purchase Agreement, dated as of June
2, 1998, between the Company and the Initial Purchasers and Holdings, as such
agreement may be amended from time to time.
"Notes" means notes designated in the first paragraph of the RECITALS OF
THE COMPANY and includes the Exchange Notes.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Note Register on the date of the Offer offering to purchase up
to the principal amount of Notes specified in such Offer at the purchase price
specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Notes within five Business Days after the Expiration Date. The
Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain information concerning the
business of the Company and its Restricted Subsidiaries which the Company in
good faith believes will enable such Holders to make an informed decision with
respect to the Offer to Purchase (which at a minimum will include (i) the most
recent annual and quarterly financial statements and "Management's Discussion
and Analysis of Financial Condition and Results of Operations" contained in the
documents required to be filed with the Trustee pursuant to Section 10.17 (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
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clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the
Company to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein. The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to Purchase
is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes offered to be
purchased by the Company pursuant to the Offer to Purchase (including, if
less than 100%, the manner by which such has been determined pursuant to
the Section hereof requiring the Offer to Purchase) (the "Purchase
Amount");
(4) the purchase price to be paid by the Company for each $1,000 aggregate
principal amount of Notes accepted for payment (as specified pursuant to
this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Notes registered
in the name of such Holder and that any portion of a Note tendered must be
tendered in an integral multiple of $1,000 principal amount;
(6) the place or places where Notes are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not purchased
by the Company pursuant to the Offer to Purchase will continue to accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Note accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the Offer to
Purchase will be required to surrender such Note at the place or places
specified in the Offer prior to the close of business on the
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Expiration Date (such Note being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion of Notes
tendered if the Company (or their Paying Agent) receives, not later than
the close of business on the Expiration Date, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Note the Holder tendered, the certificate number of the Note the Holder
tendered and a statement that such Holder is withdrawing all or a portion
of his tender;
(11) that (a) if Notes in an aggregate principal amount less than or equal
to the Purchase Amount are duly tendered and not withdrawn pursuant to the
Offer to Purchase, the Company shall purchase all such Notes and (b) if
Notes in an aggregate principal amount in excess of the Purchase Amount
are tendered and not withdrawn pursuant to the Offer to Purchase, the
Company shall purchase Notes having an aggregate principal amount equal to
the Purchase Amount on a pro rata basis (with such adjustments as may be
deemed appropriate so that only Notes in denominations of $1,000 or
integral multiples thereof shall be purchased); and
(12) that in the case of any Holder whose Note is purchased only in part,
the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Note without service charge, a new Note or Notes, of
any authorized denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for the unpurchased portion of
the Note so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
the Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company or any
Guarantor, and delivered to the Trustee. Unless the context otherwise requires,
each reference herein to an "Officers' Certificate" shall mean an Officers'
Certificate of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
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"Original Notes" means all Notes other than Exchange Notes.
"Outstanding", when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the Trustee
for cancellation;
(ii) Notes 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 a Guarantor) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Notes; provided that, if such Notes 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) Notes which have been transferred pursuant to Section 3.06 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands
such Notes are valid obligations of the Company; and
(iv) Notes paid pursuant to Section 3.07;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of 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 Notes which a Responsible Officer of the Trustee actually knows to
be so owned shall be so disregarded. Notes 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
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
"Parent Company" means The Dun & Bradstreet Corporation (to be renamed as
the ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation) or any successor thereto.
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"Parent Company Senior Debt" means (i) the principal of (and premium, if
any) and interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Parent Company
whether or not such claim for post-petition interest is allowed in such
proceeding) on, and penalties and any obligation of the Parent Company for
reimbursement, indemnities and fees relating to, any Credit Facility and (ii)
the principal of (and premium, if any) and interest on Debt of the Parent
Company for money borrowed, whether incurred on or prior to the date of original
issuance of the Notes or thereafter, and any amendments, renewals, extensions,
modifications, refinancings and refundings of any such Debt and (iii) Permitted
Interest Rate, Currency or Commodity Price Agreements entered into with respect
to Debt described in clauses (i) and (ii) above; provided, however, that the
following shall not constitute Parent Company Senior Debt: (1) any Debt as to
which the terms of the instrument creating or evidencing the same provide that
such Debt is not superior in right of payment to the Parent Company Guarantee,
(2) any Debt which is subordinated in right of payment in any respect to any
other Debt of the Parent Company, (3) any Debt owed to a Person when such Person
is a Subsidiary of the Parent Company, (4) any obligation of the Parent Company
arising from Redeemable Stock of the Parent Company, and (5) Debt which, when
incurred and without respect to any election under Section 1111(b) of ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without recourse to the Parent Company.
"Parent Guarantee" means the unconditional guarantee, on a senior
subordinated basis, by the Parent Company of the due and punctual payment of
principal (premium, if any,) and interest on the Notes, as provided pursuant to
Article 12.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.
"Permitted Interest Rate, Currency or Commodity Price Agreement" of any
Person means any Interest Rate, Currency or Commodity Price Agreement entered
into with one or more financial institutions in the ordinary course of business
that is designed to protect such Person against fluctuations in interest rates
or currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby, or in the case of currency or commodity protection agreements,
against currency exchange rate or commodity price fluctuations in the ordinary
course of business relating to then existing financial obligations or then
existing or sold production and not for purposes of speculation.
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"Permitted Investments" means (i) an investment in the Company or a
Wholly-Owned Restricted Subsidiary of the Company; (ii) an Investment in a
Person, if such Person or a Subsidiary of such Person will, as a result of the
making of such Investment and all other contemporaneous related transactions,
become a Wholly-Owned Restricted Subsidiary of the Company or be merged or
consolidated with or into or transfer or convey all or substantially all its
assets to the Company or a Wholly-Owned Restricted Subsidiary of the Company;
(iii) a Temporary Cash Investment; (iv) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses in accordance with generally accepted accounting principles;
(v) stock, obligations or securities received in settlement of debts owing to
the Company or a Restricted Subsidiary of the Company as a result of bankruptcy
or insolvency proceedings or upon the foreclosure, perfection, enforcement or
agreement in lieu of foreclosure of any Lien in favor of the Company of a
Restricted Subsidiary of the Company; (vi) Investments in the Notes; (vii)
Investments in Permitted Interest Rate, Currency or Commodity Price Agreements
and (viii) Investments in an entity which is engaged in a principal business of
the Company and its Restricted Subsidiaries or a business related thereto not in
excess of $10 million.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock", of any Person, means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person, to shares of Capital
Stock of any other class of such Person.
"Receivables" means receivables, chattel paper, instruments, documents or
intangibles evidencing or relating to the right to payment of money.
"Receivables Sale" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto or
a
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disposition of defaulted Receivables for purposes of collection and not as a
financing arrangement.
"Redemption Date", when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Redeemable Stock" of any Person means any Capital Stock of such Person
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or otherwise (including upon the occurrence of
an event) matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise) or is convertible into or exchangeable for Debt or is
redeemable at the option of the holder thereof, in whole or in part, at any time
prior to the final Stated Maturity of the Notes; provided that "Redeemable
Stock" shall not include any Capital Stock that is payable at maturity, or upon
required redemption or redemption at the option of the holder thereof, or that
is automatically convertible or exchangeable, solely in or into Common Stock of
such Person.
"Refinance" means, in respect of any Debt, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to issue other Debt in
exchange or replacement for, such Debt. "Refinanced" and "Refinancing" shall
have correlative meanings.
"Refinancing Debt" means Debt that Refinances any Debt of the Company or
any Restricted Subsidiary existing on the date of original issuance of the Notes
or Incurred in compliance with the Indenture, including Debt that Refinances
Refinancing Debt; provided, however, that (i) such Refinancing Debt has a Stated
Maturity no earlier than the Stated Maturity of the Debt being Refinanced, (ii)
in the case of any refinancing of Debt which is pari passu to the Notes, such
Refinancing Debt is made pari passu to the Notes or subordinated to the Notes,
(iii) such Refinancing Debt constitutes Subordinated Debt in the case of any
refinancing of Debt which is subordinated to the Notes, (iv) such Refinancing
Debt does not permit redemption or other retirement (including pursuant to an
offer to purchase) of such Debt at the option of the holder thereof prior to the
Stated Maturity of the Debt being refinanced, other than a redemption or other
retirement at the option of the holder of such Debt which is conditioned upon
provisions substantially similar to those described under "--Change of Control"
and "--Limitation on Asset Dispositions"; (v) such Refinancing Debt has an
Average Life at the time such Refinancing Debt is Incurred that is equal to or
greater than the Average Life of the Debt being Refinanced and (vi) such
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Refinancing Debt has an aggregate principal amount (or if Incurred with original
issue discount, an aggregate issue price) that is equal to or less than the
aggregate principal amount (or if Incurred with original issue discount, the
aggregate accreted value) then outstanding or committed (plus accrued interest
and fees and expenses, including any premium and defeasance costs) under the
Debt being Refinanced; provided, however, that Refinancing Debt shall not
include (x) Debt of a Subsidiary that Refinances Debt of the Company or (y) Debt
of the Company or a Restricted Subsidiary that Refinances Debt of an
Unrestricted Subsidiary.
"Registration Default" means the occurrence of any of the following
events: (i) the Company has not filed the Exchange Registration Statement or
Shelf Registration Statement on or before the date on which such registration
statement is required to be filed pursuant to the Exchange and Registration
Rights Agreement, (ii) the Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by the Commission
on or before the date on which such registration statement is required to become
or be declared effective under the requirements of the Exchange and Registration
Rights Agreement or (iii) the Exchange Offer has not been completed within 60
days after the initial effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then required to be
made under the Exchange and Registration Rights Agreement) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required to be filed
pursuant the Exchange and Registration Rights Agreement is filed and declared
effective but shall thereafter either be withdrawn by the Company or shall
become subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted herein) without being succeeded immediately by
an additional registration statement filed and declared effective.
"Registration Default Period" means any period during which a Registration
Default has occurred and is continuing.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in the form
set forth in Annex A.
"Regulation S Global Note" has the meaning specified in Section 201.
"Regulation S Legend" means a legend substantially in the form of the
legend required in the form of Note set forth in Section 202 to be placed upon
Regulation S Notes.
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"Regulation S Notes" means all Notes required pursuant to Section 3.06(c)
to bear a Regulation S Legend.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the Outstanding Common Stock of such Person
(or in the case of a Person that is not a corporation, 5% or more of the equity
interest in such Person) or (b) 5% or more of the combined voting power of the
Voting Stock of such Person.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant vice president, any assistant secretary, any
assistant treasurer, any trust officer or assistant trust officer, 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 to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Period" means the period of 40 consecutive days beginning on
the later of (i) the day on which Notes are first offered to persons other than
distributors (as defined in Regulation S) in reliance on Regulation S and (ii)
the Closing Date.
"Restricted Notes" means all Notes required pursuant to Section 3.06(c) to
bear a Restricted Notes Legend. Such term includes the Restricted Global Notes.
"Restricted Notes Certificate" means a certificate substantially in for
form set forth in Annex B.
"Restricted Notes Legend" means a legend substantially in the form of the
legend required in the form of Note set forth in Section 202 to be placed upon a
Restricted Note.
"Restricted Subsidiary" means any Subsidiary, whether existing on or after
the date of this Indenture, unless such Subsidiary is an Unrestricted
Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
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"Rule 144A Notes" means the Notes purchased by the Initial Purchasers from
the Company pursuant to the Note Purchase Agreement, other than the Regulation S
Notes.
"S&P" means Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇,
Inc.
"Securities Act" means the Securities Act of 1933, as it may be amended
and any successor act thereto.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.06(a).
"Senior Debt" means (i) the principal of (and premium, if any) and
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) on, and
penalties and any obligation of the Company for reimbursement, indemnities and
fees relating to, any Credit Facility and (ii) the principal of (and premium, if
any) and interest on Debt of the Company for money borrowed, whether Incurred on
or prior to the date of original issuance of the Notes or thereafter, and any
amendments, renewals, extensions, modifications, refinancings and refundings of
any such Debt and (iii) Permitted Interest Rate Agreements, Currency or
Commodity Price Agreements entered into with respect to Debt described in
clauses (i) and (ii) above; provided, however, that the following shall not
constitute Senior Debt: (1) any Debt as to which the terms of the instrument
creating or evidencing the same provide that such Debt is not superior in right
of payment to the Notes, (2) any Debt which is subordinated in right of payment
in any respect to any other Debt of the Company, (3) Debt evidenced by the
Notes, (4) any Debt owed to a Person when such Person is a Subsidiary of the
Company, (5) any obligation of the Company arising from Redeemable Stock of the
Company, (6) that portion of any Debt which is Incurred in violation of the
Indenture and (7) Debt which, when Incurred and without respect to any election
under Section 1111(b) of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without recourse to
the Company.
"Senior Subordinated Guarantees" means the Parent Company Guarantee and
the Subsidiary Guarantees, if any.
"Shelf Registration Statement" means a shelf registration statement under
the Securities Act filed by the Company, if required by, and meeting the
requirements of, the Exchange and Registration Rights Agreement, registering
Original Notes for resale.
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"Special Interest Payments" has the meaning specified in the form of Notes
set forth in Section 202.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by Trustee pursuant to Section 3.08.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the final payment of principal of
such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subordinated Debt" means Debt of the Company as to which the payment of
principal of (and premium, if any) and interest and other payment obligations in
respect of such Debt shall be subordinate to the prior payment in full of the
Notes to at least the following extent: (i) no payments of principal of (or
premium, if any) or interest on or otherwise due in respect of such Debt may be
permitted for so long as any default in the payment of principal (or premium, if
any) or interest on the Notes exists; (ii) in the event that any other default
that with the passing of time or the giving of notice, or both, would constitute
an event of default exists with respect to the Notes, upon notice by 25% or more
in principal amount of the Notes to the Trustee, the Trustee shall have the
right to give notice to the Company and the holders of such Debt (or trustees or
agents therefor) of a payment blockage, and thereafter no payments of principal
of (or premium, if any) or interest on or otherwise due in respect of such Debt
may be made for a period of 179 days from the date of such notice; and (iii)
such Debt may not (x) provide for payments of principal of such Debt at the
stated maturity thereof or by way of a sinking fund applicable thereto or by way
of any mandatory redemption, defeasance, retirement or repurchase thereof by the
Company (including any redemption, retirement or repurchase which is contingent
upon events or circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon an event of default thereunder), in each case
prior to the final Stated Maturity of the Notes or (y) permit redemption or
other retirement (including pursuant to an offer to purchase made by the
Company) of such other Debt at the option of the holder thereof prior to the
final Stated Maturity of the Notes, other than a redemption or other retirement
at the option of the holder of such Debt (including pursuant to an offer to
purchase made by the Company) which is conditioned upon a change of control of
the Company pursuant to provisions substantially similar to those contained in
Section 10.16 hereof (and which shall provide that such Debt will not be
repurchased pursuant to such provisions prior to the Company's repurchase of the
Notes required to be
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repurchased by the Company pursuant to the provisions described under Section
10.16).
"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof or (ii) any
other Person (other than a corporation) in which such Person, or one or more
other Subsidiaries of such Person or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has at least a majority ownership
and power to direct the policies, management and affairs thereof.
"Subsidiary Guarantees" means the unconditional guarantees on a senior
subordinated basis by the respective Subsidiary Guarantors of the due and
punctual payment of principal, premium, if any, and interest on the Notes as
provided pursuant to Article 12.
"Subsidiary Guarantors", as of any time, each and all of the Restricted
Subsidiaries at such time.
"Successor Note" of any particular Note means every Note issued after, and
evidencing all or a portion of the same debt as that evidenced by, such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 3.07 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Note.
"Temporary Cash Investments" means any Investment in the following kinds
of instruments: (A) readily marketable obligations issued or unconditionally
guaranteed as to principal and interest by the United States of America or by
any agency or authority controlled or supervised by and acting as an
instrumentality of the United States of America if, on the date of purchase or
other acquisition of any such instrument by the Company or any Restricted
Subsidiary of the Company, the remaining term to maturity or interest rate
adjustment is not more than two years; (B) obligations (including, but not
limited to, demand or time deposits, bankers' acceptances and certificates of
deposit) issued or guaranteed by a depository institution or trust company
incorporated under the laws of the United States of America, any state thereof
or the District of Columbia, provided that (1) such instrument has a final
maturity not more than one year from the date of purchase thereof by the Company
or any Restricted Subsidiary of the Company and (2) such depository institution
or trust company has at the time of the Company's or such Restricted
Subsidiary's Investment therein or contractual commitment providing for such
Investment, (x) capital,
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surplus and undivided profits (as of the date such institution's most recently
published financial statements) in excess of $100 million and (y) the long-term
unsecured debt obligations (other than such obligations rated on the basis of
the credit of a Person other than such institution) of such institution, at the
time of the Company's or such Restricted Subsidiary's Investment therein or
contractual commitment providing for such Investment, are rated in the highest
rating category of both S&P and Moodys; (C) commercial paper issued by any
corporation, if such commercial paper has, at the time of the Company's or any
Restricted Subsidiary's Investment therein or contractual commitment providing
for such Investment credit ratings of at least A-1 by S&P and P-1 by Moody's;
(D) money market mutual or similar funds having assets in excess of $100
million; (E) readily marketable debt obligations issued by any corporation, if
at the time of the Company's or Restricted Subsidiary's Investment therein or
contractual commitment providing for such Investment (1) the remaining term to
maturity is not more than two years and (2) such debt obligations are rated in
one of the two highest rating categories of both S&P and Moody's; (F) demand or
time deposit accounts used in the ordinary course of business with commercial
banks the balances in which are at all times fully insured as to principal and
interest by the Federal Deposit Insurance Corporation or any successor thereto;
and (G) to the extent not otherwise included herein, Cash Equivalents. In the
event that either S&P or Moody's ceases to publish ratings of the type provided
herein, a replacement rating agency shall be selected by the Company, and in
each case the rating of such replacement rating agency most nearly equivalent to
the corresponding S&P or ▇▇▇▇▇'▇ rating, as the case may be, shall be used for
purposes hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
9.05; provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"U.S. Person" means (i) any individual resident in the United States, (ii)
any partnership or corporation organized or incorporated under the laws of the
United States, (iii) any estate of which an executor or administrator is a U.S.
Person (other than an estate governed by foreign law and of which at least one
executor or administrator is a non-U.S. Person who has sole or shared investment
discretion with respect to its assets), (iv) any trust of which any trustee is a
U.S.
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Person (other than a trust of which at least one trustee is a non-U.S. Person
who has sole or shared investment discretion with respect to its assets and no
beneficiary of the trust (and no settlor if the Trust is revocable) is a U.S.
Person), (v) any agency or branch of a foreign entity located in the United
States, (vi) any non-discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a U.S.
Person, (vii) any discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States (other than such an account held for
the benefit or account of a non-U.S. Person), (viii) any partnership or
corporation organized or incorporated under the laws of a foreign jurisdiction
and formed by a U.S. Person principally for the purpose of investing in
securities not registered under the Securities Act (unless it is organized or
incorporated, and owned, by accredited investors within the meaning of Rule
501(a) under the Securities Act who are not natural persons, estates or trusts);
provided, however, that the term "U.S. Person" does not include (A) a branch or
agency of a U.S. Person that is located and operating outside the United States
for valid business purposes as a locally regulated branch or agency engaged in
the banking or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 9.02(o)(7) of Regulation S under the Securities Act and any other
similar international organizations, and their agencies, affiliates and pension
plans.
"Vice President", when used with respect to the Company, any Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 1.02. Compliance Certification 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 shall furnish to the Trustee such
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certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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 necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such 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 may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representa tions by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the
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exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Date. (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 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
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)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 7.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on
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such date (or their duly designated proxies) shall be entitled to give or take,
or vote on, the relevant action.
(d) The ownership of Notes shall be proved by the Note Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Note shall bind every future Holder of the
same Note and the Holder of every Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.
SECTION 1.05. Notices, Etc., to Trustee, Company and 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,
(1) 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 its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
(2) the Company or any Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument 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 herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date (if any), and
not earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
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In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act, that
is required under such Act to be part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be. Until such time as this Indenture shall
be qualified under the Trust Indenture Act, this Indenture, the Company, the
Guarantors and the Trustee shall be deemed for all purposes hereof to be subject
to and governed by the Trust Indenture Act to the same extent as would be the
case if this Indenture were so qualified on the date hereof.
SECTION 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 or any Guarantor shall bind its successors and assigns,
whether so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this Indenture
or in the Notes or the Senior Subordinated Guarantees 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
Notes or the Senior Subordinated Guarantees, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder, the
holders of Senior Debt (subject to Article 12 hereof) and the Holders of Notes,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.12. Governing Law. This Indenture and the Notes and the Senior
Subordinated Guarantees shall be governed by and construed in accordance with
the laws of the State of New York without regard to the conflicts of laws
principles thereof.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Purchase Date or Stated Maturity of any Note shall not
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be a Business Day, then (notwithstanding any other provision of this Indenture
or of the Notes or any Senior Subordinated Guarantee) payment of interest or
principal (and premium, if any) 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, or Purchase Date, or at the Stated Maturity, as the
case may be, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Purchase Date or Stated
Maturity, as the case may be.
ARTICLE 2
NOTE AND SENIOR SUBORDINATED GUARANTEE FORMS
SECTION 2.01. Forms Generally; Initial Forms of Rule 144A and Regulation S
Notes. The Notes, the Senior Subordinated Guarantees and the Trustee's
certificates of authentication shall be in substantially the forms set forth in
this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Notes or Senior Subordinated Guarantees, as evidenced by
their execution of the Notes.
The definitive Notes and Senior Subordinated Guarantees to be endorsed
thereon shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any
other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the officers executing such Notes or
Senior Subordinated Guarantees, as evidenced by their execution thereof.
Upon their original issuance, Rule 144A Notes shall be issued in the form
of one or more Global Notes without interest coupons registered in the name of
DTC, as Depositary, or its nominee and deposited with the Trustee, as custodian
for DTC, in New York, New York, for credit by DTC to the respective accounts of
beneficial owners of the Notes represented thereby (or such other accounts as
they may direct). Such Global Notes, together with their Successor Notes which
are Global Notes other than the Regulation S Global Note are collectively herein
called the "Restricted Global Note".
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Upon their original issuance, Regulation S Notes (herein called the
"Regulation S Temporary Global Note") shall be issued in the form of a single
temporary Global Note without coupons registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee at its Corporate Trust
Office, as custodian for DTC, for credit to ▇▇▇▇▇▇ Guaranty Trust Company of New
York, Brussels Office, as operator of the Euroclear, and Cedel to the respective
accounts of beneficial owners of the Notes represented thereby (or such other
accounts as they may direct) in accordance with the rules thereof.
Beneficial interests in the Regulation S Temporary Global Note may only be
held through Euroclear and Cedel until such interests are exchanged for
corresponding interests in an unrestricted Global Note as provided in the next
sentence. A holder of a beneficial interest in the Regulation S Temporary Global
Note must provide written certification to Euroclear or CEDEL, as the case may
be, that the beneficial owner of the interest in such Global Note is not a U.S.
Person (an "Owner Securities Certification"), and Euroclear or CEDEL, as the
case may be, must provide to the Trustee a similar certificate in the form set
form in Annex C (a "Depositary Securities Certification"), prior to (i) the
payment of interest with respect to such holder's beneficial interest in the
Regulation S Temporary Global Note and (ii) any exchange of such beneficial
interest for a beneficial interest in the Regulation S Global Note.
SECTION 2.02. Form of Face of Note. [If the Note is a Restricted Note,
then insert -- THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY THE INITIAL
INVESTOR (1) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND
(B) BY SUBSEQUENT INVESTORS, AS SET FORTH IN (A) ABOVE, IN ADDITION, TO
INSTITUTIONAL ACCREDITED INVESTORS IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL OTHER
APPLICABLE SECURITIES LAWS.
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THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN THE ABOVE PARAGRAPH.
THIS NOTE WILL NOT BE ACCEPTED FOR REGISTRATION OF TRANSFER UNLESS THE
REGISTRAR OR TRANSFER AGENT IS SATISFIED THAT THE RESTRICTIONS ON TRANSFER SET
FORTH ABOVE HAVE BEEN COMPLIED WITH, ALL AS PROVIDED IN THE INDENTURE.]
[If the Note is a Global Note, then insert -- THIS NOTE IS A GLOBAL NOTE
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY
OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]
[If the Note is a Global Note and The Depository Trust Company is to be
the Depositary therefor, then insert -- UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE 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.]
[If the Note is a Regulation S Note, then insert -- THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 , AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS THIS NOTE IS
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REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF IS AVAILABLE.]
[If the Note is a Regulation S Temporary Global Note, then insert -- THIS
NOTE IS A REGULATION S TEMPORARY GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
REFERRED TO HEREINAFTER. INTERESTS IN THIS REGULATION S TEMPORARY GLOBAL NOTE
MAY NOT BE OFFERED OR SOLD TO A U.S. PERSON PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD (AS DEFINED IN THE INDENTURE) EXCEPT IN CERTAIN LIMITED
CIRCUMSTANCES IN ACCORDANCE WITH THE TERMS OF THE INDENTURE.]
▇.▇. ▇▇▇▇▇▇▇▇▇ INC.
9 1/8% SENIOR SUBORDINATED NOTES DUE 2008
GUARANTEED AS TO PAYMENT OF PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST BY THE DUN &
BRADSTREET CORPORATION
[If Restricted Global Note - CUSIP No. ▇▇▇▇▇▇▇▇▇]
[If Regulation S Temporary Global Note - CUSIP No. [▇▇▇▇▇▇▇▇▇]
[If Regulation S Global Note - ISIN No. [USU76226AA41]
No. __________ $__________
▇.▇. ▇▇▇▇▇▇▇▇▇ Inc., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ________________, or registered assigns, the principal sum of
______________ Dollars (such amount the "principal amount" of this Note) [if the
Note is a Global Note, then insert -- , or such other principal amount (which,
when taken together with the principal amounts of all other Outstanding Notes,
shall not exceed $150,000,000 in the aggregate at any time) as may be set forth
in the records of the Trustee hereinafter referred to in accordance with the
Indenture,] on June 1, 2008 and to pay interest thereon from June 5, 1998, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on June 1 and December 1 in each year,
commencing December 1, 1998, at the rate of 9 1/8% per annum, until the
principal hereof is paid or made available for payment; provided that, if any
Registration Default occurs under the Exchange and Registration Rights
Agreement, then the per annum interest rate on the Notes will increase for the
period from the occurrence of the Registration Default until such time as no
Registration Default is in effect (at which time the interest rate will be
reduced to its initial rate) at a
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45
per annum rate of 0.25% for the first 90-day period following the occurrence of
such Registration Default, and by an additional 0.25% during each subsequent 90-
day period thereafter (up to a maximum of 1.0%), and provided, further, that any
amount of interest on this Note which is overdue shall bear interest (to the
extent that payment thereof shall be legally enforceable) at the rate per annum
then borne by this Note from the date such amount is due to the day it is paid
or made available for payment, and such overdue interest shall be payable on
demand.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the April 15 or November 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date [if the Note is an Original Note, then
insert --, provided that any accrued and unpaid interest (including Special
Interest Payments) on this Note upon the issuance of an Exchange Note in
exchange for this Note shall cease to be payable to the Holder hereof and shall
be payable on the next Interest Payment Date for such Exchange Note to the
Holder thereof on the related Regular Record Date]. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on the relevant Regular Record Date and may either be paid to the Person
in whose name this Note (or one or more Predecessor Notes) 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 whereof shall be given to Holders of
Notes not less than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Interest on this Note shall be computed on the basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and any such interest on
this Note will be made at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, maintained for such purpose and at
any other office or agency maintained by the Company 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 at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register; provided further that all payments of the principal (and premium, if
any) and interest on Notes, the Holders of which have given wire transfer
instructions to the Company or its agent at least 10 Business Days prior to the
applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by such Holders in such
instructions.
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Notwithstanding the foregoing, the final payment of principal shall be payable
only upon surrender of this Note to the Paying Agent.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
▇.▇. ▇▇▇▇▇▇▇▇▇ INC.
[SEAL]
By:
----------------------------
Attest:
--------------------------------
SECTION 2.03. Form of Reverse of Note. This Note is one of a duly
authorized issue of Notes of the Company designated as its 9 1/8% Senior
Subordinated Notes due June 1, 2008 (herein called the "Notes"), limited in
aggregate principal amount to $150,000,000, issued and to be issued under an
Indenture, dated as of June 5, 1998 (herein called the "Indenture", which term
shall have the meaning assigned to it in such instrument), among the Company,
the Guarantors named therein and The Bank of New York, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantors, the Trustee and the
Holders of the Notes and of the terms upon which the Notes with the Senior
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Subordinated Guarantees endorsed thereon, are, and are to be, authenticated and
delivered.
The Notes will be subject to redemption, at the option of the Company, in
whole or in part, at any time on or after June 1, 2003 and prior to maturity,
upon not less than 30 nor more than 60 days' notice mailed to each Holder of
Notes to be redeemed at such Holder's address appearing in the Note Register, in
amounts of $1,000 or an integral multiple of $1,000, at the following Redemption
Prices (expressed as percentages of the principal amount) plus accrued interest
to but excluding the Redemption Date (subject to the right of Holders of record
on the relevant Regular Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date), if redeemed during the
12-month period beginning June 1 of the years indicated:
Redemption
Year Price
---- -----
2003....................................... 104.563%
2004....................................... 103.042%
2005....................................... 101.521%
2006 and thereafter........................
In addition, at any time prior to June 1, 2001 in the event the Parent
Company or the Company receives net cash proceeds from the sale of its Common
Stock or the Common Stock of the Parent Company in one or more Equity Offerings,
the Company (to the extent it receives such proceeds and has not used such
proceeds directly or indirectly, to redeem or repurchase other securities
pursuant to optional redemption provisions) may, at its option, use all or a
portion of any such net proceeds to redeem Notes in an aggregate principal
amount of up to 35% of the original aggregate principal amount of the Notes,
provided, however, that Notes having a principal amount equal to at least 65% of
the original aggregate principal amount of the Notes remain outstanding after
such redemption. Such redemption must occur on a Redemption Date within 120 days
of such sale and upon not less than 30 nor more than 60 days' notice mailed to
each Holder of Notes to be redeemed at such Holder's address appearing in the
Note Register, in amounts of $1,000 or an integral multiple of $1,000, at a
redemption price of 109.125% of the principal amount of the Notes plus accrued
interest to but excluding the Redemption Date (subject to the right of Holders
of record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
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48
If less than all the Notes are to be redeemed, the Trustee shall select,
in such manner as it shall deem fair and appropriate, the particular Notes to be
redeemed or any portion thereof that is an integral multiple of $1,000.
The Notes do not have the benefit of any sinking fund obligations.
The Indenture provides that, subject to certain conditions, if (i) certain
Net Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control occurs, the Company shall be required
to make an Offer to Purchase for all or a specified portion of the Notes.
In the event of redemption or purchase pursuant to an Offer to Purchase of
this Note in part only, a new Note or Notes of like tenor for the unredeemed or
unpurchased portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of all
the Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Note having been paid or discharged or (ii) certain
restrictive covenants and Events of Default with respect to this Note having
occurred, in each case upon compliance with certain conditions set forth
therein.
As provided in the Indenture and subject to certain limitations therein
set forth, the obligations of the Company under the Indenture and this Note are
unconditionally guaranteed, jointly and severally on a senior subordinated
basis, pursuant to Senior Subordinated Guarantees endorsed hereon as provided in
the Indenture. Each Holder, by holding this Note, agrees to all of the terms and
provisions of said Senior Subordinated Guarantees. The Indenture provides that a
Guarantor shall be released from its Senior Subordinated Guarantee upon
compliance with certain conditions.
The Notes and the Senior Subordinated Guarantees shall be subordinated in
right of payment to Senior Debt of the Company and the Guarantors, respectively,
as provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantors and the rights of the Holders of the Notes under the
Indenture at any time by the Company, the Guarantor and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the Notes
at
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the time Outstanding. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note 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 Note.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in aggregate principal amount of the
Notes at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and the Trustee shall not have received from
the Holders of a majority in aggregate principal amount of Notes at the time
Outstanding a direction inconsistent with such request and shall have failed to
institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to certain suits described
in the Indenture, including any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium (if any) or
interest hereon on or after the respective due dates expressed herein (or, in
the case of redemption, on or after the Redemption Date or, in the case of any
purchase of this Note required to be made pursuant to an Offer to Purchase, on
the Purchase Date).
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in the Borough of Manhattan, The City of New York, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes, of
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50
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 principal amount and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes are exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Guarantors, the Trustee and any agent of the Company, the
Guarantors or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes (subject to the provisions
hereof with respect to determination of the Person to whom interest is payable),
whether or not this Note be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
Interest on this Note shall be computed on the basis of a 360-day year of
twelve 30-month days.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
The Indenture, this Note and the Senior Subordinated Guarantees shall be
governed by and construed in accordance with the laws of the State of New York
without regard to the conflicts of laws principles thereof.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its entirety by the
Company pursuant to Section 10.14 or 10.16 of the Indenture, check the box:
|_|
If you want to elect to have only a part of this Note purchased by the
Company pursuant to Section 10.14 or 10.16 of the Indenture, state the principal
amount of this Note you want to elect to have so purchased by the Company:
$______________
Dated: Your Signature:
-------------- -----------------------------------------
(Sign exactly as name
appears on the other side of
this Note)
Signature Guarantee:
--------------------------------------------------------
Notice: Signature(s) must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in STAMP or such other "signature
guarantee program" as may be determined by the Trustee
in addition to, or in substitution for STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
SECTION 2.04. Form of Trustee's Certificate of Authentication. This is one
of the Notes with the Senior Subordinated Guarantees referred to in the
within-mentioned Indenture.
--------------------------------
as Trustee
By:
----------------------------
Authorized Signatory
Dated:
----------------
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SECTION 2.05. Form of Senior Subordinated Guarantee.
SENIOR SUBORDINATED GUARANTEE
For value received, each of the Guarantors named (or deemed herein to be
named) below hereby jointly and severally unconditionally guarantees, on a
senior subordinated basis to the Holder of the Note upon which this Senior
Subordinated Guarantee is endorsed, and to the Trustee on behalf of such Holder,
the due and punctual payment of the principal of (and premium, if any) and
interest on such Note when and as the same shall become due and payable, whether
at the Stated Maturity, by acceleration, call for redemption, purchase or
otherwise, according to the terms thereof and of the Indenture referred to
therein. In case of the failure of the Company punctually to make any such
payment, each of the Guarantors hereby jointly and severally agrees to cause
such payment to be made punctually when and as the same shall become due and
payable, whether at the Stated Maturity or by acceleration, call for redemption,
purchase or otherwise, and as if such payment were made by the Company.
The Senior Subordinated Guarantee of each Guarantor shall be subordinated
in right of payment to the Senior Debt of such Guarantor as provided in the
Indenture.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of such Note or the Indenture, the absence of any
action to enforce the same, any creation, exchange, release or non-perfection of
any Lien on any collateral for, or any release or amendment or waiver of any
term of any other Guarantee of, or any consent to departure from any requirement
of any other Guarantee of, all or of any of the Securities, the election by the
Trustee or any of the Holders in any proceeding under Chapter 11 of the
Bankruptcy Code of the application of Section 1111(b)(2) of the Bankruptcy Code,
any borrowing or grant of a security interest by the Company, as
debtor-in-possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the Notes,
any waiver or consent by the Holder of such Note or by the Trustee or either of
them with respect to any provisions thereof or of the Indenture, the obtaining
of any judgment against the Company or any action to enforce the same or any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each of the Guarantors hereby waives the
benefits of diligence, presentment, demand of payment, any requirement that the
Trustee or any of the Holders protect, secure, perfect or insure any security
interest in or other Lien on any property subject thereto or exhaust any right
or take any action against the Company or any other
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Person or any collateral, 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 or notice with respect to such Note or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Senior Subordinated Guarantee will not be discharged except by complete
performance of the obligations contained in such Note and in this Senior
Subordinated Guarantee. Each of the Guarantors hereby agrees that, in the event
of a default in payment of principal (or premium, if any) or interest on such
Note, whether at their Stated Maturity, by acceleration, call for redemption,
purchase or otherwise, legal proceedings may be instituted by the Trustee on
behalf of, or by, the Holder of such Note, subject to the terms and conditions
set forth in the Indenture, directly against each of the Guarantors to enforce
this Senior Subordinated Guarantee without first proceeding against the Company.
Each Guarantor agrees that if, after the occurrence and during the continuance
of an Event of Default, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to accelerate the
maturity of the Notes, to collect interest on the Notes, or to enforce or
exercise any other right or remedy with respect to the Notes, such Guarantor
agrees to pay to the Trustee for the account of the Holders, upon demand
therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Trustee or any of the
Holders.
No reference herein to the Indenture and no provision of this Senior
Subordinated Guarantee or of the Indenture shall alter or impair the Senior
Subordinated Guarantee of any Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal (and premium, if any) and interest
on the Note upon which this Senior Subordinated Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the Holder of such
Note against the Company in respect of any amounts paid by such Guarantor on
account of such Note pursuant to the provisions of its Senior Subordinated
Guarantee or the Indenture; provided, however, that such Guarantor shall not be
entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of (and premium, if any) and
interest on this Note and all other Notes issued under the Indenture shall have
been paid in full.
This Senior Subordinated Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company for liquidation or reorganization, should the Company become insolvent
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the Company's assets,
and shall, to the fullest extent permitted by law, continue to be effective or
be
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reinstated, as the case may be, if at any time payment and performance of the
Notes are, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Notes, whether as a
"voidable preference," "fraudulent transfer" or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Notes shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
The Guarantor shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Senior Subordinated Guarantee.
The Guarantors or any particular Guarantor shall be released from this
Senior Subordinated Guarantee upon the terms and subject to certain conditions
provided in the Indenture.
By delivery of a supplemental indenture to the Trustee in accordance with
the terms of the Indenture, each Person that becomes a Subsidiary Guarantor
after the date of the Indenture will be deemed to have executed and delivered
this Subsidiary Guarantee for the benefit of the Holder of the Note upon which
this Subsidiary Guarantee is endorsed, with the same effect as if such
Subsidiary Guarantor was named below and had executed and delivered this
Subsidiary Guarantee.
All terms used in this Senior Subordinated Guarantee which are defined in
the Indenture referred to in the Note upon which this Senior Subordinated
Guarantee is endorsed shall have the meanings assigned to them in such
Indenture.
This Senior Subordinated Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which this
Senior Subordinated Guarantee is endorsed shall have been executed by the
Trustee under the Indenture by manual signature.
Reference is made to Article 13 of the Indenture for further provisions
with respect to this Senior Subordinated Guarantee.
THIS SENIOR SUBORDINATED GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the Guarantors has caused this Senior
Subordinated Guarantee to be duly executed.
The Dun & Bradstreet Corporation,
As Guarantor
By:
----------------------------------
[Officer]
Attest:
------------------------------
[Secretary]
[Assistant Secretary]
ARTICLE 3
THE NOTES
SECTION 3.01. Title and Terms. The aggregate principal amount of Notes
which may be authenticated and delivered under this Indenture is limited to
$150,000,000 except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section
3.04, 3.05, 3.05, 9.06 or 11.08 or in connection with an Offer to Purchase
pursuant to Sections 10.14 and 10.16.
The Notes shall be known and designated as the "___% Senior Subordinated
Notes due 2008" of the Company. Their Stated Maturity shall be _________, 2008
and they shall bear interest at the rate of ___% per annum, from _________, 1998
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semi-annually on _____________
and __________, commencing _______________, 1998, until the principal thereof is
paid or made available for payment provided, if any Registration Default occurs
under the Exchange and Registration Rights Agreement, then the per annum
interest rate on the applicable will increase for the period from the occurrence
of the Registration Default Period until such time as no Registration Default is
in effect (at which time the interest rate will be reduced
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to its initial rate) by a per annum rate of 0.25% for the first 90-day period
following the occurrence of such Registration Default, and by an additional
0.25% during each subsequent 90-day period thereafter (up to a maximum of 1.0%).
The principal of (and premium, if any) and interest on the Notes shall be
payable at the office or agency of the Company in the Borough of Manhattan, The
City of New York maintained for such purpose and at any other office or agency
maintained by the Company for such purpose; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register.
The Notes shall be subject to repurchase by the Company pursuant to an
Offer to Purchase as provided in Sections 10.14 and 10.16.
The Notes shall be redeemable as provided in Article 11.
The Notes shall be Guaranteed by the Guarantors as provided in Article 12.
The Notes and the Senior Subordinated Guarantees shall be subordinated in
right of payment to Senior Debt of the Company and each of the Guarantors
respectively, as provided in Article 13.
The Notes shall be subject to defeasance at the option of the Company as
provided in Article 14.
Unless the context otherwise requires, the Original Notes and the Exchange
Notes shall constitute one series for all purposes under the Indenture,
including with respect to any amendment, waiver, acceleration or other Act of
Holders, redemption or Offer to Purchase.
SECTION 3.02. Denominations. The Notes shall be issuable only in regis
tered form without coupons and only in denominations of $1000 and integral
multiples thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The Notes
shall be executed on behalf of the Company by its Chairman of the Board, its
President or one of its Vice Presidents, thereon attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on the
Notes may be manual or facsimile.
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Notes bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company, notwith
standing that such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Notes or did not hold such
offices at the date of such Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company and having
endorsed (by attachment or imprint) thereon the Senior Subordinated Guarantees
executed as provided in Article 12 by the Guarantors to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Notes with such Senior Subordinated Guarantees endorsed
thereon; and the Trustee in accordance with such Company Order shall
authenticate and make available for delivery such Notes with such Senior
Subordinated Guarantees endorsed thereon as in this Indenture provided and not
otherwise.
At any time and from time to time after the execution and delivery of this
Indenture and after the effectiveness of a registration statement under the
Securities Act with respect thereto, the Company may deliver Exchange Notes
executed by the Company, and having endorsed thereon the Senior Subordinated
Guarantees executed under Article 12 by the Guarantors, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Exchange Notes and a like principal amount of Original Notes
for cancellation in accordance with Section Twelve of this Indenture, and the
Trustee in accordance with the Company Order shall authenticate and make
available for delivery such Notes, with the Senior Subordinated Guarantees
endorsed thereon. Prior to authenticating such Exchange Notes, and accepting any
additional responsibilities under this Indenture in relation to such Notes, the
Trustee shall be entitled to receive, if requested, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating in
substance.
(a) that all conditions hereunder precedent to the authentication and
delivery of such Exchange Notes with the Senior Subordinated Guarantees of the
Guarantors endorsed thereon have been complied with and that such Exchange Notes
and the Senior Subordinated Guarantees of the Guarantors endorsed thereon, when
such Notes have been duly authenticated and delivered by the Trustee (and
subject to any other conditions specified in such Opinion of Counsel), have been
duly issued and delivered and will constitute valid and legally binding
obligations of the Company and the Guarantors, respectively, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
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(b) that the issuance of the Exchange Notes in exchange for Original Notes
has been effected in compliance with the Securities Act.
Each Note shall be dated the date of its authentication.
No Note or Senior Subordinated Guarantee endorsed thereon shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Note a certificate of authentication
substan tially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder and that each Senior Subordinated Guarantee endorsed thereon has been
duly endorsed thereon and delivered hereunder.
SECTION 3.04. Temporary Notes. Pending the preparation of definitive Notes
and Senior Subordinated Guarantees, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Notes with temporary
Senior Subordinated Guarantees endorsed thereon, which Notes and Senior
Subordinated Guarantees are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, sub stantially of the tenor
of the definitive Notes and Senior Subordinated Guarantees, respectively, in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes and
Senior Subordinated Guarantees may determine, as evidenced by their execution
thereof.If temporary Notes are issued, the Company will cause definitive Notes
and Senior Subordinated Guarantees to be prepared without unreasonable delay.
After the preparation of definitive Notes and Senior Subordinated Guarantees,
the temporary Notes shall be exchangeable for definitive Notes with definitive
Senior Subordinated Guarantees endorsed thereon, upon surrender of the temporary
Notes at any office or agency of the Company designated pursuant to Section
10.02, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Notes the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Notes of authorized denominations having endorsed
thereon definitive Senior Subordinated Guarantees executed by the Guarantors.
Until so exchanged the temporary Notes and Senior Subordinated Guarantees shall
in all respects be entitled to the same benefits under this Indenture as
definitive Notes and Senior Subordinated Guarantees, respectively.
SECTION 3.05. Global Notes. (a) Each Global Note authenticated under this
Indenture shall be registered in the name of the Depositary designated by the
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Company for such Global Note or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global Note
shall constitute a single Note for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global Note
may be exchanged in whole or in part for Notes registered, and no transfer of a
Global Note in whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Note or a nominee thereof unless (i)
such Depositary (A) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Note or (B) has ceased to be a clearing
agency registered as such under the Exchange Act, and in either case the Company
fails to appoint a successor Depositary, (ii) the Company executes and delivers
to the Trustee a Company Order stating that it elects to cause the issuance of
the Notes in certificated form and that all Global Notes shall be exchanged in
whole for Securities that are not Global Notes (in which case such exchange
shall be effected by the Trustee) or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Note.
(c) If any Global Note is to be exchanged for other Notes or cancelled in
whole, it shall be surrendered by or on behalf of the Depositary or its nominee
to the Trustee, as Security Registrar, for exchange or cancellation as provided
in this Article 3. If any Global Note is to be exchanged for other Notes or
cancelled in part, or if another Note is to be exchanged in whole or in part for
a beneficial interest in any Global Note, then either (i) such Global Note shall
be so surrendered for exchange or cancellation as provided in this Article 3 or
(ii) the principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or cancelled, or equal to the
principal amount of such other Note to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Trustee, as Security Registrar, whereupon the Trustee, in
accordance with the Applicable Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Note, the Trustee shall,
subject to Section 3.06(c) and as otherwise provided in this Article 3,
authenticate and deliver any Notes issuable in exchange for such Global Note (or
any portion thereof) to or upon the order of, and registered in such names as
may be directed by, the Depositary or its authorized representative. Upon the
request of the Trustee in connection with the occurrence of any of the events
specified in the preceding paragraph, the Company shall promptly make available
to the Trustee a rea sonable supply of Notes that are not in the form of Global
Notes. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article 3 if
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such order, direction or request is given or made in accordance with the
Applicable Procedures.
(d) Every Note authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Note or any portion thereof,
whether pursuant to this Article 3 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Note, unless such Note is
registered in the name of a Person other than the Depositary for such Global
Note or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global Note,
shall be the Holder of such Global Note for all purposes under the Indenture,
the Notes and the Senior Subordinated Guarantees, and owners of beneficial
interests in a Global Note shall hold such interests pursuant to the Applicable
Procedures. Accordingly, any such owner's beneficial interest in a Global Note
will be shown only on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee or its Agent
Members.
SECTION 3.06. Registration, Registration of Transfer and Exchange;
Securities Act Legends. (a) Registration, Registration of Transfer and Exchange
Generally. 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 of the Company designated pursuant to Section 10.02 being
herein sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers and exchanges of Notes.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Notes and transfers and exchanges of Notes as herein provided. Such
Security Register shall distinguish between Original Notes and Exchange Notes.
Upon surrender for registration of transfer of any Note at an office or
agency of the Company designated pursuant to Section 10.02 for such purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of any
authorized denominations, of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture, each such new Note
having endorsed thereon the Senior Subordinated Guarantee executed by each
Guarantor.
At the option of the Holder, and subject to the other provisions of this
Section 3.06, Notes may be exchanged for other Notes of any authorized
denominations, of a like aggregate principal amount and bearing such restrictive
legends as may be required by this Indenture, each such new Note having endorsed
thereon the Senior Subordinated Guarantee executed by each Guarantor,
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upon surrender of the Notes to be exchanged at any such office or agency.
Whenever any Notes are so surrendered for exchange, the Company shall execute,
and the Trustee shall authenticate and make available for delivery, the Notes
which the Holder making the exchange is entitled to receive.
All Notes and the Senior Subordinated Guarantees endorsed thereon issued
upon any registration of transfer or exchange of Notes shall be the valid
obligations of the Company and the respective Guarantors, evidencing the same
debt, and (except for the differences between Original Notes and Exchange Notes
provided for herein) entitled to the same benefits under this Indenture, as the
Notes and Senior Subordinated Guarantees endorsed thereon, respectively,
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Sections 3.03, 3.04, 3.05, 3.06, 9.06, 10.16, 3.03 or 11.09 [Please
note - this wasn't cross-ref'd because there is no 11.09] not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of,
or exchange any Note during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Notes selected
for redemption under Section 11.05 and ending at the close of business on the
day of such mailing, or (ii) to register the transfer of or exchange any Note so
selected for redemption, in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
(b) Certain Transfers and Exchanges. Notwithstanding any other provision
of this Indenture or the Notes, transfers and exchanges of Notes and beneficial
interests in a Global Note of the kinds specified in this Section 3.06(b) shall
be made only in accordance with this Section 3.06(b).
(i) Restricted Global Note to Regulation S Temporary Global Note or
Regulation S Global Note. If the owner of a beneficial interest in the
Restricted Global Note wishes at any time to transfer such interest to a
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Person who wishes to acquire the same in the form of a beneficial interest
in the Regulation S Temporary Global Note (if before the expiration of the
Restricted Period) or in the Regulation S Global Note (if thereafter),
such transfer may be effected only in accordance with the provisions of
this Clause (b)(i) subject to the Applicable Procedures. Upon receipt by
the Trustee, as Security Registrar, of (A) an order given by the
Depositary or its authorized representative directing that a beneficial
interest in the Regulation S Temporary Global Note or Regulation S
Temporary Global Note or Regulation S Global Note (as applicable) in a
specified principal amount be credited to a specified Agent Member's
account and that a beneficial interest in the Restricted Global Note in an
equal principal amount be debited from another specified Agent Member's
account and (B) a Regulation S Certificate, satisfactory to the Trustee
and duly executed by the owner of such beneficial interest in the
Restricted Global Note or his attorney duly authorized in writing, then
the Trustee, as Security Registrar but subject to Clause (b)(iv) below,
shall reduce the principal amount of the Restricted Global Note and
increase the principal amount of the Regulation S Temporary Global Note or
Regulation S Global Note (as applicable) by such specified principal
amount as provided in Section 3.05(c).
(ii) Regulation S Temporary Global Note to Restricted Global Note. If the
owner of a beneficial interest in the Regulation S Temporary Global Note
wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the Restricted
Global Note, such transfer may be effected only in accordance with this
Clause (b)(ii) and subject to the Applicable Procedures. Upon receipt by
the Trustee, as Security Registrar, of (A) an order given by the
Depositary or its authorized representative directing that a beneficial
interest in the Restricted Global Note in a specified principal amount be
credited to a specified Agent Member's account and that a beneficial
interest in the Regulation S Temporary Global Note in an equal principal
amount be debited from another specified Agent Member's account and (B) a
Restricted Notes Certificate, satisfactory to the Trustee and duly
executed by the owner of such beneficial interest in the Regulation S
Temporary Global Note or his attorney duly authorized in writing, then the
Trustee, as Security Registrar, shall reduce the principal amount of the
Regulation S Temporary Global Note and increase the principal amount of
the Restricted Global Note by such specified principal amount as provided
in Section 3.05(c).
(iii) Exchanges between Global Note and Non-Global Note. A beneficial
interest in a Global Note may be exchanged for a Note that is
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not a Global Note as provided in Section 3.05, provided that, if such
interest is a beneficial interest in the Restricted Global Note, or if
such interest is a beneficial interest in the Regulation S Temporary
Global Note, then such interest shall be exchanged for a Restricted Note
(subject in each case to Section 3.06(c)).
(iv) Regulation S Temporary Global Note to be Held Through Euroclear or
Cedel during Restricted Period. The Company shall use its best efforts to
cause the Depositary to ensure that beneficial interests in the Regulation
S Temporary Global Note may be held only in or through accounts maintained
at the Depositary by Euroclear or Cedel (or by Agent Members acting for
the account thereof), and no person shall be entitled to effect any
transfer or exchange that would result in any such interest being held
otherwise than in or through such an account; provided that this Clause
(b)(iv) shall not prohibit any transfer or exchange of such an interest in
accordance with Clause (b)(ii) above.
(c) Securities Act Legends. Rule 144A Notes and their respective Successor
Notes shall bear a Restricted Notes Legend, and Regulation S Notes and their
Successor Notes shall bear a Regulation S Legend, subject to the following:
(i) subject to the following Clauses of this Section 3.06(c), a Note or
any portion thereof which is exchanged, upon transfer or otherwise, for a
Global Note or any portion thereof shall bear the Securities Act Legend
borne by such Global Note while represented thereby;
(ii) subject to the following Clauses of this Section 3.06(c), a new Note
which is not a Global Note and is issued in exchange for another Note
(including a Global Note) or any portion thereof, upon transfer or
otherwise, shall bear the Securities Act Legend borne by such other Note,
provided that, if such new Note is required pursuant to Section
3.06(b)(iii) to be issued in the form of a Restricted Note, it shall bear
a Restricted Notes Legend and, if such new Note is so required to be
issued in the form of a Regulation S Note, it shall bear a Regulation S
Legend;
(iii) Exchange Notes shall not bear a Securities Act Legend;
(iv) at any time after the Notes may be freely transferred without
registration under the Securities Act or without being subject to transfer
restrictions pursuant to the Securities Act, a new Note which does not
bear a Securities Act Legend may be issued in exchange for or in lieu of a
Note
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(other than a Global Note) or any portion thereof which bears such a
legend if the Trustee has received an Unrestricted Notes Certificate,
satisfactory to the Trustee and duly executed by the Holder of such
legended Note or his attorney duly authorized in writing, and after such
date and receipt of such certificate, the Trustee shall authenticate and
deliver such a new Note in exchange for or in lieu of such other Note as
provided in this Article 3;
(v) a new Note which does not bear a Securities Act Legend may be issued
in exchange for or in lieu of a Note (other than a Global Note) or any
portion thereof which bears such a legend if, in the Company's judgment,
placing such a legend upon such new Note is not necessary to ensure
compliance with the registration requirements of the Securities Act, and
the Trustee, at the direction of the Company, shall authenticate and
deliver such a new Note as provided in this Article 3; and
(vi) notwithstanding the foregoing provisions of this Section 3.06(c), a
Successor Note of a Note that does not bear a particular form of
Securities Act Legend shall not bear such form of legend unless the
Company has reasonable cause to believe that such Successor Note is a
"restricted security" within the meaning of Rule 144, in which case the
Trustee, at the direction of the Company, shall authenticate and deliver a
new Note bearing a Restricted Notes Legend in exchange for such Successor
Note as provided in this Article 3.
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Notes. If any
mutilated Note is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Note of like
tenor and principal amount, having endorsed thereon the Senior Subordinated
Guarantees extended by the Guarantors and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Note and (ii) such
security or indemnity as may be required by either of them to save each of them,
each Guarantor, and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Note has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Note, a new Note of like tenor and principal amount, having endorsed thereon the
Senior Subordinated Guarantees extended by the Guarantors and bearing a number
not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Note has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any destroyed,
lost or stolen Note and each Senior Subordinated Guarantee endorsed thereon
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes and Senior
Subordinated Guarantees, respectively duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 3.08. Payment of Interest; Interest Rights Preserved. Interest on
any Note which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Notes (or their respective Predecessor Notes)
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Note and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest
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or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears
in the Note Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Note shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Note.
SECTION 3.09. Persons Deemed Owners. Prior to due presentment of a Note
for registration of transfer, the Company, the Guarantors, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such Note
is registered as the owner of such Note for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 3.08) interest on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Company, the Guarantors, the Trustee nor any agent of
the Company, any Guarantor or the Trustee shall be affected by notice to the
contrary.
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None of the Company, the Trustee or any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Note in global form, or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests. Notwithstanding the foregoing,
with respect to any Note in global form, nothing herein shall prevent the
Company or the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by
any Depositary (or its nominee), as a Holder, with respect to such Note in
global form or impair, as between such Depositary and owners of beneficial
interests in such Note in global form, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Note in global form.
SECTION 3.10. Cancellation. All Notes surrendered for payment, redemption,
registration of transfer or exchange or any Offer to Purchase pursuant to
Section 10.14 or 10.16 shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and, together with the Senior Subordinated
Guarantees endorsed thereon, shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Notes so delivered shall, together with the Senior
Subordinated Guarantees endorsed thereon, be promptly canceled by the Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section, except as expressly permitted by this Indenture.
All canceled Notes held by the Trustee, together with the Senior Subordinated
Guarantees endorsed thereon, shall be disposed of by the Trustee in accordance
with its customary procedures.
SECTION 3.11. Computation of Interest. Interest on the Notes shall be
computed on the basis of a 360 day year of twelve 30-day months.
SECTION 3.12. Cusip Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
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ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to (i) rights of registration of
transfer and exchange and the Company's right of optional redemption, (ii)
substitution of apparently mutilated, defaced, destroyed, lost or stolen Notes,
(iii) rights of Holders to receive payment of principal and interest on the
Notes, (iv) rights, obligations and immunities of the Trustee under the
Indenture and (v) rights of the Holders of the Notes as beneficiaries of the
Indenture with respect to any property deposited with the Trustee payable to all
or any of them), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture (including, but not limited to, Article 12 hereof),
when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.07 and (ii)
Notes 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) all such Notes not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an
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amount sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for
cancellation, for prin cipal (and premium, if any) and interest to
the date of such deposit (in the case of Notes which have become due
and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company and the Guarantors; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article 4.01, 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 (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.03 shall survive.
SECTION 4.02. 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 4.01 shall be held in trust and applied by it, in accordance with the
provisions of the Notes 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
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee but such money need not be separated from other funds
except to the extent required by law.
ARTICLE 5
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 occasioned by the provisions of Article 13 or be
voluntary or involuntary or be effected by operation of law or
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pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) failure to pay the principal of (or premium, if any, on) any Note at
its Maturity; or
(2) failure to pay any interest upon any Note when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(3) default, on the applicable Purchase Date, in the purchase of Notes
required to be purchased by the Company pursuant to an Offer to Purchase
as described in Section 10.14 herein and Section 10.16 herein when due and
payable; or
(4) failure to perform or comply with the provisions of Section 8.01; or
(5) failure to perform any other covenant or agreement of the Company in
this Indenture or Notes (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding Notes a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(6) default under the terms of any instrument evidencing or securing Debt
for money borrowed by the Company or any Restricted Subsidiary having an
outstanding principal amount of $5.0 million individually or in the
aggregate which default results in the acceleration of the payment of such
indebtedness or constitutes the failure to pay such indebtedness when due;
or
(7) a final judgment or judgments (not subject to appeal) for the payment
of money are entered against the Company or any Restricted Subsidiary of
the Company in an amount in excess of $5.0 million by a court or courts of
competent jurisdiction, which judgments remain undischarged or unstayed
for a period of 60 days after the right to appeal all such judgments has
expired; or
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(8) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Restricted
Subsidiary of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
such Restricted Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company or any such Restricted
Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any such Restricted Subsidiary of any
substantial part of the property of the Company or any such Restricted
Subsidiary, or ordering the winding up or liquidation of the affairs of
the Company or any such Subsidiary, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(9) the commencement by the Company or any Restricted Subsidiary of the
Company of a voluntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company or any such Restricted Subsidiary to the entry
of a decree or order for relief in respect of the Company or any
Restricted Subsidiary of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or any
Restricted Subsidiary of the Company, or the filing by the Company or any
such Restricted Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by the Company or any such Restricted Subsidiary to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Restricted Subsidiary of the
Company of any substantial part of the property of the Company or any
Restricted Subsidiary of the Company, or the making by the Company or any
Restricted Subsidiary of the Company of an assignment for the benefit of
creditors, or the admission by the Company or any such Restricted Subsid
iary in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any such
Restricted Subsidiary in furtherance of any such action.
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SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Section 5.01(8) or
(9)) occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Notes may declare all of the Notes to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal and any accrued interest, if any, shall
become immediately due and payable. If an Event of Default specified in Section
5.01(8) or (9) occurs, the principal and any accrued interest on the Notes then
Outstanding shall ipso facto become immediately due and payable without any
declaration or other Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Notes, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(i) the Company or any of the Guarantors has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Notes,
(B) the principal of (and premium, if any, on) any Notes which
have become due otherwise than by such declaration of acceleration
(including any Notes required to have been purchased on the Purchase
Date pursuant to an Offer to Purchase made by the Company) and, to
the extent that payment of such interest is lawful, interest thereon
at the rate provided by the Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Notes,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
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(ii) all Events of Default, other than the non-payment of the principal of
Notes which 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 covenants that if
(1) default is made in the payment of any interest on any Note when such
interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Note at the Maturity thereof or, with respect to any Note
required to have been purchased pursuant to an Offer to Purchase made by
the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal (and premium, if any) and interest, and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate provided by the
Notes, if any, 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 fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 5.04. Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company, any Guarantor or any other obligor upon the
Notes, or upon the property of the Company or its creditors or of any Guarantor
or its creditors, the Trustee shall be entitled and empowered, by intervention
in such proceeding or otherwise, to take any and all actions authorized under
the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Notes. All
rights of action and claims under this Indenture or the Notes or any Senior
Subordinated Guarantee may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Notes in respect of which such
judgment has been recovered.
SECTION 5.06. Application of Money Collected. Subject to Article 12, any
money collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07;
and
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SECOND: To the extent provided in Article 12, to the holders of Senior
Debt in accordance with Article 12; and
THIRD: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest on the Notes in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Notes for principal (and premium, if any) and interest,
respectively.
SECTION 5.07. Limitation on Suits. No Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity against
the costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the
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Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.06) interest on such Note on the respective Stated Maturities
expressed in such Note (or, in the case of redemption, on the Redemption Date or
in the case of an Offer to Purchase made by the Company and required to be
accepted as to such Note, on the Purchase Date) 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 and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in the last paragraph of Section 3.07, 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 Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in aggregate
principal amount of the Outstanding Notes shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, provided
that
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(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) 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 Notes may on behalf of
the Holders of all the Notes waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest on
any Note (including any Note which is required to have been purchased
pursuant to an Offer to Purchase which has been made by the Company), or
(2) in respect of a covenant or provision hereof which under Article 10
cannot be modified or amended without the consent of the Holder of each
Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, including attorney's
fees and expenses in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee, the Company or any
Guarantor or in any suit for the enforcement of the right to convert any Note in
accordance with Article 13.
SECTION 5.15. Waiver of Stay or Extension 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 wherever enacted, now or
at any time hereafter in force, 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
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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 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities. Except during the
continuance of an Event of Default, the duties and responsibilities of the
Trustee shall be as provided by the Indenture. During the existence of an Event
of Default, the Trustee will exercise such rights and powers vested in it under
the Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise under the circumstances in the conduct of such
person's own affairs. Notwithstanding the foregoing, 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. 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.
SECTION 6.02. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 5.01(4), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
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(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 may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
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thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
SECTION 6.04. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes and the Senior Subordinated
Guarantees except the Trustee's certificates of authentication, shall be taken
as the statements of the Company or the Guarantors, as the case may be, 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
Notes or the Senior Subordinated Guarantees. The Trustee shall not be
accountable for the use or application by the Company of Notes or the proceeds
thereof.
SECTION 6.05. May Hold Notes. The Trustee, any Paying Agent, any Note
Registrar or any other agent of the Company, any Guarantor in its individual or
any other capacity, may become the owner or pledgee of Notes and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company any Guarantor with
the same rights it would have if it were not Trustee, Paying Agent, Note
Registrar or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company
or any Guarantor, as the case may be.
SECTION 6.07. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall be
agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any pro vision
of this Indenture (including the reasonable compensation and the
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expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any and
all loss, liability damage, claim or expense, including taxes (other than
taxes based on the income of the Trustee) incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of
defending itself against any claim (including any claim by the Company) or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 6.07, except with respect to funds held in
trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(5) or Section 5.01(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.08. Disqualification; Conflicting Interest. If the Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000 and its Corporate Trust Office in the Borough of
Manhattan, The City of New York. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person 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
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cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Note for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and shall
fail to resign after written request therefor by the Company or by any
such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others
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similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, 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 aggregate principal amount of the Outstanding Notes 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 and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Note 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 to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company, the Guarantors 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; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company and
the Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.
SECTION 6.13. Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Notes or any Senior Subordinated Guarantee), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) 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
(b) at such other times as the Trustee may request in writing, within 30
days after the 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Note Registrar.
SECTION 7.02. Preservation of Information; Communications to Holders.
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(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Note Registrar.
The Trustee may destroy any list furnished to it as provided in Section 7.01
upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Notes and the corresponding
rights and duties of the Trustee, shall be provided by the Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same, agrees with
the Company, the Guarantors and the Trustee that neither the Company, the
Guarantors nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to the names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each May 15, following
the date of this Indenture deliver to Holders a brief report, dated as of such
May 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the Notes
are listed, with the Commission and with the Company. The Company will promptly
notify the Trustee when the Notes are listed on any stock exchange or of any
delisting thereof.
SECTION 7.04. Reports by Company and the Parent Guarantor. The Company and
each of the Parent Guarantor shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with Commission pursuant
to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 30 days after the same is so required to be filed with the Commission.
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Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 7.05. Officers' Certificate with Respect to Change in Interest
Rates. Within five days after the day on which any Special Interest begins
accruing, and within five days after any Special Interest ceases to accrue, the
Company shall deliver an Officers' Certificate to the Trustee stating the
interest rate thereupon in effect for the Unregistered Notes (if any are
Outstanding) and the date on which such rate became effective.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Mergers, Consolidations and Certain Transfers, Leases and
Acquisition of Assets. The Company shall not, in a single transaction or a
series of related transactions, (i) consolidate with or merge into any other
Person or permit any other Person to consolidate with or merge into the Company
or (ii) directly or indirectly, transfer, sell, lease or otherwise dispose of
all or substantially all of its assets unless: (1) in a transaction in which the
Company does not survive or in which the Company sells, leases or otherwise
disposes of all or substantially all of its assets, the successor entity to the
Company is organized under the laws of the United States of America or any State
thereof or the District of Columbia and shall expressly assume, by a
supplemental indenture executed and delivered to the Trustee in form
satisfactory to the Trustee, all of the Company's obligations under the
Indenture; (2) immediately before and after giving effect to such transaction
and treating any Debt which becomes an obligation of the Company or a Restricted
Subsidiary as a result of such transaction as having been Incurred by the
Company or such Restricted Subsidiary at the time of the transaction, no Event
of Default or event that with the passing of time or the giving of notice, or
both, would constitute an Event of Default shall have occurred and be
continuing; (3) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company (or other successor entity to the Company)
is equal to or greater than that of the Company immediately prior to the
transaction; (4) except with respect to a merger of the Company with or into a
Wholly Owned Restricted Subsidiary, immediately after giving effect to such
transaction and treating any Debt which becomes an
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obligation of the Company or a Restricted Subsidiary as a result of such
transaction as having been Incurred by the Company or such Restricted Subsidiary
at the time of the transaction, the Company (including any successor entity to
the Company) could Incur at least $1.00 of additional Debt pursuant to the
provisions of the Indenture described in the first paragraph under Section 10.08
hereof; and (5) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer, lease or acquisition and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, complies with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with, and, with
respect to such Officer's Certificate, setting forth the manner of determination
of the Consolidated Net Worth and the ability to Incur Debt in accordance with
Clause (4) of Section 8.01, the Company or, if applicable, of the Successor
Company as required pursuant to the foregoing.
SECTION 8.02. Successor Substituted. Upon any consolidation of the Company
with, or merger of the Company into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or substantially all of the
properties and assets of the Company as an entirety in accordance with Section
8.01, the Successor Company shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the Notes.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by a Board Resolution
of the Company, the Guarantors, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein
and in the Notes; or
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(2) to add to the covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company; or
(3) to secure the Notes pursuant to the requirements of Section 10.11 or
otherwise; or
(4) to comply with any requirements of the Commission in order to effect
and maintain the qualification of this Indenture under the Trust Indenture
Act; or
(5) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action pursuant to this Clause (4) shall not
adversely affect the interests of the Holders in any material respect.
(6) to add new Guarantors pursuant to Section 12.05.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Notes, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution of the Company, the
Guarantors, and the Trustee may enter into an indenture or indentures supple
mental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in
any manner the rights of the Holders under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment of
interest on, any Note, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable thereon, or change the place of
payment where, or the coin or currency in which, any Note or any premium
or the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date
or, in the case of an Offer to Purchase which has been made, on or after
the applicable Purchase Date), or
(2) reduce the percentage in principal amount of the Outstanding Notes,
the consent of whose Holders is required for any such supplemental
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indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.20, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Note affected thereby, or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Notes in a manner adverse to the Holders, or
(5) following the mailing of an Offer with respect to an Offer to Purchase
pursuant to Sections 10.14 and 10.16, modify the provisions of this
Indenture with respect to such Offer to Purchase in a manner materially
adverse to such Holder.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Notes 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 shall conform to the requirements of
the Trust Indenture Act.
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SECTION 9.06. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Notes so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest. The Company
will duly and punctually pay the principal of (and premium, if any) and interest
on the Notes in accordance with the terms of the Notes and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company will maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company or any Guarantor in respect of the Notes, the
Senior Subordinated Guarantees and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the 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 and each Guarantor 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 the Borough of Manhattan, The City of New York) where
the Notes may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
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SECTION 10.03. Money for Note Payments to Be Held in Trust. If the Company
shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of interest on any of the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and 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.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of (and premium, if any) or interest on any
Notes, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Notes) in the making of any payment of principal (and
premium, if any) or interest; and
(3) 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.
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 shall be released from all further liability with respect to such
money.
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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 (and premium, if any)
or interest on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall 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, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.04. Existence. Subject to Article 8, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.05. Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary of the Company to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improve
ments 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 shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, as determined
by the Board of Directors in good faith, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 10.06. Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Subsidiaries or upon the income, profits
or
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property of the Company or any of its Subsidiaries, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any of its 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.
SECTION 10.07. Maintenance of Insurance. The Company shall, and shall
cause any of its Subsidiaries to, keep at all times all of their properties
which are of an insurable nature insured against loss or damage with insurers
believed by the Company to be responsible to the extent that property of similar
character is usually so insured by corporations similarly situated and owning
like properties in accordance with good business practice. The Company shall,
and shall cause any of its Subsidiaries to, use the proceeds from any such
insurance policy to repair, replace or otherwise restore the property to which
such proceeds relate.
SECTION 10.08. Limitation on Consolidated Debt. The Company shall not, and
shall not permit any Restricted Subsidiary of the Company to, Incur any Debt
unless immediately after giving pro forma effect to the Incurrence of such Debt
and the receipt and application of the proceeds thereof, the Consolidated Cash
Flow Coverage Ratio of the Company would be greater than 2.0 to 1.
Notwithstanding the foregoing paragraph, the Company may, and may permit
any Restricted Subsidiary, to incur the following Debt:
(i) Debt Incurred pursuant to any Credit Facility; provided, however, that
after giving effect to any such Incurrence, the aggregate principal amount
of all Debt Incurred under this clause (i) then outstanding does not
exceed $400 million less the sum of all principal payments with respect to
such Debt pursuant to clause (iii) (1) of Section 10.14;
(ii) the original issuance by the Company of the Debt evidenced by the
Notes (including any Exchange Notes) and any Guarantees of the Notes;
(iii) Debt (other than Debt described in another clause of this paragraph)
outstanding on the date of original issuance of the Notes after giving
effect to the application of the proceeds of the Notes;
(iv) Debt owed by the Company to any Wholly Owned Restricted Subsidiary of
the Company for which fair value has been received or Debt owed by a
Restricted Subsidiary of the Company to the Company or a Wholly Owned
Restricted Subsidiary of the Company; provided, however,
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that upon either (1) the transfer or other disposition by such Wholly
Owned Restricted Subsidiary or the Company of any Debt so permitted to a
Person other than the Company or another Wholly Owned Restricted
Subsidiary of the Company or (2) the issuance (other than directors'
qualifying shares), sale, lease, transfer or other disposition of shares
of Capital Stock (including by consolidation or merger) of such Wholly
Owned Restricted Subsidiary to a Person other than the Company or another
such Wholly Owned Restricted Subsidiary, the provisions of this clause
(iv) shall no longer be applicable to such Debt and such Debt shall be
deemed to have been Incurred at the time of such transfer or other
disposition;
(v) Debt consisting of Permitted Interest Rate, Currency or Commodity
Price Agreements;
(vi) Debt of a Restricted Subsidiary that does not violate the covenant
described under Section 10.13 hereof;
(vii) Refinancing Debt in respect of Debt Incurred pursuant to the first
paragraph of this covenant or pursuant to clause (ii), (iii) or (vi) or
this clause (vii); provided, however, that to the extent such Refinancing
Debt directly or indirectly Refinances Debt of a Restricted Subsidiary
Incurred pursuant to clause (vi), such Refinancing Debt shall be incurred
only by such Subsidiary; and
(viii) Debt not otherwise permitted to be Incurred pursuant to Clauses (i)
through (vii) above, which, together with any other outstanding Debt
Incurred pursuant to this Clause (viii), has an aggregate principal amount
not in excess of $5.0 million at any time outstanding.
For purposes of determining compliance with the foregoing covenant, (i) in
the event that an item of Debt meets the criteria of more than one of the types
of Debt described above, the Company, in its sole discretion, will classify such
item of Debt and will only be required to include the amount and type of such
Debt in one of the above clauses, (ii) an item of Debt may be divided and
classified in more than one of the types of Debt described above and (iii) any
other obligation of the obligor on any item of Debt (or of any other Person who
could have Incurred such Debt under this covenant) arising under any Guarantee,
Lien or letter of credit supporting such Debt shall be disregarded to the extent
that it secures the principal amount of such Debt.
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SECTION 10.09. Limitation on Senior Subordinated Debt. The Company shall
not Incur any Debt which by its terms is both (i) subordinated in right of
payment to any Senior Debt and (ii) senior in right of payment to the Notes.
SECTION 10.10. Limitation on Issuance of Guarantees of Subordinated Debt.
The Company shall not permit any Restricted Subsidiary, directly or indirectly,
to assume, guarantee or in any other manner become liable with respect to any
Debt of the Company that by its terms is subordinate or junior in right of
payment to the Notes.
SECTION 10.11. Limitation on Liens. The Company shall not, and shall not
permit any Subsidiary to, create, incur, assume or suffer to exist any Lien on
or with respect to any property or assets of the Company or any such Restricted
Subsidiary now owned or hereafter acquired to secure Debt which is pari passu
with or subordinated in right of payment to the Notes without making, or causing
such Restricted Subsidiary to make, effective provision for securing the Notes
(and, if the Company shall so determine, any other Debt of the Company which is
not subordinate to the Notes or of such Restricted Subsidiary) (x) equally and
ratably with such Debt as to such property or asset for so long as such Debt
shall be so secured or (y) in the event such Debt is Debt of the Company which
is subordinate in right of payment to the Notes, prior to such Debt as to such
property for so long as such Debt will be so secured.
SECTION 10.12. Limitation on Restricted Payments. The Company (i) shall
not, directly or indirectly, declare or pay any dividend or make any
distribution (including any payment in connection with any merger or
consolidation derived from assets of the Company or any Restricted Subsidiary)
in respect of its Capital Stock, excluding any dividends or distributions by the
Company payable solely in shares of its Capital Stock (other than Redeemable
Stock) or in options, warrants or other rights to acquire its Capital Stock
(other than Redeemable Stock), (ii) shall not, and shall not permit any
Restricted Subsidiary to, purchase, redeem, or otherwise acquire or retire for
value (a) any Capital Stock of the Company or any Related Person of the Company
or (b) any options, warrants or other rights to acquire shares of Capital Stock
of the Company or any Related Person of the Company or any securities
convertible or exchangeable into shares of Capital Stock of the Company or any
Related Person of the Company, (iii) shall not make, or permit any Restricted
Subsidiary to make, any Investment other than a Permitted Investment, and (iv)
shall not, and shall not permit any Restricted Subsidiary to, redeem,
repurchase, defease or otherwise acquire or retire for value prior to any
scheduled maturity, repayment or sinking fund payment Debt of the Company which
is subordinate in right of payment to the Notes (each of clauses (i) through
(iv) being a "Restricted Payment") if: (1) an Event of Default, or an event that
with the passing of time or the giving of
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notice, or both, would constitute an Event of Default, shall have occurred and
is continuing or would result from such Restricted Payment, or (2) after giving
effect to such Restricted Payment, the Company could not Incur at least $1.00 of
additional Debt pursuant to the terms of the Indenture described in the first
paragraph of Section hereof, or (3) upon giving effect to such Restricted
Payment, the aggregate of all Restricted Payments from the date of issuance of
the Notes exceeds the sum of: (a) 50% of cumulative Consolidated Net Income (or,
in the case Consolidated Net Income shall be negative, less 100% of such
deficit) of the Company since the first day of the first full fiscal quarter
commencing immediately following the date of issuance of the Notes through the
last day of the last full fiscal quarter ending immediately preceding the date
of such Restricted Payment for which quarterly or annual financial statements
are available (taken as a single accounting period); plus (b) 100% of the
aggregate net proceeds received by the Company after the date of original
issuance of the Notes, including the fair market value of property other than
cash (determined in good faith by the Board of Directors as evidenced by a
resolution of the Board of Directors filed with the Trustee), from contributions
of capital or the issuance and sale (other than to a Restricted Subsidiary) of
Capital Stock (other than Redeemable Stock) of the Company, options, warrants or
other rights to acquire Capital Stock (other than Redeemable Stock) of the
Company and Debt of the Company that has been converted into or exchanged for
Capital Stock (other than Redeemable Stock and other than by or from a
Restricted Subsidiary) of the Company after the date of original issuance of the
Notes, provided that any such net proceeds received by the Company from an
employee stock ownership plan financed by loans from the Company or a Restricted
Subsidiary of the Company shall be included only to the extent such loans have
been repaid with cash on or prior to the date of determination; plus (c) an
amount equal to the sum of (i) the net reduction in Investments in any Person
resulting from dividends, repayments of loans or advances or other transfers of
assets, in each case to the Company or any Restricted Subsidiary from such
Person, and (ii) the portion (proportionate to The Company's equity interest in
any Subsidiary) of the fair market value of the net assets of an Unrestricted
Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing sum shall not exceed, in the
case of any Person, the amount of Investments previously made (and treated as a
Restricted Payment) by the Company or any Restricted Subsidiary in such Person;
plus (d) $25 million. Prior to the making of any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate setting forth the
computations by which the determinations required by clauses (2) and (3) above
were made and stating that no Event of Default, or event that with the passing
of time or the giving of notice, or both, would constitute an Event of Default,
has occurred and is continuing or will result from such Restricted Payment.
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Notwithstanding the foregoing, so long as no Event of Default, or event
that with the passing of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and is continuing or would result
therefrom, (i) the Company may pay any dividend on Capital Stock of any class
within 60 days after the declaration thereof if, on the date when the dividend
was declared, the Company could have paid such dividend in accordance with the
foregoing provisions; (ii) the Company may refinance any Debt otherwise
permitted by clause (vi) of the second paragraph under Section 10.08 above or
solely in exchange for or out of the net proceeds of the substantially
concurrent sale (other than from or to a Restricted Subsidiary or from or to an
employee stock ownership plan financed by loans from the Company or a Restricted
Subsidiary of the Company) of shares of Capital Stock (other than Redeemable
Stock) of the Company, provided that the amount of net proceeds from such
exchange or sale shall be excluded from the calculation of the amount available
for Restricted Payments pursuant to the preceding paragraph; (iii) the Company
may purchase, redeem, acquire or retire any shares of Capital Stock of the
Company solely in exchange for or out of the net proceeds of the substantially
concurrent sale (other than from or to a Restricted Subsidiary or from or to an
employee stock ownership plan financed by loans from the Company or a Restricted
Subsidiary of the Company) of shares of Capital Stock (other than Redeemable
Stock) of the Company; (iv) the Company may dividend to the Parent Company the
net proceeds from the issuance of the Notes and the proceeds of the initial
borrowings under the New Credit Facility in an aggregate amount not in excess of
$500 million; (v) the Company may dividend to the Parent Company up to all its
cash on the date prior to and on the date of the Distribution. Any payment made
pursuant to clause (i) or (iii) of this paragraph shall be a Restricted Payment
for purposes of calculating aggregate Restricted Payments pursuant to the
preceding paragraph and any payment made pursuant to clause (ii), (iv) or (v) of
this paragraph shall be excluded from Restricted Payments for purposes of such
calculation.
SECTION 10.13. Limitations on Dividend and Other Payment Restrictions
Affecting Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company (i) to pay dividends (in
cash or otherwise) or make any other distributions in respect of its Capital
Stock or pay any Debt or other obligation owed to the Company or any other
Restricted Subsidiary; (ii) to make loans or advances to the Company or any
other Restricted Subsidiary; or (iii) to transfer any of its property or assets
to the Company or any other Restricted Subsidiary. Notwithstanding the
foregoing, the Company may, and may permit any Restricted Subsidiary to, suffer
to exist any such encumbrance or restriction (a) pursuant to any agreement in
effect on the date of original issuance
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of the Notes; (b) pursuant to an agreement relating to any Debt Incurred by a
Person (other than a Restricted Subsidiary of the Company existing on the date
of original issuance of the Notes or any Restricted Subsidiary carrying on any
of the businesses of any such Restricted Subsidiary) prior to the date on which
such Person became a Restricted Subsidiary of the Company and outstanding on
such date and not Incurred in anticipation of becoming a Restricted Subsidiary,
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person so acquired; (c)
pursuant to an agreement effecting a renewal, refunding or extension of Debt
Incurred pursuant to an agreement referred to in clause (a) or (b) above,
provided, however, that the provisions contained in such renewal, refunding or
extension agreement relating to such encumbrance or restriction are no more
restrictive in any material respect than the provisions contained in the
agreement the subject thereof, as determined in good faith by the Board of
Directors and evidenced by a resolution of the Board of Directors filed with the
Trustee; (d) in the case of clause (iii) above, restrictions contained in any
security agreement (including a capital lease) securing Debt of a Restricted
Subsidiary otherwise permitted under this Indenture, but only to the extent such
restrictions restrict the transfer of the property subject to such security
agreement; (e) in the case of clause (iii) above, customary nonassignment
provisions entered into in the ordinary course of business consistent with past
practices in leases and other contracts to the extent such provisions restrict
the transfer or subletting of any such lease or the assignment of rights under
any such contract; (f) any restriction with respect to a Restricted Subsidiary
of the Company imposed pursuant to an agreement which has been entered into for
the sale or disposition of all or substantially all of the Capital Stock or
assets of such Restricted Subsidiary, provided that consummation of such
transaction would not result in an Event of Default or an event that, with the
passing of time or the giving of notice or both, would constitute an Event of
Default, that such restriction terminates if such transaction is closed or
abandoned and that the closing or abandonment of such transaction occurs within
one year of the date such agreement was entered into; or (g) such encumbrance or
restriction is the result of applicable corporate law or regulation relating to
the payment of dividends or distributions.
SECTION 10.14. Limitation on Asset Disposition. The Company shall not, and
shall not permit any Restricted Subsidiary to, make any Asset Disposition in one
or more related transactions unless: (i) the Company or the Restricted
Subsidiary, as the case may be, receives consideration for such disposition at
least equal to the fair market value for the assets sold or disposed of as
determined by the Board of Directors in good faith and evidenced by a resolution
of the Board of Directors filed with the Trustee; (ii) at least 75% of the
consideration for such disposition consists of cash or readily marketable cash
equivalents or the assumption of Debt (other than Debt that is subordinated to
the Notes) relating to
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such assets and release from all liability on the Debt assumed; and (iii) all
Net Available Proceeds, less any amounts invested within 360 days of such
disposition in assets related to the business of the Company, are applied within
360 days of such disposition (1) first, to the permanent repayment or reduction
of Senior Debt then outstanding under any agreements or instruments which would
require such application or prohibit payments pursuant to clause (2) following,
(2) second, to the extent of remaining Net Available Proceeds, to make an Offer
to Purchase outstanding Notes at 100% of their principal amount plus accrued
interest to the date of purchase and, to the extent required by the terms
thereof, any other Debt of the Company that is pari passu with the Notes at a
price no greater than 100% of the principal amount thereof plus accrued interest
to the date of purchase, (3) third, to the extent of any remaining Net Available
Proceeds to any other use as determined by the Company which is not otherwise
prohibited by the Indenture.
SECTION 10.15. Transactions with Affiliates and Related Persons. The
Company shall not, and shall not permit any Restricted Subsidiary of the Company
to, enter into any transaction (or series of related transactions) with an
Affiliate or Related Person of the Company (other than the Company or a Wholly
Owned Restricted Subsidiary of the Company), including any Investment, either
directly or indirectly, unless such transaction is in the best interests of the
Company or such Restricted Subsidiary and is on terms no less favorable to the
Company or such Restricted Subsidiary than those that could be obtained in a
comparable arm's-length transaction with an entity that is not an Affiliate or
Related Person (or, in the event that there are no comparable transactions
involving persons who are not Affiliates or Related Persons of the Company or
the relevant Restricted Subsidiary to apply for comparative purposes, is
otherwise on terms that, taken as a whole, the Company has determined to be fair
to the Company or the relevant Restricted Subsidiary). For any transaction that
involves in excess of $1,000,000, a majority of the disinterested members of the
Board of Directors shall determine that the transaction satisfies the above
criteria and shall evidence such a determination by a Board Resolution filed
with the Trustee. For any transaction that involves in excess of $5,000,000, the
Company shall also obtain an opinion from a nationally recognized expert with
experience in appraising the terms and conditions of the type of transaction (or
series of related transactions) for which the opinion is required stating that
such transaction (or series of related transactions) is on terms no less
favorable to the Company or such Restricted Subsidiary than those that could be
obtained in a comparable arm's-length transaction with an entity that is not an
Affiliate or Related Person of the Company, which opinion shall be filed with
the Trustee.
Notwithstanding anything to the contrary contained in the Indenture, the
foregoing provisions shall not apply to (i) transactions with DonTech, CenDon
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and any similar joint venture or partnership with a Person that is not a Related
Person that are pursuant to the agreements between the Company and DonTech and
CenDon in effect on the date of original issuance of The Notes or any other
substantially similar agreements, as the same may be amended or modified in a
manner not materially adverse to the interests of the holders of the Notes, (ii)
transactions between the Company and its Subsidiaries and New D&B and its
Subsidiaries pursuant to agreements in effect on the date of the Distribution
and any similar arrangements approved by the Board of Directors of the Company
or the Parent Company, as the same may be amended or modified in a manner not
materially adverse to the interests of the holders of the Notes, or (iii) any
Restricted Payment permitted to be made pursuant to Section 10.12 hereof.
SECTION 10.16. Change of Control. Within 30 days following the date on
which a Person files with the Commission a Schedule 13D under the Exchange Act,
evidencing of the occurrence of a Change of Control, the Company will be
required to make an Offer to Purchase all Outstanding Notes at a purchase price
equal to 101% of their principal amount plus accrued interest to the date of
purchase. A "Change of Control" will be deemed to have occurred at such time as
either (a) any Person or any Persons acting together that would constitute a
"group" (a "Group") for purposes of Section 13(d) of the Exchange Act, or any
successor provision thereto, together with any Affiliates or Related Persons
thereof, shall beneficially own (within the meaning of Rule 13d-3 under the
Exchange Act, or any successor provision thereto), directly or indirectly, at
least 50% of the aggregate voting power of all classes of Voting Stock of the
Company (for the purposes of this clause (a) a person shall be deemed to
beneficially own the Voting Stock of a corporation that is beneficially owned
(as defined above) by another corporation (a "parent corporation"), if such
person beneficially owns (as defined above) at least 50% of the aggregate voting
power of all classes of Voting Stock of such parent corporation); or (b) any
Person or Group, together with any Affiliates or Related Persons thereof, shall
succeed in having a sufficient number of its nominees elected to the Board of
Directors of the Company such that such nominees, when added to any existing
director remaining on the Board of Directors of the Company after such election
who was a nominee of or is an Affiliate or Related Person of such Person or
Group, will constitute a majority of the Board of Directors of the Company; or
(c) the Company shall, directly or indirectly, transfer, sell, lease or
otherwise dispose of all or substantially all of its assets; or (d) there shall
be adopted a plan of liquidation or dissolution of the Company, provided,
however, that a transaction effected to create a holding company of the Company
or the Parent Company, (i) pursuant to which the Company or the Parent Company
becomes a wholly owned Subsidiary of such holding company, and (ii) as a result
of which the holders of Capital Stock of the Company or the Parent Company
immediately prior to such transactions, shall not be deemed to involve a "Change
of Control".
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In the event that the Company makes an Offer to Purchase the Notes, the
Company intends to comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act.
SECTION 10.17. Provision of Financial Information. Prior to the time the
Company becomes subject to Section 13(a) or 15(d) of the Exchange Act, the
Company shall provide to all Holders and file with the Trustee copies of the
annual reports, quarterly reports and other documents which the Company 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 were so required, such
documents to be mailed to Holders and filed with the Trustee on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so required. After
the Company commences filing such reports, and so long as any of the Notes are
outstanding, the Company shall file with the Commission the annual reports,
quarterly reports and other documents which the Company is required to file with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act or any
successor provisions thereto.
SECTION 10.18. Unrestricted Subsidiaries. The Company may designate any
Subsidiary of the Company to be an "Unrestricted Subsidiary" as provided below
in which event such Subsidiary and each other Person that is then or thereafter
becomes a Subsidiary of such Subsidiary will be deemed to be an Unrestricted
Subsidiary. "Unrestricted Subsidiary" means (1) any Subsidiary designated as
such by the Board of Directors as set forth below where (a) neither the Company
nor any of its other Subsidiaries (other than another Unrestricted Subsidiary)
(i) provides credit support for, or any Guarantee of, any Debt of such
Subsidiary or any Subsidiary of such Subsidiary (including any undertaking,
agreement or instrument evidencing such Debt) or (ii) is directly or indirectly
liable for any Debt of such Subsidiary or any Subsidiary of such Subsidiary, and
(b) no default with respect to any Debt of such Subsidiary or any Subsidiary of
such Subsidiary (including any right which the holders thereof may have to take
enforcement action against such Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Debt of the Company and its Subsidiaries
(other than another Unrestricted Subsidiary) to declare a default on such other
Debt or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity and (2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary, provided that either (x) the Subsidiary to be so designated has
total assets of
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$1,000 or less or (y) immediately after giving effect to such designation, the
Company could Incur at least $1.00 of additional Debt pursuant to the first
paragraph under Section 10.08 hereof and provided, further, that the Company
could make a Restricted Payment in an amount equal to the greater of the fair
market value and book value of such Subsidiary pursuant to Section 10.12 hereof
and such amount is thereafter treated as a Restricted Payment for the purpose of
calculating the aggregate amount available for Restricted Payments thereunder.
SECTION 10.19. Statement by Officers as to Default; Compliance
Certificates. (a) The Company will deliver to the Trustee, within 90 days after
the end of each fiscal quarter of the Company ending after the date hereof an
Officers' Certificate, one of the signers of which shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating whether or not to the best knowledge of the signers
thereof the Company or any Guarantor is in default in the performance and
observance of any of the terms, provisions and conditions of Section 8.01 or
Sections 10.04 to 10.18, inclusive, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge. Such determination shall be made without regard to notice
requirements or periods of grace.
(b) The Company shall deliver to the Trustee, as soon as possible and in
any event within 10 days after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default, and the action which the Company proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee within 90 days after the end
of each fiscal year a written statement by the Company's independent public
accountants stating (A) that their audit examination has included a review of
the terms of this Indenture and the Notes as they relate to accounting matters,
and (B) whether, in connection with their audit examination, any event which,
with notice or the lapse of time or both, would constitute an Event of Default
has come to their attention and, if such a default has come to their attention,
specifying the nature and period of the existence thereof.
SECTION 10.20. Waiver of Certain Covenants. The Company or any Guarantor
may omit in any particular instance to comply with any covenant or condition set
forth in Section 8.01 and Sections 10.04 to 10.18, if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Notes shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such covenant or condition, but
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no such waiver shall extend to or affect such covenant or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and each of the Guarantors and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect; provided, however, with respect to an Offer to Purchase as to which
an Offer has been mailed, no such waiver may be made or shall be effective
against any Holder tendering Notes pursuant to such Offer, and the Company may
not omit to comply with the terms of such Offer as to such Holder.
ARTICLE 11
REDEMPTION OF NOTES
SECTION 11.01. Right of Redemption. The Notes may be redeemed at the
option of the Company, in whole or in part, at any time on or after ___________,
2003, and prior to maturity, at the Redemption Prices specified in the form of
Note hereinbefore set forth together with accrued interest to, but excluding,
the Redemption Date.
In addition, at any time prior to ____________, 2001 in the event the
Parent Company or the Company receives net cash proceeds from the sale of its
Common Stock or the Common Stock of the Parent Company in one or more Equity
Offerings, the Company (to the extent it receives such proceeds and has not used
such proceeds, directly or indirectly, to redeem or repurchase other securities
pursuant to optional redemption provisions) may, at its option, use all or a
portion of any such net proceeds to redeem, from time to time, Notes in an
aggregate principal amount of up to 35% of the original aggregate principal
amount of the Notes, provided, however, that Notes having a principal amount
equal to at least 65% of the original aggregate principal amount of the Notes
remain outstanding after such redemption. Such redemption must occur on a
Redemption Date within 120 days of such sale and upon not less than 30 nor more
than 60 days' notice mailed to each Holder of Notes to be redeemed at such
Holder's address appearing in the Note Register, in amounts of $1,000 or an
integral multiple of $1,000, at a redemption price of _______% of the principal
amount of the Notes plus accrued interest to but excluding the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date).
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If less than all the Notes are to be redeemed, the Trustee shall select,
in such manner as it shall deem fair and appropriate, the particular Notes to be
redeemed or any portion thereof that is an integral multiple of $1,000.
The Note will not have the benefit of any sinking fund.
SECTION 11.02. Applicability of Article. Redemption of Notes at the
election of the Company, as permitted by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
SECTION 11.03. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Notes pursuant to Section 11.01 shall be evidenced by a
Board Resolution. In case of any redemption at the election of the Company, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Notes to be
redeemed.
SECTION 11.04. Selection by Trustee of Notes to Be Redeemed. If less than
all the Notes are to be redeemed, the particular Notes to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Notes not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral multiple
thereof) of the principal amount of Notes of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Note Registrar in
writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Notes shall relate, in the case of
any Notes redeemed or to be redeemed only in part, to the portion of the
principal amount of such Notes 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 Notes to be redeemed, at
his address appearing in the Note Register.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) if less than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Note to be redeemed and that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Notes are to be surrendered for payment
of the Redemption Price, and
(6) CUSIP numbers of the Notes to be redeemed (if any).
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.06. Deposit of Redemption Price. Prior to any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Notes which are to be redeemed on that date.
SECTION 11.07. Notes Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Notes so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price plus accrued interest) such Notes shall cease to
bear interest. Upon surrender of any such Note for redemption in accordance with
said notice, such Note shall be paid by the Company at the Redemption Price
together with accrued interest to the Redemption Date; provided, however, that
instalments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Notes, or one or more Predecessor
Notes, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.07.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate provided by the Note.
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SECTION 11.08. Notes Redeemed in Part. Any Note which is to be redeemed
only in part shall be surrendered at an office or agency of the Company
designated for that purpose pursuant to Section 10.02 (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Note without service charge, a new Note or Notes, 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 Note so surrendered.
ARTICLE 12
SENIOR SUBORDINATED GUARANTEE
SECTION 12.01. Senior Subordinated Guarantee. The Guarantor hereby
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee, and to the Trustee on behalf of such Holder, the due and
punctual payment of the principal of (and premium, if any) and interest and all
other amounts due hereunder on such Note when and as the same shall become due
and payable, whether at the Stated Maturity or by acceleration, call for
redemption, purchase or otherwise, in accordance with the terms of such Note and
of this Indenture. In case of the failure of the Company punctually to make any
such payment, the Guarantor hereby jointly and severally agrees to cause such
payment to be made punctually when and as the same shall become due and payable,
whether at the Stated Maturity or by acceleration, call for redemption, purchase
or otherwise, and as if such payment were made by the Company.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of any Note or this Indenture, the absence of any
action to enforce the same, any creation, exchange, release or non-perfection of
any Lien on any collateral for, or any release or amendment or waiver of any
term of any other Guarantee of, or any consent to departure from any requirement
of any other Guarantee, of all or any of the Notes, the election by the Trustee
or any of the Holders in any proceeding under Chapter 11 of Title 11 of the
United States Code (the "Bankruptcy Code") of the application of Section
1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a security interest
by the Company, as debtor-in-possession, under Section 364 of the Bankruptcy
Code, the disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of
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the claims of the Trustee or any of the Holders for payment of any of the Notes,
any waiver or consent by the Holder of any Note or by the Trustee with respect
to any provisions thereof or of this Indenture, the obtaining of any judgment
against the Company or any action to enforce the same or any other circumstances
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each of the Guarantors hereby waives the benefits of diligence,
presentment, demand of payment, any requirement that the Trustee or any of the
Holders protect, secure, perfect or insure any security interest in or other
Lien on any property subject thereto or exhaust any right or take any action
against the Company or any other Person or any collateral, 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 or notice with respect
to any Note or the indebtedness evidenced thereby and all demands whatsoever,
and covenants, that this Senior Subordinated Guarantee will not be discharged in
respect of any Note except by complete performance of the obligations contained
in such Note and in this Senior Subordinated Guarantee. Each of the Guarantors
hereby agrees that, in the event of a default in payment of principal (or
premium, if any) or interest on any Note, whether at its Stated Maturity or by
acceleration, call for redemption, purchase or otherwise, legal proceedings may
be instituted by the Trustee on behalf of, or by, the Holder of such Note,
subject to the terms and conditions set forth in this Indenture, directly
against each of the Guarantors to enforce its Senior Subordinated Guarantee
without first proceeding against the Company. Each Guarantor agrees that if,
after the occurrence and during the continuance of an Event of Default, the
Trustee or any of the Holders are prevented by applicable law from exercising
their respective rights to accelerate the maturity of the Notes, to collect
interest on the Notes or to enforce or exercise any other right or remedy with
respect to the Notes, or the Trustee or the Holders are prevented from taking
any action to realize on any collateral, such Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
No provision of any Senior Subordinated Guarantee or Note or of the
Indenture shall alter or impair the Senior Subordinated Guarantee of any
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal (and premium, if any) and interest on the Note upon which such
Senior Subordinated Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the Holders of the
Notes upon which its Senior Subordinated Guarantee is endorsed against the
Company in respect of any amounts paid by such Guarantor on account of such Note
pursuant to the provisions of its Senior Subordinated Guarantee or this
Indenture; provided, however, that no Guarantor shall be entitled to enforce or
to
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receive any payments arising out of, or based upon, such right of subrogation
until the principal of (and premium, if any) and interest on all Notes issued
hereunder shall have been paid in full.
Each Senior Subordinated Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company for liquidation or reorganization, should the Company become insolvent
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the assets of the
Company and shall, to the fullest extent permitted by law, continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Notes are, pursuant to applicable law, rescinded or reduced
in amount, or must otherwise be restored or returned by any obligee on the
Notes, whether as a "voidable preference," "fraudulent transfer" or otherwise,
all as though such payment or performance had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or returned,
the Notes shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
No stockholder, officer, director, employer or incorporator, past, present
or future, of Guarantor, as such, shall have any personal liability under any
Senior Subordinated Guarantee by reason of his, her or its status as such
stockholder, officer, director, employer or incorporator.
Notwithstanding any provision in this Article to the contrary, each
Guarantor, and by its acceptance hereof each Holder of the Notes, hereby
confirms that it is the intention of all such parties that the Guarantee by such
Guarantor not constitute a fraudulent transfer or conveyance for purposes of any
federal or state law. To effectuate the foregoing intention, the Holders of the
Notes and each Guarantor hereby irrevocably agree that the obligations of each
Guarantor under its Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities (including,
but not limited to, Guarantor Senior Debt) 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
Guarantee or pursuant to the next succeeding paragraph hereof, result in the
obligations of such Guarantor under its Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law. This paragraph is
for the benefit of the creditors of each Guarantor.
To the extent that any Subsidiary Guarantor shall be required to pay any
amounts on account of the Notes pursuant to its Senior Subordinated Guarantee in
excess of the greater of (i) the amount of the economic benefit actually
received
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by such Subsidiary Guarantor from the issuance of the Notes and (ii) an amount
calculated as the product of (A) the aggregate amount payable by the Subsidiary
Guarantors on account of the Notes pursuant to their Senior Subordinated
Guarantees times (B) the proportion (expressed as a fraction) that such
Subsidiary Guarantor's net worth at the date enforcement of its Senior
Subordinated Guarantee is sought bears to the aggregate net worth of all
Subsidiary Guarantors at such date, then such Subsidiary Guarantor shall be
reimbursed by the other Subsidiary Guarantors for the amount of such excess, pro
rata, based upon the respective net worth of such other Subsidiary Guarantors at
the date enforcement of its Senior Subordinated Guarantees is sought. This
paragraph is intended only to define the relative rights of the Subsidiary
Guarantors as among themselves, and nothing set forth in this paragraph is
intended to or shall impair the joint and several obligations of the Guarantors
under their respective Senior Subordinated Guarantees.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise or such right does not impair the
rights of the Holders under any Senior Subordinated Guarantee.
SECTION 12.02. Execution and Delivery of Senior Subordinated Guarantees.
The Senior Subordinated Guarantees to be endorsed on the Notes shall include the
terms of the Senior Subordinated Guarantee set forth in Section 12.01 and any
other terms that may be set forth in the form established pursuant to Section
2.05 [Section 2.05 not cross-ref'd because there is no section 2.05]. Each of
the Guarantors hereby agrees to execute its Senior Subordinated Guarantee, in a
form established pursuant to Section 2.05 [Section 2.05 not cross-ref'd because
there is no section 2.05], to be endorsed on each Note authenticated and
delivered by the Trustee.
The Senior Subordinated Guarantee shall be executed on behalf of each
respective Guarantor by any one of such Guarantor's Chairman of the Board, Vice
Chairman of the Board, President or Vice Presidents, attested by its Secretary
or Assistant Secretary. The signature of any or all of these officers on the
Senior Subordinated Guarantee may be manual or facsimile and may be pursuant to
a duly executed power of attorney.
A Senior Subordinated Guarantee bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of a Guarantor shall
bind such Guarantor, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of the Note
on which such Senior Subordinated Guarantee is endorsed or did not hold such
offices at the date of such Senior Subordinated Guarantee.
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The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Senior Subordinated Guarantee
endorsed thereon on behalf of the Guarantors. Each of the Guarantors hereby
jointly and severally agrees that its Senior Subordinated Guarantee set forth in
Section 12.01 shall remain in full force and effect notwithstanding any failure
to endorse a Senior Subordinated Guarantee on any Note.
SECTION 12.03. Subsidiary Guarantors May Consolidate, Etc., on Certain
Terms. (a) Except as may be provided in Section 12.04 and in Articles 8 and 10,
nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or a
Guarantor or shall prevent any sale or conveyance of the property of a
Subsidiary Guarantor as an entirety or substantially as an entirety to the
Company or a Guarantor.
(b) Except as set forth in Article 8 hereof, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Guarantor with or into a corporation or corporations other than the Company or a
Guarantor (whether or not affiliated with the Guarantor), or successive
consolidations or mergers in which a Guarantor or its successor or successors
shall be a party or parties, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety, to a
corporation other than the Company or another Guarantor (whether or not
affiliated with the Guarantor) authorized to acquire and operate the same;
provided, however, that, subject to Sections 12.03(a) and 12.04 hereof, (i)
immediately after such transaction, and giving effect thereto, no Default or
Event of Default shall have occurred as a result of such transaction and be
continuing, such transaction shall not violate any of the covenants in Article
10 hereof, and each Guarantor hereby covenants and agrees that, upon any such
consolidation, merger, sale or conveyance, such Guarantor's Guarantee set forth
in this Article 12 and in an endorsement on the Notes, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by such Guarantor, shall be expressly assumed (in the
event that the Guarantor is not the surviving corporation in the merger), by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by such corporation formed by such consolidation, or
into which the Guarantor shall have merged, or by the corporation that shall
have acquired such property (except to the extent the following Section 12.04
would result in the release of such Subsidiary Guarantee in which case such
surviving corporation does not have to execute any such supplemental indenture).
In the case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, by supplemental indenture executed and
delivered to the Trustee and satisfactory in form to the Trustee of the due and
punctual performance of all of the covenants
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and conditions of this Indenture to be performed by the Subsidiary Guarantor,
such successor corporation shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been named herein as a
Subsidiary Guarantor.
SECTION 12.04. Release of Guarantors. (a) Concurrently with any
consolidation or merger of a Subsidiary Guarantor or any sale or conveyance of
the property of a Subsidiary Guarantor as an entirety or substantially as an
entirety, in each case as permitted by Section 12.03, and upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of Counsel to
the effect that such consolidation, merger, sale or conveyance was made in
accordance with Section 12.03, the Trustee shall execute any documents
reasonably required in order to evidence the release of such Subsidiary
Guarantor from its obligations under its Subsidiary Guarantees endorsed on the
Notes and under this Article 12. Any Subsidiary Guarantor not released from its
obligations under its Subsidiary Guarantees endorsed on the Notes and under this
Article 12 shall remain liable for the full amount of principal of (and premium,
if any) and interest on the Notes and for the other obligations of a Subsidiary
Guarantor under its Subsidiary Guarantees endorsed on the Notes and under this
Article 12.
(b) Concurrently with the defeasance of the Notes under Section 13.02 or
the covenant defeasance of the Notes under Section 13.03, the Guarantors shall
be released from all of their obligations under their Senior Subordinated
Guarantees endorsed on the Notes and under this Article 12.
(c) Upon the consummation of any transaction (whether involving a sale or
other disposition of securities, a merger, a designation as an Unrestricted
Subsidiary or otherwise) whereby any Subsidiary Guarantor ceases to be a
Restricted Subsidiary and which transaction is otherwise in compliance with the
provisions of this Indenture, such Subsidiary Guarantor shall automatically be
released from all obligations under its Subsidiary Guarantees endorsed on the
Notes and under this Article 12.
SECTION 12.05. Additional Guarantors. The Company shall cause each Person
that becomes a Restricted Subsidiary after the date of this Indenture, upon
becoming a Restricted Subsidiary, to become a Subsidiary Guarantor with respect
to the Notes. Any such Person shall become a Subsidiary Guarantor by executing
and delivering to the Trustee (a) a supplemental indenture, in form and
substance satisfactory to the Trustee, which subjects such Person to the
provisions of this Indenture as a Subsidiary Guarantor and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized
and executed by such Person and constitutes the legal, valid, binding and
enforceable obligation of such
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Person (subject to such customary exceptions concerning creditors' rights and
equitable principles as may be acceptable to the Trustee in its discretion).
ARTICLE 13
SUBORDINATION OF NOTES AND SENIOR SUBORDINATED GUARANTEES
SECTION 13.01. Notes Subordinate to Senior Debt. The Company covenants and
agrees, and each Holder of a Note, by his acceptance thereof, likewise covenants
and agrees, that, to the extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article 4.01 and Article 14), (i) the
payment of the principal of (and premium, if any) and interest on each and all
of the Notes are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Debt of the Company, and (ii)
the payment of each Guarantor's obligations in respect of its Senior
Subordinated Guarantee is hereby expressly made subordinate and subject in right
of payment to the prior payment in full of all the obligations of such Guarantor
under all Guarantor Senior Debt of such Guarantor.
SECTION 13.02. Payment over of Proceeds upon Dissolution, Etc. In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive or retain payment in full of all amounts due or to become
due on or in respect of all Senior Debt, or provision shall be made for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, before the Holders of the Notes are entitled to receive
any payment or distribution of any kind or character, whether in cash, property
or securities, on account of principal of (or premium, if any) or interest on or
other obligations in respect of the Notes or on account of any purchase or other
acquisition of Notes by the Company or any Subsidiary of the Company (all such
payments, distributions, purchases and acquisitions herein referred to,
individually and collectively, as a "Notes Payment"), and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any Notes Payment which may be payable or deliverable in
respect of the Notes in any such Proceeding.
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In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of any Guarantor, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshalling of assets and liabilities of any
Guarantor, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Guarantor Proceeding";
the Company Proceeding and the Guarantor Proceeding each may be referred to as a
"Proceeding") the holders of all Guarantor Senior Debt of such Guarantor shall
first be entitled to receive payment in full of all amounts due or to become due
on or in respect of all such Guarantor Senior Debt, or provision shall be made
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of such Guarantor Senior Debt, before the Holders of
the Notes are entitled to receive or retain any payment or distribution of any
kind or character from such Guarantor, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of such Guarantor subordinated to the
payment of its Senior Subordinated Guarantee by such Guarantor) on account of
its Senior Subordinated Guarantee (all such payments and distributions herein
referred to, individually and collec tively, as a "Guarantor Notes Payment"; any
of the Company Notes Payment and the Guarantor Notes Payment each may be
referred to as a "Notes Payment"), and to that end the holders of Guarantor
Senior Debt of such Guarantor shall be entitled to receive, for application to
the payment thereof, any Guarantor Notes Payment which may be payable or
deliverable in respect of the Senior Subordinated Guarantee by such Guarantor in
any such Guarantor Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Note shall have received any Notes
Payment before all Senior Debt of the Company or Guarantor Senior Debt of the
Guarantor, as applicable, is paid in full or payment thereof provided for in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
such Debt, and if such fact shall, at or prior to the time of such Notes
Payment, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such Notes Payment shall be paid over or
delivered forthwith to the trustee in bankruptcy or other person making payment
or distribution of assets of the Company for the application to the payment of
all Senior Debt remaining unpaid, to the extent necessary to pay the Senior Debt
in full.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include a payment or distribution of stock or securities of the
Company
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or any Guarantor provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which
stock or securities are subordinated in right of payment to all then outstanding
Senior Debt or Guarantor Senior Debt to substantially the same extent as the
Notes or Senior Subordinated Guarantors are so subordinated as provided in this
Article. The consolidation of the Company or any Guarantor with, or the merger
of the Company or any Guarantor into, another Person or the liquidation or
dissolution of the Company or any Guarantor following the conveyance or transfer
of all or substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in Article 8 shall not be
deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which the Company or any Guarantor is merged or the
Person which acquires by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article 8.
SECTION 13.03. No Payment When Senior Debt in Default. In the event that
any Company Senior Payment Default (as defined below) shall have occurred and be
continuing, then no Company Notes Payment shall be made unless and until such
Company Senior Payment Default shall have been cured or waived or shall have
ceased to exist or all amounts then due and payable in respect of Senior Debt
shall have been paid in full, or provision shall have been made for such pay
ment in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt. "Company Senior Payment Default" means any default in
the payment of principal of (or premium, if any) or interest on Designated
Senior Debt when due, whether at the Stated Maturity of any such payment or by
declaration of acceleration, call for redemption or otherwise.
In the event that any Guarantor Senior Payment Default (as defined below)
shall have occurred and be continuing, then no Guarantor Notes Payment shall be
made unless and until such Guarantor Senior Payment Default shall have been
cured or waived or shall have ceased to exist or all amounts then due and
payable in respect of Guarantor Senior Debt shall have been paid in full, or
provision shall have been made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt. "Guarantor
Senior Payment Default" means any default in the payment of principal of (or
premium, if any) or interest on Guarantor Senior Debt when due, whether at the
Stated Maturity of any such payment or by declamation of acceleration, call for
redemption or otherwise. Any Company Senior Payment Default or Guarantor Senior
Payment Default may be referred to herein as a "Senior Payment Default".
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Upon the occurrence of a Company Senior Nonmonetary Default and receipt of
written notice by the Company and the Trustee of the occurrence of such Company
Senior Nonmonetary Default from any holder of Senior Debt (or any trustee, agent
or other representative for such holder) which is the subject of such Company
Senior Nonmonetary Default, no payments on account of principal of, premium, if
any, or interest on, or in respect of the purchase or other acquisition of, the
Notes, and no defeasance of the Notes, may be made for a period (the "Company
Payment Blockage Period") commencing on the date of the receipt of such notice
and ending the earlier of (i) the date on which such Senior Nonmonetary Default
shall have been cured or waived or ceased to exist or all Senior Debt the
subject of such Senior Nonmonetary Default shall have been discharged and (ii)
the 179th day after the date of the receipt of such notice. In any event, no
more than one Company Payment Blockage Period may be commenced during any
360-day period and there shall be a period of at least 181 days during each
360-day period when no Company Payment Blockage Period is in effect. In
addition, no Senior Nonmonetary Default that existed or was continuing on the
date of the commencement of a Company Payment Blockage Period may be made the
basis of the commencement of a subsequent Company Payment Blockage Period
whether or not within a period of 360 consecutive days, unless such Senior
Nonmonetary Default shall have been cured for a period of not less than 90
consecutive days. "Company Senior Nonmonetary Default" means the occurrence or
existence and continuance of an event of default with respect to Company Senior
Debt, other than a Senior Payment Default, permitting the holders of the Senior
Debt (or a trustee or other agent on behalf of the holders thereof) then to
declare such Senior Debt due and payable prior to the date on which it would
otherwise become due and payable.
Upon the occurrence of a Guarantor Senior Nonmonetary Default and receipt
of written notice by the Company and the Trustee of the occurrence of such
Guarantor Senior Nonmonetary Default from any holder of Guarantor Senior Debt
(or any trustee, agent or other representative for such holder), which is the
subject of such Guarantor Senior Nonmonetary Default, no payments on account of
principal of, premium, if any, or interest on, or in respect of the purchase or
other acquisition of, the Notes, and no defeasance of the Notes, in each case by
the Guarantor may be made for a period (the "Guarantor Payment Blockage Period")
commencing on the date of the receipt of such notice and ending the earlier of
(i) the date on which such Guarantor Senior Nonmonetary Default shall have been
cured or waived or ceased to exist or all Guarantor Senior Debt the subject of
such Senior Nonmonetary Default shall have been discharged and (ii) the 179th
day after the date of the receipt of such notice. In any event, no more than one
Guarantor Payment Blockage Period may be commenced during any 360-day period and
there shall be a period of at least 181 days during each 360-day period when no
Guarantor Payment Blockage Period is in effect. In
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addition, no Guarantor Senior Nonmonetary Default that existed or was continuing
on the date of the commencement of a Guarantor Payment Blockage Period may be
made the basis of the commencement of a subsequent Guarantor Payment Blockage
Period whether or not within a period of 360 consecutive days, unless such
Guarantor Senior Nonmonetary Default shall have been cured for a period of not
less than 90 consecutive days. "Guarantor Senior Nonmonetary Default" means the
occurrence or existence and continuance of an event of default with respect to
Guarantor Senior Debt, other than a Guarantor Senior Payment Default, permitting
the holders of the Guarantor Senior Debt (or a trustee or other agent on behalf
of the holders thereof) then to declare such Guarantor Senior Debt due and
payable prior to the date on which it would otherwise become due and payable.
Any of the Company Senior Nonmonetary Defaults and the Guarantor Senior
Nonmonetary Defaults may be referred to herein as a "Senior Nonmonetary
Default".
The failure to make any payment on the Notes by reason of the provisions
of the Indenture described under this Article 13 will not be construed as
preventing the occurrence of an Event of Default with respect to the Notes
arising from any such failure to make payment. Upon termination of any period of
payment blockage the Company shall resume making any and all required payments
in respect of the Notes, including any missed payments.
In the event that, notwithstanding the foregoing, the Company or any
Guarantor shall make any Company Notes Payment or Guarantor Notes Payment to the
Trustee or any Holder prohibited by the foregoing of this Section, and if such
fact shall, at or prior to the time of such Notes Payment, have been made known
to the Trustee or, as the case may be, such Holder, then and in such event such
Notes Payment shall be paid over and delivered forthwith to the holders of the
Senior Debt of the Company or of the Guarantor Senior Debt of the Guarantor, as
the case may be.
By reason of such subordination, in the event of insolvency, creditors of
the Company who are not holders of Senior Debt or of the Notes may recover less,
ratably, than holders of Senior Debt and more, ratably, than Holders of the
Notes.
The subordination provisions described above will not be applicable to
payments in respect of the Notes from a defeasance trust established in
connection with any defeasance or covenant defeasance of the Notes as described
under Article 14.
The provisions of this Section shall not apply to any Notes Payment with
respect to which Section 13.02 would be applicable.
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SECTION 13.04. Payment Permitted If No Default. Nothing contained in this
Article or elsewhere in this Indenture or in any of the Notes shall prevent (a)
the Company, at any time except during the pendency of any Proceeding referred
to in Section 13.02 or under the conditions described in Section 13.03, from
making Notes Payments, or (b) the application by the Trustee of any money
deposited with it hereunder to Notes Payments or the retention of such Notes
Payment by the Holders, if, at the time of such application by the Trustee, it
did not have knowledge that such Notes Payment would have been prohibited by the
provisions of this Article.
SECTION 13.05. Subrogation to Rights of Holders of Senior Debt. Subject to
the payment in full of all amounts due or to become due on or in respect of
Senior Debt of the Company or Guarantor Senior Debt of a Guarantor, as the case
may be, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of
the Notes shall be subrogated to the rights of the holders of such Debt to
receive payments and distributions of cash, property and securities applicable
to such Debt until the principal of (and premium, if any) and interest on the
Notes or the obligation under such Guarantor's Senior Subordinated Guarantee, as
the case may be, shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of the Company or
Guarantor Senior Debt of a Guarantor, as the case may be, of any cash, property
or securities to which the Holders of the Notes or the Trustee would be entitled
except for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Debt or Guarantor Senior
Debt by Holders of the Notes or the Trustee, shall, as among the Company or such
Guarantor, as the case may be, its creditors other than holders of Senior Debt
or Guarantor Senior Debt, as the case may be, and the Holders of the Notes, be
deemed to be a payment or distribution by the Company or such Guarantor, as the
case may be, to or on account of the Senior Debt of the Company or Guarantor
Senior Debt of such Guarantor, as the case may be.
SECTION 13.06. Provisions Solely to Define Relative Rights. The provisions
of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders on the one hand and the holders of Senior Debt
and Guarantor Senior Debt on the other hand. Nothing contained in this Article
or elsewhere in this Indenture or in the Notes is intended to or shall (a)
impair, as among the Company or any Guarantor, as applicable, its creditors
other than holders of Senior Debt or Guarantor Senior Debt and the Holders of
the Notes as the Guarantees endorsed thereon, the obligation of the Company or
any Guarantor, as applicable, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior Debt, is
intended to rank equally with all other general obligations of the Company), to
pay to the Holders
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of the Notes with the Guarantees endorsed thereon the principal of (and premium,
if any) and interest on the Notes as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Company or any Guarantor, as applicable, of the Holders of the Notes
with the Guarantees endorsed thereon and creditors of the Company or any
Guarantor, as applicable, other than the holders of Senior Debt, and Guarantor
Senior Debt; or (c) prevent the Trustee or the Holder of any Note as the
Guarantees endorsed thereon from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt and Guarantor Senior Debt and
Guarantor Senior Debt to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
SECTION 13.07. Trustee to Effectuate Subordination. Each Holder of a Note
by his acceptance thereof authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 13.08. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Debt or Guarantor Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or any
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company or any Guarantor with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt or Guarantor Senior Debt may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Notes to the holders of Senior Debt
and Guarantor Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt or Guarantor Senior Debt, or otherwise amend or supplement in
any manner Senior Debt or Guarantor Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt or Guarantor Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt or Guarantor Senior Debt;
(iii) release any Person liable in any manner for the collection of Senior Debt
or
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Guarantor Senior Debt; and (iv) exercise or refrain from exercising any rights
against the Company, the Guarantors and any other Person.
SECTION 13.09. Notice to Trustee. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Notes or any of the
Senior Subordinated Guarantees. Notwithstanding the provisions of this Article
or any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Notes or any of the Senior
Subordinated Guarantees, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Company or a holder of
Senior Debt or Guarantor Senior Debt or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 6.01, shall be entitled in all respects to assume that no such facts
exist.
Subject to the provisions of Section 6.01, the Trustee shall be entitled
to conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt or Guarantor Senior Debt (or
a trustee therefor) to establish that such notice has been given by a holder of
Senior Debt or Guarantor Senior Debt (or a trustee therefor). In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt or Guarantor
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt or
Guarantor Senior Debt held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 13.10. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets or securities of the Company
or any Guarantor referred to in this Article, the Trustee, subject to the
provisions of Section 6.01, and the Holders of the Notes shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such 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 of Notes, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt or Guarantor Senior Debt and other
indebtedness of the Company or any Guarantor,
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as the case may be, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 13.11. Trustee Not Fiduciary for Holders of Senior Debt. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt or Guarantor Senior Debt and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Notes or to
the Company or any Guarantor or to any other Person cash, property or securities
to which any holders of Senior Debt or Guarantor Senior Debt shall be entitled
by virtue of this Article or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants or obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of Senior Indebtedness
shall be read into this Indenture against the Trustee.
SECTION 13.12. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights. The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt or
Guarantor Senior Debt which may at any time be held by it, to the same extent as
any other holder of Senior Debt or Guarantor Senior Debt, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07.
SECTION 13.13. Article 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 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 in addition to
or in place of the Trustee; provided, however, that Section 13.12 shall not
apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as Paying Agent.
SECTION 13.14. Defeasance of this Article 13. The subordination of the
Notes and the Senior Subordinated Guarantees provided by this Article 13 is
expressly made subject to the provisions for defeasance or covenant defeasance
in Article 14 hereof and, anything herein to the contrary notwithstanding, upon
the effectiveness of any such defeasance or covenant defeasance, the Notes then
outstanding and the Senior Subordinated Guarantees related thereto shall
thereupon cease to be subordinated pursuant to this Article 13.
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ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may at its option by Board Resolution, at any time, in
accordance with the Exchange and Registration Rights Agreement, elect to have
either Section 14.02 or Section 14.03 applied to the Outstanding Notes upon
compliance with the conditions set forth below in this Article 14.
SECTION 14.02. Defeasance and Discharge. Upon the Company's exercise of
the option provided in Section 14.01 applicable to this Section, the Company
shall be deemed to have been discharged from its obligations with respect to the
Outstanding Notes, and the provisions of Article 12 and Thirteen hereof shall
cease to be effective, 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 Outstanding Notes and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), and (ii) the Guarantors shall be released
from all of their obligations under their Senior Subordinated Guarantees and
under Article 12 of this Indenture except for the following which shall survive
until otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Notes to receive, solely from the trust fund described in Section 14.04 and
as more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest on such Notes when such payments are due, (B)
the Company's obligations with respect to such Notes 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 and (D) this Article 14. Subject to compliance with this
Article 14, the Company may exercise its option under this Section 14.02
notwithstanding the prior exercise of its option under Section 14.03.
SECTION 14.03. Covenant Defeasance. Upon the Company's exercise of the
option provided in Section 14.01 applicable to this Section, (i) the Company
shall be released from its obligations under Sections 10.05 through 10.18,
inclusive, and Clauses (3), (4) and (5) of Section 8.01, (ii) the occurrence of
an event specified in Sections 5.01(3), 5.01(4) (with respect to Clauses (1),
(3), (4) or (5) of Section 8.01), 5.01(5) (with respect to any of Sections 10.05
through 10.18, inclusive), 5.01(6) and 5.01(7) shall not be deemed to be an
Event of Default and (iii) the provisions of Article 13 hereof shall cease to be
effective on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such covenant defeasance
means that
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the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section, Clause or
Article, whether directly or indirectly by reason of any reference elsewhere
herein to any such Section, Clause or Article or by reason of any reference in
any such Section, Clause or Article to any other provision herein or in any
other document, but the remainder of this Indenture and such Notes shall be
unaffected thereby.
SECTION 14.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 14.02 or
Section 14.03 to the then Outstanding Notes:
(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
14 applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Notes, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combi nation thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal
of (, premium, if any,) and each instalment of interest on the Notes on
the Stated Maturity of such principal or instalment of interest in
accordance with the terms of this Indenture and of such Notes. For this
purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such U.S. Government
Obliga tion or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
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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.
(2) In the case of an election under Section 14.02, 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 of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Notes will not recognize gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
(3) In the case of an election under Section 14.03, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Notes will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would have been the case if
such deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Notes, if then listed on any securities
exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the Trustee to
have a conflicting interest as defined in Section 6.08 and for purposes of
the Trust Indenture Act with respect to any securities of the Company.
(6) At the time of such deposit: (A) no default in the payment of all or a
portion of principal of (or premium, if any) or interest on or other
obligations in respect of any Senior Debt shall have occurred and be
continuing, and no event of default with respect to any Senior Debt shall
have occurred and be continuing and shall have resulted in such Senior
Debt becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable and (B) no other event of
default with respect to any Senior Debt shall have occurred and be
continuing permitting (after notice or the lapse of time, or both) the
holders of such Senior Debt (or a trustee on behalf of the holders
thereof)
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to declare such Senior Debt due and payable prior to the date on which it
would otherwise have become due and payable, or, in the case of either
Clause (A) or Clause (B) above, each such default or event of default
shall have been cured or waived or shall have ceased to exist.
(7) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default shall have occurred and be
continuing.
(8) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
14.02 or the covenant defeasance under Section 14.03 (as the case may be)
have been complied with.
(10) Such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company as defined in
the Investment Company Act of 1940, as amended, or such trust shall be
qualified under such act or exempt from regulation thereunder.
SECTION 14.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 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 14.05, the "Trustee")
pursuant to Section 13.04 in respect of the Notes shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Notes, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law. Money so held in trust shall not be subject to the provisions of Article
12.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 14.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Notes.
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125
Anything in this Article 14 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 14.04
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 14.06. Reinstatement. If the Trustee or the Paying Agent is unable
to apply any money in accordance with Section 14.02 or 14.03 by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 13 until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
14.02 or 14.03; provided, however, that if the Company makes any payment of
principal of (and premium, if any) or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Note to receive such payment from the money held by the
Trustee or the Paying Agent.
-----------------------------
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
▇.▇. ▇▇▇▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
Attest:
----------------------------------
THE DUN & BRADSTREET
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President and
Controller
Attest:
----------------------------------
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Attest:
----------------------------------
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[Pages 119 and 120 were intentionally left blank.]
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ANNEX A --
Form of Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to ss. 3.06(b)(i) of the Indenture)
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Trustee Administration
Re: 9 1/8% Senior Subordinated Notes due June 1, 2008 of ▇.▇. ▇▇▇▇▇▇▇▇▇
Inc. (the "Securities")
Reference is made to the Indenture, dated as of June 5, 1998 (the
"Indenture"), from ▇.▇. ▇▇▇▇▇▇▇▇▇ Inc. (the "Company"), the Guarantors named
therein, The Bank of New York, as Trustee. Terms used herein and defined in the
Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933
(the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
A-1
129
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Regulation S
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
904 or Rule 144 under the Securities Act and with all applicable securities laws
of the states of the United States and other jurisdictions. Accordingly, the
Owner hereby further certifies as follows:
1. Rule 904 Transfers. If the transfer is being effected in accordance
with Rule 904:
(a) the Owner is not a distributor of the Securities, an affiliate of the
Company or any such distributor or a person acting on behalf of any of the
foregoing;
(b) the offer of the Specified Securities was not made to a person in the
United States;
(c) either:
(i) at the time the buy order was originated, the Transferee
was outside the United States or the Owner and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States, or
(ii) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association
of International Bond Dealers, or another designated offshore
securities market and neither the Owner nor any person acting on its
behalf knows that the transaction has been prearranged with a buyer
in the United States;
(d) no directed selling efforts have been made in the United States by or
on behalf of the Owner or any affiliate thereof;
(e) if the Owner is a dealer in securities or has received a selling
concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Restricted Period,
then the requirements of Rule 904(b)(1) or (b)(3) have been satisfied; and
(f) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
A-2
130
2. Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(a) the transfer is occurring after a holding period of at least two years
(computed in accordance with paragraph (d) of Rule 144) has elapsed since
the Specified Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(b) the transfer is occurring after a holding period of at least three
years has elapsed since the Specified Securities were last acquired from
the Company or from an affiliate of the Company, whichever is later, and
the Owner is not, and during the preceding three months has not been, an
affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Guarantors and the Initial
Purchasers.
Dated: __________________________________________________
(Print the name of the Undersigned,
as such term is defined in the second
paragraph of this certificate.)
____________________________________________
By:
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
A-3
131
ANNEX B --
Form of Restricted Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 3.06(b)(ii) of the Indenture)
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Trustee Administration
Re: 9 1/8% Senior Subordinated Notes due June 1, 2008 of ▇.▇. ▇▇▇▇▇▇▇▇▇
Inc. (the "Securities")
Reference is made to the Indenture, dated as of June 5, 1998 (the
"Indenture"), from ▇.▇. ▇▇▇▇▇▇▇▇▇ Inc. (the "Company"), the Guarantors named
therein and The Bank of New York, as Trustee. Terms used herein and defined in
the Indenture or in Rule 144A or Rule 144 under the U.S. Securities Act of 1933
(the "Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
ISIN No(s), If any. ____________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
B-1
132
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, (i) the Owner is not a U.S. Person (as
defined in the Indenture) and (ii) such transfer is being effected in accordance
with Rule 144A or Rule 144 under the Securities Act and all applicable
securities laws of the states of the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies as:
1. Rule 144A Transfers. If the transfer is being effected in accordance
with Rule 144A:
(a) the Specified Securities are being transferred to a person that the
Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(b) the Owner and any person acting on its behalf have taken reasonable
steps to ensure that the Transferee is aware that the Owner may be relying
on Rule 144A in connection with the transfer; and
2. Rule 144 Transfers. If the transfer is being effected pursuant to Rule
144:
(a) the transfer is occurring after a holding period of at least two years
(computed in accordance with paragraph (d) of Rule 144) has elapsed since
the Specified Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(b) the transfer is occurring after a holding period of at least three
years has elapsed since the Specified Securities were last acquired from
the Company or from an affiliate of the Company, whichever is later, and
the Owner is not, and during the preceding three months has not been, an
affiliate of the Company.
B-2
133
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Guarantors and the Initial
Purchasers.
Dated: __________________________________________________
(Print the name of the Undersigned,
as such term is defined in the second
paragraph of this certificate.)
____________________________________________
By:
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
B-3
134
ANNEX C --
Form of Unrestricted Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ss. 3.06(c))
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Trustee Administration
Re: 9 1/8% Senior Subordinated Notes due June 1, 2008 of ▇.▇. ▇▇▇▇▇▇▇▇▇
Inc. (the "Securities")
Reference is made to the Indenture, dated as of June 5, 1998 (the
"Indenture"), from ▇.▇. ▇▇▇▇▇▇▇▇▇ Inc. (the "Company"), the Guarantors named
therein and The Bank of New York, as Trustee. Terms used herein and defined in
the Indenture or in Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
C-1
135
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Securities Act Legend pursuant to Section 3.06(c) of the
Indenture. In connection with such exchange, the Owner hereby certifies that the
exchange is occurring after a holding period of at least three years (computed
in accordance with paragraph (d) of Rule 144) has elapsed since the Specified
Securities were last acquired from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Guarantors and the Initial
Purchasers.
Dated: __________________________________________________
(Print the name of the Undersigned,
as such term is defined in the second
paragraph of this certificate.)
____________________________________________
By:
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
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136
ANNEX D --
Form of Certification to Be Given
by Holders of Beneficial Interest in a
Regulation S Temporary Global Note
OWNER SECURITIES CERTIFICATION
▇.▇. ▇▇▇▇▇▇▇▇▇ INC.
9-1/8% Senior Subordinated Notes due 2008
This is to certify that, as of the date hereof, $________ of the
above-captioned Notes are beneficially owned by non-U.S. person(s). As used in
this paragraph, the term "U.S. person" has the meaning given to it by Regulation
S under the Securities Act of 1933, as amended.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the Notes held
by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
We understand that this certificate is required in connection with certain
securities laws of the United States. In connection therewith, if administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate to any interested party in such proceedings.
Dated:______________, ____
By:____________________________________
As, or as agent for, the beneficial
owner(s) of the Notes to which this
certificate relates.
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137
ANNEX E --
Form of Certification to Be Given by
the Euroclear Operator or Cedel S.A.
DEPOSITARY SECURITIES CERTIFICATION
▇.▇. ▇▇▇▇▇▇▇▇▇ INC.
9-1/8% Senior Subordinated Notes due 2008
This is to certify that, with respect to U.S.$___________ principal amount
of the above-captioned Notes, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of Notes set forth above (our "Member Organizations"),
certifications with respect to such portion, substantially to the effect set
forth in the Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the Regulation S Temporary Global Note (as defined in the
Indenture) excepted in such certifications and (ii) that as of the date hereof
we have not received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this
E-1
138
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _____________, _______
Yours faithfully,
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, Brussels office,
as operator of the Euroclear System]
or
[CEDEL S.A.]
By ____________________________
E-2