▇▇-▇▇▇ STORES, INC., AS ISSUER,
FCA FINANCIAL, INC.
FABRI-CENTERS OF SOUTH DAKOTA, INC.
FABRI-CENTERS OF CALIFORNIA, INC.
FCA OF OHIO, INC.
HOUSE OF FABRICS, INC.
AS GUARANTORS,
AND
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, AS TRUSTEE
---------
INDENTURE
DATED AS OF MAY 5, 1999
---------
$150,000,000
10 3/8% SENIOR SUBORDINATED NOTES DUE 2007
Reconciliation and tie between Trust Indenture Act of 1939,
as amended, and Indenture, dated as of May 5, 1999
Trust Indenture Indenture
Act Section Section
--------------- -------
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . 609
(b). . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a). . . . . . . . . . . . . . . . . . . . . 613
(c). . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a). . . . . . . . . . . . . . . . . . . . . 701
(b). . . . . . . . . . . . . . . . . . . . . 702
(c). . . . . . . . . . . . . . . . . . . . . 702
Section 313 (a). . . . . . . . . . . . . . . . . . . . . 703
Section 314 (a). . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . 1019
(b). . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 103, 104, 404, 1201
(c)(2) . . . . . . . . . . . . . . . . . . . 103, 104, 404, 1201
(d). . . . . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . 103
Section 315 (a). . . . . . . . . . . . . . . . . . . . . 601(b)
(b). . . . . . . . . . . . . . . . . . . . . 602
(c). . . . . . . . . . . . . . . . . . . . . 601(a)
(d). . . . . . . . . . . . . . . . . . . . . 601(c), 603
(e). . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a)(last sentence) . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A). . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . 508
(c). . . . . . . . . . . . . . . . . . . . . 105
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a). . . . . . . . . . . . . . . . . . . . . 108
----------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Indenture.
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TABLE OF CONTENTS
PAGE
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PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . 2
"Acquired Indebtedness". . . . . . . . . . . . . . . . 2
"Affiliate". . . . . . . . . . . . . . . . . . . . . . 2
"Applicable Procedures". . . . . . . . . . . . . . . . 3
"Asset Sale" . . . . . . . . . . . . . . . . . . . . . 3
"Average Life to Stated Maturity". . . . . . . . . . . 3
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . 3
"Board of Directors" . . . . . . . . . . . . . . . . . 3
"Board Resolution" . . . . . . . . . . . . . . . . . . 3
"Book-Entry Security". . . . . . . . . . . . . . . . . 4
"Business Day" . . . . . . . . . . . . . . . . . . . . 4
"Capital Lease Obligation" . . . . . . . . . . . . . . 4
"Capital Stock". . . . . . . . . . . . . . . . . . . . 4
"Cedel". . . . . . . . . . . . . . . . . . . . . . . . 4
"Change of Control". . . . . . . . . . . . . . . . . . 4
"Commission" . . . . . . . . . . . . . . . . . . . . . 5
"Commodity Price Protection Agreement" . . . . . . . . 5
"Company". . . . . . . . . . . . . . . . . . . . . . . 5
"Company Request" or "Company Order" . . . . . . . . . 5
"Consolidated Fixed Charge Coverage Ratio" . . . . . . 6
"Consolidated Income Tax Expense". . . . . . . . . . . 7
"Consolidated Interest Expense". . . . . . . . . . . . 7
"Consolidated Net Income (Loss)" . . . . . . . . . . . 7
"Consolidated Net Tangible Assets" . . . . . . . . . . 8
"Consolidated Non-cash Charges". . . . . . . . . . . . 8
"Consolidated Rental Payments" . . . . . . . . . . . . 8
"Consolidation". . . . . . . . . . . . . . . . . . . . 8
"Corporate Trust Office" . . . . . . . . . . . . . . . 9
"Credit Facility". . . . . . . . . . . . . . . . . . . 9
"Currency Hedging Agreements". . . . . . . . . . . . . 9
"Default". . . . . . . . . . . . . . . . . . . . . . . ▇
-▇-
"▇▇▇▇▇▇▇▇▇▇" . . . . . . . . . . . . . . . . . . . . . 9
"Designated Senior Indebtedness" . . . . . . . . . . . 9
"Disinterested Director" . . . . . . . . . . . . . . . 9
"Euroclear". . . . . . . . . . . . . . . . . . . . . . 9
"Event of Default" . . . . . . . . . . . . . . . . . . 9
"Exchange Act" . . . . . . . . . . . . . . . . . . . .10
"Exchange Offer" . . . . . . . . . . . . . . . . . . .10
"Exchange Offer Registration Statement". . . . . . . .10
"Fair Market Value". . . . . . . . . . . . . . . . . .10
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . .10
"Global Securities". . . . . . . . . . . . . . . . . .10
"Guarantee". . . . . . . . . . . . . . . . . . . . . .10
"Guaranteed Debt". . . . . . . . . . . . . . . . . . .10
"Guarantor". . . . . . . . . . . . . . . . . . . . . .11
"Holder" . . . . . . . . . . . . . . . . . . . . . . .11
"Indebtedness" . . . . . . . . . . . . . . . . . . . .11
"Indenture". . . . . . . . . . . . . . . . . . . . . .12
"Indenture Obligations". . . . . . . . . . . . . . . .12
"Initial Securities" . . . . . . . . . . . . . . . . .12
"Initial Purchasers" . . . . . . . . . . . . . . . . .12
"Interest Payment Date". . . . . . . . . . . . . . . .12
"Interest Rate Agreements" . . . . . . . . . . . . . .12
"Investment" . . . . . . . . . . . . . . . . . . . . .12
"Issue Date" . . . . . . . . . . . . . . . . . . . . .12
"Lien" . . . . . . . . . . . . . . . . . . . . . . . .12
"Maturity" . . . . . . . . . . . . . . . . . . . . . .13
"▇▇▇▇▇'▇". . . . . . . . . . . . . . . . . . . . . . .13
"Net Cash Proceeds". . . . . . . . . . . . . . . . . .13
"Non-U.S. Person". . . . . . . . . . . . . . . . . . .14
"Officers' Certificate". . . . . . . . . . . . . . . .14
"Opinion of Counsel" . . . . . . . . . . . . . . . . .14
"Opinion of Independent Counsel" . . . . . . . . . . .14
"Outstanding". . . . . . . . . . . . . . . . . . . . .14
"Pari Passu Indebtedness". . . . . . . . . . . . . . .15
"Paying Agent" . . . . . . . . . . . . . . . . . . . .15
"Permitted Investment" . . . . . . . . . . . . . . . .15
"Person" . . . . . . . . . . . . . . . . . . . . . . .16
"Predecessor Security" . . . . . . . . . . . . . . . .16
"Preferred Stock". . . . . . . . . . . . . . . . . . .16
"Prospectus" . . . . . . . . . . . . . . . . . . . . .16
"Public Equity Offering" . . . . . . . . . . . . . . .16
"Purchase Money Obligation". . . . . . . . . . . . . .16
"Qualified Capital Stock". . . . . . . . . . . . . . .17
-ii-
"Redeemable Capital Stock" . . . . . . . . . . . . . .17
"Redemption Date". . . . . . . . . . . . . . . . . . .17
"Redemption Price" . . . . . . . . . . . . . . . . . .17
"Registration Rights Agreement". . . . . . . . . . . .17
"Registration Statement" . . . . . . . . . . . . . . .17
"Regular Record Date". . . . . . . . . . . . . . . . .18
"Regulation S" . . . . . . . . . . . . . . . . . . . .18
"Regulation S Global Securities" . . . . . . . . . . .18
"Responsible Officer". . . . . . . . . . . . . . . . .18
"Restricted Subsidiary". . . . . . . . . . . . . . . .18
"Rule 144A". . . . . . . . . . . . . . . . . . . . . .18
"Rule 144A Global Securities". . . . . . . . . . . . .18
"S&P". . . . . . . . . . . . . . . . . . . . . . . . .18
"Securities Act" . . . . . . . . . . . . . . . . . . .18
"Senior Guarantor Indebtedness". . . . . . . . . . . .18
"Senior Indebtedness". . . . . . . . . . . . . . . . .19
"Senior Representative". . . . . . . . . . . . . . . .20
"Series B Global Securities" . . . . . . . . . . . . .20
"Shelf Registration Statement" . . . . . . . . . . . .20
"Special Record Date". . . . . . . . . . . . . . . . .20
"Stated Maturity". . . . . . . . . . . . . . . . . . .20
"Subordinated Indebtedness". . . . . . . . . . . . . .20
"Subsidiary" . . . . . . . . . . . . . . . . . . . . .20
"Successor Security" . . . . . . . . . . . . . . . . .20
"Temporary Cash Investments" . . . . . . . . . . . . .20
"Trustee". . . . . . . . . . . . . . . . . . . . . . .21
"Trust Indenture Act". . . . . . . . . . . . . . . . .21
"Unrestricted Subsidiary". . . . . . . . . . . . . . .21
"Unrestricted Subsidiary Indebtedness" . . . . . . . .21
"Voting Stock" . . . . . . . . . . . . . . . . . . . .22
"Wholly Owned Restricted Subsidiary" . . . . . . . . .22
Section 102. Other Definitions. . . . . . . . . . . . . . . . . . . .22
Section 103. Compliance Certificates and Opinions.. . . . . . . . . .23
Section 104. Form of Documents Delivered to Trustee.. . . . . . . . .24
Section 105. Acts of Holders. . . . . . . . . . . . . . . . . . . . .25
Section 106. Notices, etc., to the Trustee, the Company and any
Guarantor. . . . . . . . . . . . . . . . . . . . . . .26
Section 107. Notice to Holders; Waiver. . . . . . . . . . . . . . . .27
Section 108. Conflict with Trust Indenture Act. . . . . . . . . . . .27
Section 109. Effect of Headings and Table of Contents.. . . . . . . .27
Section 110. Successors and Assigns.. . . . . . . . . . . . . . . . .28
Section 111. Separability Clause. . . . . . . . . . . . . . . . . . .28
Section 112. Benefits of Indenture. . . . . . . . . . . . . . . . . .28
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SECTION 113. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . .28
Section 114. Legal Holidays.. . . . . . . . . . . . . . . . . . . . .28
Section 115. Independence of Covenants. . . . . . . . . . . . . . . .28
Section 116. Schedules and Exhibits.. . . . . . . . . . . . . . . . .29
Section 117. Counterparts.. . . . . . . . . . . . . . . . . . . . . .29
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally. . . . . . . . . . . . . . . . . . . . .29
Section 202. Form of Face of Security.. . . . . . . . . . . . . . . .30
Section 203. Form of Reverse of Securities. . . . . . . . . . . . . .44
Section 204. Form of Guarantee. . . . . . . . . . . . . . . . . . . .52
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms. . . . . . . . . . . . . . . . . . . . .53
Section 302. Denominations. . . . . . . . . . . . . . . . . . . . . .54
Section 303. Execution, Authentication, Delivery and Dating.. . . . .54
Section 304. Temporary Securities.. . . . . . . . . . . . . . . . . .56
Section 305. Registration, Registration of Transfer and Exchange. . .56
Section 306. Book Entry Provisions for Global Securities. . . . . . .58
Section 307. Special Transfer and Exchange Provisions.. . . . . . . .60
Section 308. Mutilated, Destroyed, Lost and Stolen Securities.. . . .63
Section 309. Payment of Interest; Interest Rights Preserved.. . . . .63
Section 310. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . .65
Section 311. Persons Deemed Owners. . . . . . . . . . . . . . . . . .65
Section 312. Cancellation.. . . . . . . . . . . . . . . . . . . . . .65
Section 313. Computation of Interest. . . . . . . . . . . . . . . . .66
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . . . .66
Section 402. Defeasance and Discharge.. . . . . . . . . . . . . . . .66
Section 403. Covenant Defeasance. . . . . . . . . . . . . . . . . . .67
Section 404. Conditions to Defeasance or Covenant Defeasance. . . . .67
Section 405. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions.. . .70
Section 406. Reinstatement. . . . . . . . . . . . . . . . . . . . . .70
-iv-
ARTICLE FIVE
REMEDIES
Section 501. Events of Default. . . . . . . . . . . . . . . . . . . .71
Section 502. Acceleration of Maturity; Rescission and Annulment.. . .73
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.. . . . . . . . . . . . . . . . . . . . . .74
Section 504. Trustee May File Proofs of Claim.. . . . . . . . . . . .75
Section 505. Trustee May Enforce Claims without Possession
of Securities. . . . . . . . . . . . . . . . . . . . .76
Section 506. Application of Money Collected.. . . . . . . . . . . . .76
Section 507. Limitation on Suits. . . . . . . . . . . . . . . . . . .77
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.. . . . . . . . . . . . . . . . .77
Section 509. Restoration of Rights and Remedies.. . . . . . . . . . .78
Section 510. Rights and Remedies Cumulative.. . . . . . . . . . . . .78
Section 511. Delay or Omission Not Waiver.. . . . . . . . . . . . . .78
Section 512. Control by Holders.. . . . . . . . . . . . . . . . . . .78
Section 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . .79
Section 514. Undertaking for Costs. . . . . . . . . . . . . . . . . .79
Section 515. Waiver of Stay, Extension or Usury Laws. . . . . . . . .79
Section 516. Remedies Subject to Applicable Law.. . . . . . . . . . .80
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee. . . . . . . . . . . . . . . . . . . .80
Section 602. Notice of Defaults.. . . . . . . . . . . . . . . . . . .81
Section 603. Certain Rights of Trustee. . . . . . . . . . . . . . . .82
Section 604. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof. . . . .83
Section 605. Trustee and Agents May Hold Securities;
Collections; etc.. . . . . . . . . . . . . . . . . . .83
Section 606. Money Held in Trust. . . . . . . . . . . . . . . . . . .83
Section 607. Compensation and Indemnification of Trustee and Its
Prior Claim. . . . . . . . . . . . . . . . . . . . . .84
Section 608. Conflicting Interests. . . . . . . . . . . . . . . . . .84
Section 609. Trustee Eligibility. . . . . . . . . . . . . . . . . . .84
Section 610. Resignation and Removal; Appointment of
Successor Trustee. . . . . . . . . . . . . . . . . . .85
Section 611. Acceptance of Appointment by Successor.. . . . . . . . .86
-v-
Section 612. Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . . . . . .87
Section 613. Preferential Collection of Claims Against Company. . . .88
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Holders.. . . . . . . . . . . . . . . . . . . . . .88
Section 702. Disclosure of Names and Addresses of Holders.. . . . . .88
Section 703. Reports by Trustee.. . . . . . . . . . . . . . . . . . .89
Section 704. Reports by Company and Guarantors. . . . . . . . . . . .89
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS
Section 801. Company and Guarantors May Consolidate, etc., Only on
Certain Terms. . . . . . . . . . . . . . . . . . . . .90
Section 802. Successor Substituted. . . . . . . . . . . . . . . . . .93
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without
Consent of Holders.. . . . . . . . . . . . . . . . . .93
Section 902. Supplemental Indentures and Agreements with
Consent of Holders.. . . . . . . . . . . . . . . . . .94
Section 903. Execution of Supplemental Indentures and Agreements. . .96
Section 904. Effect of Supplemental Indentures. . . . . . . . . . . .96
Section 905. Conformity with Trust Indenture Act. . . . . . . . . . .96
Section 906. Reference in Securities to Supplemental Indentures.. . .96
Section 907. Notice of Supplemental Indentures. . . . . . . . . . . .97
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest. . . . . . .97
Section 1002. Maintenance of Office or Agency.. . . . . . . . . . . .97
Section 1003. Money for Security Payments to Be Held in Trust.. . . .98
Section 1004. Corporate Existence.. . . . . . . . . . . . . . . . . .99
-vi-
Section 1005. Payment of Taxes and Other Claims.. . . . . . . . . . .99
Section 1006. Maintenance of Properties.. . . . . . . . . . . . . . 100
Section 1007. Maintenance of Insurance. . . . . . . . . . . . . . . 100
Section 1008. Limitation on Indebtedness. . . . . . . . . . . . . . 101
Section 1009. Limitation on Restricted Payments.. . . . . . . . . . 103
Section 1010. Limitation on Transactions with Affiliates. . . . . . 107
Section 1011. Limitation on Liens.. . . . . . . . . . . . . . . . . 108
Section 1012. Limitation on Sale of Assets. . . . . . . . . . . . . 109
Section 1013. Limitation on Issuances of Guarantees of and Pledges
for Indebtedness. . . . . . . . . . . . . . . . . . 114
Section 1014. Limitation on Senior Subordinated Indebtedness. . . . 115
Section 1015. Purchase of Securities upon a Change of Control.. . . 115
Section 1016. Limitation on Subsidiary Capital Stock. . . . . . . . 119
Section 1017. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . . 120
Section 1018. Limitations on Unrestricted Subsidiaries. . . . . . . 120
Section 1019. Provision of Financial Statements.. . . . . . . . . . 122
Section 1020. Statement by Officers as to Default.. . . . . . . . . 123
Section 1021. Waiver of Certain Covenants.. . . . . . . . . . . . . 123
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption. . . . . . . . . . . . . . . . . 124
Section 1102. Applicability of Article. . . . . . . . . . . . . . . 124
Section 1103. Election to Redeem; Notice to Trustee.. . . . . . . . 124
Section 1104. Selection by Trustee of Securities to Be Redeemed.. . 124
Section 1105. Notice of Redemption. . . . . . . . . . . . . . . . . 125
Section 1106. Deposit of Redemption Price.. . . . . . . . . . . . . 126
Section 1107. Securities Payable on Redemption Date.. . . . . . . . 126
Section 1108. Securities Redeemed or Purchased in Part. . . . . . . 127
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. Satisfaction and Discharge of Indenture.. . . . . . . 127
Section 1202. Application of Trust Money. . . . . . . . . . . . . . 128
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior Indebtedness.. . . . 129
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Section 1302. Payment Over of Proceeds Upon Dissolution, etc. . . . 129
Section 1303. Suspension of Payment When Designated Senior
Indebtedness in Default.. . . . . . . . . . . . . . 130
Section 1304. Payment Permitted if No Default.. . . . . . . . . . . 132
Section 1305. Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 132
Section 1306. Provisions Solely to Define Relative Rights.. . . . . 133
Section 1307. Trustee to Effectuate Subordination.. . . . . . . . . 133
Section 1308. No Waiver of Subordination Provisions.. . . . . . . . 133
Section 1309. Notice to Trustee.. . . . . . . . . . . . . . . . . . 134
Section 1310. Reliance on Judicial Orders or Certificates.. . . . . 135
Section 1311. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights. . . . . . . . . . 135
Section 1312. Article Applicable to Paying Agents.. . . . . . . . . 136
Section 1313. No Suspension of Remedies.. . . . . . . . . . . . . . 136
Section 1314. Trustee's Relation to Senior Indebtedness.. . . . . . 136
ARTICLE FOURTEEN
GUARANTEES
Section 1401. Guarantors' Guarantee.. . . . . . . . . . . . . . . . 136
Section 1402. Continuing Guarantee; No Right of Set-Off;
Independent Obligation . . . . . . . . . . . . . . . 137
Section 1403. Guarantee Absolute. . . . . . . . . . . . . . . . . . 138
Section 1404. Right to Demand Full Performance. . . . . . . . . . . 141
Section 1405. Waivers.. . . . . . . . . . . . . . . . . . . . . . . 141
Section 1406. The Guarantors Remain Obligated in Event the Company
Is No Longer Obligated to Discharge Indenture
Obligations. . . . . . . . . . . . . . . . . . . . . 142
Section 1407. Fraudulent Conveyance; Contribution; Subrogation. . . 142
Section 1408. Guarantee Is in Addition to Other Security. . . . . . 143
Section 1409. Release of Security Interests.. . . . . . . . . . . . 143
Section 1410. No Bar to Further Actions.. . . . . . . . . . . . . . 143
Section 1411. Failure to Exercise Rights Shall Not Operate as a
Waiver; No Suspension of Remedies. . . . . . . . . . 144
Section 1412. Trustee's Duties; Notice to Trustee.. . . . . . . . . 144
Section 1413. Successors and Assigns. . . . . . . . . . . . . . . . 144
Section 1414. Release of Guarantee. . . . . . . . . . . . . . . . . 145
Section 1415. Execution of Guarantee. . . . . . . . . . . . . . . . 145
Section 1416. Guarantee Subordinate to Senior Guarantor
Indebtedness . . . . . . . . . . . . . . . . . . . . 146
Section 1417. Payment Over of Proceeds Upon Dissolution of the
Guarantor, etc. . . . . . . . . . . . . . . . . . . 146
-viii-
Section 1418 Default on Senior Guarantor Indebtedness. . . . . . . 147
Section 1419 Payment Permitted by Each of the Guarantors if
No Default. . . . . . . . . . . . . . . . . . . . . 148
Section 1420 Subrogation to Rights of Holders of Senior Guarantor
Indebtedness. . . . . . . . . . . . . . . . . . . . 148
Section 1421 Provisions Solely to Define Relative Rights.. . . . . 149
Section 1422 Trustee to Effectuate Subordination.. . . . . . . . . 149
Section 1423 No Waiver of Subordination Provisions.. . . . . . . . 149
Section 1424 Notice to Trustee by Each of the Guarantors.. . . . . 150
Section 1425 Reliance on Judicial Orders or Certificates.. . . . . 151
Section 1426 Rights of Trustee as a Holder of Senior Guarantor
Indebtedness; Preservation of Trustee's Rights. . . 151
Section 1427 Article Applicable to Paying Agents.. . . . . . . . . 152
Section 1428 No Suspension of Remedies.. . . . . . . . . . . . . . 152
Section 1429 Trustee's Relation to Senior Guarantor Indebtedness.. 152
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
ANNEX A Form of Intercompany Note
SCHEDULE I Existing Indebtedness
SCHEDULE II Existing Dividend Restrictions
EXHIBIT A Regulation S Certificate
EXHIBIT B Restricted Securities Certificate
EXHIBIT C Unrestricted Security Certificate
APPENDIX I Form of Transferee
APPENDIX II Form of Transferee Certificate
-ix-
INDENTURE, dated as of May 5, 1999, between ▇▇-▇▇▇ Stores, Inc., an
Ohio corporation (the "Company"), and FCA Financial, Inc., an Ohio
corporation, Fabri-Centers of South Dakota, Inc., an Ohio corporation,
Fabri-Centers of California, Inc., an Ohio corporation, FCA of Ohio, Inc., an
Ohio corporation, and House of Fabrics, Inc., a Delaware corporation (each a
"Guarantor" and collectively, the "Guarantors"), and ▇▇▇▇▇▇ Trust and Savings
Bank, as trustee (the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTORS
The Company has duly authorized the creation of an issue of 10 3/8%
Senior Subordinated Notes due 2007, Series A (the "Series A Securities" or
the "Initial Securities"), and an issue of 10 3/8% Senior Subordinated Notes
due 2007, Series B (the "Series B Securities" and, together with the Series A
Securities, the "Securities"), 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 and the Securities;
Each Guarantor has duly authorized the issuance of a Guarantee of
the Securities, of substantially the tenor hereinafter set forth, and to
provide therefor, each Guarantor has duly authorized the execution and
delivery of this Indenture and its Guarantee;
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act;
All acts and things necessary have been done to make (i) the
Securities, when duly issued and executed by the Company and authenticated
and delivered hereunder, the valid obligations of the Company, (ii) the
Guarantees, when executed by each of the Guarantors and delivered hereunder,
the valid obligation of each of the Guarantors and (iii) this Indenture a
valid agreement of the Company and each of the Guarantors in accordance with
the terms of this Indenture;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
-1-
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) all references to $, US$, dollars or United States dollars
shall refer to the lawful currency of the United States of America; and
(f) all references herein to particular Sections or Articles refer
to this Indenture unless otherwise so indicated.
Certain terms used principally in Article Four are defined in
Article Four.
"Acquired Indebtedness"
means Indebtedness of a Person (1) existing at the time such
Person becomes a Restricted Subsidiary or (2) assumed in
connection with the acquisition of assets from such Person, in
each case, other than Indebtedness incurred in connection with,
or in contemplation of, such Person becoming a Restricted
Subsidiary or such acquisition, as the case may be. Acquired
Indebtedness shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the
acquired Person becomes a Restricted Subsidiary, as the case may
be.
"Affiliate"
means, with respect to any specified Person: (1) any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person; (2) any other Person that owns, directly or indirectly,
5% or more of any class or series of such specified Person's (or
any of such Person's direct or indirect parent's) Capital Stock
or any officer or director of any such specified Person or other
Person or, with respect to any natural Person, any person having
a relationship with such Person by blood, marriage
-2-
or adoption not more remote than first cousin; or (3) any other
Person 5% or more of the Voting Stock of which is beneficially
owned or held directly or indirectly by such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures"
means, with respect to any transfer or transaction involving
a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, Euroclear and
Cedel, in each case to the extent applicable to such transaction
and as in effect at the time of such transfer or transaction.
"Asset Sale"
means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of
merger, consolidation or sale and leaseback transaction)
(collectively, a "transfer"), directly or indirectly, in one or a
series of related transactions, of: (1) any Capital Stock of any
Restricted Subsidiary; (2) all or substantially all of the
properties and assets of any division or line of business of the
Company or any Restricted Subsidiary; or (3) any other properties
or assets of the Company or any Restricted Subsidiary other than
in the ordinary course of business. For the purposes of this
definition, the term "Asset Sale" shall not include any transfer
of properties and assets (A) that is governed by the provisions
described under Article Eight hereof, (B) that is by the Company
to any Wholly Owned Restricted Subsidiary, or by any Restricted
Subsidiary to the Company or any Wholly Owned Restricted
Subsidiary in accordance with the terms of the Indenture, (C)
that is of obsolete equipment in the ordinary course of business,
or (D) the Fair Market Value of which in the aggregate does not
exceed $5,000,000 in any transaction or series of related
transactions.
"Average Life to Stated Maturity"
means, as of the date of determination with respect to any
Indebtedness, the quotient obtained by dividing (1) the sum of
the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled
principal payment of
-3-
such Indebtedness multiplied by (b) the amount of each such
principal payment by (2) the sum of all such principal payments.
"Bankruptcy Law"
means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code of 1978 or any
similar United States federal or state law or foreign law
relating to bankruptcy, insolvency, receivership, winding up,
liquidation, reorganization or relief of debtors or any amendment
to, succession to or change in any such law.
"Board of Directors"
means the board of directors of the Company or any
Guarantor, as the case may be, or any duly authorized committee
of such board.
"Board Resolution"
means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company or any Guarantor, as the
case may be, to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security"
means any Global Securities bearing the legend specified
in Section 202 evidencing all or part of a series of
Securities, authenticated and delivered to the Depositary for
such series or its nominee, and registered in the name of such
Depositary or nominee.
"Business Day"
means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions or trust
companies in The City of New York or the city in which the
Corporate Trust Office of the Trustee is located are authorized
or obligated by law, regulation or executive order to close.
"Capital Lease Obligation"
of any Person means any obligation of such Person and its
Restricted Subsidiaries on a Consolidated basis under any capital
lease of (or other agreement conveying the right to use) real or
personal property which, in accordance with GAAP, is required to
be recorded as a capitalized lease obligation.
"Capital Stock"
-4-
of any Person means any and all shares, interests,
participations, rights in or other equivalents (however
designated) of such Person's capital stock, other equity
interests whether now outstanding or issued after the date
hereof, partnership interests (whether general or limited),
limited liability company interests, any other interest or
participation that confers on a Person that right to receive a
share of the profits and losses of, or distributions of assets
of, the issuing Person, including any Preferred Stock, and any
rights (other than debt securities convertible into Capital
Stock), warrants or options exchangeable for or convertible into
such Capital Stock.
"Cedel"
means Cedel, S.A. (or any successor securities clearing
agency).
"Change of Control"
means the occurrence of any of the following events: (1) any
"person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), is or becomes the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have beneficial ownership
of all shares that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 35% of the total
outstanding Voting Stock of the Company; (2) during any period of
two consecutive years, individuals who at the beginning of such
period constituted the board of directors of the Company
(together with any new directors whose election to such board or
whose nomination for election by the stockholders of the Company
was approved by a vote of 66 2/3% of the directors then still in
office who were either directors at the beginning of such period
or whose election or nomination for election was previously so
approved), cease for any reason to constitute a majority of such
board of directors then in office; (3) the Company consolidates
with or merges with or into any Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person
consolidates with or merges into or with the Company, in any such
event pursuant to a transaction in which the outstanding Voting
Stock of the Company is converted into or exchanged for cash,
securities or other property, other than any such transaction
where (A) the outstanding Voting Stock of the Company is changed
into or exchanged for (1) Voting Stock of the surviving
corporation which is
-5-
not Redeemable Capital Stock or (2) cash, securities and other
property (other than Capital Stock of the surviving
corporation) in an amount which could be paid by the Company as
a Restricted Payment as described under Section 1009 hereof
(and such amount shall be treated as a Restricted Payment
subject to the provisions of Section 1009 hereof) and (B)
immediately after such transaction, no "person" or "group," is
the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a person shall be deemed to have
beneficial ownership of all securities that such person has the
right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of
more than 35% of the total outstanding Voting Stock of the
surviving corporation; or (4) the Company is liquidated or
dissolved or adopts a plan of liquidation or dissolution other
than in a transaction which complies with the provisions
described under Article Eight herein. For purposes of this
definition, any transfer of an equity interest of an entity
that was formed for the purpose of acquiring voting stock of
the Company will be deemed to be a transfer of such portion of
such voting stock as corresponds to the portion of the equity
of such entity that has been so transferred.
"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 the Indenture such Commission is not
existing and performing the duties now assigned to it under the
Securities Act, Exchange Act and Trust Indenture Act then the
body performing such duties at such time.
"Commodity Price Protection Agreement"
means any forward contract, commodity swap, commodity option
or other similar financial agreement or arrangement relating to,
or the value of which is dependent upon, fluctuations in
commodity prices.
"Company"
means ▇▇-▇▇▇ Stores, Inc., a corporation incorporated under
the laws of Ohio, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person. To the
extent necessary to comply with the requirements of the
provisions of Sections 310 through 317 of the Trust Indenture Act
as they are
-6-
applicable to the Company, the term "Company" shall include
any other obligor with respect to the Securities for purposes
of complying with such provisions.
"Company Request" or "Company Order"
means a written request or order signed in the name of the
Company by any one of its Chairman of the Board, its President,
its Chief Executive Officer, its Chief Financial Officer or a
Vice President (regardless of Vice Presidential designation), and
by any one of its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Fixed Charge Coverage Ratio"
of any Person means, for any period, the ratio of (a) the
sum of Consolidated Net Income (Loss), and in each case to the
extent deducted in computing Consolidated Net Income (Loss) for
such period, Consolidated Interest Expense, Consolidated Income
Tax Expense, Consolidated Non-cash Charges and one third of
Consolidated Rental Payments for such period, of such Person and
its Restricted Subsidiaries on a Consolidated basis, all
determined in accordance with GAAP, less all noncash items
increasing Consolidated Net Income for such period and less all
cash payments during such period relating to noncash charges that
were added back to Consolidated Net Income in determining the
Consolidated Fixed Charge Coverage Ratio in any prior period to
(b) the sum of Consolidated Interest Expense for such period,
plus one third of Consolidated Rental Payments during such
period, plus cash and noncash dividends paid on any Redeemable
Capital Stock or Preferred Stock of such Person and its
Restricted Subsidiaries during such period, in each case after
giving PRO FORMA effect (as calculated in accordance with
Article 11 of Regulation S-X under the Securities Act or any
successor provision) to (1) the incurrence of the Indebtedness
giving rise to the need to make such calculation and (if
applicable) the application of the net proceeds therefrom,
including to refinance other Indebtedness, as if such
Indebtedness was incurred, and the application of such proceeds
occurred, on the first day of such period; (2) the incurrence,
repayment or retirement of any other Indebtedness by the Company
and its Restricted Subsidiaries since the first day of such
period as if such Indebtedness was incurred, repaid or retired at
the beginning of such period (except that, in making such
computation, the amount of Indebtedness under any revolving
credit facility shall be computed
-7-
based upon the average daily balance of such Indebtedness
during such period); (3) in the case of Acquired Indebtedness
or any acquisition occurring at the time of the incurrence of
such Indebtedness, the related acquisition, assuming such
acquisition had been consummated on the first day of such
period; and (4) any acquisition or disposition by the Company
and its Restricted Subsidiaries of any company or any business
or any assets out of the ordinary course of business, whether
by merger, stock purchase or sale or asset purchase or sale, or
any related repayment of Indebtedness, in each case since the
first day of such period, assuming such acquisition or
disposition had been consummated on the first day of such
period; PROVIDED that (1) in making such computation, the
Consolidated Interest Expense attributable to interest on any
Indebtedness computed on a PRO FORMA basis and (A) bearing a
floating interest rate shall be computed as if the rate in
effect on the date of computation had been the applicable rate
for the entire period and (B) which was not outstanding during
the period for which the computation is being made but which
bears, at the option of such Person, a fixed or floating rate
of interest, shall be computed by applying at the option of
such Person either the fixed or floating rate and (2) in making
such computation, the Consolidated Interest Expense of such
Person attributable to interest on any Indebtedness under a
revolving credit facility computed on a PRO FORMA basis shall
be computed based upon the average daily balance of such
Indebtedness during the applicable period.
"Consolidated Income Tax Expense"
of any Person means, for any period, the provision for
federal, state, local and foreign income taxes of such Person and
its Consolidated Restricted Subsidiaries for such period as
determined in accordance with GAAP.
"Consolidated Interest Expense"
of any Person means, without duplication, for any period,
the sum of (a) the interest expense of such Person and its
Restricted Subsidiaries for such period, on a Consolidated basis,
including, without limitation, (1) amortization of debt discount,
(2) the net costs associated with Interest Rate Agreements,
Currency Hedging Agreements and Commodity Price Protection
Agreements (including amortization of discounts), (3) the
interest portion of any deferred payment obligation, (4) all
commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers
-8-
acceptance financing and (5) accrued interest, plus (b)(1) the
interest component of the Capital Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period and (2) all
capitalized interest of such Person and its Restricted
Subsidiaries plus (c) the interest expense under any Guaranteed
Debt of such Person and any Restricted Subsidiary to the extent
not included under clause (a)(4) above, whether or not paid by
such Person or its Restricted Subsidiaries.
"Consolidated Net Income (Loss)"
of any Person means, for any period, the Consolidated net
income (or loss) of such Person and its Restricted Subsidiaries
for such period on a Consolidated basis as determined in
accordance with GAAP, adjusted, to the extent included in
calculating such net income (or loss), by excluding, without
duplication, (1) all extraordinary gains or losses net of taxes
(less all fees and expenses relating thereto), (2) the portion of
net income (or loss) of such Person and its Restricted
Subsidiaries on a Consolidated basis allocable to minority
interests in unconsolidated Persons or Unrestricted Subsidiaries
to the extent that cash dividends or distributions have not
actually been received by such Person or one of its Consolidated
Restricted Subsidiaries, (3) net income (or loss) of any Person
combined with such Person or any of its Restricted Subsidiaries
on a "pooling of interests" basis attributable to any period
prior to the date of combination, (4) any gain or loss, net of
taxes, realized upon the termination of any employee pension
benefit plan, (5) gains or losses, net of taxes (less all fees
and expenses relating thereto), in respect of dispositions of
assets other than in the ordinary course of business, (6) the net
income of any Restricted Subsidiary to the extent that the
declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is not at the time
permitted, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its stockholders, (7) any
restoration to net income of any contingency reserve, except to
the extent provision for such reserve was made out of income
accrued at any time following the date of this Indenture, or (8)
any net gain arising from the acquisition of any securities or
extinguishment, under GAAP, of any Indebtedness of such Person.
-9-
"Consolidated Net Tangible Assets"
of any Person means, as of any date of determination, the
total assets, less goodwill and other intangibles and less
deferred tax assets, in each case as shown on the balance sheet
of the Company and its Restricted Subsidiaries for the most
recently ended fiscal quarter for which financial statements are
available, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Non-cash Charges"
of any Person means, for any period, the aggregate
depreciation, amortization and other non-cash charges of such
Person and its Restricted Subsidiaries on a Consolidated basis
for such period, as determined in accordance with GAAP (excluding
any non-cash charge which requires an accrual or reserve for cash
charges for any future period).
"Consolidated Rental Payments"
of any Person means, for any period, the aggregate rental
obligations of such Person and its Restricted Subsidiaries on a
Consolidated basis, as determined in accordance with GAAP,
payable in respect of such period under leases of real or
personal property, not including taxes, insurance, maintenance
and similar expenses that the lessee is obligated to pay under
the terms of the relevant leases (net of income from subleases
thereof, not including taxes, insurance, maintenance and similar
expenses that the sublessee is obligated to pay under the terms
of such sublease), whether or not such obligations are reflected
as liabilities or commitments on a consolidated balance sheet of
such Person and its Restricted Subsidiaries or in the Securities
thereto, excluding, however, in any such calculation, (a) that
portion of Consolidated Interest Expense of such Person
representing payments by such Person or any of its consolidated
Restricted Subsidiaries in respect of Capital Lease Obligations
(net of payments to such Person or any of its consolidated
Subsidiaries under subleases qualifying as capitalized lease
subleases to the extent that such payments would be deducted in
determining Consolidated Interest Expense) and (b) the aggregate
amount of amortization of obligations of such Person and its
consolidated Restricted Subsidiaries in respect of such Capital
Lease Obligations for such period (net of payments to such Person
or any of its consolidated Restricted Subsidiaries under
subleases qualifying as capitalized lease subleases to the extent
that such
-10-
payments would be deducted in determining such amortization
amount).
"Consolidation"
means, with respect to any Person, the consolidation of the
accounts of such Person and each of its subsidiaries if and to
the extent the accounts of such Person and each of its
subsidiaries would normally be consolidated with those of such
Person, all in accordance with GAAP. The term "Consolidated"
shall have a similar meaning.
"Corporate Trust Office"
means the office of the Trustee or an affiliate or agent
thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally
administered, which office at the date of execution of this
Indenture is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
"Credit Facility"
means the Credit Agreement, dated as of the closing date,
among the Company, the lending institutions named therein and Key
Bank National Association, as agent, as such agreement, in whole
or in part, may be amended, renewed, extended, substituted,
refinanced, restructured, replaced, supplemented or otherwise
modified from time to time (including, without limitation, any
successive renewals, extensions, substitutions, refinancings,
restructurings, replacements, supplementations or other
modifications of the foregoing) (including the addition of one or
more lenders to an existing facility or the replacement of one or
more lenders in a new facility).
"Currency Hedging Agreements"
means one or more of the following agreements which shall be
entered into by one or more financial institutions: foreign
exchange contracts, currency swap agreements or other similar
agreements or arrangements designed to protect against the
fluctuations in currency values.
"Default"
means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary"
means, with respect to the Securities issued in the form of
one or more Book-Entry Securities, The Depository Trust Company
-11-
("DTC"), its nominees and successors, or another Person
designated as Depositary by the Company, which must be a clearing
agency registered under the Exchange Act.
"Designated Senior Indebtedness"
means (1) all Senior Indebtedness under the Credit Facility
and (2) any other Senior Indebtedness which at the time of
determination has an aggregate principal amount outstanding of at
least $25 million and which is specifically designated in the
instrument evidencing such Senior Indebtedness or the agreement
under which such Senior Indebtedness arises as "Designated Senior
Indebtedness" by the Company.
"Disinterested Director"
means, with respect to any transaction or series of related
transactions, a member of the Board of Directors of the Company
who does not have any material direct or indirect financial
interest in or with respect to such transaction or series of
related transactions.
"Euroclear"
means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default"
has the meaning specified in Section 501.
"Exchange Act"
means the Securities Exchange Act of 1934 or any successor
statute, and the rules and regulations promulgated by the
Commission thereunder.
"Exchange Offer"
means the exchange offer by the Company and the Guarantors
of Series B Securities for Series A Securities to be effected
pursuant to Section 2.1 of the Registration Rights Agreement.
"Exchange Offer Registration Statement"
means the registration statement under the Securities Act
contemplated by Section 2.1 of the Registration Rights Agreement.
"Fair Market Value"
-12-
means, with respect to any asset or property, the sale value
that would be obtained in an arm's-length free market transaction
between an informed and willing seller under no compulsion to
sell and an informed and willing buyer under no compulsion to
buy. Fair Market Value shall be determined by the Board of
Directors of the Company acting in good faith and shall be
evidenced by a resolution of the Board of Directors.
"GAAP"
means generally accepted accounting principles in the United
States, consistently applied, which are in effect on the date of
this Indenture.
"Global Securities"
means the Rule 144A Global Securities, the Regulation S
Global Securities and the Series B Global Securities to be issued
as Book-Entry Securities issued to the Depositary in accordance
with Section 306.
"Guarantee"
means the guarantee by any Guarantor of the Company's
Indenture Obligations.
"Guaranteed Debt"
of any Person means, without duplication, all Indebtedness
of any other Person referred to in the definition of Indebtedness
below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (1) to pay or purchase such
Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness, (2) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment
of such Indebtedness or to assure the holder of such Indebtedness
against loss, (3) to supply funds to, or in any other manner
invest in, the debtor (including any agreement to pay for
property or services without requiring that such property be
received or such services be rendered), (4) to maintain working
capital or equity capital of the debtor, or otherwise to maintain
the net worth, solvency or other financial condition of the
debtor or to cause such debtor to achieve certain levels of
financial performance or (5) otherwise to assure a creditor
against loss; PROVIDED that the term "guarantee" shall not
include endorsements for collection or deposit, in either case in
the ordinary course of business.
-13-
"Guarantor"
means any Subsidiary which is a guarantor of the Securities,
including any Person that is required after the date hereof to
execute a guarantee of the Securities pursuant to Section 1011 or
Section 1013 herein until a successor replaces such party
pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor.
"Holder"
means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness"
means, with respect to any Person, without duplication, (1)
all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any
trade payables and other accrued current liabilities arising in
the ordinary course of business, but including, without
limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under
letter of credit facilities, acceptance facilities or other
similar facilities, (2) all obligations of such Person evidenced
by bonds, notes, debentures or other similar instruments, (3) all
indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired
by such Person (even if the rights and remedies of the seller or
lender under such agreement in the event of default are limited
to repossession or sale of such property), but excluding trade
payables arising in the ordinary course of business, (4) all
obligations under Interest Rate Agreements, Currency Hedging
Agreements or Commodity Price Protection Agreements of such
Person, (5) all Capital Lease Obligations of such Person, (6) all
Indebtedness referred to in clauses (1) through (5) above of
other Persons and all dividends of other Persons, the payment of
which is secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by)
any Lien, upon or with respect to property (including, without
limitation, accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the
payment of such Indebtedness, (7) all Guaranteed Debt of such
Person, (8) all Redeemable Capital Stock issued by such Person
valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued and unpaid dividends, (9)
Preferred Stock of any Restricted Subsidiary of
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the Company or any Guarantor and (10) any amendment,
supplement, modification, deferral, renewal, extension,
refunding or refinancing of any liability of the types referred
to in clauses (1) through (9) above. For purposes hereof, the
"maximum fixed repurchase price" of any Redeemable Capital
Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable
Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required
to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the Fair Market Value of such
Redeemable Capital Stock, such Fair Market Value to be
determined in good faith by the board of directors of the
issuer of such Redeemable Capital Stock.
"Indenture"
means this instrument as originally executed (including all
exhibits and schedules thereto) and as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Indenture Obligations"
means the obligations of the Company and any other obligor
under this Indenture or under the Securities, including any
Guarantor, to pay principal of, premium, if any, and interest
when due and payable, and all other amounts due or to become due
under or in connection with this Indenture, the Securities and
the performance of all other obligations to the Trustee and the
holders under this Indenture and the Securities, according to the
respective terms hereof and thereof.
"Initial Securities"
has the meaning stated in the first recital of this
Indenture.
"Initial Purchasers"
means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇▇, Sachs & Co. and Banc One Capital Markets, Inc.
"Interest Payment Date"
means the Stated Maturity of an installment of interest on
the Securities.
"Interest Rate Agreements"
-15-
means one or more of the following agreements which shall be
entered into by one or more financial institutions: interest rate
protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or
other types of interest rate hedging agreements from time to
time.
"Investment"
means, with respect to any Person, directly or indirectly,
any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or
services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock,
bonds, notes, debentures or other securities issued or owned by
any other Person and all other items that would be classified as
investments on a balance sheet prepared in accordance with GAAP.
Investments shall exclude extensions of trade credit on
commercially reasonable terms in accordance with normal trade
practices.
"Issue Date"
means the original issue date of the Securities under this
Indenture.
"Lien"
means any mortgage or deed of trust, charge, pledge, lien
(statutory or otherwise), privilege, security interest,
assignment, deposit, arrangement, easement, hypothecation, claim,
preference, priority or other encumbrance upon or with respect to
any property of any kind (including any conditional sale, capital
lease or other title retention agreement, any leases in the
nature thereof, and any agreement to give any security interest),
real or personal, movable or immovable, now owned or hereafter
acquired. A Person will be deemed to own subject to a Lien any
property which it has acquired or holds subject to the interest
of a vendor or lessor under any conditional sale agreement,
Capital Lease Obligation or other title retention agreement.
"Maturity"
means, when used with respect to the Securities, the date on
which the principal of the Securities becomes due and payable as
therein provided or as provided in this Indenture, whether at
Stated Maturity, the Offer Date or the Redemption Date and
whether by declaration of acceleration, Offer in respect of
Excess Proceeds,
-16-
Change of Control Offer in respect of a Change of Control, call
for redemption or otherwise.
"Moody's"
means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
rating agency.
"Net Cash Proceeds"
means (a) with respect to any Asset Sale by any Person, the
proceeds thereof (without duplication in respect of all Asset
Sales) in the form of cash or Temporary Cash Investments
including payments in respect of deferred payment obligations
when received in the form of, or stock or other assets when
disposed of for, cash or Temporary Cash Investments (except to
the extent that such obligations are financed or sold with
recourse to the Company or any Restricted Subsidiary) net of (1)
brokerage commissions and other reasonable fees and expenses
(including fees and expenses of counsel and investment bankers)
related to such Asset Sale, (2) provisions for all taxes payable
as a result of such Asset Sale, (3) payments made to retire
Indebtedness where payment of such Indebtedness is secured by the
assets or properties the subject of such Asset Sale, (4) amounts
required to be paid to any Person (other than the Company or any
Restricted Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (5) appropriate amounts to be
provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any
liabilities associated with such Asset Sale and retained by the
Company or any Restricted Subsidiary, as the case may be, after
such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in
an Officers' Certificate delivered to the Trustee and (b) with
respect to any issuance or sale of Capital Stock or options,
warrants or rights to purchase Capital Stock, or debt securities
or Capital Stock that have been converted into or exchanged for
Capital Stock as referred to under Section 1009 herein, the
proceeds of such issuance or sale in the form of cash or
Temporary Cash Investments including payments in respect of
deferred payment obligations when received in the form of, or
stock or other assets when disposed of for, cash or Temporary
Cash Investments (except to the extent that such obligations are
financed or sold with recourse to the Company or any
-17-
Restricted Subsidiary), net of attorney's fees, accountant's
fees and brokerage, consultation, underwriting and other fees
and expenses actually incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.
"Non-U.S. Person"
means a Person that is not a "U.S. person" as defined in
Regulation S under the Securities Act.
"Officers' Certificate"
means a certificate signed by the Chairman of the Board, the
President, the Chief Executive Officer, the Chief Financial
Officer or a Vice President (regardless of Vice Presidential
designation), and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company or any
Guarantor, as the case may be, and in form and substance
reasonably satisfactory to, and delivered to, the Trustee.
"Opinion of Counsel"
means a written opinion of counsel, who may be counsel for
the Company, any Guarantor or the Trustee, unless an Opinion of
Independent Counsel is required pursuant to the terms of this
Indenture, and who shall be reasonably acceptable to the Trustee,
and which opinion shall be in form and substance reasonably
satisfactory to the Trustee.
"Opinion of Independent Counsel"
means a written opinion of counsel which is issued by a
Person who is not an employee, director or consultant (other than
non-employee legal counsel) of the Company or any Guarantor and
who shall be reasonably acceptable to the Trustee, and which
opinion shall be in form and substance reasonably satisfactory to
the Trustee.
"Outstanding"
when used with respect to Securities means, as of the date
of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
-18-
(b) Securities, or portions thereof, for whose payment
or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company or any Affiliate thereof) in trust or set aside and
segregated in trust by the Company or any Affiliate thereof (if
the Company or any Affiliate thereof shall act as its own Paying
Agent) for the Holders of such Securities; PROVIDED that if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
reasonably satisfactory to the Trustee has been made;
(c) Securities, to the extent provided in Sections 402
and 403, with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article Four;
and
(d) Securities in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee and the
Company proof reasonably satisfactory to each of them that such
Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company, any Guarantor,
or any other obligor upon the Securities or any Affiliate of the
Company, any Guarantor or such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the reasonable satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company, any Guarantor or any other
obligor upon the Securities or any Affiliate of the Company, any
Guarantor or such other obligor.
"Pari Passu Indebtedness"
means (a) any Indebtedness of the Company that is equal in
right of payment to the Securities and (b) with respect to any
-19-
Guarantee, Indebtedness which ranks equal in right of payment to
such Guarantee.
"Paying Agent"
means any Person (including the Company) authorized by the
Company to pay the principal of, premium, if any, or interest on,
any Securities on behalf of the Company.
"Permitted Investment"
means (1) Investments in any Wholly Owned Restricted
Subsidiary or any Person which, as a result of such Investment,
(a) becomes a Wholly Owned Restricted Subsidiary or (b) is merged
or consolidated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the
Company or any Wholly Owned Restricted Subsidiary; (2)
Indebtedness of the Company or a Restricted Subsidiary described
under clauses (4), (5) and (6) of the definition of "Permitted
Indebtedness"; (3) Investments in any of the Securities; (4)
Temporary Cash Investments; (5) Investments acquired by the
Company or any Restricted Subsidiary in connection with an Asset
Sale permitted under Section 1012 herein to the extent such
Investments are non-cash proceeds as permitted under such
Section; (6) Investments in existence on the date of the
Indenture; and (7) other Investments which in the aggregate
outstanding at any one time do not total more than $20,000,000.
In connection with any assets or property contributed or
transferred to any Person as an Investment, such property and
assets shall be equal to the Fair Market Value (as determined by
the Company's Board of Directors) at the time of Investment.
"Person"
means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Predecessor Security"
of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under
Section 308 in exchange for a mutilated Security or in lieu of a
lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen
Security.
-20-
"Preferred Stock"
means, with respect to any Person, any Capital Stock of any
class or classes (however designated) which is preferred as to
the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over the Capital Stock
of any other class in such Person.
"Prospectus"
means the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including
any such prospectus supplement with respect to the terms of the
offering of any portion of the Series A Securities covered by a
Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
"Public Equity Offering"
means an underwritten public offering of common stock (other
than Redeemable Capital Stock) of the Company with gross proceeds
to the Company of at least $35 million pursuant to a registration
statement that has been declared effective by the Commission
pursuant to the Securities Act (other than a registration
statement on Form S-4 (or any successor form covering
substantially the same transactions), Form S-8 (or any successor
form covering substantially the same transactions) or otherwise
relating to equity securities issuable under any employee benefit
plan of the Company).
"Purchase Money Obligation"
means any Indebtedness secured by a Lien on assets related
to the business of the Company and any additions and accessions
thereto, which are purchased by the Company at any time after the
Securities are issued; PROVIDED that (1) the security agreement
or conditional sales or other title retention contract pursuant
to which the Lien on such assets is created (collectively a
"Purchase Money Security Agreement") shall be entered into within
90 days after the purchase or substantial completion of the
construction of such assets and shall at all times be confined
solely to the assets so purchased or acquired, any additions and
accessions thereto and any proceeds
-21-
therefrom, (2) at no time shall the aggregate principal amount
of the outstanding Indebtedness secured thereby be increased,
except in connection with the purchase of additions and
accessions thereto and except in respect of fees and other
obligations in respect of such Indebtedness and (3) (A) the
aggregate outstanding principal amount of Indebtedness secured
thereby (determined on a per asset basis in the case of any
additions and accessions) shall not at the time such Purchase
Money Security Agreement is entered into exceed 100% of the
purchase price to the Company of the assets subject thereto or
(B) the Indebtedness secured thereby shall be with recourse
solely to the assets so purchased or acquired, any additions
and accessions thereto and any proceeds therefrom.
"Qualified Capital Stock"
of any Person means any and all Capital Stock of such Person
other than Redeemable Capital Stock.
"Redeemable Capital Stock"
means any Capital Stock that, either by its terms or by the
terms of any security into which it is convertible or
exchangeable or otherwise, is or upon the happening of an event
or passage of time would be, required to be redeemed prior to the
final Stated Maturity of the principal of the Securities or is
redeemable at the option of the holder thereof at any time prior
to such final Stated Maturity (other than upon a change of
control of, or sale of assets by, the Company in circumstances
where the holders of the Securities would have similar rights),
or is convertible into or exchangeable for debt securities at any
time prior to such final Stated Maturity at the option of the
holder thereof.
"Redemption Date"
when used with respect to any Security to be redeemed
pursuant to any provision in this Indenture means the date fixed
for such redemption by or pursuant to this Indenture.
"Redemption Price"
when used with respect to any Security to be redeemed
pursuant to any provision in this Indenture means the price at
which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement"
means the Registration Rights Agreement, dated as of May 5,
1999 among the Company, the Guarantors and the Initial
Purchasers.
-22-
"Registration Statement"
means any registration statement of the Company and the
Guarantors which covers any of the Series A Securities (and
related guarantees) or Series B Securities (and related
guarantees) pursuant to the provisions of the Registration Rights
Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
"Regular Record Date"
for the interest payable on any Interest Payment Date means
the April 15th or October 15th (whether or not a Business Day)
next preceding such Interest Payment Date.
"Regulation S"
means Regulation S under the Securities Act.
"Regulation S Global Securities"
means one or more permanent global Securities in registered
form representing the aggregate principal amount of Securities
sold in reliance on Regulation S under the Securities Act.
"Responsible Officer"
when used with respect to the Trustee means any officer or
employee assigned to the Corporate Trust Office or any agent of
the Trustee appointed hereunder, including any vice president,
assistant vice president, secretary, assistant secretary, or any
other officer or assistant officer of the Trustee or any agent of
the Trustee appointed hereunder to whom any corporate trust
matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary"
means any Subsidiary of the Company that has not been
designated by the Board of Directors of the Company by a Board
Resolution delivered to the Trustee as an Unrestricted Subsidiary
pursuant to and in compliance with Section 1018 herein.
"Rule 144A"
means Rule 144A under the Securities Act.
"Rule 144A Global Securities"
-23-
means one or more permanent global Securities in registered
form representing the aggregate principal amount of Securities
sold in reliance on Rule 144A under the Securities Act.
"S&P"
means Standard & Poor's Rating Group, a division of McGraw
Hill, Inc. or any successor rating agency.
"Securities Act"
means the Securities Act of 1933 or any successor statute,
and the rules and regulations promulgated by the Commission
thereunder.
"Senior Guarantor Indebtedness"
means the principal of, premium, if any, and interest
(including interest, to the extent allowable, accruing after the
filing of a petition initiating any proceeding under any state,
federal or foreign bankruptcy law) on any Indebtedness of any
Guarantor (other than as otherwise provided in this definition),
whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, and whether at any time owing,
actually or contingent, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to any
Guarantee. Notwithstanding the foregoing, "Senior Guarantor
Indebtedness" shall not include (1) Indebtedness evidenced by the
Guarantees, (2) Indebtedness that is subordinated or junior in
right of payment to any Indebtedness of any Guarantor, (3)
Indebtedness which when incurred and without respect to any
election under Section 1111(b) of ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is
without recourse to any Guarantor, (4) Indebtedness which is
represented by Redeemable Capital Stock, (5) any liability for
foreign, federal, state, local or other taxes owed or owing by
any Guarantor to the extent such liability constitutes
Indebtedness, (6) Indebtedness of any Guarantor to a Subsidiary
or any other Affiliate of the Company or any of such Affiliate's
Subsidiaries, (7) to the extent it might constitute Indebtedness,
amounts owing for goods, materials or services purchased in the
ordinary course of business or consisting of trade accounts
payable owed or owing by such Guarantor, and amounts owed by such
Guarantor for compensation to employees or services rendered to
such Guarantor, (8) that portion of any Indebtedness which at the
time of issuance is issued in
-24-
violation of the Indenture and (9) Indebtedness evidenced by
any guarantee of any Subordinated Indebtedness or Pari Passu
Indebtedness.
"Senior Indebtedness"
means the principal of, premium, if any, and interest
(including interest, to the extent allowable, accruing after the
filing of a petition initiating any proceeding under any state,
federal or foreign bankruptcy law) on any Indebtedness of the
Company (other than as otherwise provided in this definition),
whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, and whether at any time owing,
actually or contingent, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to the
Securities. Notwithstanding the foregoing, "Senior Indebtedness"
shall not include (1) Indebtedness evidenced by the Securities,
(2) Indebtedness that is subordinate or junior in right of
payment to any Indebtedness of the Company, (3) Indebtedness
which when incurred and without respect to any election under
Section 1111(b) of ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without
recourse to the Company, (4) Indebtedness which is represented by
Redeemable Capital Stock, (5) any liability for foreign, federal,
state, local or other taxes owed or owing by the Company to the
extent such liability constitutes Indebtedness, (6) Indebtedness
of the Company to a Subsidiary or any other Affiliate of the
Company or any of such Affiliate's Subsidiaries, (7) to the
extent it might constitute Indebtedness, amounts owing for goods,
materials or services purchased in the ordinary course of
business or consisting of trade accounts payable owed or owing by
the Company, and amounts owed by the Company for compensation to
employees or services rendered to the Company, (8) that portion
of any Indebtedness which at the time of issuance is issued in
violation of the Indenture and (9) Indebtedness evidenced by any
guarantee of any Subordinated Indebtedness or Pari Passu
Indebtedness.
"Senior Representative"
means the agent or representative of holders of any
Designated Senior Indebtedness.
"Series B Global Securities"
-25-
means one or more permanent Global Securities in registered
form representing the aggregate principal amount of Series B
Securities exchanged for Series A Securities pursuant to the
Exchange Offer.
"Shelf Registration Statement"
means a "shelf" registration statement of the Company and
the Guarantors pursuant to Section 2.2 of the Registration Rights
Agreement, which covers all of the Registrable Securities (as
defined in the Registration Rights Agreement) on an appropriate
form under Rule 415 under the Securities Act, or any similar rule
that may be adopted by the Commission, and all amendments and
supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Special Record Date"
for the payment of any Defaulted Interest means a date fixed
by the Trustee pursuant to Section 309.
"Stated Maturity"
means, when used with respect to any Indebtedness or any
installment of interest thereon, the dates specified in such
Indebtedness as the fixed date on which the principal of such
Indebtedness or such installment of interest, as the case may be,
is due and payable.
"Subordinated Indebtedness"
means Indebtedness of the Company or a Guarantor
subordinated in right of payment to the Securities or a
Guarantee, as the case may be.
"Subsidiary"
of a Person means (1) any corporation more than 50% of the
outstanding voting power of the Voting Stock of which is owned or
controlled, directly or indirectly, by such Person or by one or
more other Subsidiaries of such Person, or by such Person and one
or more other Subsidiaries thereof, (2) any limited partnership
of which such Person or any Subsidiary of such Person is a
general partner, or (3) any other Person in which such Person, or
one or more other Subsidiaries of such Person, or such Person and
one or more other Subsidiaries, directly or indirectly, has more
than 50% of the outstanding partnership or similar interests or
has the power, by
-26-
contract or otherwise, to direct or cause the direction of the
policies, management and affairs thereof.
"Successor Security"
of any particular Security means every Security issued
after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under
Section 308 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Temporary Cash Investments"
means (1) any evidence of Indebtedness, maturing not more
than one year after the date of acquisition, issued by the United
States of America, or an instrumentality or agency thereof, and
guaranteed fully as to principal, premium, if any, and interest
by the full faith and credit of the United States of America, (2)
any certificate of deposit, maturing not more than one year after
the date of acquisition, issued by, or time deposit of, a
commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and
undivided profits of not less than $500,000,000 whose debt has a
rating, at the time as of which any investment therein is made,
of "P-1" (or higher) according to Moody's or "A-1" (or higher)
according to S&P, (3) commercial paper, maturing not more than
one year after the date of acquisition, issued by a corporation
(other than an Affiliate or Subsidiary of the Company) organized
and existing under the laws of the United States of America, any
state thereof or the District of Columbia with a rating, at the
time as of which any investment therein is made, of "P-1" (or
higher) according to Moody's or "A-1" (or higher) according to
S&P and (4) any money market deposit accounts issued or offered
by a domestic commercial bank having capital and surplus in
excess of $500,000,000; PROVIDED that the short term debt of such
commercial bank has a rating, at the time of Investment, of "P-1"
(or higher) according to Moody's or "A-1" (or higher) according
to S&P.
"Trustee"
means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor trustee shall have
-27-
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor
trustee.
"Trust Indenture Act"
means the Trust Indenture Act of 1939 or any successor
statute.
"Unrestricted Subsidiary"
means any Subsidiary of the Company (other than a Guarantor)
designated as such pursuant to and in compliance with Section
1018 herein.
"Unrestricted Subsidiary Indebtedness"
of any Unrestricted Subsidiary means Indebtedness of such
Unrestricted Subsidiary (1) as to which neither the Company nor
any Restricted Subsidiary is directly or indirectly liable (by
virtue of the Company or any such Restricted Subsidiary being the
primary obligor on, guarantor of, or otherwise liable in any
respect to, such Indebtedness), except Guaranteed Debt of the
Company or any Restricted Subsidiary to any Affiliate, in which
case (unless the incurrence of such Guaranteed Debt resulted in a
Restricted Payment at the time of incurrence) the Company shall
be deemed to have made a Restricted Payment equal to the
principal amount of any such Indebtedness to the extent
guaranteed at the time such Affiliate is designated an
Unrestricted Subsidiary and (2) which, upon the occurrence of a
default with respect thereto, does not result in, or permit any
holder of any Indebtedness of the Company or any Subsidiary to
declare, a default on such Indebtedness of the Company or any
Subsidiary or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity; provided that
notwithstanding the foregoing any Unrestricted Subsidiary may
guarantee the Securities.
"Voting Stock"
of a Person means Capital Stock of such Person of the class
or classes pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such
Person (irrespective of whether or not at the time Capital Stock
of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Wholly Owned Restricted Subsidiary"
-28-
means a Restricted Subsidiary all the Capital Stock of which
is owned by the Company or another Wholly Owned Restricted
Subsidiary.
Section 102. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
---- ------------------
"Act" 105
"Agent Members" 306
"Change of Control Offer" 1015
"Change of Control Purchase Date" 1015
"Change of Control Purchase Notice" 1015
"Change of Control Purchase Price" 1015
"control" 101
"covenant defeasance" 403
"Defaulted Interest" 309
"defeasance" 402
"Defeasance Redemption Date" 404
"Defeased Securities" 401
"Designation" 1018
"Designation Amount 1018
"DTC" 101
"Excess Proceeds" 1012
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"incur" 1008
"Initial Period" 1303
"Non-payment Default" 1303
"Offer" 1012
"Offer Date" 1012
"Offered Price" 1012
"Pari Passu Debt ▇▇▇▇▇▇" ▇▇▇▇
"Pari Passu Offer" 1012
"Payment Blockage Period" 1303
"Payment Default" 1303
"Permitted Indebtedness" 1008
"Permitted Guarantor Junior Securities" 1417
"Permitted Junior Securities" 1302
"Permitted Payment" 1009
"Private Placement Legend" 202
"Purchase Money Security Agreement" 101
"refinancing" 1008
"Registration Default" 202
"Required Filing Date" 1019
"Restricted Payments" 1009
"Restricted Period" 201
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"Revocation" 1018
"Securities" Recitals
"Security ▇▇▇▇▇▇" ▇▇▇▇
"Security Register" 305
"Security Registrar" 305
"Series A Securities" Recitals
"Series B Securities" Recitals
"Special Payment Date" 309
"Surviving Entity" 801
"Surviving Guarantor Entity" 801
"transfer" 101
"U.S. Government Obligations" 404
Section 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company and any Guarantor
(if applicable) and any other obligor on the Securities (if applicable) shall
furnish to the Trustee an Officers' Certificate in a form and substance
reasonably acceptable to the Trustee stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with, and an Opinion of Counsel in a form and substance reasonably
acceptable to the Trustee stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such
certificates or opinions is specifically required by
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any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
individual or firm signing such opinion has read and understands such
covenant or condition and the definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual or
such firm, he or it has made such examination or investigation as is
necessary to enable him or it to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual or such firm, such condition or covenant has been complied with.
Section 104. 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 of an officer of the Company, any Guarantor or
other obligor on the Securities may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the
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exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion may be
based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company, any
Guarantor or other obligor on the Securities stating that the information
with respect to such factual matters is in the possession of the Company, any
Guarantor or other obligor on the Securities, unless such officer or counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous. Opinions of Counsel required to be delivered to the Trustee may
have qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Company
or government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that
various financial covenants have been complied with.
Any certificate or opinion of an officer of the Company, any
Guarantor or other obligor on the Securities may be based, insofar as it
relates to accounting matters, upon a certificate or opinion of, or
representations by, an accountant or firm of accountants in the employ of the
Company, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to the accounting matters upon which his certificate or opinion may be based
are erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm
is independent with respect to the Company.
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 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an
agent duly appointed in writing; and, except as herein
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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 conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section 105.
(b) The ownership of Securities shall be proved by the Security
Register.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued
upon the transfer thereof or in exchange therefor or in lieu thereof, in
respect of anything done, suffered or omitted to be done by the Trustee, any
Paying Agent or the Company, any Guarantor or any other obligor of the
Securities in reliance thereon, whether or not notation of such action is
made upon such Security.
(d) 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.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of such Holders entitled to give
such request, demand, authorization, direction,
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notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding Trust Indenture Act Section 316(c), any
such record date shall be the record date specified in or pursuant to such
Board Resolution, which shall be a date not more than 30 days prior to the
first solicitation of Holders generally in connection therewith and no later
than the date such first solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for this
purpose the Securities then Outstanding shall be computed as of such record
date; PROVIDED that no such request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after such record date.
(f) For purposes of this Indenture, any action by the Holders
which may be taken in writing may be taken by electronic means or as
otherwise reasonably acceptable to the Trustee.
Section 106. NOTICES, ETC., TO THE TRUSTEE, THE COMPANY AND ANY
GUARANTOR.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any Guarantor
or any other obligor on the Securities shall be sufficient for every purpose
(except as provided in Section 501(c)) hereunder if in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to
or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or at any other address previously furnished in writing to
the Holders or the Company, any Guarantor or any other obligor on the
Securities by the Trustee; or
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(b) the Company or any Guarantor by the Trustee or any Holder
shall be sufficient for every purpose (except as provided in Section 501(c))
hereunder if in writing and mailed, first-class postage prepaid, or delivered
by recognized overnight courier, to the Company or such Guarantor addressed
to it c/o ▇▇-▇▇▇ Stores, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer, or at any other address previously
furnished in writing to the Trustee by the Company or such Guarantor.
Section 107. 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, or delivered
by recognized overnight courier, to each Holder affected by such event, at
its address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of
such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice when mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by
the Person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of
giving such notice as shall be reasonably satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice.
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the
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provisions of the Trust Indenture Act, the provision or requirement of the
Trust Indenture Act shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
Section 109. 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 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and
the Guarantors shall bind their respective successors and assigns, whether so
expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities or
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 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or Guarantees,
express or implied, shall give to any Person (other than the parties hereto
and their successors hereunder, any Paying Agent and the Holders) any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 114. LEGAL HOLIDAYS.
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In any case where any Interest Payment Date, Redemption Date,
Maturity or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or 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 such Interest Payment Date or Redemption Date, or at
the Maturity or Stated Maturity and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date,
Redemption Date, Maturity or Stated Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. INDEPENDENCE OF COVENANTS.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not
permitted by any such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
Section 116. SCHEDULES AND EXHIBITS.
All schedules and exhibits attached hereto are by this reference
made a part hereof with the same effect as if herein set forth in full.
Section 117. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each
of which shall be deemed an original; but all such counterparts shall
together constitute but one and the same instrument.
ARTICLE TWO
SECURITY FORMS
Section 201. FORMS GENERALLY.
The Securities, the Guarantees and the Trustee's certificate of
authentication thereon shall be in substantially the forms set forth in this
Article Two, with such appropriate insertions, omissions, substitutions and
other variations as are required or
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permitted hereby 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, any
organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such
Securities and Guarantees, as evidenced by their execution of the Securities
and Guarantees. Any portion of the text of any Security may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on
which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
Initial Securities offered and sold in reliance on Rule 144A shall
be issued initially in the form of one or more Rule 144A Global Securities,
substantially in the form set forth in Section 202, deposited upon issuance
with the Trustee, as custodian for the Depositary, registered in the name of
the Depositary or its nominee, in each case for credit to an account of a
direct or indirect participant of the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Rule 144A Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Securities offered and sold in reliance on Regulation S
shall be issued in the form of one or more Regulation S Global Securities,
substantially in the form set forth in Section 202, deposited upon issuance
with the Trustee, as custodian for the Depositary, registered in the name of
the Depositary or its nominee, in each case for credit by the Depositary to
an account of a direct or indirect participant of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided; PROVIDED, HOWEVER, that upon such deposit through and including the
40th day after the later of the commencement of the Offering and the original
issue date of the Securities (such period through and including such 40th
day, the "Restricted Period"), all such Securities shall be credited to or
through accounts maintained at the Depositary by or on behalf of
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Euroclear or Cedel unless exchanged for interests in the Rule 144A Global
Securities in accordance with the transfer and certification requirements
described below. The aggregate principal amount of the Regulation S Global
Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary or its
nominee, as hereinafter provided.
Series B Securities exchanged for Series A Securities shall be
issued initially in the form of one or more Series B Global Securities,
substantially in the form set forth in Section 202, deposited upon issuance
with the Trustee, as custodian for the Depositary, registered in the name of
the Depositary or its nominee, in each case for credit to an account of a
direct or indirect participant of the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Series B Global Securities may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Section 202. FORM OF FACE OF SECURITY.
(a) The form of the face of any Series A Securities authenticated
and delivered hereunder shall be substantially as follows:
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for a Series
B Security in connection with an effective Registration Statement, in each
case pursuant to the Registration Rights Agreement, then such Initial
Security shall bear the legend set forth below (the "Private Placement
Legend") on the face thereof:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION AS SET FORTH BELOW.
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BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A")) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN
AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II)
IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. AS USED HEREIN, THE TERMS
"UNITED STATES," "OFFSHORE TRANSACTION," AND "U.S.
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PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
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[Legend if Security is a Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF
THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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▇▇-▇▇▇ STORES, INC.
__________________
10 3/8% SENIOR SUBORDINATED NOTE DUE 2007, SERIES A
CUSIP NO. ______________
No. __________ $_______________________
▇▇-▇▇▇ Stores, Inc., an Ohio corporation (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 United
States dollars on May 1, 2007, at the office or agency of the Company
referred to below, and to pay interest thereon from May 5, 1999, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on May 1 and November 1 in each year, commencing
November 1, 1999 at the rate of 10 3/8% per annum, subject to adjustments as
described in the second following paragraph, in United States dollars, until
the principal hereof is paid or duly provided for. Interest shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
The Holder of this Series A Security is entitled to the benefits of
the Registration Rights Agreement among the Company, the Guarantors and the
Initial Purchasers, dated May 5, 1999, pursuant to which, subject to the
terms and conditions thereof, the Company and the Guarantors are obligated to
consummate the Exchange Offer pursuant to which the Holder of this Security
(and the related Guarantees) shall have the right to exchange this Security
(and the related Guarantees) for 10 3/8% Senior Subordinated Notes due 2007,
Series B and related guarantees (herein called the "Series B Securities") in
like principal amount as provided therein. In addition, the Company and the
Guarantors have agreed to use their best efforts to register the Securities
for resale under the Securities Act through a Shelf Registration Statement in
the event that the Exchange Offer is not consummated within 150 calendar days
after the original issue of the Securities or under certain other
circumstances. The Series A Securities and the Series B Securities are
together (including related Guarantees) referred to as the "Securities." The
Series A Securities rank PARI PASSU in right of payment with the Series B
Securities.
In the event that (a) the Exchange Offer Registration Statement is
not filed with the Commission on or prior to the 45th calendar day following
the date of original issue of the Series A Securities, (b) the Exchange Offer
Registration Statement has not been declared effective on or prior to the
120th calendar day following the date of original issue of the Series A
Securities, (c) the Exchange Offer is not consummated on or prior to the
150th calendar day following the date of original issue of the Series A
Securities, (d) a Shelf
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Registration Statement required to be filed is not declared effective on or
prior to the later of 150 days after the original issue of the Securities or
45 days after the Shelf Registration Statement is requested, if applicable,
or (e) the Shelf Registration Statement is declared effective but shall
thereafter become unusable for more than 30 days in the aggregate (each such
event referred to in clauses (a) through (e) above, a "Registration
Default"), the interest rate borne by the Series A Securities shall be
increased by one-quarter of one percent per annum upon the occurrence of any
Registration Default, which rate (as increased as aforesaid) will increase by
an additional one-quarter of one percent each 90-day period that such
additional interest continues to accrue under any such circumstance, with an
aggregate maximum increase in the interest rate equal to one percent (1%) per
annum. Immediately following the cure of a Registration Default the accrual
of additional interest with respect to that particular Registration Default
will cease.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to
the Person in whose name this Security (or any Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the April 15th or October 15th (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid, or duly provided for, and interest
on such defaulted interest at the interest rate borne by the Series A
Securities, to the extent lawful, shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Security (or any Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Securities not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by this Indenture not
inconsistent with the requirements of such exchange, all as more fully
provided in this Indenture.
Payment of the principal of, premium, if any, and interest on, this
Security, and exchange or transfer of the Security, will be made at the
office or agency of the Company in The City of New York maintained for that
purpose (which initially will be a corporate trust office of an affiliate of
the Trustee, ▇▇▇▇▇▇ Trust Company of New York, located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ 10005), or at such other office or agency as may be maintained
for such purpose, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts; PROVIDED, HOWEVER, that payment of interest may be made at the option
of the Company by check mailed to the address of the Person entitled thereto
as such address shall appear on the Security Register.
-45-
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Security is entitled to the benefits of the Guarantees by the
Guarantors of the punctual payment when due and performance of the Indenture
Obligations made in favor of the Trustee for the benefit of the Holders.
Reference is made to Article Fourteen of the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations under the
Guarantees of the Guarantors.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual
signature of an authorized signer, this Security 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 by the manual or facsimile signature of its authorized officers.
▇▇-▇▇▇ STORES, INC.
By:
-------------------------------------
Name:
Title:
Attest:
--------------------------------
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 10 3/8% Senior Subordinated Notes due 2007, Series A
referred to in the within-mentioned Indenture.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as Trustee
By:
-------------------------------------
Authorized Signer
-46-
Dated:
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant
to Section 1012 or Section 1015, as applicable, of the Indenture, check the
Box: [ ].
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 1012 or Section 1015 as applicable, of the
Indenture, state the amount (in original principal amount):
$ _______________.
Date: ___________________ Your Signature: _____________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: __________________________________
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15]
-47-
(b) The form of the face of any Series B Securities authenticated and
delivered hereunder shall be substantially as follows:
[Legend if Security is a Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED
TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO.
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 306 AND 307 OF THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
-48-
▇▇-▇▇▇ STORES, INC.
-----------------
10 3/8% SENIOR SUBORDINATED NOTE DUE 2007, SERIES B
CUSIP NO. ______________
No. __________ $_______________________
▇▇-▇▇▇ Stores, Inc., an Ohio corporation (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 _______________ United
States dollars on May 1, 2007, at the office or agency of the Company
referred to below, and to pay interest thereon from May 5, 1999, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on May 1 and November 1 in each year, commencing
November 1, 1999 at the rate of 10 3/8% per annum, in United States dollars,
until the principal hereof is paid or duly provided for; PROVIDED that to the
extent interest has not been paid or duly provided for with respect to the
Series A Security exchanged for this Series B Security, interest on this
Series B Security shall accrue from the most recent Interest Payment Date to
which interest on the Series A Security which was exchanged for this Series B
Security has been paid or duly provided for. Interest shall be computed on
the basis of a 360-day year comprised of twelve 30-day months.
This Series B Security was issued pursuant to the Exchange Offer
pursuant to which the 10 3/8% Senior Subordinated Notes due 2007, Series A,
and related Guarantees (herein called the "Series A Securities") in like
principal amount were exchanged for the Series B Securities and related
Guarantees. The Series B Securities rank PARI PASSU in right of payment with
the Series A Securities.
For any period in which the Series A Security exchanged for this Series
B Security was outstanding, in the event that (a) the Exchange Offer
Registration Statement shall not have been filed with the Commission on or
prior to the 45th calendar day following the date of original issue of the
Series A Securities, (b) the Exchange Offer Registration Statement shall not
have been declared effective on or prior to the 120th calendar day following
the date of original issue of the Series A Securities, (c) the Exchange Offer
shall not have been consummated on or prior to the 150th calendar day
following the date of original issue of the Series A Securities, (d) a Shelf
Registration Statement required to have been filed shall not have been
declared effective on or prior to the later of 150 days after the original
issue of the Securities or 45 days after the Shelf Registration Statement
shall have been requested, if applicable, or (e) the Shelf Registration
-49-
Statement shall have been declared effective but thereafter shall have become
unusable for more than 30 days in the aggregate (each such event referred to
in clauses (a) through (e) above, a "Registration Default"), the interest
rate borne by the Series A Securities shall have increased by one-quarter of
one percent per annum upon the occurrence of any Registration Default, which
rate (as increased as aforesaid) shall have increased by an additional
one-quarter of one percent each 90-day period, if any, that such additional
interest shall have continued to accrue under any such circumstance, with an
aggregate maximum increase in the interest rate equal to one percent (1%) per
annum. Immediately following the cure of a Registration Default the accrual
of additional interest with respect to the particular Registration Default
shall have ceased; PROVIDED, HOWEVER, that, if after any such reduction in
interest rate, a different event specified in clause (a), (b), (c), (d) or
(e) above shall have occurred, the interest rate again shall have increased
pursuant to the foregoing provisions. To the extent that interest at such
increased rate shall not have been paid or duly provided for with respect to
the Series A Security exchanged for this Series B Security, interest on this
Series B Security shall accrue at such increased rate, from the most recent
Interest Payment Date to which interest at such increased rate on the Series
A Security exchanged for this Series B Security has been paid or duly
provided for, to the date on which the particular Registration Default shall
have been cured.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to
the Person in whose name this Security (or any Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the April 15th or October 15th (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid, or duly provided for, and interest
on such defaulted interest at the interest rate borne by the Series B
Securities, to the extent lawful, shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Security (or any Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Securities not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in this Indenture.
Payment of the principal of, premium, if any, and interest on, this
Security, and exchange or transfer of the Security, will be made at the
office or agency of the Company in The City of New York maintained for such
purpose (which initially will be a corporate trust office of an affiliate of
the Trustee, ▇▇▇▇▇▇ Trust Company of New York, located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ 10005), or at such other office or agency as may be maintained
for such purpose, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts; PROVIDED,
-50-
HOWEVER, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address
shall appear on the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
This Security is entitled to the benefits of the Guarantees by the
Guarantors of the punctual payment when due and performance of the Indenture
Obligations made in favor of the Trustee for the benefit of the Holders.
Reference is made to Article Fourteen of the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations under the
Guarantees of the Guarantors.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual
signature of an authorized signer, this Security 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 by the manual or facsimile signature of its authorized officers.
▇▇-▇▇▇ STORES, INC.
By:
-------------------------------------
Name:
Title:
Attest:
---------------------------------------
Authorized Officer
-51-
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 10 3/8% Senior Subordinated Notes due 2007, Series B
referred to in the within-mentioned Indenture.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as Trustee
By:
-------------------------------------
Authorized Signer
Dated:
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 1012 or Section 1015, as applicable, of the Indenture, check the Box:
[ ].
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 1012 or Section 1015 as applicable, of the
Indenture, state the amount (in original principal amount):
$ _______________.
Date: ___________________ Your Signature: _____________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: __________________________________
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15]
Section 203. FORM OF REVERSE OF SECURITIES.
-52-
(a) The form of the reverse of the Series A Securities shall be
substantially as follows:
▇▇-▇▇▇ STORES, INC.
10 3/8% Senior Subordinated Note due 2007, Series A
This Security is one of a duly authorized issue of Securities of
the Company designated as its 10 3/8% Senior Subordinated Notes due 2007,
Series A (herein called the "Securities"), limited (except as otherwise
provided in the Indenture referred to below) in aggregate principal amount to
$150,000,000, issued under and subject to the terms of an indenture (herein
called the "Indenture") dated as of May 5, 1999, among the Company, the
Guarantors and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Guarantors, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption at any time on or after
May 1, 2003, at the option of the Company, in whole or in part, on not less
than 30 nor more than 60 days' prior notice, in amounts of $1,000 or an
integral multiple thereof, at the following redemption prices (expressed as
percentages of the principal amount), if redeemed during the 12-month period
beginning May 1 of the years indicated below:
Redemption
Year Price
---- ----------
2003 . . . . . . . . . . 105.188%
2004 . . . . . . . . . . 102.594%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
rights of Holders of record on relevant record dates to receive interest due
on an Interest Payment Date).
In addition, at any time on or prior to May 1, 2002, the Company,
at its option, may use the net proceeds of one or more Public Equity
Offerings to redeem up to an aggregate of 35% of the aggregate principal
amount of Securities originally issued under the Indenture at a redemption
price equal to 110.375% of the aggregate principal amount thereof, plus
accrued and unpaid interest thereon, if any, to the Redemption Date; provided
that at
-53-
least 65% of the initial aggregate principal amount of Securities remains
outstanding immediately after the occurrence of such redemption. In order to
effect the foregoing redemption, the Company must mail a notice of redemption
no later than 30 days after the closing of the related Public Equity Offering
and must consummate such redemption within 60 days of the closing of the
Public Equity Offering.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities or portions thereof to be redeemed in compliance
with the requirements of the principal national securities exchange, if any,
on which the Securities are listed, or if the Securities are not so listed,
pro rata, by lot or by any other method the Trustee shall deem fair and
reasonable.
Upon the occurrence of a Change of Control, each Holder may require
the Company to purchase such Holder's Securities in whole or in part in
integral multiples of $1,000, at a purchase price in cash in an amount equal
to 101% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the date of purchase, pursuant to a Change of Control Offer in
accordance with the procedures set forth in the Indenture.
Under certain circumstances, if all or a portion of the Net Cash
Proceeds received by the Company from any Asset Sale are not required to be
applied to repay permanently any Senior Indebtedness or any Senior Guarantor
Indebtedness, or if the Company determines not to apply such Net Cash
Proceeds to the permanent prepayment of such Senior Indebtedness or Senior
Guarantor Indebtedness, or if no such Senior Indebtedness or Senior Guarantor
Indebtedness is then outstanding, and if the Company has not invested such
Net Cash Proceeds in properties and assets that replace the properties and
assets that were the subject of the Asset Sale or in properties and assets
which will be used in the businesses of the Company or its Restricted
Subsidiaries existing on the date of the Indenture or in businesses
reasonably related thereto and such Net Cash Proceeds not used or invested
exceeds a specified amount, the Company will be required to apply such
proceeds to the repayment of the Securities and certain Indebtedness ranking
PARI PASSU in right of payment to the Securities.
In the case of any redemption or repurchase of Securities in
accordance with the Indenture, interest installments whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities of record as of the close of business on the relevant Regular
Record Date or Special Record Date referred to on the face hereof.
Securities (or portions thereof) for whose redemption and payment provision
is made in accordance with the Indenture shall cease to bear interest from
and after the Redemption Date.
In the event of redemption or repurchase of this Security in
accordance with the Indenture in part only, a new Security or Securities for
the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
-54-
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities 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 (a)
the entire Indebtedness on the Securities and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders, certain amendments
which require the consent of Holders of 66 2/3% of the outstanding principal
amount of the Securities and certain amendments which require the consent of
all the Holders) 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 under the Indenture and the Securities and the
Guarantees at any time by the Company and the Trustee with the consent of the
Holders of at least a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of at least a majority in aggregate principal amount
of the Securities (Holders of 66 2/3% in aggregate principal amount of the
Securities or 100% of the Holders in certain circumstances) at the time
Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company and the Guarantors with certain provisions of the
Indenture and the Securities and the Guarantees and certain past Defaults
under the Indenture and the Securities and the Guarantees and their
consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Security.
The Securities are, to the extent and manner provided in Article
Thirteen of the Indenture, subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, any Guarantor or any other obligor on the Securities (in the event
such Guarantor or such other obligor is obligated to make payments in respect
of the Securities), which is absolute and unconditional, to pay the principal
of, premium, if any, and interest on, this Security at the times, place, and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York, duly endorsed by, or accompanied by a written
-55-
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or its attorney duly authorized
in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
Certificated securities shall be transferred to all beneficial
holders in exchange for their beneficial interests in the Rule 144A Global
Securities or the Regulation S Global Securities if (i) such Depositary (A)
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) has ceased to be a clearing agency
registered as such under the Exchange Act, and in either case the Company
fails to appoint a successor Depositary within 90 days, (ii) the Company, at
its option, notifies the Trustee in writing that it elects to cause the
issuance of the Securities in certificated form or (iii) there shall have
occurred and be continuing an Event of Default or any event which after
notice or lapse of time or both would be an Event of Default with respect to
such Global Security. Upon any such issuance, the Trustee is required to
register such certificated Series A Securities in the name of, and cause the
same to be delivered to, such Person or Persons (or the nominee of any
thereof). All such certificated Series A Securities would be required to
include the Private Placement Legend.
Series A Securities in certificated form are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Series A Securities are exchangeable for a
like aggregate principal amount of Securities of a differing authorized
denomination, as requested by the Holder surrendering the same.
At any time when the Company is not subject to Sections 13 or 15(d)
of the Exchange Act, upon the written request of a Holder of a Series A
Security, the Company will promptly furnish or cause to be furnished such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto) to such Holder or to a prospective
purchaser of such Series A Security who such Holder informs the Company is
reasonably believed to be a "Qualified Institutional Buyer" within the
meaning of Rule 144A under the Securities Act, as the case may be, in order
to permit compliance by such Holder with Rule 144A under the Securities Act.
No service charge shall be made for any registration of transfer or
exchange of Securities, 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 Security for registration of
transfer, the Company, any Guarantor, the Trustee and any agent of the
Company, any Guarantor or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security is overdue, and neither the Company, any Guarantor, the Trustee
nor any such agent shall be affected by notice to the contrary.
-56-
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Indenture.
[The Transferee Certificate, in the form of Appendix I hereto, will be
attached to the Series A Security.]
(b) The form of the reverse of the Series B Securities shall be
substantially as follows:
▇▇-▇▇▇ STORES, INC.
10 3/8% Senior Subordinated Note due 2007, Series B
This Security is one of a duly authorized issue of Securities of
the Company designated as its 10 3/8% Senior Subordinated Notes due 2007,
Series B (herein called the "Securities"), limited (except as otherwise
provided in the Indenture referred to below) in aggregate principal amount to
$150,000,000, issued under and subject to the terms of an indenture (herein
called the "Indenture") dated as of May 5, 1999, among the Company, the
Guarantors and ▇▇▇▇▇▇ Trust and Savings Bank, as trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Guarantors, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption at any time on or after
May 1, 2003, at the option of the Company, in whole or in part, on not less
than 30 nor more than 60 days' prior notice, in amounts of $1,000 or an
integral multiple thereof, at the following redemption prices (expressed as
percentages of the principal amount), if redeemed during the 12-month period
beginning May 1 of the years indicated below:
Redemption
Year Price
---- ----------
2003 . . . . . . . . . 105.188%
2004 . . . . . . . . . 102.594%
-57-
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
rights of Holders of record on relevant record dates to receive interest due
on an Interest Payment Date).
In addition, at any time on or prior to May 1, 2002, the Company
may, at its option, use the net proceeds of one or more Public Equity
Offerings to redeem up to an aggregate of 35% of the aggregate principal
amount of Securities originally issued under the Indenture at a redemption
price equal to 110.375% of the aggregate principal amount thereof, plus
accrued and unpaid interest thereon, if any, to the Redemption Date; provided
that at least 65% of the initial aggregate principal amount of Securities
remains outstanding immediately after the occurrence of such redemption. In
order to effect the foregoing redemption, the Company must mail a notice of
redemption no later than 30 days after the closing of the related Public
Equity Offering and must consummate such redemption within 60 days of the
closing of the Public Equity Offering.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities or portions thereof to be redeemed in compliance
with the requirements of the principal national securities exchange, if any,
on which the Securities are listed or, if the Securities are not so listed,
pro rata, by lot or by any other method the Trustee shall deem fair and
reasonable.
Upon the occurrence of a Change of Control, each Holder may require
the Company to purchase such Holder's Securities in whole or in part in
integral multiples of $1,000, at a purchase price in cash in an amount equal
to 101% of the principal amount thereof, plus accrued and unpaid interest, if
any, to the date of purchase, pursuant to a Change of Control Offer in
accordance with the procedures set forth in the Indenture.
Under certain circumstances, if all or a portion of the Net Cash
Proceeds received by the Company from any Asset Sale are not required to be
applied to repay permanently any Senior Indebtedness or Senior Guarantor
Indebtedness, or if the Company determines not to apply such Net Cash
Proceeds to the permanent prepayment of such Senior Indebtedness or Senior
Guarantor Indebtedness, or if no such Senior Indebtedness or Senior Guarantor
Indebtedness is then outstanding, and if the Company has not invested such
Net Cash Proceeds in properties and assets that replace the properties and
assets that were the subject of the Asset Sale or in properties and assets
that will be used in the businesses of the Company or its Restricted
Subsidiaries existing on the date of the Indenture or in businesses
reasonably related thereto, and such Net Cash Proceeds not used or invested
exceeds a specified amount, the Company will be required to apply such
proceeds to the repayment of the Securities and certain Indebtedness ranking
PARI PASSU in right of payment to the Securities.
-58-
In the case of any redemption or repurchase of Securities in
accordance with the Indenture, interest installments whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities of record as of the close of business on the relevant Regular
Record Date or Special Record Date referred to on the face hereof.
Securities (or portions thereof) for whose redemption and payment provision
is made in accordance with the Indenture shall cease to bear interest from
and after the Redemption Date.
In the event of redemption or repurchase of this Security in
accordance with the Indenture in part only, a new Security or Securities for
the unredeemed portion hereof shall 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
amount of all the Securities 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 (a)
the entire Indebtedness on the Securities and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders, certain amendments
which require the consent of Holders of 66 2/3% of the outstanding principal
amount of the Securities and certain amendments which required the consent of
all of the Holders) 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 under the Indenture and the Securities and the
Guarantees at any time by the Company and the Trustee with the consent of the
Holders of at least a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of at least a majority in aggregate principal amount
of the Securities (Holders of 66 2/3% in aggregate principal amount of the
Securities or 100% of the Holders in certain circumstances) at the time
Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company and the Guarantors with certain provisions of the
Indenture and the Securities and the Guarantees and certain past Defaults
under the Indenture and the Securities and the Guarantees and their
consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon this Security.
The Securities are, to the extent and manner provided in Article
Thirteen of the Indenture, subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness.
-59-
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, any Guarantor or any other obligor on the Securities (in the event
such Guarantor or such other obligor is obligated to make payments in respect
of the Securities), which is absolute and unconditional, to pay the principal
of, and premium, if any, and interest on, this Security at the times, place,
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the 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 Security
Registrar duly executed by, the Holder hereof or its attorney duly authorized
in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
Certificated securities shall be transferred to all beneficial
holders in exchange for their beneficial interests in the Rule 144A Global
Securities or the Regulation S Global Securities if (i) such Depositary (A)
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) has ceased to be a clearing agency
registered as such under the Exchange Act, and in either case the Company
fails to appoint a successor Depositary within 90 days, (ii) the Company, at
its option, notifies the Trustee in writing that it elects to cause the
issuance of the Securities in certificated form or (iii) there shall have
occurred and be continuing an Event of Default or any event which after
notice or lapse of time or both would be an Event of Default with respect to
such Global Security. Upon any such issuance, the Trustee is required to
register such certificated Series B Securities in the name of, and cause the
same to be delivered to, such Person or Persons (or the nominee of any
thereof).
Series B Securities in certificated form are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Series B Securities are exchangeable for a
like aggregate principal amount of Securities of a differing authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Securities, 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 Security for registration of
transfer, the Company, any Guarantor, the Trustee and any agent of the
Company, any Guarantor or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof
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for all purposes, whether or not this Security is overdue, and neither the
Company, any Guarantor, the Trustee nor any such agent shall be affected by
notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Indenture.
[The Transferee Certificate, in the form of Appendix II hereto, will
be attached to the Series B Security.]
Section 204. FORM OF GUARANTEE.
The form of Guarantee shall be set forth on the Securities substantially
as follows:
GUARANTEE
For value received, each of the undersigned hereby absolutely, fully and
unconditionally and irrevocably guarantees, jointly and severally with each
other Guarantor, to the holder of this Security the payment of principal of,
premium, if any, and interest on this Security upon which these Guarantees
are endorsed in the amounts and at the time when due and payable whether by
declaration thereof, or otherwise, and interest on the overdue principal and
interest, if any, of this Security, if lawful, and the payment or performance
of all other obligations of the Company under the Indenture or the
Securities, to the holder of this Security and the Trustee, all in accordance
with and subject to the terms and limitations of this Security and Article
Fourteen of the Indenture. This Guarantee will not become effective until
the Trustee duly executes the certificate of authentication on this Security.
These Guarantees shall be governed by and construed in
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accordance with the laws of the State of New York, without regard to conflict
of law principles thereof. The Indebtedness evidenced by these Guarantees
is, to the extent and in the manner provided in the Indenture, subordinate
and subject in right of payment to the prior payment in full of all Senior
Guarantor Indebtedness, whether outstanding on the date of the Indenture or
thereafter, and the Guarantees are issued subject to such provisions.
Dated:
FCA FINANCIAL, INC.
FABRI-CENTERS OF SOUTH DAKOTA, INC.
FABRI-CENTERS OF CALIFORNIA, INC.
FCA OF OHIO, INC.
HOUSE OF FABRICS, INC.
By
----------------------------------------------
Name:
Title:
Attest:
------------------------------
Name:
Title:
ARTICLE THREE
THE SECURITIES
Section 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $150,000,000
in principal amount of Securities, except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities pursuant to Section 303, 304, 305, 306, 307, 308, 906,
1012, 1015 or 1108.
The Securities shall be known and designated as the "10 3/8% Senior
Subordinated Notes due 2007" of the Company. The Stated Maturity of the
Securities shall be May 1, 2007, and the Securities shall each bear interest
at the rate of 10 3/8% per annum, as such interest rate may be adjusted as
set forth in the Securities, from May 5, 1999, or from the most recent
Interest Payment Date to which interest has been paid, payable semiannually
on May 1 and November 1 in each year, commencing November 1, 1999, until the
principal thereof is paid or duly provided for. Interest on any overdue
principal, interest (to the extent lawful) or premium, if any, shall be
payable on demand.
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The principal of, premium, if any, and interest on, the Securities
shall be payable and the Securities shall be exchangeable and transferable at
an office or agency of the Company in The City of New York maintained for
such purposes (which initially will be a corporate trust office of an
affiliate of the Trustee, ▇▇▇▇▇▇ Trust Company of New York, located at ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10005); PROVIDED, HOWEVER, that payment of
interest may be made at the option of the Company by check mailed to
addresses of the Persons entitled thereto as shown on the Security Register.
For all purposes hereunder, the Series A Securities and the Series
B Securities will be treated as one class and are together referred to as the
"Securities." The Series A Securities rank PARI PASSU in right of payment
with the Series B Securities.
The Securities shall be subject to repurchase by the Company
pursuant to an Offer as provided in Section 1012.
Holders shall have the right to require the Company to purchase
their Securities, in whole or in part, in the event of a Change of Control
pursuant to Section 1015.
The Securities shall be redeemable as provided in Article Eleven
and in the Securities.
The Indebtedness evidenced by the Securities shall rank junior to
and be subordinated in right of payment to the prior payment in full of all
other Senior Indebtedness. The Securities shall be senior subordinated
Indebtedness of the Company ranking equal to all other existing and future
senior subordinated Indebtedness of the Company and senior to all
Subordinated Indebtedness of the Company.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
Section 302. DENOMINATIONS.
The Securities shall be issuable only in fully registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by one of
its Chairman of the Board, its President, its Chief Executive Officer, its
Chief Financial Officer or one of its Vice Presidents under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signatures of any of these officers on the Securities may
be manual or facsimile.
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Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company
to the Trustee (with Guarantees endorsed thereon) for authentication,
together with a Company Order for the authentication and delivery of such
Securities; and the Trustee in accordance with such Company Order shall
authenticate and deliver such Securities as provided in this Indenture and
not otherwise.
Each Security shall be dated the date of its authentication.
No Security or 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 Security a certificate of authentication substantially
in the form provided for herein duly executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
In case the Company or any Guarantor, pursuant to Article Eight,
shall, in a single transaction or through a series of related transactions,
be consolidated or merged with or into any other Person or shall sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially
all of its properties and assets to any Person, and the successor Person
resulting from such consolidation or surviving such merger, or into which the
Company or such Guarantor shall have been merged, or the successor Person
which shall have participated in the sale, assignment, conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the
Securities authenticated or delivered prior to such consolidation, merger,
sale, assignment, conveyance, transfer, lease or other disposition may, from
time to time, at the request of the successor Person, be exchanged for other
Securities executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for such exchange and of like
principal amount; and the Trustee, upon the request of the successor Person,
shall authenticate and deliver Securities as specified in such request for
the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 303 in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of the
Holders but without expense to them, shall provide for the exchange of all
Securities at the time Outstanding for Securities authenticated and delivered
in such new name.
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The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities on behalf of the Trustee. Unless limited
by the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Security Registrar or Paying
Agent to deal with the Company and its Affiliates.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations.
Until so exchanged the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause the Trustee to keep, so long as it is the
Security Registrar, at the Corporate Trust Office of the Trustee, or such
other office as the Trustee may designate, a register (the register
maintained in such office or in any other office or agency designated
pursuant to Section 1002 being herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as the Security
Registrar may prescribe, the Company shall provide for the registration of
Securities and of transfers of Securities. The Trustee shall initially be
the "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided. The Company may change the
Security Registrar or appoint one or more co-Security Registrars without
notice.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or
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transferees, one or more new Securities of the same series of any authorized
denomination or denominations, of a like aggregate principal amount.
Furthermore, any Holder of the Global Security shall, by acceptance
of such Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained
by the Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in a Security shall be required to be reflected in a book
entry.
At the option of the Holder, Securities of any authorized
denomination or denominations may be exchanged for other Securities of a like
aggregate principal amount, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, Securities of the same series which the Holder making the exchange
is entitled to receive; PROVIDED that no exchange of Series A Securities for
Series B Securities shall occur until an Exchange Offer Registration
Statement shall have been declared effective by the Commission and the
Exchange Offer shall have expired and that the Series A Securities exchanged
for the Series B Securities shall be canceled.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same Indebtedness, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange, repurchase or redemption, shall (if so required by
the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer, exchange or redemption of Securities, except for any tax or other
governmental charge that may be imposed in connection therewith, other than
exchanges pursuant to Sections 303, 304, 305, 308, 906, 1012, 1015 or 1108
not involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of the
Securities selected for redemption under Section 1104 and ending at the close
of business on the day of such mailing or (b) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of Securities being redeemed in part.
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Every Security shall be subject to the restrictions on transfer
provided in the legend required to be set forth on the face of each Security
pursuant to Section 202, and the restrictions set forth in this Section 305,
and the Holder of each Security, by such Holder's acceptance thereof (or
interest therein), agrees to be bound by such restrictions on transfer.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security, whether pursuant to this Section
305, Section 304, 308, 906 or 1108 or otherwise, shall also be a Global
Security and bear the legend specified in Section 202.
Section 306. BOOK ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) Each Global Security initially shall (i) be registered in the
name of the Depositary for such Global Security or the nominee of such
Depositary, (ii) be deposited with, or on behalf of, the Depositary or with
the Trustee as custodian for such Depositary and (iii) bear legends as set
forth in Section 202.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee as its custodian, or
under such Global Security, and the Depositary may be treated by the Company,
the Guarantors, the Trustee and any agent of the Company or the Trustee as
the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Guarantors, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and
its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary (A) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (B) has ceased to be a clearing agency registered
as such under the Exchange Act, and in either case the Company fails to
appoint a successor Depositary within 90 days, (ii) the Company, at its
option, executes and delivers to the Trustee a Company Order stating that it
elects to cause the issuance of the Securities in certificated form and that
all Global Securities shall be exchanged in whole for Securities that are not
Global Securities (in which case such exchange shall be effected by the
Trustee) or (iii) there shall have occurred and be continuing an Event of
Default or any event which after notice or lapse of time or both would be an
Event of Default with respect to such Global Security.
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(c) If any Global Security is to be exchanged for other Securities
or canceled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Trustee, as Security Registrar, for exchange
or cancellation as provided in this Article Three. If any Global Security is
to be exchanged for other Securities or canceled in part, or if another
Security is to be exchanged in whole or in part for a beneficial interest in
any Global Security, then either (i) such Global Security shall be so
surrendered for exchange or cancellation as provided in this Article Three or
(ii) the principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or canceled, or equal to the
principal amount of such other Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment
made on the records of the Trustee, as Security Registrar, whereupon the
Trustee, in accordance with the Applicable Procedures, shall instruct the
Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Security, the Trustee shall, subject to this Section 306(c) and as otherwise
provided in this Article Three, authenticate and deliver any Securities
issuable in exchange for such Global Security (or any portion thereof) to or
upon the order of, and registered in such names as may be directed by, the
Depositary or its authorized representative. Upon the request of the Trustee
in connection with the occurrence of any of the events specified in the
preceding paragraph, the Company shall promptly make available to the Trustee
a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction
or request of the Depositary or its authorized representative which is given
or made pursuant to this Article Three if such order, direction or request is
given or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Article Three or otherwise, shall
be authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person other
than the Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
the Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable
Procedures. Accordingly, any such owner's beneficial interest in a Global
Security will be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members.
Section 307. SPECIAL TRANSFER AND EXCHANGE PROVISIONS.
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(a) CERTAIN TRANSFERS AND EXCHANGES. Transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds
specified in this Section 307 shall be made only in accordance with this
Section 307.
(i) RULE 144A GLOBAL SECURITY TO REGULATION S GLOBAL
SECURITY. If the owner of a beneficial interest in the Rule 144A
Global Security 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 Regulation S Global Security, such transfer may be
effected only in accordance with the provisions of this paragraph and
paragraph (iv) below 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 Regulation S Global Security in a specified
principal amount be credited to a specified Agent Member's account and
that a beneficial interest in the Rule 144A Global Security in an
equal principal amount be debited from another specified Agent
Member's account and (b) a Regulation S Certificate in the form of
Exhibit A hereto, satisfactory to the Trustee and duly executed by the
owner of such beneficial interest in the Rule 144A Global Security or
his attorney duly authorized in writing, then the Trustee, as Security
Registrar but subject to paragraph (iv) below, shall reduce the
principal amount of the Rule 144A Global Security and increase the
principal amount of the Regulation S Global Security by such specified
principal amount as provided in Section 306(c).
(ii) REGULATION S GLOBAL SECURITY TO RULE 144A GLOBAL SECURITY
If the owner of a beneficial interest in the Regulation S Global
Security 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
Rule 144A Global Security, such transfer may be effected only in
accordance with this paragraph (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 Rule 144A Global Security
in a specified principal amount be credited to a specified Agent
Member's account and that a beneficial interest in the Regulation S
Global Security in an equal principal amount be debited from another
specified Agent Member's account and (b) if such transfer is to occur
during the Restricted Period, a Restricted Securities Certificate in
the form of Exhibit B hereto, satisfactory to the Trustee and duly
executed by
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the owner of such beneficial interest in the Regulation S Global
Security or his attorney duly authorized in writing, then the
Trustee, as Security Registrar, shall reduce the principal amount
of the Regulation S Global Security and increase the principal
amount of the Rule 144A Global Security by such specified principal
amount as provided in Section 306(c).
(iii) EXCHANGES BETWEEN GLOBAL SECURITY AND NON-GLOBAL SECURITY.
A beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 307(b),
PROVIDED that, if such interest is a beneficial interest in the Rule
144A Global Security, or if such interest is a beneficial interest in
the Regulation S Global Security and such exchange is to occur during
the Restricted Period, then such interest shall bear the Private
Placement Legend (subject in each case to Section 307(b).
(iv) REGULATION S GLOBAL SECURITY TO BE HELD THROUGH
EUROCLEAR OR CEDEL DURING RESTRICTED PERIOD. The Company shall use
its best efforts to cause the Depositary to ensure that, until the
expiration of the Restricted Period, beneficial interests in the
Regulation S Global Security 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 paragraph (iv) shall not prohibit any
transfer or exchange of such an interest in accordance with
paragraph (ii) above.
(b) PRIVATE PLACEMENT LEGENDS. Rule 144A Securities and
their Successor Securities and Regulation S Securities and their
Successor Securities shall bear a Private Placement Legend, subject
to the following:
(i) subject to the following clauses of this Section 307(b),
a Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Private Placement Legend borne by such Global Security while
represented thereby;
(ii) subject to the following Clauses of this Section 307(b),
a new Security which is not a Global Security and is issued in
exchange for another Security (including a Global Security) or any
portion thereof, upon transfer or otherwise, shall bear the Private
Placement Legend borne by such other Security;
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(iii) Exchange Securities, and all other Securities sold or
otherwise disposed of pursuant to an effective registration statement
under the Securities Act, together with their respective Successor
Securities, shall not bear a Private Placement Legend;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities Act,
a new Security which does not bear a Private Placement Legend may be
issued in exchange for or in lieu of a Security (other than a Global
Security) or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate
substantially in the form of Exhibit C hereto, satisfactory to the
Trustee and duly executed by the Holder of such legended Security 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 Security in exchange for or in lieu of such other
Security as provided in this Article Three;
(v) a new Security which does not bear a Private Placement
Legend may be issued in exchange for or in lieu of a Security (other
than a Global Security) or any portion thereof which bears such a
legend if, in the Company's judgment, placing such a legend upon such
new Security 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 Security as provided in this Article Three; and
(vi) notwithstanding the foregoing provisions of this Section
307(b), a Successor Security of a Security that does not bear a
particular form of Private Placement Legend shall not bear such form
of legend unless the Company has reasonable cause to believe that such
Successor Security 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 Security bearing a Private
Placement Legend in exchange for such Successor Security as provided
in this Article Three.
By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture
and in the Private Placement Legend and agrees that it will transfer
such Security only as provided in this Indenture.
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The Security Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 306 or this
Section 307. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Security Registrar.
SECTION 308. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to the Trustee, or (b)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company, any Guarantor and the Trustee, such security or indemnity, in each
case, as may be required by them to save each of them harmless, then, in the
absence of notice to the Company, any Guarantor or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute and upon a Company Request the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a replacement Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding and each
Guarantor shall execute a replacement Guarantee.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section,
the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement Security and Guarantee issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company and any Guarantor,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 309. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on the Stated Maturity of such interest shall be paid
to the Person in whose name the Security (or any Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest payment.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on the Stated Maturity of such
interest, and interest on such defaulted interest at the then applicable
interest rate borne by the Securities, to the extent lawful (such defaulted
interest and interest thereon herein collectively called "Defaulted
Interest"), shall forthwith cease to be payable to the Holder on the Regular
Record Date; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or any relevant Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the
date (not less than 30 days after such notice) of the proposed payment (the
"Special Payment Date"), and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the Special Payment
Date, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Subsection 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 Special Payment Date and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company in writing of such Special Record
Date. In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to
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be mailed, first-class postage prepaid, to each Holder at its address as it
appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date and Special Payment Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities are registered on such Special Record Date and shall no longer
be payable pursuant to the following Subsection (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be required by this Indenture not inconsistent with the requirements of such
exchange, if, after written notice given by the Company to the Trustee of the
proposed payment pursuant to this Subsection, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 309, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 310. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and the Company, or the Trustee on behalf of the
Company, shall use CUSIP numbers in notices of redemption or exchange as a
convenience to Holders; PROVIDED, HOWEVER, that any such notice shall state
that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of redemption or
exchange and that reliance may be placed only on the other identification
numbers printed on the Securities; and PROVIDED FURTHER, HOWEVER, that
failure to use CUSIP numbers in any notice of redemption or exchange shall
not affect the validity or sufficiency of such notice.
Section 311. PERSONS DEEMED OWNERS.
Prior to and at the time of due presentment of a Security for
registration of transfer, the Company, any Guarantor, the Trustee and any
agent of the Company, any Guarantor or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the
purpose of receiving payment of principal of, premium, if any, and (subject
to Section 309) interest on, such Security and for all other purposes
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whatsoever, whether or not such Security is overdue, and neither the Company,
any Guarantor, the Trustee nor any agent of the Company, any Guarantor or the
Trustee shall be affected by notice to the contrary.
Section 312. CANCELLATION.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and,
if not already canceled, shall be promptly canceled by it. The Company and
any Guarantor may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
or such Guarantor may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 312, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee
shall be destroyed and certification of their destruction delivered to the
Company, unless by a Company Order received by the Trustee prior to such
destruction, the Company shall direct that the canceled Securities be
returned to it. The Trustee shall provide the Company a list of all
Securities that have been canceled from time to time as requested by the
Company.
Section 313. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either Section 402 or Section
403 be applied to all of the Outstanding Securities (the "Defeased
Securities"), upon compliance with the conditions set forth below in this
Article Four.
Section 402. DEFEASANCE AND DISCHARGE.
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Upon the Company's exercise under Section 401 of the option
applicable to this Section 402, the Company, each Guarantor and any other
obligor upon the Securities, if any, shall be deemed to have been discharged
from its obligations with respect to the Defeased Securities on the date the
conditions set forth in Section 404 below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company,
each Guarantor and any other obligor under this Indenture shall be deemed to
have paid and discharged the entire Indebtedness represented by the Defeased
Securities, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 405 and the other Sections of this Indenture referred to
in (a) and (b) below, and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned
(and the Trustee, at the expense of the Company and upon Company Request,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Securities to receive,
solely from the trust fund described in Section 404 and as more fully set
forth in such Section, payments in respect of the principal of, premium, if
any, and interest on, such Securities, when such payments are due, (b) the
Company's obligations with respect to such Defeased Securities under Sections
304, 305, 308, 1002 and 1003, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including, without limitation, the
Trustee's rights under Section 607, and (d) this Article Four. Subject to
compliance with this Article Four, the Company may exercise its option under
this Section 402 notwithstanding the prior exercise of its option under
Section 403 with respect to the Securities.
Section 403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 403, the Company and each Guarantor shall be released from its
obligations under any covenant or provision contained or referred to in Sections
1005 through 1019, inclusive, and the provisions of clause (iii) of Section
801(a), with respect to the Defeased Securities, on and after the date the
conditions set forth in Section 404 below are satisfied (hereinafter, "covenant
defeasance"), and the Defeased Securities shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the
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Defeased Securities, the Company and each Guarantor may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such Section, whether directly or indirectly, by reason of
any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an
Event of Default under Section 501(c) or (g) but, except as specified above,
the remainder of this Indenture and such Defeased Securities shall be
unaffected thereby.
Section 404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 402 or Section 403 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (a) cash in United
States dollars in an amount, (b) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms and with no further reinvestment will provide,
not later than one day before the due date of payment, money in an amount, or
(c) a combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public accountants or
a nationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee to pay and discharge, the principal of,
premium, if any, and interest on, the Defeased Securities, on the Stated
Maturity of such principal or interest (or on any date after May 1, 2003
(such date being referred to as the "Defeasance Redemption Date") if at or
prior to electing to exercise either its option applicable to Section 402 or
its option applicable to Section 403, the Company has delivered to the
Trustee an irrevocable notice to redeem the Defeased Securities on the
Defeasance Redemption Date). For this purpose, "U.S. Government Obligations"
means securities that are (i) direct obligations of the United States of
America for the timely payment of which its full faith and credit is pledged
or (ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case, are not callable or
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redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt, PROVIDED that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the
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 402, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in the
United States stating that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B) since the
date hereof, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Independent Counsel in the United States shall confirm that, the Holders of
the Outstanding Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not
occurred;
(3) In the case of an election under Section 403, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in the
United States to the effect that the Holders of the Outstanding Securities
will not recognize income, gain or loss for federal income tax purposes as a
result of such covenant defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred;
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Section 501(h) or (i) is
concerned, at any time during the period ending on the 91st day after the
date of deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(5) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities to have a conflicting interest in violation
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of and for purposes of the Trust Indenture Act with respect to any securities
of the Company or any Guarantor;
(6) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default under, this Indenture or any
other material agreement or instrument to which the Company, any Guarantor or
any Restricted Subsidiary is a party or by which it is bound;
(7) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940 unless such trust shall be
registered under such Act or exempt from registration thereunder;
(8) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States to the effect that after the 91st
day following the deposit, the trust funds will not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally;
(9) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the holders of the Securities or any Guarantee over the
other creditors of the Company or any Guarantor with the intent of defeating,
hindering, delaying or defrauding creditors of the Company, any Guarantor or
others;
(10) No event or condition shall exist that would prevent the
Company from making payments of the principal of, premium, if any, and
interest on the Securities on the date of such deposit or at any time ending
on the 91st day after the date of such deposit; and
(11) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 402 or the covenant defeasance under Section 403 (as the case may be)
have been complied with.
Opinions of Counsel or Opinions of Independent Counsel required to
be delivered under this Section shall be in form and substance reasonably
satisfactory to the Trustee and may have qualifications customary for
opinions of the type required and counsel delivering such
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opinions may rely on certificates of the Company or government or other
officials customary for opinions of the type required, which certificates
shall be limited as to matters of fact, including that various financial
covenants have been complied with.
Section 405. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003,
all United States dollars and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 404 in
respect of the Defeased Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(excluding the Company or any of its Affiliates acting as Paying Agent), as
the Trustee may determine, to the Holders of such Securities of all sums due
and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge
which by law is imposed, assessed or for the account of the Holders of the
Defeased Securities.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it
as provided in Section 404 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 defeasance or covenant
defeasance.
Section 406. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 402 or 403,
as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this
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Indenture and the Securities and any Guarantor's obligations under any
Guarantee shall be revived and reinstated, with present and prospective
effect, as though no deposit had occurred pursuant to Section 402 or 403, as
the case may be, until such time as the Trustee or Paying Agent is permitted
to apply all such United States dollars or U.S. Government Obligations in
accordance with Section 402 or 403, as the case may be; PROVIDED, HOWEVER,
that if the Company makes any payment to the Trustee or Paying Agent of
principal of, premium, if any, or interest on any Security following the
reinstatement of its obligations, the Trustee or Paying Agent shall promptly
pay any such amount to the Holders of the Securities and the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the United States dollars and U.S. Government Obligations held
by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on any
Security when it becomes due and payable, and such default shall continue for
a period of 30 days (whether or not permitted by the subordination
provisions of the Indenture);
(b) there shall be a default in the payment of the principal of
(or premium, if any, on) any Security at its Maturity (upon acceleration,
optional or mandatory redemption, if any, required repurchase or otherwise)
(whether or not prohibited by the subordination provisions of the Indenture);
(c) (i) there shall be a default in the performance, or breach, of
any covenant or agreement of the Company or any Guarantor under this
Indenture or any Guarantee (other than a default in the performance, or
breach, of a covenant or agreement which is specifically dealt with in clause
(a), (b) or in clause (ii), (iii) or (iv) of this clause (c))
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and such default or breach shall continue for a period of 30 days after
written notice has been given, by certified mail, (x) to the Company by the
Trustee or (y) to the Company and the Trustee by the holders of at least 25%
in aggregate principal amount of the Outstanding Securities; (ii) there shall
be a default in the performance or breach of the provisions described in
Article Eight herein; (iii) the Company shall have failed to make or
consummate an Offer in accordance with the provisions of Section 1012 herein;
or (iv) the Company shall have failed to make or consummate a Change of
Control Offer in accordance with the provisions of Section 1015 herein;
(d) one or more defaults shall have occurred under any of the
agreements, indentures or instruments under which the Company, any Guarantor
or any Restricted Subsidiary then has outstanding Indebtedness in excess of
$10,000,000 individually or in the aggregate, and either (i) such default
results from the failure to pay such Indebtedness at its stated final
maturity or (ii) such default or defaults have resulted in the acceleration
of the maturity of such Indebtedness;
(e) any Guarantee shall for any reason cease to be, or shall for
any reason be asserted in writing by any Guarantor or the Company not to be,
in full force and effect and enforceable in accordance with its terms, except
to the extent contemplated by this Indenture and any such Guarantee;
(f) one or more judgments, orders or decrees of any court or
regulatory or administrative agency for the payment of money in excess of
$10,000,000, either individually or in the aggregate, shall be rendered
against the Company, any Guarantor or any Restricted Subsidiary or any of
their respective properties and shall not be discharged and either (i) any
creditor shall have commenced an enforcement proceeding upon such judgment,
order or decree or (ii) there shall have been a period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason of an
appeal or otherwise, shall not be in effect;
(g) any holder or holders of at least $10,000,000 in aggregate
principal amount of Indebtedness of the Company, any Guarantor or any
Restricted Subsidiary after a default under such Indebtedness shall notify
the Trustee of the intended sale or disposition of any assets of the Company,
any Guarantor or any Restricted Subsidiary that have been pledged to or for
the benefit of such holder or holders to secure such Indebtedness or shall
commence proceedings, or take any action (including by way of set-off), to
retain in satisfaction of such Indebtedness or to collect
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on, seize, dispose of or apply in satisfaction of Indebtedness, assets of the
Company, any Guarantor or any Restricted Subsidiary (including funds on
deposit or held pursuant to lock-box and other similar arrangements);
(h) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company,
any Guarantor or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or (ii) a decree or order
adjudging the Company, any Guarantor or any Restricted Subsidiary bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company, any Guarantor or any 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, any Guarantor or any Restricted Subsidiary or of
any substantial part of their respective properties, or ordering the winding
up or liquidation of their affairs, and any such decree or order for relief
shall continue to be in effect, or any such other decree or order shall be
unstayed and in effect, for a period of 60 consecutive days; or
(i) (i) the Company, any Guarantor or any Restricted Subsidiary
commences a voluntary case or proceeding under any applicable Bankruptcy Law
or any other case or proceeding to be adjudicated bankrupt or insolvent, (ii)
the Company, any Guarantor or any Restricted Subsidiary consents to the entry
of a decree or order for relief in respect of the Company, such Guarantor or
such Restricted Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (iii) the Company, any Guarantor or
any Restricted Subsidiary files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, (iv) the
Company, any Guarantor or any Restricted Subsidiary (1) consents to the
filing of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company, any Guarantor or such Restricted Subsidiary or of
any substantial part of their respective properties, (2) makes an assignment
for the benefit of creditors or (3) admits in writing its inability to pay
its debts generally as they become due or (v) the Company, any Guarantor or
any Restricted Subsidiary takes any corporate action in furtherance of any
such actions in this paragraph (i).
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
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If an Event of Default (other than an Event of Default specified in
Sections 501(h) and (i) within) shall occur and be continuing with respect to
this Indenture, the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities then Outstanding may, and the Trustee at
the request of such holders shall, declare all unpaid principal of, premium,
if any, and accrued interest on all Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by the holders of the Securities) and upon any such declaration, such
principal, premium, if any, and interest shall become due and payable
immediately. If an Event of Default specified in clause (h) or (i) of
Section 501 occurs and is continuing, then all the Securities shall IPSO
FACTO become and be due and payable immediately in an amount equal to the
principal amount of the Securities, together with accrued and unpaid
interest, if any, to the date the Securities become due and payable, without
any declaration or other act on the part of the Trustee or any holder.
Thereupon, the Trustee may, at its discretion, proceed to protect and enforce
the rights of the holders of the Securities by appropriate judicial
proceedings.
After a declaration of acceleration with respect to the Securities,
but 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 Securities Outstanding, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Outstanding Securities,
(iii) the principal of and premium, if any, on any Outstanding
Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities,
and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities;
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(b) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and
(c) all Events of Default, other than the non-payment of principal
of, premium, if any, and interest on the Securities which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513. No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company and each Guarantor covenant that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of or premium,
if any, on any Security at the Stated Maturity thereof or otherwise,
the Company and such Guarantor will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and premium, if any, and
interest, with interest upon the overdue principal and premium, if any, and,
to the extent that payment of such interest shall be legally enforceable,
upon overdue installments of interest, at the rate borne by the Securities;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company or any Guarantor, as the case may be,
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 and may prosecute such
proceeding to judgment or final decree, and may enforce the same against the
Company or any Guarantor or any other obligor upon the Securities and collect
the moneys adjudged or decreed to be payable in the manner provided by law
out of the property of the Company, any Guarantor or any other obligor upon
the Securities, wherever situated.
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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 under this Indenture or any Guarantee by such appropriate private
or judicial proceedings as the Trustee shall deem most effectual to protect
and enforce such rights, including seeking recourse against any Guarantor
pursuant to the terms of any Guarantee, 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 therein, or to enforce any other proper remedy,
including, without limitation, seeking recourse against any Guarantor
pursuant to the terms of a Guarantee, or to enforce any other proper remedy,
subject however to Section 512. No recovery of any such judgment upon any
property of the Company or any Guarantor shall affect or impair any rights,
powers or remedies of the Trustee or the Holders.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor,
including any Guarantor, upon the Securities or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
and premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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 the Trustee any amount due it for the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture, the
Securities or the Guarantees may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or
in lieu of any proceeding contemplated by this Article shall be applied,
subject to applicable law, in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal, premium, if any, or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal, premium, if any, and interest, 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
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due and payable on such Securities for principal, premium, if any, and
interest; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company, provided that all sums due and owing to the
Holders and the Trustee have been paid in full as required by this Indenture.
Section 507. LIMITATION ON SUITS.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount
of the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name
as trustee hereunder;
(c) such Holder or Holders have offered to the Trustee a
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 15 days after its receipt of such notice,
request and offer (and if requested, provision) of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 15-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture, any Security or any Guarantee to affect, disturb or
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, any Security or any Guarantee, except in the manner provided
in this Indenture and for the equal and ratable benefit of all the Holders.
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Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right based on the terms stated herein, which
is absolute and unconditional, to receive payment of the principal of,
premium, if any, and (subject to Section 309) interest on such Security on
the respective Stated Maturities expressed in such Security (or, in the case
of redemption or repurchase, on the Redemption Date or the repurchase 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 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Guarantee and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, any Guarantor, any other obligor on the Securities, the
Trustee and the Holders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be
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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 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, PROVIDED that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture (including, without limitation, Section 507) or any
Guarantee, expose the Trustee to personal liability, or be unduly prejudicial
to Holders not joining therein; and
(b) subject to the provisions of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of 66 2/3 %
in aggregate principal amount of the Outstanding Securities or the Holders of
all Outstanding Securities waive any past Default hereunder and its
consequences, except a Default
(a) in the payment of the principal of, premium, if any, or
interest on any Security (which may only be waived with the consent of each
Holder of Securities effected); or
(b) in respect of a covenant or a provision hereof which under
this Indenture cannot be modified or amended without the consent of the
Holders of 66 2/3% in aggregate principal amount of the Outstanding
Securities or the Holder of each Security Outstanding affected by such
modification or amendment.
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 514. UNDERTAKING FOR COSTS.
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All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of, premium, if any, or
interest on, any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
Section 515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury or other law wherever enacted, now or
at any time hereafter in force, which would prohibit or forgive the Company
or any Guarantor from paying all or any portion of the principal of, premium,
if any, or interest on the Securities contemplated herein or in the
Securities or which may affect the covenants or the performance of this
Indenture; and each of the Company and the Guarantors (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
Section 516. REMEDIES SUBJECT TO APPLICABLE LAW.
All rights, remedies and powers provided by this Article Five may
be exercised only to the extent that the exercise thereof does not violate
any applicable provision of law in the premises, and all the provisions of
this Indenture are intended to be subject to all applicable mandatory
provisions of law which may be controlling in the premises and to be limited
to the extent necessary so that they will not render this
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Indenture invalid, unenforceable or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
ARTICLE SIX
THE TRUSTEE
Section 601. DUTIES OF TRUSTEE.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through 315(d):
(a) if a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in its
exercise thereof as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs;
(b) except during the continuance of a Default or an Event of
Default:
(1) the Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be implied
in this Indenture that are adverse to the Trustee; and
(2) in the absence of bad faith or willful misconduct on its part,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture;
(c) the Trustee may not be relieved from liability for its own
grossly negligent action, its own grossly negligent failure to act, or its
own willful misconduct, except that:
(1) this Subsection (c) does not limit the effect of Subsection (b)
of this Section 601;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the Trustee
was grossly negligent in ascertaining the pertinent facts; and
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(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith, in accordance with a direction of the
Holders of a majority in principal amount of Outstanding Securities relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power confirmed upon the
Trustee under this Indenture;
(d) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it;
(e) whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to Subsections (a), (b), (c) and (d) of this Section 601; and
(f) the Trustee shall not be liable for interest on any money
or assets received by it. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
Section 602. NOTICE OF DEFAULTS.
Within 30 days after a Responsible Officer of the Trustee receives
notice of the occurrence of any Default, the Trustee shall transmit by mail
to all Holders and any other Persons entitled to receive reports pursuant to
Section 313(c) of the Trust Indenture Act, as their names and addresses
appear in the Security Register, notice of such Default hereunder known to
the Trustee, unless such Default shall have been cured or waived; PROVIDED,
HOWEVER, that, except in the case of a Default in the payment of the
principal of, premium, if any, or interest on any Security, the Trustee shall
be protected in withholding such notice if and so long as a trust committee
of Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders.
Section 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601 hereof and Trust Indenture
Act Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon receipt by it of any resolution, certificate,
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statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Indebtedness or other paper
or document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities which might be
incurred therein;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than
any liabilities arising out of the gross negligence, bad faith or willful
misconduct of the Trustee;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper
or document unless requested in writing to do so by the Holders of not less
than a majority in aggregate principal amount of the Securities then
Outstanding; PROVIDED that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable expenses
of every such investigation so requested by the Holders of not less than a
majority in aggregate principal amount of the Securities Outstanding
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shall be paid by the Company or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Company upon demand; PROVIDED, FURTHER, the
Trustee in its discretion may make such further inquiry or investigation into
such facts or matters as it may deem fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITIONS OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Guarantors, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder
and that the statements made by it in any Statement of Eligibility and
Qualification on Form T-1 to be supplied to the Company will be true and
accurate subject to the qualifications set forth therein. The Trustee shall
not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
Section 605. TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS;
ETC.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities, with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent and,
subject to Trust Indenture Act Sections 310 and 311, may otherwise deal with
the Company and receive, collect, hold and retain collections from the
Company with the same rights it would have if it were not the Trustee, Paying
Agent, Security Registrar or such other agent.
Section 606. MONEY HELD IN TRUST.
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All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Except for funds or securities
deposited with the Trustee pursuant to Article Four, the Trustee shall be
required to invest all moneys received by the Trustee, until used or applied
as herein provided, in Temporary Cash Investments in accordance with the
written directions of the Company.
Section 607. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS
PRIOR CLAIM.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and the Company covenants and agrees to pay or reimburse the Trustee
and each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its gross negligence, bad
faith or willful misconduct. The Company also covenants and agrees to
indemnify the Trustee and each predecessor Trustee for, and to hold it
harmless against, any claim, loss, liability, tax, assessment, governmental
charge (other than taxes applicable to the Trustee's compensation hereunder)
or expense incurred without gross negligence, bad faith or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs of enforcement of this Section 607 and the
costs and expenses of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The obligations of the Company under this Section 607
to compensate and indemnify the Trustee and each predecessor Trustee and to
pay or reimburse the Trustee and each predecessor Trustee for reasonable
expenses, disbursements and advances shall constitute an additional
obligation hereunder and shall survive the satisfaction and discharge of this
Indenture and the resignation or removal of the Trustee and each predecessor
Trustee.
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Section 608. CONFLICTING INTERESTS.
The Trustee shall comply with the provisions of Section 310(b) of
the Trust Indenture Act.
Section 609. TRUSTEE ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act Section 310(a) and which
shall have a combined capital and surplus of at least $250,000,000, to the
extent there is an institution eligible and willing to serve. If the Trustee
does not have a Corporate Trust Office in The City of New York, the Trustee
may appoint an agent in The City of New York reasonably acceptable to the
Company to conduct any activities which the Trustee may be required under
this Indenture to conduct in The City of New York. If such Trustee publishes
reports of condition at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section
609, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 609, the Trustee
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE.
(a) No resignation or removal of the Trustee and no appointment of
a successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor trustee under Section 611.
(b) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign by giving written notice thereof to the Company no
later than 20 Business Days prior to the proposed date of resignation. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument executed by authority of the Board of
Directors of the Company, a copy of which shall be delivered to the resigning
Trustee and a copy to the successor trustee. If an instrument of acceptance
by a successor trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee
may, or any Holder who has been a bona
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fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper, appoint and
prescribe a successor trustee.
(c) The Trustee may be removed at any time for any cause or for no
cause by an Act of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Trust
Indenture Act Section 310(b) after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at least six
months,
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months,
or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, the Holder of any Security who has
been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
trustee and shall comply with the applicable requirements of Section 611.
If, within 60 days after such resignation, removal or
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incapability, or the occurrence of such vacancy, the Company has not
appointed a successor Trustee, a successor trustee shall be appointed by the
Act of the Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee. Such successor
trustee so appointed shall forthwith upon its acceptance of such appointment
become the successor trustee and supersede the successor trustee appointed by
the Company. If no successor trustee shall have been so appointed by the
Company or the Holders of the Securities and accepted appointment in the
manner hereinafter provided, the Trustee or the Holder of any Security who
has been a bona fide Holder for at least six months may, subject to Section
514, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor trustee and
the address of its Corporate Trust Office or agent hereunder.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee as if
originally named as Trustee hereunder; but, nevertheless, on the written
request of the Company or the successor trustee, upon payment of its charges
pursuant to Section 607 then unpaid, such retiring Trustee shall pay over to
the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such
successor trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor trustee all
such rights and powers.
No successor trustee with respect to the Securities shall accept
appointment as provided in this Section 611 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under
the provisions of Trust Indenture Act Section 310(a) and this Article Six and
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shall have a combined capital and surplus of at least $250,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 609.
Upon acceptance of appointment by any successor trustee as provided
in this Section 611, the Company shall give notice thereof to the Holders of
the Securities, by mailing such notice to such Holders at their addresses as
they shall appear on the Security Register. If the acceptance of appointment
is substantially contemporaneous with the appointment, then the notice called
for by the preceding sentence may be combined with the notice called for by
Section 610. If the Company fails to give such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be given at the expense of the Company.
Section 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including the trust created by this Indenture) shall
be the successor of the Trustee hereunder, PROVIDED that such corporation
shall be eligible under Trust Indenture Act Section 310(a) and this Article
Six and shall have a combined capital and surplus of at least $250,000,000
and have a Corporate Trust Office or an agent selected in accordance with
Section 609, without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities
or in this Indenture provided that the certificate of the Trustee shall have;
PROVIDED that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
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predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or other obligor under the Securities), 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). A Trustee who has
resigned or been removed shall be subject to Trust Indenture Act Section
311(a) to the extent indicated therein.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 10 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 reasonably request in
writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content to that in subsection (a) hereof as of a
date not more than 15 days prior to the time such list is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Holders may communicate pursuant to Trust Indenture Act Section
312(b) with other Holders with respect to their rights under this Indenture
or the Securities, and the Trustee shall comply with Trust Indenture Act
Section 312(b). The Company, the Trustee, the Security Registrar and any
other Person shall have the protection of Trust Indenture Act Section 312(c).
Further, every Holder of Securities, by receiving and
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holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of any information as to the names
and addresses of the Holders in accordance with Trust Indenture Act Section
312, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Trust Indenture Act Section 312.
Section 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the issuance of Securities, the Trustee, if so required
under the Trust Indenture Act, shall transmit by mail to all Holders, in the
manner and to the extent provided in Trust Indenture Act Section 313(c), a
brief report dated as of such May 15 in accordance with and with respect to
the matters required by Trust Indenture Act Section 313(a). The Trustee
shall also transmit by mail to all Holders, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), a brief report in accordance
with and with respect to the matters required by Trust Indenture Act Section
313(b)(2).
(b) A copy of each report transmitted to Holders pursuant to this
Section 703 shall, at the time of such transmission, be mailed to the Company
and filed with each stock exchange, if any, upon which the Securities are
listed and also with the Commission. The Company will notify the Trustee
promptly if the Securities are listed on any stock exchange.
Section 704. REPORTS BY COMPANY AND GUARANTORS.
The Company, and each Guarantor, as the case may be, shall:
(a) file with the Trustee, within 15 days after the Company or any
Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
the Company or any Guarantor may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the
Company or any Guarantor, as the case may be, is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall (i) deliver to the Trustee
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annual audited financial statements of the Company and its Subsidiaries,
prepared on a Consolidated basis in conformity with GAAP, within 120 days
after the end of each fiscal year of the Company, and (ii) file with the
Trustee and, to the extent permitted by law, the Commission, in accordance
with the rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance
by the Company or any Guarantor, as the case may be, with the conditions and
covenants of this Indenture as are required from time to time by such rules
and regulations (including such information, documents and reports referred
to in Trust Indenture Act Section 314(a)); and
(c) within 15 days after the filing thereof with the Trustee,
transmit by mail to all Holders in the manner and to the extent provided in
Trust Indenture Act Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company or any Guarantor,
as the case may be, pursuant to Section 1019 hereunder and subsections (a)
and (b) of this Section as are required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS
Section 801. COMPANY AND GUARANTORS MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
(a) The Company will not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into any
other Person or sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all of its properties and assets to any Person or group
of Persons, or permit any of its Restricted Subsidiaries to enter into any
such transaction or series of transactions, if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment,
conveyance,
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transfer, lease or disposition of all or substantially all of the properties
and assets of the Company and its Restricted Subsidiaries on a Consolidated
basis to any other Person or group of Persons, unless at the time and after
giving effect thereto:
(i) either (a) the Company will be the continuing
corporation or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or disposition all
or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries on a Consolidated basis (the "Surviving Entity") will
be a corporation duly organized and validly existing under the laws of the
United States of America, any state thereof or the District of Columbia and
such Person expressly assumes, by a supplemental indenture, in a form
reasonably satisfactory to the Trustee, all the obligations of the Company
under the Securities and this Indenture and the Registration Rights
Agreement, as the case may be, and the Securities and this Indenture and the
Registration Rights Agreement will remain in full force and effect as so
supplemented (and any Guarantees will be confirmed as applying to such
Surviving Entity's obligation);
(ii) immediately before and immediately after giving effect
to such transaction on a PRO FORMA basis (and treating any Indebtedness not
previously an obligation of the Company or any of its Restricted Subsidiaries
which becomes the obligation of the Company or any of its Restricted
Subsidiaries as a result of such transaction as having been incurred at the
time of such transaction), no Default or Event of Default will have occurred
and be continuing;
(iii) immediately before and immediately after giving effect
to such transaction on a PRO FORMA basis (on the assumption that the
transaction occurred on the first day of the four-quarter period for which
financial statements are available ending immediately prior to the
consummation of such transaction with the appropriate adjustments with
respect to the transaction being included in such PRO FORMA calculation), the
Company (or the Surviving Entity if the Company is not the continuing obligor
hereunder) could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under Section 1008;
(iv) at the time of the transaction, each Guarantor, if any,
unless it is the other party to the transactions described above, will have
by supplemental indenture confirmed that its Guarantee shall apply to such
Person's obligations under this Indenture and under the Securities;
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(v) at the time of the transaction if any of the property
or assets of the Company or any of its Restricted Subsidiaries
would thereupon become subject to any Lien, the provisions of
Section 1011 are complied with; and
(vi) at the time of the transaction the Company or the
Surviving Entity will have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect that such
consolidation, merger, transfer, sale, assignment, conveyance, transfer,
lease or other transaction and the supplemental indenture in respect thereof
comply with this Indenture and that all conditions precedent herein provided
for relating to such transaction have been complied with.
(b) Each Guarantor will not, and the Company will not permit a
Guarantor to, in a single transaction or through a series of related
transactions, consolidate with or merge with or into any other Person (other
than the Company or any Guarantor) or sell, assign, convey, transfer, lease
or otherwise dispose of all or substantially all of its properties and assets
to any Person or group of Persons (other than the Company or any Guarantor)
or permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Guarantor and its Restricted Subsidiaries on a
Consolidated basis to any other Person or group of Persons (other than the
Company or any Guarantor), unless at the time and after giving effect thereto:
(i) either (1) the Guarantor will be the continuing
corporation or limited liability company in the case of a consolidation or
merger involving the Guarantor or (2) the Person (if other than the
Guarantor) formed by such consolidation or into which such Guarantor is
merged or the Person which acquires by sale, assignment, conveyance,
transfer, lease or disposition all or substantially all of the properties and
assets of the Guarantor and its Restricted Subsidiaries on a Consolidated
basis (the "Surviving Guarantor Entity") will be a corporation or limited
liability company duly organized and validly existing under the laws of the
United States of America, any state thereof or the District of Columbia and
such Person expressly assumes, by a supplemental indenture, in a form
reasonably satisfactory to the Trustee, all the obligations of such Guarantor
under its Guarantee of the Securities and this Indenture and the Registration
Rights Agreement, and such Guarantee, Indenture and Registration Rights
Agreement will remain in full force and effect;
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(ii) immediately before and immediately after giving effect
to such transaction on a PRO FORMA basis, no Default or Event of Default will
have occurred and be continuing; and
(iii) at the time of the transaction such Guarantor or the
Surviving Guarantor Entity will have delivered, or caused to be delivered, to
the Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect that such
consolidation, merger, transfer, sale, assignment, conveyance, lease or other
transaction and the supplemental indenture in respect thereof comply with
this Indenture and that all conditions precedent therein provided for
relating to such transaction have been complied with.
(c) Notwithstanding the foregoing, the provisions of Section 801(b)
shall not apply to any Guarantor whose Guarantee of the Securities is
unconditionally released and discharged in accordance with paragraph (b) under
Section 1013.
Section 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company or any Guarantor, if any, in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company or such Guarantor, as the case may be, is merged or the
successor Person to which such sale, assignment, conveyance, transfer, lease
or disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or such Guarantor, as the case
may be, under this Indenture, the Securities and/or the related Guarantee, as
the case may be, with the same effect as if such successor had been named as
the Company or such Guarantor, as the case may be, herein, in the Securities
and/or in the Guarantee, as the case may be, and the Company or such
Guarantor, as the case may be, shall be discharged (other than in a
transaction that results in the transfer of assets constituting or accounting
for less than 95% of the Consolidated assets (as of the last balance sheet
date available to the Company) of the Company or the Consolidated revenue of
the Company (as of the last 12-month period for which financial statements
are available)) from all obligations and covenants under the Indenture and
the Securities or its Guarantee, as the case may be; PROVIDED that in the
case of a transfer by lease, the predecessor shall not be released from the
payment of principal and interest on the Securities or its Guarantee, as the
case may be.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES AND AGREEMENTS
WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, the Guarantors, if
any, and any other obligor under the Securities when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto or agreements or other
instruments with respect to the Indenture, the Securities or any Guarantee,
in form and substance satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to the Company or
a Guarantor or any other obligor upon the Securities, and the assumption by
any such successor of the covenants of the Company or such Guarantor or
obligor herein and in the Securities and in any Guarantee in accordance with
Article Eight;
(b) to add to the covenants of the Company, any Guarantor or any
other obligor upon the Securities for the benefit of the Holders, or to
surrender any right or power conferred upon the Company or any Guarantor or
any other obligor upon the Securities, as applicable, herein, in the
Securities or in any Guarantee;
(c) to cure any ambiguity, or to correct or supplement any
provision herein or in any supplemental indenture, the Securities or any
Guarantee which may be defective or inconsistent with any other provision
herein or in the Securities or any Guarantee or to make any other provisions
with respect to matters or questions arising under this Indenture, the
Securities or the Guarantees; PROVIDED that, in each case, such provisions
shall not adversely affect the interest of the Holders;
(d) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to add a Guarantor pursuant to the requirements of Section
1013 hereof or otherwise;
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(f) to evidence and provide the acceptance of the appointment of a
successor trustee hereunder; or
(g) to mortgage, pledge, hypothecate or grant a security interest
in favor of the Trustee for the benefit of the Holders as additional security
for the payment and performance of the Company's or any Guarantor's Indenture
Obligations, in any property, or assets, including any of which are required
to be mortgaged, pledged or hypothecated, or in which a security interest is
required to be granted to the Trustee pursuant to this Indenture or otherwise.
Section 902. SUPPLEMENTAL INDENTURES AND AGREEMENTS WITH CONSENT OF
HOLDERS.
Except as permitted by Section 901, with the consent of the Holders
of at least a majority in aggregate principal amount of the Outstanding
Securities (including consents obtained in connection with a tender offer or
exchange offer for Securities), by Act of said Holders delivered to the
Company, each Guarantor, if any, and the Trustee, the Company and each
Guarantor (if a party thereto) when authorized by Board Resolutions, and the
Trustee may (i) enter into an indenture or indentures supplemental hereto or
agreements or other instruments with respect to any Guarantee in form and
substance satisfactory to the Trustee, for the purpose of adding any
provisions to or amending, modifying or changing in any manner or eliminating
any of the provisions of this Indenture, the Securities or any Guarantee
(including but not limited to, for the purpose of modifying in any manner the
rights of the Holders under this Indenture, the Securities or any Guarantee)
or (ii) waive compliance with any provision in this Indenture, the Securities
or any Guarantee (other than waivers of past Defaults covered by Section 513
and waivers of covenants which are covered by Section 1021); PROVIDED,
HOWEVER, that no such supplemental indenture, agreement or instrument shall,
without the consent of the Holder of each Outstanding Security affected
thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, or change to an earlier date any Redemption Date
of, or waive a default in the payment of the principal of, premium, if any,
or interest on, any such Security or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon the redemption
thereof, or change the coin or currency in which the principal of any
Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
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(b) amend, change or modify the obligation of the Company to make
and consummate an Offer with respect to any Asset Sale or Asset Sales in
accordance with Section 1012 or the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 1015, including, in each case, amending, changing or
modifying any definitions relating thereto;
(c) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver or compliance with certain provisions of this Indenture;
(d) modify any of the provisions of this Section 902 or Section
513 or 1021, except to increase the percentage of such Outstanding Securities
required for such actions or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each such Security affected thereby;
(e) except as otherwise permitted under Article Eight, consent to
the assignment or transfer by the Company or any Guarantor of any of its
rights and obligations hereunder; or
(f) amend or modify any of the provisions of this Indenture
relating to the subordination of the Securities or any Guarantee in any
manner adverse to the Holders of the Securities or any Guarantee;
and PROVIDED, FURTHER, that no such supplemental indenture, agreement or
instrument shall, without the consent of the Holders of 66 2/3 % of the
Outstanding Securities, release the obligations of a Guarantor under its
Guarantee of the Securities.
Upon the written request of the Company and each Guarantor, if any,
accompanied by a copy of Board Resolutions authorizing the execution of any
such supplemental indenture or Guarantee, and upon the filing with the
Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall
join with the Company and each Guarantor in the execution of such
supplemental indenture or Guarantee.
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture or
Guarantee or agreement or instrument relating to any Guarantee, but it shall
be sufficient if such Act shall approve the substance thereof.
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Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES AND AGREEMENTS.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Trust
Indenture Act Sections 315(a) through 315(d) and Section 602 hereof) shall be
fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate stating that the execution of such supplemental indenture,
agreement or instrument (a) is authorized or permitted by this Indenture and
(b) does not violate the provisions of any agreement or instrument evidencing
any other Indebtedness of the Company, any Guarantor or any other Restricted
Subsidiary. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture, agreement or instrument which affects the
Trustee's own rights, duties or immunities under this Indenture, any
Guarantee or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any such supplemental indenture
may be prepared and executed by the Company and each Guarantor and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
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Section 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company, any Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of Section
902, the Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting forth
in general terms the substance of such supplemental indenture. Any failure
of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company shall duly and punctually pay the principal of,
premium, if any, and interest on the Securities in accordance with the terms
of the Securities and this Indenture.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency where Securities may
be presented or surrendered for payment. The Company also will maintain in
The City of New York an office or agency where Securities may be surrendered
for registration of transfer, redemption or exchange and where notices and
demands to or upon the Company in respect of the Securities and this
Indenture may be served. The office of an affiliate of the Trustee, ▇▇▇▇▇▇
Trust Company of New York, at its corporate trust office initially located at
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, will be such office or agency of
the Company, unless the Company shall designate and maintain some other
office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of the location and any change in the
location of any such offices or agencies. If at any time the Company shall
fail to maintain any such required offices or agencies or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the office of the Trustee and
the Company hereby appoints the Trustee such agent as its agent to receive
all such presentations, surrenders, notices and demands.
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The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes, and
may from time to time rescind such designation. The Company will give prompt
written notice to the Trustee of any such designation or rescission and any
change in the location of any such office or agency.
The Trustee shall initially act as Paying Agent for the Securities.
Section 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company or any of its Affiliates shall at any time act as
Paying Agent, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities, segregate and hold in
trust for the benefit of the Holders entitled thereto a sum sufficient to pay
the principal, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
If the Company or any of its Affiliates is not acting as Paying
Agent, the Company will, on or before each due date of the principal of,
premium, if any, or interest on any of the Securities, deposit with a Paying
Agent a sum in same day funds sufficient to pay the principal, premium, if
any, or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company 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:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on the Securities 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;
(b) give the Trustee notice of any Default by the Company or any
Guarantor (or any other obligor upon the Securities) in the making of any
payment of principal, premium, if any, or interest on the Securities;
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(c) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with
the provisions of this Indenture relating to the duties, rights and
liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security and remaining unclaimed for two years
after such principal and premium, if any, or interest has become due and
payable shall promptly 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 Security 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
the NEW YORK TIMES and THE WALL STREET JOURNAL (national edition), and mail
to each such Holder, 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 notification, publication and mailing, any unclaimed balance of such
money then remaining will promptly be repaid to the Company.
Section 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect the
corporate existence and related rights and franchises (charter and statutory)
of the Company and each Restricted Subsidiary; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise or the
corporate existence of any such Restricted Subsidiary if the Board of
Directors
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of the Company shall determine that the preservation thereof is no longer
necessary or desirable in the conduct of the business of the Company and its
Restricted Subsidiaries as a whole; and PROVIDED, FURTHER, HOWEVER, that the
foregoing shall not prohibit a sale, transfer or conveyance of a Restricted
Subsidiary or any of its assets in compliance with the terms of this
Indenture.
Section 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, on or before the date the same shall become due and payable, (a)
all taxes, assessments and governmental charges levied or imposed upon the
Company or any of its Restricted Subsidiaries shown to be due on any return
of the Company or any of its Restricted Subsidiaries or otherwise assessed or
upon the income, profits or property of the Company or any of its Restricted
Subsidiaries if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Company or
any Guarantor to perform its obligations hereunder and (b) all lawful claims
for labor, materials and supplies, which, if unpaid, would by law become a
Lien upon the property of the Company or any of its Restricted Subsidiaries,
except for any Lien permitted to be incurred under Section 1011, if failure
to pay or discharge the same could reasonably be expected to have a material
adverse effect on the ability of the Company or any Guarantor to perform its
obligations hereunder; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings properly instituted and
diligently conducted and in respect of which appropriate reserves (in the
good faith judgment of management of the Company) are being maintained in
accordance with GAAP.
Section 1006. MAINTENANCE OF PROPERTIES.
The Company shall cause all material properties owned by the
Company or any of its Restricted Subsidiaries or used or held for use in the
conduct of its business or the business of any of its Restricted Subsidiaries
to be maintained and kept in good condition, repair and working order
(ordinary wear and tear excepted) and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the reasonable judgment of
the Company may be consistent with sound business practice and necessary so
that the business carried on in connection therewith may be properly
conducted at all times; PROVIDED, HOWEVER, that nothing in this Section shall
prevent the Company from discontinuing the maintenance of any of such
properties if such
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discontinuance is, in the reasonable judgment of the Company, desirable in
the conduct of its business or the business of any of its Restricted
Subsidiaries; and PROVIDED, FURTHER, however, that the foregoing shall not
prohibit a sale, transfer or conveyance of a Restricted Subsidiary or any of
its properties or assets in compliance with the terms of this Indenture.
Section 1007. MAINTENANCE OF INSURANCE.
The Company shall at all times keep all of its and its Restricted
Subsidiaries' properties which are of an insurable nature insured with
insurers, believed by the Company in good faith to be financially sound and
responsible, against loss or damage to the extent that property of similar
character is usually so insured by corporations similarly situated and owning
like properties in the same general geographic areas in which the Company and
its Restricted Subsidiaries operate, except where the failure to do so could
not reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or prospects of the
Company and its Restricted Subsidiaries, taken as a whole.
Section 1008. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, create, issue, incur, assume, guarantee or
otherwise in any manner become directly or indirectly liable for the payment
of or otherwise incur, contingently or otherwise (collectively, "incur"), any
Indebtedness (including any Acquired Indebtedness), unless such Indebtedness
is incurred by the Company or any Guarantor or constitutes Acquired
Indebtedness of a Restricted Subsidiary and, in each case, the Company's
Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal
quarters for which financial statements are available immediately preceding
the incurrence of such Indebtedness taken as one period is at least equal to
or greater than 2.0:1.
Notwithstanding the foregoing, the Company and, to the extent
specifically set forth below, the Restricted Subsidiaries may incur each and
all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company (and guarantees thereof by
Restricted Subsidiaries) under the Credit Facility in an aggregate principal
amount at any one time outstanding not to exceed $300,000,000 (including up
to $30,000,000 of other credit lines) under any revolving credit facility
thereunder or in respect of letters of credit thereunder minus the amount by
which any commitments thereunder are permanently reduced and minus the
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aggregate amount of Net Cash Proceeds of Asset Sales applied to permanently
reduce the commitments with respect to such Indebtedness pursuant to Section
1012 herein;
(ii) Indebtedness of the Company pursuant to the Securities and
Indebtedness of any Guarantor pursuant to a Guarantee of the Securities;
(iii) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the date of the Indenture, listed on Schedule I hereto and not
otherwise referred to in this definition of "Permitted Indebtedness;"
(iv) Indebtedness of the Company owing to a Restricted Subsidiary;
PROVIDED that any Indebtedness of the Company owing to a Restricted
Subsidiary that is not a Guarantor is made pursuant to an intercompany note
in the form attached to this Indenture as Annex A and is unsecured and is
subordinated in right of payment from and after such time as the Securities
shall become due and payable (whether at Stated Maturity, acceleration or
otherwise) to the payment and performance of the Company's obligations under
the Securities; PROVIDED, FURTHER, that any disposition, pledge or transfer
of any such Indebtedness to a Person (other than a disposition, pledge or
transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of
such Indebtedness by the Company or other obligor not permitted by this
clause (iv);
(v) Indebtedness of a Wholly Owned Restricted Subsidiary owing to
the Company or another Wholly Owned Restricted Subsidiary; PROVIDED that any
such Indebtedness is made pursuant to an intercompany note in the form
attached to this Indenture as Annex A; PROVIDED, FURTHER, that (a) any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than a disposition, pledge or transfer to the Company or a Wholly Owned
Restricted Subsidiary) shall be deemed to be an incurrence of such
Indebtedness by the obligor not permitted by this clause (v), and (b) any
transaction pursuant to which any Wholly Owned Restricted Subsidiary, which
has Indebtedness owing to the Company or any other Wholly Owned Restricted
Subsidiary, ceases to be a Wholly Owned Restricted Subsidiary shall be deemed
to be the incurrence of Indebtedness by such Wholly Owned Restricted
Subsidiary that is not permitted by this clause (v);
(vi) guarantees of any Restricted Subsidiary made in accordance
with Section 1013 herein;
(vii) obligations of the Company or any Guarantor entered into in
the ordinary course of business (a) pursuant to Interest Rate Agreements
designed to protect the Company or any Restricted Subsidiary against
fluctuations in interest rates in respect of Indebtedness of the Company or
any Restricted Subsidiary as long as such obligations do not exceed the
aggregate principal amount of such Indebtedness then outstanding, (b) under
any Currency Hedging Agreements, relating to (i) Indebtedness of the Company
or any
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Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or
properties, in each case, incurred in the ordinary course of business of the
Company or any Restricted Subsidiary; provided, however, that such Currency
Hedging Agreements do not increase the Indebtedness or other obligations of
the Company or any Restricted Subsidiary outstanding other than as a result
of fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder or (c) under any Commodity
Price Protection Agreements which do not increase the amount of Indebtedness
or other obligations of the Company or any Restricted Subsidiary outstanding
other than as a result of fluctuations in commodity prices or by reason of
fees, indemnities and compensation payable thereunder;
(viii) Indebtedness of the Company or any Guarantor represented by
Capital Lease Obligations or Purchase Money Obligations or other Indebtedness
incurred or assumed in connection with the acquisition or development of real
or personal, movable or immovable, property, in each case, incurred for the
purpose of financing or refinancing all or any part of the purchase price or
cost of construction or improvement of property used in the business of the
Company, in an aggregate principal amount pursuant to this clause (viii) not
to exceed 10% of the Consolidated Net Tangible Assets of the Company
outstanding at any time; PROVIDED that the principal amount of any
Indebtedness permitted under this clause (viii) did not in each case at the
time of incurrence exceed the Fair Market Value, as determined by the Company
in good faith, of the acquired or constructed asset or improvement so
financed;
(ix) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness described in clauses (ii) and (iii) of this definition of
"Permitted Indebtedness," including any successive refinancings so long as
the borrower under such refinancing is the Company or, if not the Company,
the same as the borrower of the Indebtedness being refinanced and the
aggregate principal amount of Indebtedness represented thereby (or if such
Indebtedness provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity
thereof, the original issue price of such Indebtedness plus any accreted
value attributable thereto since the original issuance of such Indebtedness)
is not increased by such refinancing plus the lesser of (I) the stated amount
of any premium or other payment required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being refinanced or
(II) the amount of premium or other payment actually paid at such time to
refinance the Indebtedness, plus, in either case, the amount of expenses of
the Company incurred in connection with such refinancing and (A) in the case
of any refinancing of Indebtedness that is Subordinated Indebtedness, such
new Indebtedness is made subordinated to the Securities at least to the same
extent as the Indebtedness being refinanced and (B) in the case of Pari Passu
Indebtedness or Subordinated Indebtedness, as the case may be, such
refinancing does not reduce the Average Life to Stated Maturity or the Stated
Maturity of such Indebtedness; and
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(x) Indebtedness of the Company or any Guarantor in addition to
that described in clauses (i) through (ix) above, and any renewals,
extensions, substitutions, refinancings or replacements of such Indebtedness,
so long as the aggregate principal amount of all such Indebtedness shall not
exceed $10,000,000 outstanding at any one time in the aggregate.
For purposes of determining compliance with this Section 1008, in
the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness permitted by this covenant, the Company in its sole
discretion shall classify such item of Indebtedness and only be required to
include the amount of such Indebtedness as one of such types.
Section 1009. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not cause or permit
any Restricted Subsidiary to, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Company's Capital Stock (other
than dividends or distributions payable solely in shares of
its Qualified Capital Stock or in options, warrants or other
rights to acquire shares of such Qualified Capital Stock);
(ii) purchase, redeem, defease or otherwise acquire or retire for
value, directly or indirectly, the Company's Capital Stock or
any Capital Stock of any Affiliate of the Company (other than
Capital Stock of any Wholly Owned Restricted Subsidiary of the
Company) or options, warrants or other rights to acquire such
Capital Stock;
(iii) make any principal payment on, or repurchase, redeem, defease,
retire or otherwise acquire for value, prior to any scheduled
principal payment, sinking fund payment or maturity, any
Subordinated Indebtedness;
(iv) declare or pay any dividend or distribution on any Capital
Stock of any Restricted Subsidiary to any Person (other
than (a) to the Company or any of its Wholly Owned Restricted
Subsidiaries or (b) dividends or distributions made by a
Restricted Subsidiary on a pro rata basis to all stockholders
of such Restricted Subsidiary); or
(v) make any Investment in any Person (other than any Permitted
Investments)
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(any of the foregoing actions described in clauses (i) through (v),
other than any such action that is a Permitted Payment (as defined
below), collectively, "Restricted Payments") (the amount of any such
Restricted Payment, if other than cash, shall be the Fair Market Value
of the assets proposed to be transferred, as determined by the board of
directors of the Company, whose determination shall be conclusive and
evidenced by a board resolution), unless (1) immediately before and
immediately after giving effect to such proposed Restricted Payment on a
PRO FORMA basis, no Default or Event of Default shall have occurred and
be continuing and such Restricted Payment shall not be an event which
is, or after notice or lapse of time or both, would be, an "event of
default" under the terms of any Indebtedness of the Company or its
Restricted Subsidiaries; (2) immediately before and immediately after
giving effect to such Restricted Payment on a PRO FORMA basis, the
Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under Section 1008 herein; and (3) after giving
effect to the proposed Restricted Payment, the aggregate amount of all
such Restricted Payments declared or made after the date of this
Indenture and all Designation Amounts does not exceed the sum of:
(A) 50% of the aggregate Consolidated Net Income of the Company accrued on a
cumulative basis during the period beginning on May 2, 1999 and ending
on the last day of the Company's last fiscal quarter ending prior to the
date of the Restricted Payment (or, for each fiscal quarter of the
Company beginning with the third quarter of the Company's fiscal year
ending January 29, 2000, if such aggregate cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss);
(B) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company either (x) as capital contributions in the form
of common equity to the Company or (y) from the issuance or sale (other
than to any of its Subsidiaries) of Qualified Capital Stock of the
Company or any options, warrants or rights to purchase such Qualified
Capital Stock of the Company (except, in each case, to the extent such
proceeds are used to purchase, redeem or otherwise retire Capital Stock
or Subordinated Indebtedness as set forth below in clause (ii) or (iii)
of paragraph (b) below) (and excluding the Net Cash Proceeds from the
issuance of Qualified Capital Stock financed, directly or indirectly,
using funds borrowed from the Company or any Subsidiary until and to the
extent such borrowing is repaid);
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(C) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company (other than from any of its Subsidiaries)
upon the exercise of any options, warrants or rights to purchase
Qualified Capital Stock of the Company (and excluding the Net Cash
Proceeds from the exercise of any options, warrants or rights to
purchase Qualified Capital Stock financed, directly or indirectly,
using funds borrowed from the Company or any Subsidiary until and to
the extent such borrowing is repaid);
(D) the aggregate Net Cash Proceeds received after the date of this
Indenture by the Company from the conversion or exchange, if any, of
debt securities or Redeemable Capital Stock of the Company or its
Restricted Subsidiaries into or for Qualified Capital Stock of the
Company plus, to the extent such debt securities or Redeemable Capital
Stock were issued after the date of this Indenture, the aggregate of
Net Cash Proceeds from their original issuance (and excluding the Net
Cash Proceeds from the conversion or exchange of debt securities or
Redeemable Capital Stock financed, directly or indirectly, using
funds borrowed from the Company or any Subsidiary until and to the
extent such borrowing is repaid); and
(E) (a) in the case of the disposition or repayment of any Investment
constituting a Restricted Payment made after the date of this Indenture, an
amount (to the extent not included in Consolidated Net Income) equal to the
lesser of the return of capital with respect to such Investment and the
initial amount of such Investment, in either case, less the cost of the
disposition of such Investment and net of taxes, and (b) in the case of the
designation of an Unrestricted Subsidiary as a Restricted Subsidiary (as long
as the designation of such Subsidiary as an Unrestricted Subsidiary was
deemed a Restricted Payment), the Fair Market Value of the Company's interest
in such Subsidiary provided that such amount shall not in any case exceed the
amount of the Restricted Payment deemed made at the time the Subsidiary was
designated as an Unrestricted Subsidiary; and
(F) $10,000,000.
(b) Notwithstanding the foregoing, and in the case of clauses
(ii) through (v) below, so long as no Default or Event of Default is
continuing or would arise therefrom, the foregoing provisions shall not
prohibit the following actions (each of clauses (i) through (iv) being
referred to as a "Permitted Payment"):
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(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment was
permitted by the provisions of paragraph (a) of this Section and such payment
shall have been deemed to have been paid on such date of declaration and
shall not have been deemed a "Permitted Payment" for purposes of the
calculation required by paragraph (a) of this Section 1009;
(ii) the repurchase, redemption, or other acquisition or
retirement for value of any shares of any class of Capital Stock of the
Company in exchange for (including any such exchange pursuant to the exercise
of a conversion right or privilege in connection with which cash is paid in
lieu of the issuance of fractional shares or scrip), or out of the Net Cash
Proceeds of a substantially concurrent issuance and sale for cash (other than
to a Subsidiary) of, other shares of Qualified Capital Stock of the Company;
PROVIDED that the Net Cash Proceeds from the issuance of such shares of
Qualified Capital Stock are excluded from clause (3)(B) of paragraph (a) of
this Section 1009;
(iii) the repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or in an amount not in excess of the Net Cash
Proceeds of, a substantially concurrent issuance and sale for cash (other
than to any Subsidiary of the Company) of any Qualified Capital Stock of the
Company, PROVIDED that the Net Cash Proceeds from the issuance of such shares
of Qualified Capital Stock are excluded from clause (3)(B) of paragraph (a)
of this Section 1009; and
(iv) the repurchase, redemption, defeasance, retirement,
refinancing, acquisition for value or payment of principal of any
Subordinated Indebtedness (other than Redeemable Capital Stock) (a
"refinancing") through the substantially concurrent issuance of new
Subordinated Indebtedness of the Company, PROVIDED that any such new
Subordinated Indebtedness (1) shall be in a principal amount that does not
exceed the principal amount so refinanced (or, if such Subordinated
Indebtedness provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration thereof, then such
lesser amount as of the date of determination), plus the lesser of (I) the
stated amount of any premium or other payment required to be paid in
connection with such a refinancing pursuant to the terms of the Indebtedness
being refinanced or (II) the amount of premium or other payment actually paid
at such time to refinance the Indebtedness, plus, in either case, the amount
of expenses of the Company incurred in connection with such refinancing; (2)
has an Average Life to Stated Maturity greater than the remaining Average
Life to Stated Maturity of the Securities; (3) has a Stated Maturity for its
final scheduled principal payment later than the Stated Maturity for the
final scheduled principal payment of the Securities; and (4) is expressly
subordinated in right of payment to the Securities at least to the same
extent as the Subordinated Indebtedness to be refinanced.
Section 1010. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
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The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with
or for the benefit of any Affiliate of the Company (other than the Company or
a Wholly Owned Restricted Subsidiary) unless such transaction or series of
related transactions is entered into in good faith and in writing and (a)
such transaction or series of related transactions is on terms that are not
substantially less favorable to the Company or such Restricted Subsidiary, as
the case may be, than those that would be available in a comparable
transaction in arm's-length dealings with an unrelated third party, (b) with
respect to any transaction or series of related transactions involving
aggregate value in excess of $5,000,000, such transaction or series of
related transactions has been approved by a majority of the Disinterested
Directors of the Board of Directors of the Company, or in the event there is
only one Disinterested Director, by such Disinterested Director, and (c) with
respect to any transaction or series of related transactions involving
aggregate value in excess of $10,000,000, the Company delivers to the
Trustee a written opinion of an investment banking firm of national standing
or other recognized independent expert with experience appraising the terms
and conditions of the type of transaction or series of related transactions
for which an opinion is required stating that the transaction or series of
related transactions is fair to the Company or such Restricted Subsidiary
from a financial point of view; PROVIDED, HOWEVER, that this provision shall
not apply to (1) employment agreements and employee benefit arrangements with
any officer or director of the Company, including under any stock option or
stock incentive plans, entered into in the ordinary course of business,
consistent with the past practices of the Company or such Restricted
Subsidiary and (2) transactions pursuant to agreements in effect on the date
of this Indenture, including amendments thereto entered into after that date,
provided that the terms of any such amendment are not less favorable to the
Company or such Restricted Subsidiary than the terms of such agreement prior
to such amendment.
Section 1011. LIMITATION ON LIENS.
The Company will not, and will not cause or permit any Restricted
Subsidiary to, directly or indirectly, create, incur or affirm any Lien of
any kind securing any Pari Passu Indebtedness or Subordinated Indebtedness
(including any assumption, guarantee or other liability with respect thereto
by any Restricted Subsidiary) upon any property or assets (including any
intercompany notes) of the Company or any Restricted Subsidiary owned on the
date of this Indenture or acquired after the date of this Indenture, or
assign or convey any right to receive any income or profits therefrom, unless
the Securities (or a Guarantee in the case of Liens of a Guarantor) are
directly secured equally and ratably with (or, in the case of Subordinated
Indebtedness, prior or senior thereto, with the same relative priority as the
Securities shall have with respect to such Subordinated Indebtedness) the
obligation or liability secured by such Lien except for Liens
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(A) securing any Indebtedness which became Indebtedness pursuant to a
transaction permitted under Article Eight herein or securing Acquired
Indebtedness which in each case was created prior to (and not created
in connection with, or in contemplation of) the incurrence of such
Pari Passu Indebtedness or Subordinated Indebtedness (including any
assumption, guarantee or other liability with respect thereto by any
Restricted Subsidiary) and which Indebtedness is permitted under the
provisions of Section 1008 herein or
(B) securing any Indebtedness incurred in connection with any refinancing,
renewal, substitutions or replacements of any such Indebtedness
described in clause (A), so long as the aggregate principal amount of
Indebtedness represented thereby (or if such Indebtedness provides for
an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof, the
original issue price of such Indebtedness plus any accreted value
attributable thereto since the original issuance of such Indebtedness)
is not increased by such refinancing by an amount greater than the
lesser of (1) the stated amount of any premium or other payment
required to be paid in connection with such a refinancing pursuant to
the terms of the Indebtedness being refinanced or (2) the amount of
premium or other payment actually paid at such time to refinance the
Indebtedness, plus, in either case, the amount of expenses of the
Company incurred in connection with such refinancing,
PROVIDED, HOWEVER, that in the case of clauses (A) and (B), any such Lien
only extends to the assets that were subject to such Lien securing such
Indebtedness prior to the related acquisition by the Company or its
Restricted Subsidiaries.
Notwithstanding the foregoing, any Lien securing the
Securities granted pursuant to this covenant shall be automatically and
unconditionally released and discharged upon the release by the holders of
the Pari Passu Indebtedness or Subordinated Indebtedness described above of
their Lien on the property or assets of the Company or any Restricted
Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness), at such time as the holders of all such
Pari Passu Indebtedness or Subordinated Indebtedness also release their Lien
on the property or assets of the Company or such Restricted Subsidiary, or
upon any sale, exchange or transfer to any Person not an Affiliate of the
Company of the property or assets secured by such Lien, or of all of the
Capital Stock held by the Company or any Restricted Subsidiary in, or all or
substantially all the assets of, any Restricted Subsidiary creating such Lien.
Section 1012. LIMITATION ON SALE OF ASSETS.
(a) The Company will not, and will not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, consummate an Asset
Sale unless (i) at least 75% of
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the consideration from such Asset Sale is received in cash and (ii) the
Company or such Restricted Subsidiary receives consideration at the time of
such Asset Sale at least equal to the Fair Market Value of the shares or
assets subject to such Asset Sale (as determined by the Board of Directors of
the Company and evidenced in a Board Resolution).
(b) If all or a portion of the Net Cash Proceeds of any Asset
Sale are not required to be applied to repay permanently any Senior
Indebtedness or Senior Guarantor Indebtedness then outstanding as required by
the terms thereof, or the Company determines not to apply such Net Cash
Proceeds to the permanent prepayment of such Senior Indebtedness or Senior
Guarantor Indebtedness, or if no such Senior Indebtedness or Senior Guarantor
Indebtedness is then outstanding, then the Company or a Restricted Subsidiary
may within 360 days of the Asset Sale invest the Net Cash Proceeds in
properties and other assets that (as determined by the Board of Directors of
the Company) replace the properties and assets that were the subject of the
Asset Sale or in properties and assets that will be used in the businesses of
the Company or its Restricted Subsidiaries existing on the date of this
Indenture or in businesses reasonably related thereto. The amount of such
Net Cash Proceeds not used or invested within 360 days of the Asset Sale as
set forth in this paragraph constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds
$10,000,000 or more, the Company will apply the Excess Proceeds to the
repayment of the Securities and any other Pari Passu Indebtedness outstanding
with similar provisions requiring the Company to make an offer to purchase
such Indebtedness with the proceeds from any Asset Sale as follows: (A) the
Company will make an offer to purchase (an "Offer") from all holders of the
Securities in accordance with the procedures set forth in this Indenture in
the maximum principal amount (expressed as a multiple of $1,000) of
Securities that may be purchased out of an amount (the "Security Amount")
equal to the product of such Excess Proceeds multiplied by a fraction, the
numerator of which is the outstanding principal amount of the Securities, and
the denominator of which is the sum of the outstanding principal amount (or
accreted value in the case of Indebtedness issued with original issue
discount) of the Securities and such Pari Passu Indebtedness (subject to
proration in the event such amount is less than the aggregate Offered Price
(as defined herein) of all Securities tendered) and (B) to the extent
required by such Pari Passu Indebtedness to permanently reduce the principal
amount of such Pari Passu Indebtedness (or accreted value in the case of
Indebtedness issued with original issue discount), the Company will make an
offer to purchase or otherwise repurchase or redeem Pari Passu Indebtedness
(a "Pari Passu Offer") in an amount (the "Pari Passu Debt Amount") equal to
the excess of the Excess Proceeds over the Security Amount; PROVIDED that in
no event will the Company be required to make a Pari Passu Offer in a Pari
Passu Debt Amount exceeding the principal amount (or accreted value) of such
Pari Passu Indebtedness plus the amount of any premium required to be paid to
repurchase such Pari Passu Indebtedness. The offer price for the Securities
will be payable in cash in an amount equal to 100% of the principal amount of
the Securities plus
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accrued and unpaid interest, if any, to the date (the "Offer Date") such
Offer is consummated (the "Offered Price"), in accordance with the procedures
set forth in this Indenture. To the extent that the aggregate Offered Price
of the Securities tendered pursuant to the Offer is less than the Security
Amount relating thereto or the aggregate amount of Pari Passu Indebtedness
that is purchased in a Pari Passu Offer is less than the Pari Passu Debt
Amount, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the aggregate principal amount of Securities and Pari
Passu Indebtedness surrendered by holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Securities to be purchased on a
pro rata basis. Upon the completion of the purchase of all the Securities
tendered pursuant to an Offer and the completion of a Pari Passu Offer, the
amount of Excess Proceeds, if any, shall be reset at zero.
(d) If the Company becomes obligated to make an Offer pursuant
to clause (c) above, the Securities and the Pari Passu Indebtedness shall be
purchased by the Company, at the option of the holders thereof, in whole or
in part in integral multiples of $1,000, on a date that is not earlier than
30 days and not later than 60 days from the date the notice of the Offer is
given to holders, or such later date as may be necessary for the Company to
comply with the requirements under the Exchange Act.
(e) In the event that the Company is required to make an Offer
but is restricted from making an Offer pursuant to clause (c) above under the
terms of any of its outstanding Senior Indebtedness, then the Company need
not make such an Offer pursuant to clause (c) above and shall not be deemed
to be in default in the performance of such covenant by virtue of not making
such an Offer, provided that in any such event (1) the Company shall use all
or a portion of the Net Cash Proceeds of any Asset Sale to repay permanently
any Senior Indebtedness or Senior Guarantor Indebtedness then outstanding as
required by the terms thereof or (2) the Company or a Restricted Subsidiary
shall within 360 days of the Asset Sale invest the Net Cash Proceeds in
properties and other assets that (as determined by the Board of Directors of
the Company) replace the properties and assets that were the subject of the
Asset Sale or in properties and assets that will be used in the businesses of
the Company or its Restricted Subsidiaries existing on the date of this
Indenture or in businesses reasonably related thereto.
(f) The Company will comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with an Offer.
(g) Subject to paragraph (f) above, within 30 days after the
date on which the amount of Excess Proceeds equals or exceeds $10,000,000,
the Company shall send or cause to be sent by first-class mail, postage
prepaid, to the Trustee and to each Holder, at his address appearing in the
Security Register, a notice stating or including:
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(1) that the Holder has the right to require the Company to
repurchase, subject to proration, such Holder's Securities at the
Offered Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in order to have
his Securities purchased in accordance with paragraph (c) of this
Section;
(4) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company,
the most recent subsequently filed Quarterly Report on Form 10-Q, as
applicable, and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report, other than Current Reports
describing Asset Sales otherwise described in the offering materials
(or corresponding successor reports) (or in the event the Company is
not required to prepare any of the foregoing Forms, the comparable
information required pursuant to Section 1019), (ii) a description of
material developments, if any, in the Company's business subsequent to
the date of the latest of such reports, (iii) if material, appropriate
pro forma financial information, and (iv) such other information, if
any, concerning the business of the Company which the Company in good
faith believes will enable such Holders to make an informed investment
decision regarding the Offer;
(5) the Offered Price;
(6) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 1002;
(7) that Securities must be surrendered prior to the Offer
Date to the Paying Agent at the office of the Paying Agent or to an
office or agency referred to in Section 1002 to collect payment;
(8) that any Securities not tendered will continue to accrue
interest and that unless the Company defaults in the payment of the
Offered Price, any Security accepted for payment pursuant to the Offer
shall cease to accrue interest on and after the Offer Date;
(9) the procedures for withdrawing a tender; and
(10) that the Offered Price for any Security which has been
properly tendered and not withdrawn and which has been accepted for
payment pursuant to the Offer will be paid promptly following the
Offered Date.
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(h) Holders electing to have Securities purchased hereunder will
be required to surrender such Securities at the address specified in the
notice prior to the Offer Date. Holders will be entitled to withdraw their
election to have their Securities purchased pursuant to this Section 1012 if
the Company receives, not later than one Business Day prior to the Offer
Date, a telegram, telex, facsimile transmission or letter setting forth (1)
the name of the Holder, (2) the certificate number of the Security in respect
of which such notice of withdrawal is being submitted, (3) the principal
amount of the Security (which shall be $1,000 or an integral multiple
thereof) delivered for purchase by the Holder as to which his election is to
be withdrawn, (4) a statement that such Holder is withdrawing his election to
have such principal amount of such Security purchased, and (5) the principal
amount, if any, of such Security (which shall be $1,000 or an integral
multiple thereof) that remains subject to the original notice of the Offer
and that has been or will be delivered for purchase by the Company.
(i) The Company shall (i) not later than the Offer Date, accept
for payment Securities or portions thereof tendered pursuant to the Offer,
(ii) not later than 10:00 a.m. (New York time) on the Offer Date, deposit
with the Trustee or with a Paying Agent an amount of money in same day funds
(or New York Clearing House funds if such deposit is made prior to the Offer
Date) sufficient to pay the aggregate Offered Price of all the Securities or
portions thereof which are to be purchased on that date and (iii) not later
than 10:00 a.m. (New York time) on the Offer Date, deliver to the Paying
Agent an Officers' Certificate stating the Securities or portions thereof
accepted for payment by the Company. The Paying Agent shall promptly mail or
deliver to Holders of Securities so accepted payment in an amount equal to
the Offered Price of the Securities purchased from each such Holder, and the
Company shall execute and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so
accepted shall be promptly mailed or delivered by the Paying Agent at the
Company's expense to the Holder thereof. For purposes of this Section 1012,
the Company shall choose a Paying Agent which shall not be the Company.
Subject to applicable escheat laws, the Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed, together
with interest, if any, thereon, held by them for the payment of the Offered
Price; PROVIDED, HOWEVER, that (x) to the extent that the aggregate amount of
cash deposited by the Company with the Trustee in respect of an Offer exceeds
the aggregate Offered Price of the Securities or portions thereof to be
purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the
Business Day following the Offer Date the Trustee shall return any such
excess to the Company together with interest or dividends, if any, thereon.
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(j) Securities to be purchased shall, on the Offer Date, become
due and payable at the Offered Price and from and after such date (unless the
Company shall default in the payment of the Offered Price) such Securities
shall cease to bear interest. Such Offered Price shall be paid to such
Holder promptly following the later of the Offer Date and the time of
delivery of such Security to the relevant Paying Agent at the office of such
Paying Agent by the Holder thereof in the manner required. Upon surrender of
any such Security for purchase in accordance with the foregoing provisions,
such Security shall be paid by the Company at the Offered Price; PROVIDED,
HOWEVER, that installments of interest whose Stated Maturity is on or prior
to the Offer Date shall be payable to the Person in whose name the Securities
(or any Predecessor Securities) is registered as such on the relevant Regular
Record Dates according to the terms and the provisions of Section 309;
PROVIDED, FURTHER, that Securities to be purchased are subject to proration
in the event the Excess Proceeds are less than the aggregate Offered Price of
all Securities tendered for purchase, with such adjustments as may be
appropriate by the Trustee so that only Securities in denominations of $1,000
or integral multiples thereof, shall be purchased. If any Security tendered
for purchase shall not be so paid upon surrender thereof by deposit of funds
with the Trustee or a Paying Agent in accordance with paragraph (i) above,
the principal thereof (and premium, if any, thereon) shall, until paid, bear
interest from the Offer Date at the rate borne by such Security. Any
Security that is to be purchased only in part shall be surrendered to a
Paying Agent at the office of such Paying Agent (with, if the Company, the
Security Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar or the Trustee duly executed by, the Holder thereof or
such Holder's attorney duly authorized in writing), and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, one or more new Securities of any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of
the Security so surrendered that is not purchased. The Company shall
publicly announce the results of the Offer on or as soon as practicable after
the Offer Date.
Section 1013. LIMITATION ON ISSUANCES OF GUARANTEES OF AND PLEDGES
FOR INDEBTEDNESS.
(a) The Company will not cause or permit any Restricted
Subsidiary, other than a Guarantor, directly or indirectly, to secure the
payment of any Senior Indebtedness of the Company and the Company will not,
and will not permit any Restricted Subsidiary to, pledge any intercompany
securities representing obligations of any Restricted Subsidiary (other than
a Guarantor) to secure the payment of any Senior Indebtedness unless in each
case such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture to the Indenture providing for a guarantee of payment
of the Securities by such Restricted Subsidiary, which guarantee shall be on
the same terms as the guarantee of the Senior Indebtedness (if a guarantee of
Senior Indebtedness is granted by any such Restricted
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Subsidiary) except that the guarantee of the Securities need not be secured
and shall be subordinated to the claims against such Restricted Subsidiary in
respect of Senior Indebtedness to the same extent as the Securities are
subordinated to Senior Indebtedness of the Company under the Indenture.
(b) The Company will not cause or permit any Restricted
Subsidiary (which is not a Guarantor), directly or indirectly, to guarantee,
assume or in any other manner become liable with respect to any Indebtedness
of the Company or any Restricted Subsidiary unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to the
Indenture providing for a Guarantee of the Securities on the same terms as
the guarantee of such Indebtedness except that (A) such guarantee need not be
secured unless required pursuant to Section 1011 herein, (B) if such
Indebtedness is by its terms Senior Indebtedness, any such assumption,
guarantee or other liability of such Restricted Subsidiary with respect to
such Indebtedness shall be senior to such Restricted Subsidiary's Guarantee
of the Securities to the same extent as such Senior Indebtedness is senior to
the Securities and (C) if such Indebtedness is by its terms expressly
subordinated to the Securities, any such assumption, guarantee or other
liability of such Restricted Subsidiary with respect to such Indebtedness
shall be subordinated to such Restricted Subsidiary's Guarantee of the
Securities at least to the same extent as such Indebtedness is subordinated
to the Securities.
(c) Notwithstanding the foregoing, any Guarantee by a Restricted
Subsidiary of the Securities shall provide by its terms that it (and all
Liens securing the same) shall be automatically and unconditionally released
and discharged upon (i) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary, which
transaction is in compliance with the terms of this Indenture and such
Restricted Subsidiary is released from all guarantees, if any, by it of other
Indebtedness of the Company or any Restricted Subsidiaries and (ii) with
respect to any Guarantees created after the date of this Indenture, the
release by the holders of the Indebtedness of the Company described in
clauses (a) and (b) above of their security interest or their guarantee by
such Restricted Subsidiary (including any deemed release upon payment in full
of all obligations under such Indebtedness), at such time as (A) no other
Indebtedness of the Company has been secured or guaranteed by such Restricted
Subsidiary, as the case may be, or (B) the holders of all such other
Indebtedness which is secured or guaranteed by such Restricted Subsidiary
also release their security interest in or guarantee by such Restricted
Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness).
Section 1014. LIMITATION ON SENIOR SUBORDINATED INDEBTEDNESS.
The Company will not, and will not permit or cause any Guarantor
to, directly or indirectly, create, incur, issue, assume, guarantee or
otherwise in any manner become directly or indirectly liable for or with
respect to or otherwise permit to exist any Indebtedness that is subordinate
in right of payment to any Indebtedness of the Company or
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such Guarantor, as the case may be, unless such Indebtedness is also PARI
PASSU with the Securities or the Guarantee of such Guarantor or subordinated
in right of payment to the Securities or such Guarantee at least to the same
extent as the Securities or such Guarantee are subordinated in right of
payment to Senior Indebtedness or Senior Indebtedness of such Guarantor, as
the case may be.
Section 1015. PURCHASE OF SECURITIES UPON A CHANGE OF CONTROL.
(a) If a Change of Control occurs, then each Holder shall have
the right to require that the Company purchase all or any part (in integral
multiples of $1,000) of such Holder's Securities pursuant to the offer
described below in this Section 1015 (the "Change of Control Offer") and in
accordance with the other procedures set forth in subsections (b), (c), (d)
and (e) of this Section 1015. In the Change of Control Offer, the Company
shall offer to purchase all of the Securities at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to 101% of the
principal amount of such Securities, plus accrued and unpaid interest, if
any, to the date of purchase (the "Change of Control Purchase Date") (subject
to the rights of holders of record on relevant record dates to receive
interest due on an interest payment date).
(b) Within 30 days of any Change of Control or, at the Company's
option, prior to such Change of Control but after it is publicly announced,
the Company shall notify the Trustee and give written notice (a "Change of
Control Purchase Notice") of such Change of Control to each Holder by
first-class mail, postage prepaid, at his address appearing in the Security
Register. The Change of Control Purchase Notice shall state, among other
things:
(1) that a Change of Control has occurred, the date of such
event, and that such Holder has the right to require the Company to
repurchase such Holder's Securities at the Change of Control Purchase
Price;
(2) the circumstances and relevant facts regarding such
Change of Control (including but not limited to information with
respect to pro forma historical income, cash flow and capitalization
after giving effect to such Change of Control);
(3) (i) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company,
the most recent subsequently filed Quarterly Report on Form 10-Q, as
applicable, and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report (or in the event the Company is
not required to prepare any of the foregoing Forms, the comparable
information required to be prepared by the Company and any Guarantor
pursuant to Section 1019), (ii) a description of material
developments, if any, in the Company's business subsequent to the date
of the latest of such reports and (iii) such other
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information, if any, concerning the business of the Company which the
Company in good faith believes will enable such Holders to make an
informed investment decision regarding the Change of Control Offer;
(4) that the Change of Control Offer is being made pursuant
to this Section 1015 and that all Securities properly tendered
pursuant to the Change of Control Offer will be accepted for payment
at the Change of Control Purchase Price;
(5) the Change of Control Purchase Date, which shall be fixed
by the Company on a Business Day no earlier than 30 days nor later
than 60 days from the date such notice is mailed, or such later date
as is necessary to comply with requirements under the Exchange Act;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 1002;
(8) that Securities must be surrendered on or prior to the
Change of Control Purchase Date to the Paying Agent at the office of
the Paying Agent or to an office or agency referred to in Section 1002
to collect payment;
(9) that the Change of Control Purchase Price for any
Security which has been properly tendered and not withdrawn will be
paid promptly following the Change of Control Offer Purchase Date;
(10) the procedures that a Holder must follow to accept a
Change of Control Offer or to withdraw such acceptance;
(11) that any Security not tendered will continue to accrue
interest; and
(12) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Securities accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of
Securities, the Holder of the Security in respect of which such proper tender
was made shall (unless the tender of such Security is properly withdrawn)
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such Security. Upon surrender of any such Security for
purchase in accordance with the foregoing provisions, such Security shall be
paid by the Company at the Change of Control Purchase Price; PROVIDED,
HOWEVER, that
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installments of interest whose Stated Maturity is on or prior to the Change
of Control Purchase Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such on the relevant
Regular Record Dates according to the terms and the provisions of Section
309. If any Security tendered for purchase in accordance with the provisions
of this Section 1015 shall not be so paid upon surrender thereof, the
principal thereof (and premium, if any, thereon) shall, until paid, bear
interest from the Change of Control Purchase Date at the rate borne by such
Security. Holders electing to have Securities purchased will be required to
surrender such Securities to the Paying Agent at the address specified in the
Change of Control Purchase Notice at least one Business Day prior to the
Change of Control Purchase Date. Any Security that is to be purchased only
in part shall be surrendered to a Paying Agent at the office of such Paying
Agent (with, if the Company, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar or the Trustee, as the
case may be, duly executed by, the Holder thereof or such Holder's attorney
duly authorized in writing), and the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security, without
service charge, one or more new Securities of any authorized denomination as
requested by such Holder in an aggregate principal amount equal to, and in
exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control
Purchase Date, accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii) not later than 10:00 a.m. (New
York time) on the Business Day following the Change of Control Purchase Date,
deposit with the Trustee or with a Paying Agent an amount of money in same
day funds (or New York Clearing House funds if such deposit is made prior to
the Change of Control Purchase Date) sufficient to pay the aggregate Change
of Control Purchase Price of all the Securities or portions thereof which
have been so accepted for payment and (iii) not later than 10:00 a.m. (New
York time) on the Business Day following the Change of Control Purchase Date,
deliver to the Paying Agent an Officers' Certificate stating the Securities
or portions thereof accepted for payment by the Company. The Paying Agent
shall promptly mail or deliver to Holders of Securities so accepted payment
in an amount equal to the Change of Control Purchase Price of the Securities
purchased from each such Holder, and the Company shall execute and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Paying Agent at the Company's expense to the Holder thereof.
The Company will publicly announce the results of the Change of Control
Offer on the Change of Control Purchase Date. For purposes of this Section
1015, the Company shall choose a Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase
Notice may be withdrawn if the Company receives, not later than one Business
Day prior to the Change
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of Control Purchase Date, a telegram, telex, facsimile transmission or
letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Security in respect of
which such notice of withdrawal is being submitted;
(3) the principal amount of the Security (which shall be
$1,000 or an integral multiple thereof) delivered for purchase by the
Holder as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election
to have such principal amount of such Security purchased; and
(5) the principal amount, if any, of such Security (which
shall be $1,000 or an integral multiple thereof) that remains subject
to the original Change of Control Purchase Notice and that has been or
will be delivered for purchase by the Company.
(f) Subject to applicable escheat laws, the Trustee and the
Paying Agent shall return to the Company any cash that remains unclaimed,
together with interest or dividends, if any, thereon, held by them for the
payment of the Change of Control Purchase Price; PROVIDED, HOWEVER, that, (x)
to the extent that the aggregate amount of cash deposited by the Company
pursuant to clause (ii) of paragraph (d) above exceeds the aggregate Change
of Control Purchase Price of the Securities or portions thereof to be
purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the
Business Day following the Change of Control Purchase Date the Trustee shall
return any such excess to the Company together with interest, if any, thereon.
(g) The Company shall comply, to the extent applicable, with the
applicable tender offer rules, including Rule 14e-1 under the Exchange Act,
and any other applicable securities laws or regulations in connection with a
Change of Control Offer.
(h) Notwithstanding the foregoing, the Company will not be
required to make a Change of Control Offer if a third party makes the Change
of Control Offer, in the manner, at the times and otherwise in compliance
with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all the Securities validly
tendered and not withdrawn under such Change of Control Offer.
Section 1016. LIMITATION ON SUBSIDIARY CAPITAL STOCK.
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(a) The Company will not permit any Restricted Subsidiary of the
Company to issue, sell or transfer any Capital Stock, except for (1) Capital
Stock issued or sold to, held by or transferred to the Company or a Wholly
Owned Restricted Subsidiary and (2) Capital Stock issued by a Person prior to
the time (A) such Person becomes a Restricted Subsidiary, (B) such Person
merges with or into a Restricted Subsidiary or (C) a Restricted Subsidiary
merges with or into such Person; PROVIDED that such Capital Stock was not
issued or incurred by such Person in anticipation of the type of transaction
contemplated by subclause (A), (B) or (C). This clause (a) shall not apply
on the acquisition of all the outstanding Capital Stock of such Restricted
Subsidiary in accordance with the terms of this Indenture.
(b) The Company will not permit any Person (other than the
Company or a Wholly Owned Restricted Subsidiary) to acquire Capital Stock of
any Restricted Subsidiary from the Company or any Restricted Subsidiary,
except upon the acquisition of all the outstanding Capital Stock of such
Restricted Subsidiary in accordance with the terms of this Indenture.
Section 1017. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause
to exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (1) pay dividends or make any other
distribution on its Capital Stock or any other interest or participation in
or measured by its profits, (2) pay any Indebtedness owed to the Company or
any other Restricted Subsidiary, (3) make any Investment in the Company or
any other Restricted Subsidiary or (4) transfer any of its properties or
assets to the Company or any other Restricted Subsidiary. However, this
covenant does not prohibit any encumbrance or restriction (1) pursuant to an
agreement in effect on the date of this Indenture and listed on Schedule II
to this Indenture; (2) with respect to a Restricted Subsidiary that is not a
Restricted Subsidiary of the Company on the date of the Indenture, in
existence at the time such Person becomes a Restricted Subsidiary of the
Company and not incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary, provided that such encumbrances and
restrictions are not applicable to the Company or any Restricted Subsidiary
or the properties or assets of the Company or any Restricted Subsidiary other
than such Subsidiary which is becoming a Restricted Subsidiary; and (3) under
any agreement that extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the foregoing clauses (1) and
(2), or in this clause (3), PROVIDED that the terms and conditions of any
such encumbrances or restrictions are no more restrictive in any material
respect than those under or pursuant to the agreement evidencing the
Indebtedness so extended, renewed, refinanced or replaced.
Section 1018. LIMITATIONS ON UNRESTRICTED SUBSIDIARIES.
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The Company may designate after the Issue Date any Subsidiary (other
than a Guarantor) as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(a) no Default shall have occurred and be continuing at the time of
or after giving effect to such Designation;
(b) the Company would be permitted to make an Investment (other
than a Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to the first paragraph of
Section 1009 herein in an amount (the "Designation Amount") equal to the
greater of (1) the net book value of the Company's interest in such
Subsidiary calculated in accordance with GAAP or (2) the Fair Market Value
of the Company's interest in such Subsidiary as determined in good faith by
the Company's Board of Directors;
(c) the Company would be permitted to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 1008
hereof at the time of such Designation (assuming the effectiveness of such
Designation);
(d) such Unrestricted Subsidiary does not own any Capital Stock in
any Restricted Subsidiary of the Company which is not simultaneously being
designated an Unrestricted Subsidiary;
(e) such Unrestricted Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than Unrestricted
Subsidiary Indebtedness, provided that an Unrestricted Subsidiary may
provide a Guarantee for the Securities; and
(f) such Unrestricted Subsidiary is not a party to any agreement,
contract, arrangement or understanding at such time with the Company or any
Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company or, in the event such
condition is not satisfied, the value of such agreement, contract,
arrangement or understanding to such Unrestricted Subsidiary shall be
deemed a Restricted Payment.
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
1009 hereof for all purposes of this Indenture equal to the Designation
Amount.
The Company shall not and shall not cause or permit any Restricted
Subsidiary to at any time (a) provide credit support for, or subject any of
its property or assets (other than the Capital Stock of any Unrestricted
Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing
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such Indebtedness) (other than Permitted Investments in Unrestricted
Subsidiaries) or (b) be directly or indirectly liable for any Indebtedness of
any Unrestricted Subsidiary. For purposes of the foregoing, the Designation
of a Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed
to be the Designation of all of the Subsidiaries of such Subsidiary as
Unrestricted Subsidiaries.
The Company may revoke any Designation of a Subsidiary as an Unrestricted
Subsidiary (a "Revocation") if:
(a) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation;
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of the
Indenture; and
(c) unless such redesignated Subsidiary shall not have any
Indebtedness outstanding (other than Indebtedness that would be Permitted
Indebtedness), immediately after giving effect to such proposed Revocation,
and after giving pro forma effect to the incurrence of any such
Indebtedness of such redesignated Subsidiary as if such Indebtedness was
incurred on the date of the Revocation, the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to
Section 1009 herein.
All Designations and Revocations must be evidenced by a resolution
of the Board of Directors of the Company delivered to the Trustee certifying
compliance with the foregoing provisions.
Section 1019. PROVISION OF FINANCIAL STATEMENTS.
Whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act, the Company and each Guarantor will, to the extent
permitted under the Exchange Act, file with the Commission the annual
reports, quarterly reports and other documents which the Company and such
Guarantor would have been required to file with the Commission pursuant to
Sections 13(a)
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or 15(d) if the Company or such Guarantor were so subject, such documents to
be filed with the Commission on or prior to the date (the "Required Filing
Date") by which the Company and such Guarantor would have been required so to
file such documents if the Company and such Guarantor were so subject. The
Company and any Guarantor will also in any event (a) within 15 days of each
Required Filing Date (1) transmit by mail to all holders, as their names and
addresses appear in the Security Register, without cost to such holders and
(2) file with the Trustee copies of the annual reports, quarterly reports and
other documents which the Company and such Guarantor would have been required
to file with the Commission pursuant to Sections 13(a) or 15(d) of the
Exchange Act if the Company and such Guarantor were subject to either of such
Sections and (b) if filing such documents by the Company and such Guarantor
with the Commission is not permitted under the Exchange Act, promptly upon
written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective holder at the
Company's cost. If any Guarantor's financial statements would be required to
be included in the financial statements filed or delivered pursuant to this
Indenture if the Company were subject to Section 13(a) or 15(d) of the
Exchange Act, the Company shall include such Guarantor's financial statements
in any filing or delivery pursuant to this Indenture. In addition, so long
as any of the Securities remain outstanding, the Company will make available
to any prospective purchaser of Securities or beneficial owner of Securities
in connection with any sale thereof the information required by Rule
144A(d)(4) under the Securities Act, until such time as the Company has
either exchanged the Securities for securities identical in all material
respects which have been registered under the Securities Act or until such
time as the holders thereof have disposed of such Securities pursuant to an
effective registration statement under the Securities Act.
Section 1020. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company and the Guarantors will deliver to the Trustee,
on or before a date not more than 120 days after the end of each fiscal year
of the Company ending after the date hereof, and 60 days after the end of
each fiscal quarter ending after the date hereof, a written statement signed
by two executive officers of the Company and the Guarantors, one of whom
shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company and the Guarantors, as to
compliance herewith, including whether or not, after a review of the
activities of the Company during such year or such quarter and of the
Company's and each Guarantor's performance under this Indenture, to the best
knowledge, based on such review, of the signers thereof, the Company and each
Guarantor have fulfilled all of their respective obligations and are in
compliance with all conditions and covenants under this Indenture throughout
such year or quarter, as the case may be, and, if there has been a Default
specifying each Default and the nature and status thereof and any actions
being taken by the Company and the Guarantors with respect thereto.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder
of any other evidence of Indebtedness of the Company or any Subsidiary gives
any notice or takes any other action with respect to a claimed default, the
Company and the Guarantors shall deliver to the Trustee by registered or
certified mail or facsimile transmission followed by an originally executed
copy of an Officers' Certificate specifying such Default, Event of Default,
notice or other action, the status thereof and what actions the Company and
the Guarantors are taking or propose to take with respect thereto, within
five Business Days after the occurrence of such Default or Event of Default.
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Section 1021. WAIVER OF CERTAIN COVENANTS.
The Company and the Guarantors may omit in any particular instance
to comply with any covenant or condition set forth in Sections 1006 through
1011, 1013, 1014, and 1016 through 1020, if, before or after the time for
such compliance, the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding shall, by Act of
such Holders, waive such compliance in such instance with such covenant or
provision, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. RIGHTS OF REDEMPTION.
(a) The Securities are subject to redemption at any time on or
after May 1, 2003, at the option of the Company, in whole or in part, subject
to the conditions, and at the Redemption Prices, specified in the form of
Security, together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on relevant
Regular Record Dates and Special Record Dates to receive interest due on
relevant Interest Payment Dates and Special Payment Dates).
(b) In addition, at any time prior to May 1, 2002, the Company,
at its option, may use the net proceeds of one or more Public Equity
Offerings to redeem up to an aggregate of 35% of the aggregate principal
amount of Securities originally issued under this Indenture at a redemption
price equal to 110.375% of the aggregate principal amount thereof, plus
accrued and unpaid interest thereon, if any, to the Redemption Date; PROVIDED
that at least 65% of the initial aggregate principal amount of Securities
remains outstanding immediately after the occurrence of such redemption. In
order to effect the foregoing redemption, the Company must mail a notice of
redemption no later than 30 days after the closing of the related Public
Equity Offering and must consummate such redemption within 60 days of the
closing of the Public Equity Offering.
Section 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article Eleven.
Section 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
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The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Company Order and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, not less than 45 nor more than 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice period shall be
satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities to be redeemed.
Section 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities or portions thereof to be redeemed shall be selected not more than
30 days prior to the Redemption Date. The Trustee shall select the
Securities or portions thereof to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which
the Securities are listed, or if the Securities are not so listed, PRO RATA,
by lot or by any other method the Trustee shall deem fair and reasonable.
The amounts to be redeemed shall be equal to $1,000 or any integral multiple
thereof.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 days nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be redeemed, the
identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed and that after the Redemption Date upon
surrender of such
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Security, new Security or Securities in the aggregate principal amount equal
to the unredeemed portion thereof will be issued;
(e) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security or portion thereof to be redeemed,
and that (unless the Company shall default in payment of the Redemption
Price) interest thereon shall cease to accrue on and after said date;
(g) the names and addresses of the Paying Agent and the offices
or agencies referred to in Section 1002 where such Securities are to be
surrendered for payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such Securities; and
(i) the procedures that a Holder must follow to surrender the
Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name and at the expense of the Company. If
the Company elects to give notice of redemption, it shall provide the Trustee
with a certificate stating that such notice has been given in compliance with
the requirements of this Section 1105.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect
in the notice to the Holder of any Security designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Section 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company or any of its
Affiliates is acting as Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money in same day funds sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date or Special Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date. The Paying Agent
shall promptly mail or deliver to Holders of Securities so redeemed payment
in an amount equal to the Redemption Price of the Securities purchased from
each such Holder. All money, if any, earned on funds held in trust by the
Trustee or any Paying Agent shall be remitted to the
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Company. For purposes of this Section 1106, the Company shall choose a
Paying Agent which shall not be the Company.
Section 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price together with
accrued interest to the Redemption Date; PROVIDED, HOWEVER, that installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates and
Special Record Dates according to the terms and the provisions of Section 309.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
Section 1108. SECURITIES REDEEMED OR PURCHASED IN PART.
Any Security which is to be redeemed or purchased only in part
shall be surrendered to the Paying Agent at the office or agency maintained
for such purpose pursuant to Section 1002 (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee, as the case may be, duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities,
of any authorized denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the unredeemed portion of the
principal of the Security so surrendered that is not redeemed or purchased.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall be discharged and shall cease to be of further
effect (except as to surviving rights of registration of transfer or exchange
of Securities as expressly provided for herein) as to all Outstanding
Securities hereunder, and the Trustee, upon
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Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(1) all the Securities theretofore authenticated and
delivered (other than (i) lost, stolen or destroyed Securities which
have been replaced or paid as provided in Section 308 or (ii) all
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, (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;
(b) the Company or any Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust an amount in
United States dollars sufficient to pay and discharge the entire Indebtedness
on the Securities not theretofore delivered to the Trustee for cancellation,
including the principal of, premium, if any, and accrued interest on, such
Securities at such Maturity, Stated Maturity or Redemption Date;
(c) the Company or any Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company and any Guarantor; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, in form and substance
satisfactory to the Trustee, each stating that (i) all conditions precedent
herein relating to the satisfaction and discharge hereof have been complied
with and (ii) such satisfaction and discharge will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company, any Guarantor or any
Restricted Subsidiary is a party or by which the Company, any Guarantor or
any Restricted Subsidiary is bound.
Notwithstanding the satisfaction and discharge hereof, the
obligations of the Company to the Trustee under Section 607 and, if United
States dollars shall have been deposited with the Trustee pursuant to
subclause (2) of subsection (a) of this Section 1201, the obligations of the
Trustee under Section 1202 and the last paragraph of Section 1003 shall
survive.
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Section 1202. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003,
all United States dollars deposited with the Trustee pursuant to Section 1201
shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal of, premium, if any, and interest on, the Securities for whose
payment such United States dollars have been deposited with the Trustee.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by
such Holder's acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the
Indebtedness represented by the Securities and the payment of the principal
of, premium, if any, and interest on, the Securities are hereby expressly
made subordinate and subject in right of payment as provided in this Article
to the prior payment in full of the Senior Indebtedness.
This Article Thirteen shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue
to hold Senior Indebtedness; and such provisions are made for the benefit of
the holders of Senior Indebtedness; and such holders are made obligees
hereunder and they or each of them may enforce such provisions as provided
herein.
Section 1302. 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, relative to the Company or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary, or (c) any assignment for the benefit of creditors
or any other marshaling of assets or liabilities of the Company, then and in
any such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due on or in respect of Senior
Indebtedness before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character (excluding securities of the
Company or any other corporation that are equity securities or are
subordinated in right of payment to all Senior Indebtedness, that may be
outstanding, to
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substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article ("Permitted Junior
Securities")) on account of the principal of, premium, if any, or interest on
the Securities or on account of the purchase, redemption, defeasance or other
acquisition of, or in respect of, the Securities (other than amounts
previously set aside with the Trustee, or payments previously made, in either
case, pursuant to the provisions of Sections 402 and 403 of this Indenture);
and
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the Holders
or the Trustee would be entitled but for the provisions of this Article shall
be paid by the liquidating trustee or agent or other Person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness held
or represented by each, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (excluding Permitted
Junior Securities), in respect of principal, premium, if any, and interest on
the Securities before all Senior Indebtedness is paid in full, then and in
such event such payment or distribution (excluding Permitted Junior
Securities) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payments or distributions of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all Senior Indebtedness in full after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the sale, assignment, conveyance, transfer, lease or other disposal
of its properties and assets substantially as an entirety to another Person
upon the terms and conditions set forth in Article Eight shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation
or the surviving entity of such merger or the Person which acquires by sale,
assignment, conveyance, transfer, lease or other disposal of such properties
and assets substantially as an entirety, as the case
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may be, shall, as a part of such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposal, comply with the conditions set
forth in Article Eight.
Section 1303. SUSPENSION OF PAYMENT WHEN DESIGNATED SENIOR
INDEBTEDNESS IN DEFAULT.
(a) Unless Section 1302 shall be applicable, upon the occurrence
of any default in the payment of any Designated Senior Indebtedness beyond
any applicable grace period (a "Payment Default") and after the receipt by
the Trustee from a Senior Representative of any Designated Senior
Indebtedness of written notice of such default, no payment (other than
amounts previously set aside with the Trustee or payments previously made, in
either case, pursuant to Section 402 or 403 in this Indenture) or
distribution of any assets of the Company of any kind or character (excluding
Permitted Junior Securities) may be made on account of the principal of,
premium, if any, or interest on, the Securities, or on account of the
purchase, redemption, defeasance or other acquisition of or in respect of,
the Securities unless and until such Payment Default shall have been cured or
waived or shall have ceased to exist or such Designated Senior Indebtedness
shall have been discharged or paid in full, after which the Company shall
(subject to the other provisions of this Article Thirteen) resume making any
and all required payments in respect of the Securities, including any missed
payments.
(b) Unless Section 1302 shall be applicable, (1) upon the
occurrence and during the continuance of any non-payment default with respect
to any Designated Senior Indebtedness pursuant to which the maturity thereof
may then be accelerated immediately (a "Non-payment Default") and (2) after
the receipt by the Trustee and the Company from a Senior Representative of
any Designated Senior Indebtedness of written notice of such Non-payment
Default, no payment (other than any amounts previously set aside with the
Trustee, or payments previously made, in either case, pursuant to the
provisions of Sections 402 or 403 in this Indenture) or distribution of any
assets of the Company of any kind or character (excluding Permitted Junior
Securities) may be made by the Company on account of the principal of,
premium, if any, or interest on, the Securities, or on account of the
purchase, redemption, defeasance or other acquisition of, or in respect of,
the Securities for the period specified below ("Payment Blockage Period").
(c) The Payment Blockage Period shall commence upon the receipt
of notice of the Non-payment Default by the Trustee and the Company from a
Senior Representative and shall end on the earliest of (i) the 179th day
after such commencement, (ii) the date on which such Non-payment Default (and
all Non-payment Defaults as to which notice is given after such Payment
Blockage Period is initiated) is cured, waived or ceases to exist or on which
such Designated Senior Indebtedness is discharged or paid in full, or (iii)
the date on which such Payment Blockage Period (and all other Non-payment
Defaults as to which notice is given after such Payment Blockage Period is
initiated) shall have been terminated by written notice to the Company or the
Trustee from the Senior Representative
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initiating such Payment Blockage Period. When the Payment Blockage Period
ends, the Company shall promptly resume making any and all required payments
in respect of the Securities, including any missed payments. In no event will
a Payment Blockage Period extend beyond 179 days from the date of the receipt
by the Company or the Trustee of the notice initiating such Payment Blockage
Period (such 179-day period referred to as the "Initial Period"). Any number
of notices of Non-payment Defaults may be given during the Initial Period.
However, during any period of 365 consecutive days only one Payment Blockage
Period, during which payment of principal of, or interest on, the Securities
may not be made, may commence, the duration of such period may not exceed 179
days, and there must be a 186 consecutive day period in any 365 day period
during which no Payment Blockage Period is in effect. No Non-payment Default
with respect to Designated Senior Indebtedness that existed or was continuing
on the date of the commencement of any Payment Blockage Period will be, or
can be, made the basis for the commencement of a second Payment Blockage
Period, whether or not within a period of 365 consecutive days, unless such
default has been cured or waived for a period of not less than 90 consecutive
days subsequent to the commencement of the Initial Period. The Company
shall deliver a notice to the Trustee promptly after the date on which any
Non-payment Default is cured or waived or ceases to exist or on which the
Designated Senior Indebtedness related thereto is discharged or paid in full,
and the Trustee is authorized to act in reliance on such notice.
(d) In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, then and in such
event such payment shall be paid over and delivered forthwith to a Senior
Representative of the holders of the Designated Senior Indebtedness or as a
court of competent jurisdiction shall direct.
Section 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article, elsewhere in this Indenture or
in any of the Securities shall prevent the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other
winding-up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 1302 or under
the conditions described in Section 1303, from making payments at any time of
principal of, premium, if any, or interest on the Securities.
Section 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
After the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness until the principal of,
premium, if any, and interest on, the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the Holders
of the Securities 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 Indebtedness by Holders of the
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Securities or the Trustee, shall, as among the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Indebtedness.
Section 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of, premium, if any, and interest on,
the Securities 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 the Holders of the Securities and creditors of the Company other
than the holders of Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Security 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 Indebtedness (1) in any
case, proceeding, dissolution, liquidation or other winding up, assignment
for the benefit of creditors or other marshaling of assets and liabilities of
the Company referred to in Section 1302, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder, or (2) under the conditions
specified in Section 1303, to prevent any payment prohibited by such Section
or enforce their rights pursuant to Section 1303(d).
Section 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes, including, in the event of
any dissolution, winding-up, liquidation or reorganization of the Company
whether in bankruptcy, insolvency, receivership proceedings, or otherwise,
the timely filing of a claim for the unpaid balance of the indebtedness of
the Company owing to such Holder in the form required in such proceedings and
the causing of such claim to be approved.
Section 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to
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act on the part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any non-compliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders
of Senior Indebtedness, do any one or more of the following: (1) change the
manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (2) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (3) release any Person liable in any manner for
the collection or payment of Senior Indebtedness; and (4) exercise or refrain
from exercising any rights against the Company and any other Person;
PROVIDED, HOWEVER, that in no event shall any such actions limit the right of
the Holders of the Securities to take any action to accelerate the maturity
of the Securities pursuant to Article Five of this Indenture or to pursue any
rights or remedies hereunder or under applicable laws if the taking of such
action does not otherwise violate the terms of this Article.
Section 1309. NOTICE TO TRUSTEE.
(a) 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 Securities. 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 Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from a Senior Representative or any trustee, fiduciary or agent therefor;
and, prior to the receipt of any such written notice, the Trustee shall be
entitled in all respects to assume that no such facts exist; PROVIDED,
HOWEVER, that if the Trustee shall not have received the notice provided for
in this Section by Noon, Eastern Time, on the Business Day prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Security), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Indebtedness, a Senior Representative or any trustee,
fiduciary or agent thereof, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which such
money was received and shall not be affected by any notice to the contrary
which may be received by it after such date; nor shall the
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Trustee be charged with knowledge of the curing of any such default or the
elimination of the act or condition preventing any such payment unless and
until the Trustee shall have received an Officers' Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it
of a written notice to the Trustee and the Company by a Person which
represents itself as a Senior Representative or a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to establish that
such notice has been given by a Senior Representative or a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor); PROVIDED, HOWEVER,
that failure to give such notice to the Company shall not affect in any way
the ability of the Trustee to rely on such notice. 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 Indebtedness 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 Indebtedness 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 1310. RELIANCE ON JUDICIAL ORDERS OR CERTIFICATES.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
person making such payment or distribution, or a certificate of a Senior
Representative, delivered to the Trustee or to the Holders of Securities for
the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article, PROVIDED that the foregoing shall apply only if
such court has been fully apprised of the provisions of this Article.
Section 1311. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR INDEBTEDNESS;
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 Indebtedness
which may at any time be held by it, to the same extent as any other holder
of Senior Indebtedness, and nothing in this Indenture
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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 607.
Section 1312. 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 under this Indenture,
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 1311 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
Section 1313. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article Five of this Indenture or to
pursue any rights or remedies hereunder or under applicable law, subject to
the rights, if any, under this Article of the holders, from time to time, of
Senior Indebtedness to receive the cash, property or securities receivable
upon the exercise of such rights or remedies.
Section 1314. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Article against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
the Trustee shall not be liable to any holder of Senior Indebtedness if it
shall in good faith mistakenly (absent willful misconduct) pay over or
deliver to Holders, the Company or any other Person moneys or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article
or otherwise.
ARTICLE FOURTEEN
GUARANTEES
Section 1401. GUARANTORS' GUARANTEE.
For value received, each of the Guarantors, in accordance with this
Article Fourteen, hereby absolutely, fully, unconditionally and irrevocably
guarantees, jointly and
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severally with each other and with each other Person which may become a
Guarantor hereunder, to the Trustee and the Holders, as if the Guarantors
were the principal debtor, the punctual payment and performance when due of
all Indenture Obligations (which for purposes of this Guarantee shall also be
deemed to include all commissions, fees, charges, costs and other expenses
(including reasonable legal fees and disbursements of one counsel) arising
out of or incurred by the Trustee or the Holders in connection with the
enforcement of this Guarantee).
Section 1402. CONTINUING GUARANTEE; NO RIGHT OF SET-OFF; INDEPENDENT
OBLIGATION.
(a) This Guarantee shall be a continuing guarantee of the payment
and performance of all Indenture Obligations and shall remain in full force
and effect until the payment in full of all of the Indenture Obligations and
shall apply to and secure any ultimate balance due or remaining unpaid to the
Trustee or the Holders; and this Guarantee shall not be considered as wholly
or partially satisfied by the payment or liquidation at any time or from time
to time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. Each Guarantor, jointly and severally, covenants and
agrees to comply with all obligations, covenants, agreements and provisions
applicable to it in this Indenture including those set forth in Article
Eight. Without limiting the generality of the foregoing, each Guarantor's
liability shall extend to all amounts which constitute part of the Indenture
Obligations and would be owed by the Company under this Indenture and the
Securities but for the fact that they are unenforceable, reduced, limited,
impaired, suspended or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
(b) Each Guarantor, jointly and severally, hereby guarantees that
the Indenture Obligations will be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes, withholding or
otherwise) in lawful currency of the United States of America.
(c) Each Guarantor, jointly and severally, guarantees that the
Indenture Obligations shall be paid strictly in accordance with their terms
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the holders of the
Securities.
(d) Each Guarantor's liability to pay or perform or cause the
performance of the Indenture Obligations under this Guarantee shall arise
forthwith after demand for payment or performance by the Trustee has been
given to the Guarantors in the manner prescribed in Section 106 hereof.
(e) Except as provided herein, the provisions of this Article
Fourteen cover all agreements between the parties hereto relative to this
Guarantee and none of the parties shall be bound by any representation,
warranty or promise made by any Person relative
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thereto which is not embodied herein; and it is specifically acknowledged and
agreed that this Guarantee has been delivered by each Guarantor free of any
conditions whatsoever and that no representations, warranties or promises
have been made to any Guarantor affecting its liabilities hereunder, and that
the Trustee shall not be bound by any representations, warranties or promises
now or at any time hereafter made by the Company to any Guarantor.
(f) This Guarantee is a guarantee of payment, performance and
compliance and not of collectibility and is in no way conditioned or
contingent upon any attempt to collect from or enforce performance or
compliance by the Company or upon any event or condition whatsoever.
(g) The obligations of the Guarantors set forth herein constitute
the full recourse obligations of the Guarantors enforceable against them to
the full extent of all their assets and properties.
Section 1403. GUARANTEE ABSOLUTE.
The obligations of the Guarantors hereunder are independent of the
obligations of the Company under the Securities and this Indenture and a
separate action or actions may be brought and prosecuted against any
Guarantor whether or not an action or proceeding is brought against the
Company and whether or not the Company is joined in any such action or
proceeding. The liability of the Guarantors hereunder is irrevocable,
absolute and unconditional and (to the extent permitted by law) the liability
and obligations of the Guarantors hereunder shall not be released,
discharged, mitigated, waived, impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in respect of
any Indebtedness or other obligation of the Company or any
other Person under this Indenture or the Securities, or any
agreement or instrument relating to any of the foregoing;
(b) any grants of time, renewals, extensions, indulgences,
releases, discharges or modifications which the Trustee or the
Holders may extend to, or make with, the Company, any Guarantor
or any other Person, or any change in the time, manner or place
of payment of, or in any other term of, all or any of the
Indenture Obligations, or any other amendment or waiver of, or
any consent to or departure from, this Indenture or the
Securities, including any increase or decrease in the Indenture
Obligations;
(c) the taking of security from the Company, any Guarantor or any
other Person, and the release, discharge or alteration of, or
other dealing with, such security;
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(d) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action
of any governmental authority or court amending, varying,
reducing or otherwise affecting, or purporting to amend, vary,
reduce or otherwise affect, any of the Indenture Obligations
and the obligations of any Guarantor hereunder;
(e) the abstention from taking security from the Company, any
Guarantor or any other Person or from perfecting, continuing to
keep perfected or taking advantage of any security;
(f) any loss, diminution of value or lack of enforceability of any
security received from the Company, any Guarantor or any other
Person, and including any other guarantees received by the
Trustee;
(g) any other dealings with the Company, any Guarantor or any other
Person, or with any security;
(h) the Trustee's or the Holders' acceptance of compositions from
the Company or any Guarantor;
(i) the application by the Holders or the Trustee of all monies at
any time and from time to time received from the Company, any
Guarantor or any other Person on account of any indebtedness
and liabilities owing by the Company or any Guarantor to the
Trustee or the Holders, in such manner as the Trustee or the
Holders deems best and the changing of such application in
whole or in part and at any time or from time to time, or any
manner of application of collateral, or proceeds thereof, to
all or any of the Indenture Obligations, or the manner of sale
of any collateral;
(j) the release or discharge of the Company or any Guarantor of the
Securities or of any Person liable directly as surety or
otherwise by operation of law or otherwise for the Securities,
other than an express release in writing given by the Trustee,
on behalf of the Holders, of the liability and obligations of
any Guarantor hereunder;
(k) any change in the name, business, capital structure or
governing instrument of the Company or any Guarantor or any
refinancing or restructuring of any of the Indenture
Obligations;
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(l) the sale of the Company's or any Guarantor's business or any
part thereof;
(m) subject to Section 1414, any merger or consolidation,
arrangement or reorganization of the Company, any Guarantor,
any Person resulting from the merger or consolidation of the
Company or any Guarantor with any other Person or any other
successor to such Person or merged or consolidated Person or
any other change in the corporate existence, structure or
ownership of the Company or any Guarantor or any change in the
corporate relationship between the Company and any Guarantor,
or any termination of such relationship;
(n) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership, arrangement, readjustment,
assignment for the benefit of creditors or distribution of the
assets of the Company or its assets or any resulting discharge
of any obligations of the Company (whether voluntary or
involuntary) or of any Guarantor (whether voluntary or
involuntary) or the loss of corporate existence;
(o) subject to Section 1414, any arrangement or plan of
reorganization affecting the Company or any Guarantor;
(p) any failure, omission or delay on the part of the Company to
conform or comply with any term of this Indenture;
(q) any limitation on the liability or obligations of the Company
or any other Person under this Indenture, or any discharge,
termination, cancellation, distribution, irregularity,
invalidity or unenforceability in whole or in part of this
Indenture;
(r) any other circumstance (including any statute of limitations)
that might otherwise constitute a defense available to, or
discharge of, the Company or any Guarantor; or
(s) any modification, compromise, settlement or release by the
Trustee, or by operation of law or otherwise, of the Indenture
Obligations or the liability of the Company or any other
obligor under the Securities, in whole or in part, and any
refusal of payment by the Trustee, in whole or in part, from
any other obligor or other guarantor in connection with any of
the Indenture Obligations, whether or not with notice to, or
further assent by, or any reservation of rights against, each
of the Guarantors.
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Section 1404. RIGHT TO DEMAND FULL PERFORMANCE.
In the event of any demand for payment or performance by the
Trustee from any Guarantor hereunder, the Trustee or the Holders shall have
the right to demand its full claim and to receive all dividends or other
payments in respect thereof until the Indenture Obligations have been paid in
full, and the Guarantors shall continue to be jointly and severally liable
hereunder for any balance which may be owing to the Trustee or the Holders by
the Company under this Indenture and the Securities. The retention by the
Trustee or the Holders of any security, prior to the realization by the
Trustee or the Holders of its rights to such security upon foreclosure
thereon, shall not, as between the Trustee and any Guarantor, be considered
as a purchase of such security, or as payment, satisfaction or reduction of
the Indenture Obligations due to the Trustee or the Holders by the Company or
any part thereof. Each Guarantor, promptly after demand, will reimburse the
Trustee and the Holders for all costs and expenses of collecting such amount
under, or enforcing this Guarantee, including, without limitation, the
reasonable fees and expenses of counsel.
Section 1405. WAIVERS.
(a) Each Guarantor hereby expressly waives (to the extent
permitted by law) notice of the acceptance of this Guarantee and notice of
the existence, renewal, extension or the non-performance, non-payment, or
non-observance on the part of the Company of any of the terms, covenants,
conditions and provisions of this Indenture or the Securities or any other
notice whatsoever to or upon the Company or such Guarantor with respect to
the Indenture Obligations, whether by statute, rule of law or otherwise.
Each Guarantor hereby acknowledges communication to it of the terms of this
Indenture and the Securities and all of the provisions therein contained and
consents to and approves the same. Each Guarantor hereby expressly waives
(to the extent permitted by law) diligence, presentment, protest and demand
for payment with respect to (i) any notice of sale, transfer or other
disposition of any right, title to or interest in the Securities by the
Holders or in this Indenture, (ii) any release of any Guarantor from its
obligations hereunder resulting from any loss by it of its rights of
subrogation hereunder and (iii) any other circumstances whatsoever that might
otherwise constitute a legal or equitable discharge, release or defense of a
guarantor or surety or that might otherwise limit recourse against such
Guarantor.
(b) Without prejudice to any of the rights or recourses which the
Trustee or the Holders may have against the Company, each Guarantor hereby
expressly waives (to the extent permitted by law) any right to require the
Trustee or the Holders to:
(i) enforce, assert, exercise, initiate or exhaust any
rights, remedies or recourse against the Company, any
Guarantor or any other Person under this Indenture or
otherwise;
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(ii) value, realize upon, or dispose of any security of the
Company or any other Person held by the Trustee or the
Holders;
(iii) initiate or exhaust any other remedy which the Trustee or
the Holders may have in law or equity; or
(iv) mitigate the damages resulting from any default under
this Indenture;
before requiring or becoming entitled to demand payment from such Guarantor
under this Guarantee.
Section 1406. THE GUARANTORS REMAIN OBLIGATED IN EVENT THE COMPANY IS
NO LONGER OBLIGATED TO DISCHARGE INDENTURE OBLIGATIONS.
It is the express intention of the Trustee and the Guarantors that if
for any reason the Company has no legal existence, is or becomes under no
legal obligation to discharge the Indenture Obligations owing to the Trustee
or the Holders by the Company or if any of the Indenture Obligations owing by
the Company to the Trustee or the Holders becomes irrecoverable from the
Company by operation of law or for any reason whatsoever, this Guarantee and
the covenants, agreements and obligations of the Guarantors contained in this
Article Fourteen shall nevertheless be binding upon the Guarantors, as
principal debtor, until such time as all such Indenture Obligations have been
paid in full to the Trustee and all Indenture Obligations owing to the
Trustee or the Holders by the Company have been discharged, or such earlier
time as Section 402 shall apply to the Securities and the Guarantors shall be
responsible for the payment thereof to the Trustee or the Holders upon demand.
Section 1407. FRAUDULENT CONVEYANCE; CONTRIBUTION; SUBROGATION.
(a) Each Guarantor that is a Subsidiary of the Company and, by
its acceptance hereof, each Holder hereby confirm that it is the intention of
all such parties that the Guarantee by such Guarantor pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law. To effectuate
the foregoing intention, the Holders and such Guarantor hereby irrevocably
agree that the obligations of such Guarantor under its Guarantee shall be
limited to the maximum amount which, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations under this Indenture, will result in
the
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obligations of such Guarantor under its Guarantee not constituting such
fraudulent transfer or conveyance.
(b) Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor, if
any, in a pro rata amount based on the net assets of each Guarantor,
determined in accordance with GAAP.
(c) Each Guarantor hereby waives all rights of subrogation or
contribution, whether arising by contract or operation of law (including,
without limitation, any such right arising under federal bankruptcy law) or
otherwise by reason of any payment by it pursuant to the provisions of this
Article Fourteen.
Section 1408. GUARANTEE IS IN ADDITION TO OTHER SECURITY.
This Guarantee shall be in addition to and not in substitution for any
other guarantees or other security which the Trustee may now or hereafter
hold in respect of the Indenture Obligations owing to the Trustee or the
Holders by the Company and (except as may be required by law) the Trustee
shall be under no obligation to marshal in favor of each of the Guarantors
any other guarantees or other security or any moneys or other assets which
the Trustee may be entitled to receive or upon which the Trustee or the
Holders may have a claim.
Section 1409. RELEASE OF SECURITY INTERESTS.
Without limiting the generality of the foregoing and except as
otherwise provided in this Indenture, each Guarantor hereby consents and
agrees, to the fullest extent permitted by applicable law, that the rights of
the Trustee hereunder, and the liability of the Guarantors hereunder, shall
not be affected by any and all releases for any purpose of any collateral, if
any, from the Liens and security interests created by any collateral document
and that this Guarantee shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Indenture
Obligations is rescinded or must otherwise be returned by the Trustee upon
the insolvency, bankruptcy or reorganization of the Company or otherwise, all
as though such payment had not been made.
Section 1410. NO BAR TO FURTHER ACTIONS.
Except as provided by law, no action or proceeding brought or
instituted under Article Fourteen and this Guarantee and no recovery or
judgment in pursuance thereof shall be a bar or defense to any further action
or proceeding which may be brought under Article Fourteen and this Guarantee
by reason of any further default or defaults under Article Fourteen and this
Guarantee or in the payment of any of the Indenture Obligations owing by the
Company.
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Section 1411. FAILURE TO EXERCISE RIGHTS SHALL NOT OPERATE AS A WAIVER;
NO SUSPENSION OF REMEDIES.
(a) No failure to exercise and no delay in exercising, on the
part of the Trustee or the Holders, any right, power, privilege or remedy
under this Article Fourteen and this Guarantee shall operate as a waiver
thereof, nor shall any single or partial exercise of any rights, power,
privilege or remedy preclude any other or further exercise thereof, or the
exercise of any other rights, powers, privileges or remedies. The rights and
remedies herein provided for are cumulative and not exclusive of any rights
or remedies provided in law or equity.
(b) Nothing contained in this Article Fourteen shall limit the
right of the Trustee or the Holders to take any action to accelerate the
maturity of the Securities pursuant to Article Five or to pursue any rights
or remedies hereunder or under applicable law.
Section 1412. TRUSTEE'S DUTIES; NOTICE TO TRUSTEE.
(a) Any provision in this Article Fourteen or elsewhere in this
Indenture allowing the Trustee to request any information or to take any
action authorized by, or on behalf of any Guarantor, shall be permissive and
shall not be obligatory on the Trustee except as the Holders may direct in
accordance with the provisions of this Indenture or where the failure of the
Trustee to request any such information or to take any such action arises
from the Trustee's gross negligence, bad faith or willful misconduct.
(b) The Trustee shall not be required to inquire into the
existence, powers or capacities of the Company, any Guarantor or the
officers, directors or agents acting or purporting to act on their respective
behalf.
Section 1413. SUCCESSORS AND ASSIGNS.
All terms, agreements and conditions of this Article Fourteen shall
extend to and be binding upon each Guarantor and its successors and permitted
assigns and shall enure to the benefit of and may be enforced by the Trustee
and its successors and assigns; PROVIDED, HOWEVER, that the Guarantors may
not assign any of their rights or obligations hereunder other than in
accordance with Article Eight.
Section 1414. RELEASE OF GUARANTEE.
Concurrently with the payment in full of all of the Indenture
Obligations, the Guarantors shall be released from and relieved of their
obligations under this Article Fourteen. Upon the delivery by the Company to
the Trustee of an Officers' Certificate and, if requested by the Trustee, an
Opinion of Counsel to the effect that the transaction giving rise to the
release of this Guarantee was made by the Company in accordance with the
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provisions of this Indenture and the Securities, the Trustee shall execute
any documents reasonably required in order to evidence the release of the
Guarantors from their obligations under this Guarantee. If any of the
Indenture Obligations are revived and reinstated after the termination of
this Guarantee, then all of the obligations of the Guarantors under this
Guarantee shall be revived and reinstated as if this Guarantee had not been
terminated until such time as the Indenture Obligations are paid in full, and
each Guarantor shall enter into an amendment to this Guarantee, reasonably
satisfactory to the Trustee, evidencing such revival and reinstatement.
This Guarantee shall terminate with respect to each Guarantor and
shall be automatically and unconditionally released and discharged as
provided in Section 1015(c).
Section 1415. EXECUTION OF GUARANTEE.
(a) To evidence the Guarantee, each Guarantor hereby agrees to
execute the guarantee substantially in the form set forth in Section 204, to
be endorsed on each Security authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of each Guarantor by its
Chairman of the Board, its President, its Chief Executive Officer, Chief
Operating Officer or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
(b) Any person that was not a Guarantor on the date of this
Indenture may become a Guarantor by executing and delivering to the Trustee
(i) a supplemental indenture in form and substance satisfactory to the
Trustee, which subjects such person to the provisions (including the
representations and warranties) of this Indenture as a Guarantor, (ii) in the
event that as of the date of such supplemental indenture any Registrable
Securities are outstanding, an instrument in form and substance satisfactory
to the Trustee which subjects such person to the provisions of the
Registration Rights Agreement with respect to such outstanding Registrable
Securities, and (iii) 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 and binding obligation of such person
(subject to such customary assumptions and exceptions as may be acceptable to
the Trustee in its reasonable discretion).
(c) If an officer whose signature is on this Indenture no longer
holds that office at the time the Trustee authenticates a Security on which
this Guarantee is endorsed, such Guarantee shall be valid nevertheless.
Section 1416. GUARANTEE SUBORDINATE TO SENIOR GUARANTOR INDEBTEDNESS.
Each Guarantor covenants and agrees, and each Holder of a
Guarantee, by his acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article, the
Indebtedness represented by the Guarantees is hereby
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expressly made subordinate and subject in right of payment as provided in
this Article to the prior payment in full of all Senior Guarantor
Indebtedness; PROVIDED, HOWEVER, that the Indebtedness represented by this
Guarantee in all respects shall rank equally with, or prior to, all existing
and future Indebtedness of such Guarantor that is expressly subordinated to
such Guarantor's Senior Guarantor Indebtedness.
This Article Fourteen shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue
to hold Senior Guarantor Indebtedness; and such provisions are made for the
benefit of the holders of Senior Guarantor Indebtedness; and such holders are
made obligees hereunder and they or each of them may enforce such provisions.
Section 1417. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION OF THE
GUARANTOR, ETC.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding, relative to any Guarantor or to its assets, or (b) any
liquidation, dissolution or other winding up of any Guarantor, whether
voluntary or involuntary, or (c) any assignment for the benefit of creditors
or any other marshaling of assets or liabilities of any Guarantor, then and
in any such event:
(1) the holders of Senior Guarantor Indebtedness shall be
entitled to receive payment in full of all amounts due on or in respect of
all Senior Guarantor Indebtedness before the Holders of the Securities are
entitled to receive any payment or distribution of any kind or character
(excluding securities of any Guarantor or any other corporation that are
equity securities or are subordinated in right of payment to all Senior
Guarantor Indebtedness, that may be outstanding, to substantially the same
extent as, or to a greater extent than, the Guarantees are so subordinated as
provided in this Article ("Permitted Guarantor Junior Securities")) on
account of the Guarantee of such Guarantor (other than amounts previously set
aside with the Trustee, or payments previously made, in either case, pursuant
to the provisions of Sections 402 and 403 of this Indenture); and
(2) any payment or distribution of assets of any Guarantor of any
kind or character, whether in cash, property or securities (excluding
Permitted Guarantor Junior Securities), by set-off or otherwise, to which the
Holders or the Trustee would be entitled but for the provisions of this
Article shall be paid by the liquidating trustee or agent or other Person
making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of
Senior Guarantor Indebtedness or their representative or representatives or
to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Guarantor Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account of the
Senior Guarantor Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Guarantor Indebtedness
remaining unpaid, after giving effect
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to any concurrent payment or distribution to the holders of such Senior
Guarantor Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of any Guarantor of any kind
or character, whether in cash, property or securities (excluding Permitted
Guarantor Junior Securities), in respect the Guarantee of such Guarantor
before all Senior Guarantor Indebtedness is paid in full, then and in such
event such payment or distribution (excluding Permitted Guarantor Junior
Securities) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payments or distributions of assets of such Guarantor for
application to the payment of all Senior Guarantor Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Guarantor Indebtedness in
full after giving effect to any concurrent payment or distribution to or for
the holders of Senior Guarantor Indebtedness.
The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another Person or the liquidation or dissolution of
any Guarantor following the sale, assignment, conveyance, transfer, lease or
other disposal of its properties and assets substantially as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshaling of assets and
liabilities of such Guarantor for the purposes of this Section if the Person
formed by such consolidation or the surviving entity of such merger or the
Person which acquires by sale, assignment, conveyance, transfer, lease or
other disposal of such properties and assets substantially as an entirety, as
the case may be, shall, as a part of such consolidation, merger, sale,
assignment, conveyance, transfer, lease or other disposal, comply with the
conditions set forth in Article Eight.
Section 1418. DEFAULT ON SENIOR GUARANTOR INDEBTEDNESS.
(a) Upon the maturity of any Senior Guarantor Indebtedness by
lapse of time, acceleration or otherwise, all principal thereof and interest
thereon and other amounts due in connection therewith shall first be paid in
full or such payment duly provided for before any payment is made by any of
the Guarantors or any Person acting on behalf of any of the Guarantors in
respect of the Guarantee of such Guarantor.
(b) No payment (excluding payments in the form of Permitted
Guarantor Junior Securities) shall be made by any Guarantor in respect of its
Guarantee during the period in which Section 1417 shall be applicable, during
any suspension of payments in effect under Section 1303(a) of this Indenture
or during any Payment Blockage Period in effect under Sections 1303(b) and
(c) of this Indenture.
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(c) In the event that, notwithstanding the foregoing, any
Guarantor shall make any payment to the Trustee or the Holder of its
Guarantee prohibited by the foregoing provisions of this Section, then and in
such event such payment shall be paid over and delivered forthwith to the
representatives of the holders of the Senior Guarantor Indebtedness or as a
court of competent jurisdiction shall direct.
Section 1419. PAYMENT PERMITTED BY EACH OF THE GUARANTORS IF NO
DEFAULT.
Nothing contained in this Article, elsewhere in this Indenture or
in any of the Securities shall prevent any Guarantor, at any time except
during the pendency of any case, proceeding, dissolution, liquidation or
other winding-up, assignment for the benefit of creditors or other marshaling
of assets and liabilities of such Guarantor referred to in Section 1417 or
under the conditions described in Section 1418, from making payments at any
time of principal of, premium, if any, or interest on the Securities.
Section 1420. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR GUARANTOR
INDEBTEDNESS.
After the payment in full of all Senior Guarantor Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders of
such Senior Guarantor Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Guarantor Indebtedness
until the principal of, premium, if any, and interest on, the Securities
shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of Senior Guarantor Indebtedness of any cash,
property or securities to which the Holders of the Securities 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
Guarantor Indebtedness by Holders of the Securities or the Trustee, shall, as
among any Guarantor, its creditors other than holders of Senior Guarantor
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by such Guarantor to or on account of the Senior Guarantor
Indebtedness.
Section 1421. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of Sections 1416 through 1429 of this Indenture are
intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand and the holders of Senior Guarantor
Indebtedness on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among any Guarantor, its creditors other than holders of Senior
Guarantor Indebtedness and the Holders of the Securities, the obligation such
Guarantor, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of, premium, if any, and interest on, the Securities
as and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against each of the Guarantors of
the Holders of the Securities and creditors of each of the Guarantors other
than the holders
-162-
of Senior Guarantor Indebtedness; or (c) prevent the Trustee or the Holder of
any Security 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 Guarantor Indebtedness (1) in any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Guarantors referred to in Section 1417, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder, or (2) under the conditions
specified in Section 1418, to prevent any payment prohibited by such Section
or enforce their rights pursuant to Section 1418(c).
Section 1422. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes, including, in the event of
any dissolution, winding-up, liquidation or reorganization of any Guarantor
whether in bankruptcy, insolvency, receivership proceedings, or otherwise,
the timely filing of a claim for the unpaid balance of the indebtedness of
any Guarantor owing to such Holder in the form required in such proceedings
and the causing of such claim to be approved.
Section 1423. NO WAIVER OF SUBORDINATION PROVISIONS.
(a) No right of any present or future holder of any Senior
Guarantor Indebtedness 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 any Guarantor or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by 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.
(b) Without limiting the generality of subsection (a) of this
Section, the holders of Senior Guarantor Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the Holders of
the Securities and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of the Holders of the Securities
to the holders of Senior Guarantor Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Guarantor Indebtedness or any
instrument evidencing the same or any agreement under which Senior Guarantor
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior Guarantor
Indebtedness; (3) release any Person liable in any manner for the collection
or payment of Senior Guarantor Indebtedness; and (4) exercise or refrain from
exercising any rights against any of the Guarantors and any other Person;
PROVIDED, HOWEVER,
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that in no event shall any such actions limit the right of the Holders of the
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article Five of this Indenture or to pursue any rights or
remedies hereunder or under applicable laws if the taking of such action does
not otherwise violate the terms of this Article.
Section 1424. NOTICE TO TRUSTEE BY EACH OF THE GUARANTORS.
(a) Each Guarantor shall give prompt written notice to the
Trustee of any fact known to such Guarantor which would prohibit the making
of any payment to or by the Trustee in respect of the Guarantee.
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 Securities, unless and until the Trustee shall have
received written notice thereof from any Guarantor or a holder of Senior
Guarantor Indebtedness or any trustee, fiduciary or agent therefor; and,
prior to the receipt of any such written notice, the Trustee shall be
entitled in all respects to assume that no such facts exist; PROVIDED,
HOWEVER, that if the Trustee shall not have received the notice provided for
in this Section by Noon, Eastern Time, on the Business Day prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Security), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Guarantor Indebtedness or any trustee, fiduciary or agent
thereof, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received
and shall not be affected by any notice to the contrary which may be received
by it after such date; nor shall the Trustee be charged with knowledge of the
curing of any such default or the elimination of the act or condition
preventing any such payment unless and until the Trustee shall have received
an Officers' Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it
of a written notice to the Trustee and each Guarantor by a Person which
represents itself as a representative of one or more holders of Guarantor
Senior or a holder of Senior Guarantor Indebtedness (or a trustee, fiduciary
or agent therefor) to establish that such notice has been given by a
representative of or a holder of Senior Guarantor Indebtedness (or a trustee,
fiduciary or agent therefor); PROVIDED, HOWEVER, that failure to give such
notice to the Company or any Guarantor shall not affect in any way the
ability of the Trustee to rely on such notice. 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 Guarantor Indebtedness 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 Guarantor Indebtedness
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
-164-
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 1425. RELIANCE ON JUDICIAL ORDERS OR CERTIFICATES.
Upon any payment or distribution of assets of any Guarantor
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Guarantor Indebtedness and other
indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article, PROVIDED that the foregoing shall apply only if
such court has been fully apprised of the provisions of this Article.
Section 1426. RIGHTS OF TRUSTEE AS A HOLDER OF SENIOR GUARANTOR
INDEBTEDNESS; 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 Guarantor
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Guarantor Indebtedness, 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 607.
Section 1427. 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 under this Indenture,
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 1426 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
Section 1428. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant
-165-
to Article Five of this Indenture or to pursue any rights or remedies
hereunder or under applicable law, subject to the rights, if any, under this
Article of the holders, from time to time, of Senior Guarantor Indebtedness
to receive the cash, property or securities receivable upon the exercise of
such rights or remedies.
Section 1429. TRUSTEE'S RELATION TO SENIOR GUARANTOR INDEBTEDNESS.
With respect to the holders of Senior Guarantor Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Guarantor
Indebtedness shall be read into this Article against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Guarantor Indebtedness and the Trustee shall not be liable to any
holder of Senior Guarantor Indebtedness if it shall in good faith mistakenly
(absent willful misconduct) pay over or deliver to Holders, the Company or
any other Person moneys or assets to which any holder of Senior Guarantor
Indebtedness shall be entitled by virtue of this Article or otherwise.
* * *
-166-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, all as of the day and year first above written.
▇▇-▇▇▇ STORES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO
-167-
FCA FINANCIAL, INC.
FABRI-CENTERS OF SOUTH DAKOTA, INC.
FABRI-CENTERS OF CALIFORNIA, INC.
FCA OF OHIO, INC.
HOUSE OF FABRICS, INC.
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO
Attest: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
-169-
STATE OF OHIO )
) ss.:
COUNTY OF SUMMIT )
On the 3rd day of May, 1999, before me personally came ▇▇▇▇ ▇▇▇▇▇▇▇▇,
to me known, who, being by me duly sworn, did depose and say that he resides
at GATES ▇▇▇▇▇; that he is CEO of ▇▇-▇▇▇ Stores, Inc., an Ohio corporation,
FCA Financial, Inc., an Ohio corporation, Fabri-Centers of South Dakota,
Inc., an Ohio corporation, Fabri-Centers of California, Inc., an Ohio
corporation, FCA of Ohio, Inc., an Ohio corporation, and House of Fabrics,
Inc., a Delaware corporation, each of which is a corporation described in and
which executed the foregoing instrument; and that he signed his name thereto
pursuant to authority of the Board of Directors of each of such corporations.
(NOTARIAL SEAL)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
-1-
STATE OF ILLINOIS )
) ss.:
COUNTY OF ▇▇▇▇ )
On the 28th day of April, 1999, before me personally came ▇. ▇▇▇▇▇▇▇▇▇,
to me known, who, being by me duly sworn, did depose and say that she resides
at VERNON HILLS, IL; that she is A VICE PRESIDENT of ▇▇▇▇▇▇ Trust and Savings
Bank, a corporation described in and which executed the foregoing instrument;
and that he signed his name thereto pursuant to authority of the Board of
Directors of such corporation.
(NOTARIAL SEAL)
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
-1-
ANNEX A
INTERCOMPANY NOTE
, 19
---------- --
Evidences of all loans or advances ("Loans") made hereunder shall
be reflected on the grid attached hereto. FOR VALUE RECEIVED,
__________, a _________ corporation (the "Maker"), HEREBY PROMISES TO PAY ON
DEMAND to the order of _______________ (the "Holder") the principal sum of
the aggregate unpaid principal amount of all Loans (plus accrued interest
thereon) at any time and from time to time made hereunder which has not been
previously paid.
All capitalized terms used herein that are defined in, or by
reference in, the Indenture among ▇▇-▇▇▇ Stores, Inc., an Ohio corporation
(the "Company"), FCA Financial, Inc., an Ohio corporation, Fabri-Centers of
South Dakota, Inc., an Ohio corporation, Fabri-Centers of California, Inc.,
an Ohio corporation, FCA of Ohio, Inc., an Ohio corporation, and House of
Fabrics, Inc., a Delaware corporation, and ▇▇▇▇▇▇ Trust and Savings Bank, as
trustee, dated as of May 5, 1999 (the "Indenture"), have the meanings
assigned to such terms therein, or by reference therein, unless otherwise
defined.
ARTICLE I
TERMS OF INTERCOMPANY NOTE
-1-
Section 1.01 NOTE NOT FORGIVABLE. Unless the Maker of the Loan
hereunder is the Company or any Guarantor, the Holder may not forgive any
amounts owing under this intercompany note.
Section 1.02 INTEREST: PREPAYMENT. (a) The interest rate
("Interest Rate") on the Loans shall be a rate per annum reflected on the
grid attached hereto.
(b) The interest, if any, payable on each of the Loans shall
accrue from the date such Loan is made and, subject to Section 2.01, shall be
payable upon demand of the Holder.
(c) To the extent permitted by law, if the principal or accrued
interest, if any, of the Loans is not paid on the date demand is made,
interest on the unpaid principal and interest will accrue at a rate equal to
the Interest Rate, if any, plus 100 basis points per annum from maturity
until the principal and interest on such Loans are fully paid.
(d) Subject to Section 2.01, any amounts hereunder may be repaid
at any time by the Maker.
Section 1.02 SUBORDINATION. Subject to Section 2.01, all Loans
hereunder shall be subordinated in right of payment to the payment and
performance of the obligations of the Company and any Subsidiary (which
Subsidiary is also an obligor under the Indenture, the Securities, a
Guarantee or other Senior Indebtedness or Pari Passu Indebtedness, as the
case may be, whether as a borrower or guarantor) under the Indenture, the
Securities, the Guarantees or any other Indebtedness ranking senior to or
PARI PASSU with the Securities.
ARTICLE II
EVENTS OF DEFAULT
Section 2.01 EVENTS OF DEFAULT. If after the date of issuance of this
Loan (i) an Event of Default has occurred under the Indenture, (ii) an Event
of Default (as defined) has occurred under the Credit Facility or (iii) an
"event of default" (as defined) has occurred under any other Indebtedness of
the Company or any Subsidiary, then (x) in the event the Maker is (A) a
Subsidiary which is not a Guarantor or (B) a Guarantor in the case where the
Holder is the Company, all amounts owing under the Loans hereunder shall be
immediately due and payable to the Holder, (y) in the event the Maker is the
Company, the amounts owing under the Loans hereunder shall not be due and
payable at any time and shall not be paid and (z) in the event the Maker is a
Guarantor and the Holder is not the Company or any Guarantor, the amounts
owing under the Loans hereunder shall not be due and payable at any time and
shall not be paid; PROVIDED, HOWEVER, that if such Event of Default or event
of default has been waived, cured or rescinded, such amounts shall no longer
be due and payable in the case of clause (x), and such amounts may be paid in
the case of clauses (y) and
-2-
(z). If the Holder is a Subsidiary, then the Holder hereby agrees that if it
receives any payments or distributions on any Loan from the Company or a
Guarantor which is not payable pursuant to clause (y) or (z) of the prior
sentence after any Event of Default described in clauses (i) or (ii) or any
event of default described in clause (iii) above has occurred, is continuing
and has not been waived, cured or rescinded, it will pay over and deliver
forthwith to the Company or such Guarantor, as the case may be, all such
payments and distributions.
ARTICLE III
MISCELLANEOUS
Section 3.01 AMENDMENTS, ETC. No amendment or waiver of any
provision of this intercompany note, or consent to depart herefrom is
permitted at any time for any reason, except with the consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities.
Section 3.02 ASSIGNMENT. No party to this Agreement may assign,
in whole or in part, any of its rights and obligations under this
intercompany note, except to its legal successor in interest.
Section 3.03 THIRD PARTY BENEFICIARIES. The holders of the
Securities or any other Indebtedness ranking PARI PASSU with or senior to,
the Securities or any Guarantees, including without limitation, any
Indebtedness incurred under the New Credit Facility, shall be third party
beneficiaries to this intercompany note and upon an Event of Default shall
have the right to enforce this intercompany note against the Company or any
of its Subsidiaries.
Section 3.04 HEADINGS. Article and Section headings in this
intercompany note are included for convenience of reference only and shall
not constitute a part of this intercompany note for any other purpose.
Section 3.05 ENTIRE AGREEMENT. This intercompany note sets forth
the entire agreement of the parties with respect to its subject matter and
supersedes all previous understandings, written or oral, in respect thereof.
Section 3.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
-3-
Section 3.07 WAIVERS. The Maker hereby waives presentment,
demand for payment, notice of protest and all other demands and notices in
connection with the delivery, acceptance, performance or enforcement hereof.
By:
--------------------------
-4-
BORROWINGS, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of Maturity of Amount
Borrowing/ Borrowing/ Interest Principal Paid Unpaid Principal Notation
Date Principal Principal Rate or Prepaid Balance Made by
------ ------------ -------------- ---------- ---------------- ------------------ --------------
-5-
SCHEDULE I
EXISTING INDEBTEDNESS
Uncommitted Lines of Credit, as of May 4, 1999
- $23.6 million borrowed with three banks
- Borrowings are on an overnight basis
Guarantor on $490,000 of $1.0 million line of credit that The Country Sampler
Store, L.L.C. (Of which ▇▇-▇▇▇ Stores has a 49% interest) has with American
National Bank and Trust Company of Chicago.
Trade Letters of Credit, as of May 4, 1999
- Approximately $43,751,000 million consisting of $32,793,000 million of
outstanding trade letters of credit and $10,958,000 million of related
acceptances
Insurance Standby Letter of Credit, as of May 4, 1999
- $1,941,000 for Workers' Compensation, General Liability and Auto Insurance
- Beneficiary: ▇▇▇▇▇▇ Insurance
Lease Standby Letter of Credit, as of May 4, 1999
- $100,000 covering lease
- Beneficiary: Echo, L.L.C.
-1-
SCHEDULE II
EXITING DIVIDEND RESTRICTIONS
NONE
-1-
EXHIBIT A
REGULATION S CERTIFICATE
(For transfers pursuant to section 307(a)(i) of the Indenture)
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: 10 3/8% Senior Subordinated Notes due 2007 of ▇▇-▇▇▇ Stores, Inc.
(the "Securities")
------------------------------
Reference is made to the Indenture, dated as of May 5, 1999 (the
"Indenture"), among ▇▇-▇▇▇ Stores, Inc., a Ohio corporation (the "Company"),
FCA Financial, Inc., an Ohio corporation, Fabri-Centers of South Dakota,
Inc., an Ohio corporation, Fabri-Centers of California, Inc., an Ohio
corporation, FCA of Ohio, Inc., an Ohio corporation, House of Fabrics, Inc.,
a Delaware corporation, and ▇▇▇▇▇▇ Trust and Savings Bank, as Trustee. Terms
used herein and defined in the Indenture or in Regulation S or Rule 144 under
the U.S. Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to US$____________ 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." The Specified Securities are represented by a Global
Security and are held through the Depositary or an Agent Member in the name
of the Undersigned, as or on behalf of the Owner.
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 Global 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
-1-
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(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(2) RULE 144 TRANSFERS. If the transfer is being effected pursuant
to Rule 144:
-2-
(A) the transfer is occurring after a holding period of at
least one year (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 two 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.
-3-
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company 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.)
-4-
EXHIBIT B
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to section 307(a)(ii) of the Indenture)
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: 10 3/8% Senior Subordinated Notes due 2007 of ▇▇-▇▇▇
Stores, Inc. (the "Securities")
------------------
Reference is made to the Indenture, dated as of May 5, 1999 (the
"Indenture"), among ▇▇-▇▇▇ Stores, Inc., a Ohio corporation (the "Company"),
FCA Financial, Inc., an Ohio corporation, Fabri-Centers of South Dakota,
Inc., an Ohio corporation, Fabri-Centers of California, Inc., an Ohio
corporation, FCA of Ohio, Inc., an Ohio corporation, House of Fabrics, Inc.,
a Delaware corporation, and ▇▇▇▇▇▇ Trust and Savings Bank, 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 US$_____________ 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." The Specified Securities are represented by a Global
Security and are held through the Depositary or an Agent Member in the name
of the Undersigned, as or on behalf of the Owner.
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, it is being
effected in accordance with Rule 144A or Rule 144 under the Securities Act
and all applicable securities
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laws of the states of the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies as follows:
(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 one year (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 two 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.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company 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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EXHIBIT C
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to section 307(b))
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: 10 3/8% Senior Subordinated Notes due 2007 of ▇▇-▇▇▇
Stores, Inc. (the "Securities")
Reference is made to the Indenture, dated as of May 5, 1999, among
▇▇-▇▇▇ Stores, Inc., a Ohio corporation (the "Company"), FCA Financial, Inc.,
an Ohio corporation, Fabri-Centers of South Dakota, Inc., an Ohio
corporation, Fabri-Centers of California, Inc., an Ohio corporation, FCA of
Ohio, Inc., an Ohio corporation, House of Fabrics, Inc., a Delaware
corporation, and ▇▇▇▇▇▇ Trust and Savings Bank, 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 US$_____________ 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.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Private Placement Legend pursuant to Section 307(b) of the
Indenture. In connection with such exchange, the Owner hereby certifies that
the exchange 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
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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 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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APPENDIX I
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
-----------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or typewrite name and address including zip code of assignee)
--------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
--------------------------------------------------------------------------------
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES FOR SERIES A SECURITIES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
May 5, 2001, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
--
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
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If none of the foregoing boxes is checked, the Trustee or other Security
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in Section 307 of the
Indenture shall have been satisfied.
Date: _______________________
_______________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of the within-mentioned instrument in every
particular, without alteration or any change
whatsoever.
Signature Guarantee: _____________________________
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15]
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933 and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Dated:__________________ _________________________________________
NOTICE: To be executed by an authorized signatory
-2-
APPENDIX II
FORM OF TRANSFEREE CERTIFICATE
I OR WE ASSIGN AND TRANSFER THIS SECURITY TO:
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
Print or type name, address and zip code of assignee and irrevocably
appoint________________________________________________________________
[Agent], to transfer this Security on the books of the Company. The Agent may
substitute another to act for him.
Dated ____________________ Signed _______________________________________
(Sign exactly as name appears on the other side of this Security)
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17 Ad-15]
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