EXHIBIT 4.1
[EXECUTION VERSION]
RADNOR HOLDINGS CORPORATION
as Issuer,
WINCUP HOLDINGS, INC.
SP ACQUISITION CO.
STYROCHEM INTERNATIONAL, INC.
RADNOR MANAGEMENT, INC.
as Guarantors
and
FIRST UNION NATIONAL BANK
as Trustee
________________________
INDENTURE
Dated as of October 15, 1997
_______________________
$60,000,000
10% Series B Senior Notes due 2003
PAGE
----
TABLE OF CONTENTS
Page
PARTIES............................................................ 1
RECITALS........................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions........................... 2
144A Global Security..................................... 2
Acquired Indebtedness.................................... 2
Affiliate................................................ 2
Amended Credit Agreement................................. 3
Applicable Procedures.................................... 3
Asset Sale............................................... 3
Attributable Indebtedness................................ 4
Bankruptcy Law........................................... 4
Board of Directors....................................... 4
Board Resolution......................................... 4
Borrowing Base........................................... 4
Business Day............................................. 5
Canadian Credit Agreement................................ 5
Capital Stock............................................ 5
Capitalized Lease Obligation............................. 5
Cash Equivalents......................................... 5
Cedel.................................................... 6
Change of Control........................................ 6
Code..................................................... 7
Commission............................................... 7
Company.................................................. 7
Company Request" or "Company Order....................... 7
Consolidated Indebtedness................................ 7
Consolidated Interest Expense............................ 7
Consolidated Net Income.................................. 8
Consolidated Net Worth................................... 8
Controlled Subsidiary.................................... 8
Corporate Trust Office................................... 9
Credit Agreements........................................ 9
Default.................................................. 9
Depositary............................................... 9
Domestic Subsidiary...................................... 9
EBITDA................................................... 9
Equity Interests......................................... 9
Euroclear................................................ 9
PAGE
----
Event of Default......................................... 9
Exchange Act............................................. 9
Exchange Notes........................................... 9
Exchange Offer........................................... 10
Exchange Offer Registration Statement.................... 10
Existing Indebtedness.................................... 10
Fair Market Value........................................ 10
Foreign Subsidiary....................................... 10
Foreign Subsidiary Borrowing Base........................ 10
GAAP..................................................... 10
Global Security Legend................................... 11
Guarantee................................................ 11
Guarantor................................................ 11
Hedging Obligations...................................... 11
Holder................................................... 11
IAI Global Security...................................... 11
incur.................................................... 11
Indebtedness............................................. 12
Indenture Obligations.................................... 13
Independent Director..................................... 13
Indirect Participation................................... 13
Initial Securities....................................... 13
Institutional Accredited Investor........................ 13
Interest Coverage Ratio.................................. 13
Interest Payment Date.................................... 15
Investment............................................... 15
Issue Date............................................... 15
Letter of Transmittal.................................... 15
Lien..................................................... 15
Maturity................................................. 15
▇▇▇▇▇'▇.................................................. 15
Net Cash Proceeds........................................ 15
Net Income............................................... 16
Net Proceeds............................................. 16
Non-U.S. Person.......................................... 16
Officers' Certificate.................................... 16
Opinion of Counsel....................................... 17
Opinion of Independent Counsel........................... 17
Outstanding.............................................. 17
Participant.............................................. 18
Participating Broker-Dealer.............................. 18
Paying Agent............................................. 18
Permitted Holders........................................ 18
Permitted Indebtedness................................... 18
Permitted Investment..................................... 20
Permitted Liens.......................................... 20
Person................................................... 21
Predecessor Security..................................... 22
Preferred Stock.......................................... 22
(ii)
PAGE
----
Prior Notes.............................................. 22
Private Placement Legend................................. 22
Public Equity Offering................................... 22
QIB...................................................... 22
Redeemable Stock......................................... 22
Redemption Date.......................................... 22
Redemption Price......................................... 23
Registration Rights Agreement............................ 23
Registration Statement................................... 23
Regular Record Date...................................... 23
Regulation S............................................. 23
Regulation S Global Security............................. 23
Resale Restriction Termination Date...................... 23
Responsible Officer...................................... 23
Restricted Global Security............................... 23
Restricted Investment.................................... 23
Restricted Physical Security............................. 24
Restricted Subsidiary.................................... 24
Rule 144................................................. 24
Rule 144A................................................ 24
Rule 903................................................. 24
Rule 904................................................. 24
S&P...................................................... 24
Sale and Leaseback Transaction........................... 24
Securities............................................... 24
Securities Act........................................... 25
Security Register" and "Security Registrar............... 25
Senior Indebtedness...................................... 25
Shelf Registration Statement............................. 25
Special Record Date...................................... 25
Stated Maturity.......................................... 25
StyroChem Europe Acquisition............................. 25
Subordinated Indebtedness................................ 25
Subsidiary............................................... 25
Trust Indenture Act...................................... 26
Trustee.................................................. 26
Unrestricted Global Security............................. 26
Unrestricted Physical Security........................... 26
Unrestricted Subsidiary.................................. 26
U.S. Person.............................................. 27
U.S. Government Obligations.............................. 27
Voting Stock............................................. 27
Wholly-Owned Restricted Subsidiary....................... 27
Section 102. Other Definitions............................. 27
Section 103. Compliance Certificates and Opinions.......... 28
Section 104. Form of Documents Delivered to
Trustee...................................... 29
Section 105. Acts of Holders............................... 29
Section 106. Notices, etc., to Trustee, the Company
(iii)
PAGE
----
and any Subsidiary Guarantor.......... 31
Section 107. Notice to Holders; Waiver.............. 32
Section 108. Conflict with Trust Indenture Act...... 32
Section 109. Effect of Headings and Table of
Contents.............................. 32
Section 110. Successors and Assigns................. 33
Section 111. Separability Clause.................... 33
Section 112. Benefits of Indenture.................. 33
Section 113. Governing Law.......................... 33
Section 114. Legal Holidays......................... 33
Section 115. Schedules and Exhibits................. 33
Section 116. Counterparts........................... 33
Section 117. Communication by Holders with Other
Holders............................... 34
Section 118. No Recourse Against Others............. 34
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally........................ 34
Section 202. Restrictive Legends.................... 35
Section 203. Form of Face of Securities............. 37
Section 204. Form of Reverse of Securities.......... 40
Section 205. Form of Trustee's Certificate of
Authentication........................ 44
Section 206. Form of Schedule of Exchanges in the
Global Securities..................... 45
Section 207. Form of Guarantee of Each of the
Guarantors............................ 45
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms........................ 46
Section 302. Denominations.......................... 48
Section 303. Execution, Authentication, Delivery and
Dating................................ 48
Section 304. Temporary Securities................... 49
Section 305. Registration of Transfer and Exchange.. 50
Section 306. Book-Entry Provisions for Global
Securities............................ 52
Section 307. Special Transfer Provisions............ 53
Section 308. Mutilated, Destroyed, Lost and Stolen
Securities............................ 67
Section 309. Payment of Interest; Interest Rights
Preserved............................. 68
Section 310. Persons Deemed Owners.................. 69
Section 311. Cancellation........................... 69
(iv)
PAGE
----
Section 312. Computation of Interest................ 70
Section 313. Deposit of Moneys...................... 70
Section 314. CUSIP Number........................... 70
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance
or Covenant Defeasance................ 70
Section 402. Defeasance and Discharge............... 70
Section 403. Covenant Defeasance.................... 71
Section 404. Conditions to Defeasance or Covenant
Defeasance............................ 72
Section 405. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions.............. 74
Section 406. Reinstatement.......................... 75
Section 407. Repayment of the Company............... 75
ARTICLE FIVE
REMEDIES
Section 501. Events of Default...................... 76
Section 502. Acceleration........................... 78
Section 503. Other Remedies......................... 79
Section 504. Waiver of Past Defaults................ 79
Section 505. Control by Majority.................... 80
Section 506. Limitation on Suits.................... 80
Section 507. Rights of Holders to Receive Payment... 81
Section 508. Collection Suit by Trustee............. 81
Section 509. Trustee May File Proofs of Claim....... 82
Section 510. Priorities............................. 82
Section 511. Undertaking for Costs.................. 83
Section 512. Waiver of Stay, Extension or Usury
Laws.................................. 83
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults..................... 84
Section 602. Certain Rights of Trustee.............. 84
Section 603. Trustee Not Responsible for Recitals,
Dispositions of Securities or
Application of Proceeds Thereof....... 86
Section 604. Trustee and Agents May Hold Securities;
Collections; etc...................... 86
Section 605. Money Held in Trust.................... 86
Section 606. Compensation and Indemnification of
(v)
PAGE
----
Trustee and Its Prior Claim........... 87
Section 607. Conflicting Interests.................. 88
Section 608. Corporate Trustee Required;
Eligibility........................... 88
Section 609. Resignation and Removal; Appointment of
Successor Trustee..................... 88
Section 610. Acceptance of Appointment by Successor. 90
Section 611. Merger, Conversion, Consolidation or
Succession to Business................ 91
Section 612. Preferential Collection of Claims
Against Company....................... 92
Section 613. Certain Duties and Responsibilities.... 92
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders.................. 92
Section 702. Disclosure of Names and Addresses of
Holders............................... 93
Section 703. Reports by Trustee..................... 93
Section 704. Reports by Company and Guarantors...... 93
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. When the Company May Merge, Etc........ 94
Section 802. Successor Substituted.................. 96
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements
without Consent of Holders............ 97
Section 902. Supplemental Indentures and Agreements
with Consent of Holders............... 98
Section 903. Execution of Supplemental Indentures
and Agreements........................ 99
Section 904. Revocation Effect of Supplemental
Indentures............................ 100
Section 905. Conformity with Trust Indenture Act.... 100
Section 906. Reference in Securities to Supplemental
Indentures............................ 100
(vi)
PAGE
----
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal.................. 100
Section 1002. Maintenance of Office or Agency....... 100
Section 1003. Compliance Certificate................ 101
Section 1004. Taxes................................. 102
Section 1005. Limitations on Investments............ 102
Section 1006. Limitations on Restricted Payments.... 102
Section 1007. Limitations on Payment Restrictions
Affecting Restricted Subsidiaries.... 105
Section 1008. Limitations on Indebtedness........... 106
Section 1009. Limitations on Asset Sales............ 106
Section 1010. Limitations on Sale and Leaseback
Transactions......................... 108
Section 1011. Limitations on Transactions With
Affiliates........................... 108
Section 1012. Limitations on Liens.................. 110
Section 1013. Corporate Existence................... 111
Section 1014. Change of Control..................... 112
Section 1015. Maintenance of Properties............. 114
Section 1016. Maintenance of Insurance.............. 115
Section 1017. [Intentionally omitted]............... 115
Section 1018. Money for Security Payments to Be Held
in Trust............................. 115
Section 1019. Subsidiary Guarantees................. 116
Section 1020. Limitation on Issuances and Sales of
Capital Stock of Restricted
Subsidiaries......................... 118
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.................. 118
Section 1102. Applicability of Article.............. 119
Section 1103. Election to Redeem; Notice to Trustee. 119
Section 1104. Selection by Trustee of Securities to
Be Redeemed.......................... 119
Section 1105. Notice of Redemption.................. 120
Section 1106. Deposit of Redemption Price........... 121
Section 1107. Securities Payable on Redemption Date. 121
Section 1108. Securities Redeemed or Purchased in
Part................................. 121
Section 1109. Asset Sale Offers..................... 122
(vii)
PAGE
----
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. Satisfaction and Discharge of
Indenture............................ 125
Section 1202. Application of Trust Money............ 126
ARTICLE THIRTEEN
GUARANTEE
Section 1301. Guarantors' Guarantee................. 126
Section 1302. Continuing Guarantee; No Right of Set
Off; Independent Obligation.......... 127
Section 1303. Guarantee Absolute.................... 128
Section 1304. Right to Demand Full Performance...... 130
Section 1305. Waivers............................... 130
Section 1306. The Guarantors Remain Obligated in
Event the Company Is No Longer Obligated
to Discharge Indenture Obligations... 131
Section 1307. Fraudulent Conveyance; Subrogation.... 131
Section 1308. Guarantee Is in Addition to Other
Security............................. 132
Section 1309. Contribution.......................... 132
Section 1310. No Bar to Further Actions............. 133
Section 1311. Failure to Exercise Rights Shall Not
Operate as a Waiver.................. 133
Section 1312. Trustee's Duties; Notice to Trustee... 133
Section 1313. Successors and Assigns................ 133
Section 1314. Release of Guarantee.................. 134
Section 1315. Execution of Guarantee................ 134
Section 1316. Payment Permitted by Each of the
Subsidiary Guarantors if No Default.. 134
Section 1317. Notice to Trustee by Each of the
Guarantors........................... 134
Section 1318. Article Applicable to Paying Agents... 135
Section 1319. No Suspension of Remedies............. 135
EXHIBIT A Transferee Letter of Representation
EXHIBIT B Form of Certificate of Transfer
EXHIBIT C Form of Certificate of Exchange
SCHEDULE 1 Existing Indebtedness
(viii)
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of October 15, 1997
Trust Indenture Indenture
Act Section Section
---------------- -------------------
(S) 310(a)(1).............. 608, 610, 611
(a)(2)................ 608, 610, 611
(a)(3)................ N.A.
(a)(4)................ N.A.
(b)................... 604, 607, 609
(c)................... N.A.
(S) 311(a)................. 604, 612
(b)................... 604, 612
(c)................... N.A.
(S) 312(a)................. 701
(b)................... 117
(c)................... 117, 702
(S) 313(a)................. 703
(b)................... 703
(c)................... 703
(d)................... 703
(S) 314(a)................. 704, 1003
(b)................... N.A.
(c)(1)................ 103
(c)(2)................ 103
(c)(3)................ N.A.
(d)................... N.A.
(e)................... 103
(f)................... N.A.
(S) 315(a)................. 602, 613, 903
(b)................... 601, 602, 903
(c)................... 602, 613, 903
(d)................... 602, 903
(e)................... 511
(S) 316(a)(last sentence).. 101 ("Outstanding")
(a)(1)(A)............. 502, 505
(a)(1)(B)............. 504
(a)(2)................ N.A.
(b)................... 507
(c)................... 105
(S) 317(a)(1).............. 508
(a)(2)................ 509
(b)................... 1018
(S) 318(a)................. 108
N.A. means not applicable.
________________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Indenture.
INDENTURE, dated as of October 15, 1997 among RADNOR HOLDINGS
CORPORATION, a Delaware corporation (the "Company"), WINCUP HOLDINGS, INC., a
Delaware corporation, SP ACQUISITION CO., a Delaware corporation, STYROCHEM
INTERNATIONAL, INC., a Texas corporation and RADNOR MANAGEMENT, INC., a Delaware
corporation (collectively, the "Guarantors"), and FIRST UNION NATIONAL BANK, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 10% Series
B Senior Notes due 2003 (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 (the
"Guarantees") 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 the 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 things necessary have been done to make (i) the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, (ii) the
Guarantees, when executed by each of the Guarantors and authenticated 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 covenanted and agreed, for the benefit
of each other and for the equal and proportionate benefit of the Holders of the
Securities issued under this Indenture, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(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; and
(e) all references to $, US$, dollars or United States dollars shall
refer to the lawful currency of the United States of America.
"144A Global Security" means the global security in the form set forth
in Article Two hereof bearing the Global Security Legend and the Private
Placement Legend, guaranteed by the Guarantors and deposited with and registered
in the name of the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the Securities sold in
reliance on Rule 144A.
"Acquired Indebtedness" means, with respect to any specified Person,
Indebtedness of any other Person (the "Acquired Person") existing at the time
the Acquired Person merges with or into, or becomes a Subsidiary of, such
specified Person, including Indebtedness incurred in connection with, or in
contemplation of, the Acquired Person merging with or into, or becoming a
Subsidiary of, such specified Person.
"Affiliate" means, with respect to any party, any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such party including any estate or trust under will of such party.
For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common
-2-
control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided, however, that beneficial
-------- -------
ownership of 5% or more of the voting securities of a Person shall be deemed to
be control.
"Amended Credit Agreement" means the Amended and Restated Credit and
Security Agreement dated as of December 5, 1996 among the Company, WinCup
Holdings, Inc., SP Acquisition Co., StyroChem International, Inc., StyroChem
Finland Oy, ThermiSol Denmark ApS, ThermiSol Finland Oy, and ThermiSol Sweden
AB, as borrowers and BNY Financial Corporation (successor in interest to the
Bank of New York Commercial Corporation), as agent and lender, and the
supplement thereto, among StyroChem Europe (The Netherlands) B.V., StyroChem
Finland Oy, ThermiSol Denmark ApS, ThermiSol Finland Oy, and ThermiSol Sweden
AB, as borrowers and BNY Financial Ltd. as agent and lender, dated as of October
15, 1997, as amended from time to time.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Security, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"Asset Sale" means, with respect to the Company or any Restricted
Subsidiary, the sale, lease, conveyance or other disposition (including, without
limitation, by way of merger or consolidation, and whether by operation of law
or otherwise) to any Person other than the Company or a Wholly-Owned Restricted
Subsidiary of any of the Company's or such Restricted Subsidiary's assets
(including, without limitation, (x) any sale or other disposition of Equity
Interests of any Restricted Subsidiary and (y) any sale or other disposition of
any non-cash consideration received by the Company or such Restricted Subsidiary
from any prior transaction or series of related transactions that constituted an
Asset Sale pursuant to the provisions of Section 1009 hereof), whether owned on
the Issue Date or subsequently acquired, in one transaction or a series of
related transactions; provided, however, that the following shall not constitute
-------- -------
Asset Sales: (i) transactions (other than transactions described in clause (y)
above) in any calendar year with aggregate cash and/or Fair Market Value of any
other consideration received (including, without limitation, the unconditional
assumption of Indebtedness) of less than $500,000; (ii) a transaction or series
of related transactions that results in a Change in Control; (iii) any sale of
assets of the Company and the Restricted Subsidiaries or merger permitted under
Article Eight; (iv) any sale or other disposition of inventory, property
(whether real, personal or mixed) or equipment that has become worn out,
obsolete or damaged or otherwise unsuitable or
-3-
no longer needed for use in connection with the business of the Company or any
Restricted Subsidiary, as the case may be, in the good faith determination of
the Board of Directors; and (v) any sale of inventory to customers in the
ordinary and customary course of business.
"Attributable Indebtedness" means, with respect to any Sale and
Leaseback Transaction, as at the time of determination, the greater of (i) the
Fair Market Value of the property subject to such transaction and (ii) the
present value (discounted at a rate equivalent to the Company's then current
weighted average cost of funds for borrowed money, compounded on a semi-annual
basis) of the total net obligations of the lessee for rental payments during the
remaining term of the lease included in such arrangement (including any period
for which such lease has been extended). As used in the preceding sentence, the
"total net obligations of the lessee for rental payments" under any lease for
any such period means the sum of rental and other payments required to be paid
with respect to such period by the lessee thereunder excluding any amounts
required to be paid by such lessee on account of maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges. In the case of
any lease which is terminable by the lessee upon payment of a penalty, such net
amount of rent also includes the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated.
"Bankruptcy Law" means chapter 11 of Title 11 of the United States
Code, as amended, or any similar United States federal or state 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 committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" of any corporation means a copy of a resolution
certified by the Secretary or an Assistant Secretary of such corporation to have
been duly adopted by the board of directors of such entity and to be in full
force and effect on the date of such certification and delivered to the Trustee.
"Borrowing Base" means, as of any date, an amount equal to the sum of
(a) 85% of the net book value of the accounts receivable of the Company and its
Restricted Subsidiaries which are Domestic Subsidiaries as of such date, and (b)
60% of the net book value of the inventory owned by the Company and its
Restricted Subsidiaries which are Domestic Subsidiaries as of such date, all
calculated on a consolidated basis and in
-4-
accordance with GAAP. To the extent that information is not available as to the
amount of accounts receivable or inventory as of a specific date, the Company
may utilize the most recent available quarterly or annual financial report for
purposes of calculating the Borrowing Base.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
or the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to close.
"Canadian Credit Agreement" means the Agreement Respecting a Term Loan
and Other Credit Facilities between StyroChem International, Ltd. and the Bank
of Montreal, as amended on December 5, 1996 and as further amended from time to
time.
"Capital Stock" means, with respect to any Person, any common stock,
preferred stock and any other capital stock of such Person and shares,
interests, participations or other ownership interest (however designated), of
any Person and any rights (other than debt securities convertible into, or
exchangeable for, capital stock), warrants or options to purchase any of the
foregoing, including (without limitation) each class of common stock and
preferred stock of such Person if such Person is a corporation and each general
and limited partnership interest of such Person if such Person is a partnership.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cash Equivalents" mean (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than 90 days from the date of acquisition, (ii) time deposits and certificates
of deposit with maturities of not more than 90 days from the date of
acquisition, of any commercial banking institution that is a member of the
Federal Reserve System having capital and surplus in excess of $500,000,000,
whose debt has a rating at the time of any such investment of at least "A-1" or
the equivalent thereof by Standard & Poor's Ratings Group or at least "P-1" or
the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc., or any bank or
financial institution party to the Credit Agreements, (iii) fully secured
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) entered into with any bank
-5-
or financial institution meeting the qualifications specified in clause (ii)
above, (iv) commercial paper issued by the parent corporation of any commercial
banking institution that is a member of the Federal Reserve System having
capital and surplus in excess of $500,000,000 and commercial paper or master
notes of issuers, rated at the time of any such investment at least "A-1" or the
equivalent thereof by Standard & Poor's Ratings Group or at least "P-1" or the
equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc., or any bank or financial
institution party to the Credit Agreements, and in each case maturing within 270
days after the date of acquisition, and (v) any shares in an open-end mutual
fund organized by a bank or financial institution having combined capital and
surplus of at least $500,000,000 investing solely in investments permitted by
the foregoing clauses (i), (ii) and (iv).
"Cedel" means Cedel Bank, societe anonyme.
A "Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Section 13(d)
and 14(d) of the Exchange Act) other than Permitted Holders (as defined below),
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 50% of the voting power of the total outstanding Voting
Stock of the Company voting as one class; (ii) 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 a majority 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) for any reason
cease to constitute a majority of such Board of Directors then in office; (iii)
the Company consolidates with or merges with or into any Person or conveys,
transfers or leases all or substantially all of its assets to any Person other
than a wholly-owned Subsidiary (in one transaction or a series of related
transactions), or any corporation 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 changed into or exchanged for cash, securities or
other property, and as a result of such transaction any "person" or "group,"
other than Permitted Holders, is or becomes the "beneficial owner" (as described
in clause (i) above) immediately after such transaction, directly or indirectly,
of more than 50% of the voting power of the total outstanding Voting Stock of
the surviving corporation voting as one class; or (iv) the Company is liquidated
or dissolved or
-6-
adopts a plan of liquidation or dissolution other than in a transaction that is
permitted by Article Eight of this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means Radnor Holdings Corporation, a corporation
incorporated under the laws of Delaware, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board of
Directors, its President 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 Indebtedness" means the Indebtedness of the Company and
its consolidated Restricted Subsidiaries determined on a consolidated basis in
conformity with GAAP.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
excluding amortization of any deferred financing fees, plus, to the extent not
included in such interest expense, (i) interest expense attributable to
Capitalized Lease Obligations, (ii) amortization of debt discount and debt
issuance cost, (iii) capitalized interest, (iv) non-cash interest expense, (v)
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, (vi) interest actually paid by the
Company or any such Restricted Subsidiary under any guarantee of Indebtedness or
other obligation of any other Person, (vii) net costs associated with Hedging
Obligations (including fees and amortization of discounts), (viii) Preferred
Stock dividends in respect of all Redeemable Stock of the Company held by
Persons other than the Company or a Wholly-Owned Restricted Subsidiary and (ix)
the cash contributions to any employee stock ownership plan or similar trust to
the extent such contributions are used by such plan or trust to pay interest or
fees to any Person (other than the Company) in connection with loans incurred by
such plan or trust to purchase newly issued or treasury shares of the Capital
Stock of the Company.
-7-
"Consolidated Net Income" means, for any period, and as to any Person,
the aggregate Net Income of such Person and its Subsidiaries (other than, in the
case of the Company, the Unrestricted Subsidiaries of the Company) for such
period determined on a consolidated basis in accordance with GAAP; provided that
(i) the Net Income of any Person which is not a Subsidiary of such Person but
which is consolidated with such Person or is accounted for by such Person by the
equity method of accounting shall be included only to the extent of the amount
of cash dividends or cash distributions actually paid to such Person or a
wholly-owned Subsidiary of such Person (other than, in the case of the Company,
the Unrestricted Subsidiaries of the Company), (ii) the Net Income of any Person
acquired by such Person or a Subsidiary of such Person in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded, (iii) the Net Income of any Subsidiary of such Person that is subject
to restrictions, direct or indirect, on the payment of dividends or the making
of distributions to such Person shall be excluded to the extent of such
restrictions, (iv) the Net Income of (A) any Unrestricted Subsidiary and (B) any
Subsidiary less than 80% of whose securities having the right (apart from the
right under special circumstances) to vote in the election of directors are
owned by the Company or its Wholly-Owned Restricted Subsidiaries shall be
included only to the extent of the amount of cash dividends or cash
distributions actually paid by such Subsidiary to the Company or a Wholly-Owned
Restricted Subsidiary of the Company, and (v) all gains (but not losses) which
are extraordinary or are either unusual or nonrecurring (including any gain
realized upon the termination of any employee pension benefit plan and any gain
from the sale or other disposition of assets other than in the ordinary course
of business or from the issuance or sale of any Equity Interests) shall be
excluded.
"Consolidated Net Worth" means, for any Person, the total of the
amounts shown on the balance sheet of such Person and its consolidated
Subsidiaries, determined on a consolidated basis without duplication in
accordance with GAAP, as of the end of the most recent fiscal quarter of such
Person ending at least 45 days prior to the taking of any action for the purpose
of which the determination is being made, as (i) the amount of Capital Stock
(other than Redeemable Stock) plus (ii) the amount of surplus and retained
earnings (or, in the case of a surplus or retained earnings deficit, minus the
amount of such deficit).
"Controlled Subsidiary" means a Restricted Subsidiary (i) 80% or more
of the total Equity Interests or other ownership interests of which (other than
directors' qualifying shares or shares required to be held by foreign nationals,
in each case to the extent mandated by applicable law) is at the time owned by
the Company (directly or through one or more Controlled Subsidiaries of the
Company) and (ii) of which the Company
-8-
possesses, directly or indirectly, the power to direct or cause the direction of
the management or policies, whether through the ownership of voting securities,
by agreement or otherwise.
"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 Agreements" means the Amended Credit Agreement and the
Canadian Credit Agreement.
"Default" means any event which is, or after notice or passage of any
time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Domestic Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is not incorporated or organized in any
jurisdiction outside of the United States of America.
"EBITDA" for any period means the Consolidated Net Income of the
Company and its Restricted Subsidiaries for such period, plus, without
duplication, the following to the extent included in calculating such
Consolidated Net Income: (i) Consolidated Interest Expense, (ii) consolidated
income tax expense and (iii) consolidated depreciation and amortization expense.
"Equity Interests" means shares, interests, participations or other
equivalents (however designated) of Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security which is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Article Five of this
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means senior notes issued pursuant to any Exchange
Offer Registration Statement and guaranteed by the Guarantors.
-9-
"Exchange Offer" means the offer which may be made by the Company
pursuant to the Registration Rights Agreement to exchange the Initial Securities
for the Exchange Notes.
"Exchange Offer Registration Statement" means the registration
statement to be filed by the Company and the Guarantors with the Commission with
respect to an offer to exchange the Initial Securities for another series of
senior notes of the Company and guarantees by the Guarantors registered under
the Securities Act with substantially identical terms to the Initial Securities.
"Existing Indebtedness" means all Indebtedness (other than
Indebtedness outstanding pursuant to the Credit Agreements) of the Company or
any Restricted Subsidiary existing on the Issue Date and listed on "Schedule 1"
hereto.
"Fair Market Value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value shall be
determined by a majority of the members of the Board of Directors, and a
majority of the disinterested members of such Board of Directors, if any, acting
in good faith and shall be evidenced by a duly and properly adopted resolution
of the Board of Directors.
"Foreign Subsidiary" means, with respect to any Person, any Subsidiary
of such Person other than a Domestic Subsidiary of such Person.
"Foreign Subsidiary Borrowing Base" means, as of any date, an amount
equal to the sum of (a) 85% of the net book value of the accounts receivable of
the Restricted Subsidiaries of the Company which are Foreign Subsidiaries as of
such date, and (b) 60% of the net book value of the inventory owned by the
Restricted Subsidiaries of the Company which are Foreign Subsidiaries as of such
date, all calculated on a consolidated basis and in accordance with GAAP. To
the extent that information is not available as to the amount of accounts
receivable or inventory as of a specific date, the Company may utilize the most
recent available quarterly or annual financial statements of such Subsidiaries
for purposes of calculating the Foreign Subsidiary Borrowing Base.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
which are in effect from time to time.
-10-
"Global Security Legend" means the legend initially set forth on the
Securities in the form set forth in the second paragraph of Section 202 hereof.
"Guarantee" means the guarantee by any Guarantor of the Company's
Indenture Obligations pursuant to a guarantee given in accordance with this
Indenture, including, without limitation, the Guarantees by the Guarantors
included in Article Thirteen of this Indenture and any Guarantee delivered
pursuant to Section 1019 hereof.
"Guarantor" means the Subsidiaries listed as Guarantors in this
Indenture or any other guarantor of the Indenture Obligations.
"Hedging Obligations" means the obligations of any Person or entity
pursuant to any swap or cap agreement, exchange agreement, collar agreement,
option, futures or forward hedging contract or other similar agreement or
arrangement designed to protect such Person or entity against fluctuations in
interest rates or foreign exchange rates or the price of raw materials and other
chemical products used or produced in the Company's business, as the case may
be.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"IAI Global Security" means the global security in the form set forth
in Article Two hereof bearing the Global Security Legend and the Private
Placement Legend, guaranteed by the Guarantors and deposited with or on behalf
of and registered in the name of the Depositary or its nominee that will be
issued in a denomination equal to the outstanding principal amount of the
Security sold to Institutional Accredited Investors.
"incur" has the meaning ascribed in Section 1008 hereof; provided that
(a) with respect to any Indebtedness of any Restricted Subsidiary of the Company
that is owing to the Company or another Restricted Subsidiary of the Company,
any disposition, pledge or transfer of such Indebtedness to any Person (other
than the Company or a Wholly-Owned Restricted Subsidiary) shall be deemed to be
an incurrence of such Indebtedness and (b) with respect to any Indebtedness of
the Company or a Restricted Subsidiary that is owing to another Restricted
Subsidiary, any transaction pursuant to which a Wholly-Owned Restricted
Subsidiary to which such Indebtedness is owing ceases to be a Wholly-Owned
Restricted Subsidiary shall be deemed to be an incurrence of such Indebtedness,
and provided, further that any Indebtedness of a Person existing at the time
-------- -------
such Person becomes a Restricted Subsidiary shall be deemed to be incurred by
such Restricted Subsidiary at the time it becomes a Restricted Subsidiary. The
term "incurrence" has a corresponding meaning.
-11-
"Indebtedness" of any Person means, without duplication, all
liabilities with respect to (i) indebtedness for money borrowed or which is
evidenced by a bond, debenture, note or other similar instrument or agreement,
but excluding trade accounts payable and other accrued liabilities arising in
the ordinary course of business; (ii) reimbursement obligations, letters of
credit and bankers' acceptances; (iii) indebtedness with respect to Hedging
Obligations; (iv) Capitalized Lease Obligations; (v) indebtedness, secured or
unsecured, created or arising in connection with the acquisition or improvement
of any property or asset or the acquisition of any business; (vi) all
indebtedness secured by any Lien upon property owned by such Person and all
indebtedness secured in the manner specified in this clause even if such Person
has not assumed or become liable for the payment thereof; (vii) all indebtedness
of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person or
otherwise representing the deferred and unpaid balance of the purchase price of
any such property, including all indebtedness created or arising in the manner
specified in this clause even though 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; (viii) guarantees, direct or indirect, of any
indebtedness of other Persons referred to in clauses (i) through (vii) above, or
of dividends or leases, taxes or other obligations of other Persons, excluding
any guarantee arising out of the endorsement of negotiable instruments for
collection in the ordinary course of business; (ix) contingent obligations in
respect of, or to purchase or otherwise acquire or be responsible or liable for,
through the purchase of products or services, irrespective of whether such
products are delivered or such services are rendered, or otherwise, any such
indebtedness referred to in clauses (i) through (vii) above, (x) any obligation,
contingent or otherwise, arising under any surety, performance or maintenance
bond; and (xi) Redeemable Stock of the Company valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends; which indebtedness, Capitalized Lease Obligation, guarantee or
contingent or other obligation such Person has directly or indirectly created,
incurred, assumed, guaranteed or otherwise become liable or responsible for,
whether then outstanding or thereafter created in the case of (i) through (x)
above, to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability on the balance sheet
of such Person in accordance with GAAP. For purposes of the foregoing
definition, the "maximum fixed repurchase price" of any Redeemable Stock which
does not have a fixed repurchase price will be calculated in accordance with the
terms of such Redeemable Stock as if such Redeemable Stock were purchased on any
date or which Indebtedness is required to be determined pursuant to the
Indenture. As used herein, Indebtedness with
-12-
respect to any Hedging Obligation means, with respect to any specified Person on
any date, the net amount (if any) that would be payable by such specified Person
upon the liquidation, close-out or early termination on such date of such
Hedging Obligation. For purposes of the foregoing, any settlement amount payable
upon the liquidation, close-out or early termination of a Hedging Obligation
will be calculated by the Company in good faith and in a commercially reasonable
manner on the basis that such liquidation, close-out or early termination
results from an event of default or other similar event with respect to such
specified Person. Any reference in this definition to indebtedness will be
deemed to include any renewals, extensions and refundings of any such
indebtedness or any indebtedness issued in exchange for such indebtedness.
"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, 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 (including, without limitation, all sums due to the Trustee pursuant
to Section 606 hereof), the Securities and the performance of all other
obligations to the Trustee and the Holders under this Indenture and the
Securities, according to the terms hereof and thereof.
"Independent Director" means a director of the Company other than a
director (i) who (apart from being a director of the Company or any of its
Subsidiaries) is an employee, insider, associate or Affiliate of the Company or
any of its Subsidiaries or has held any such position during the previous year
or (ii) who is a director, an employee, insider, associate or Affiliate of
another party to the transaction in question.
"Indirect Participation" means a person who holds a beneficial
interest in a Global Security through a Participant.
"Initial Securities" means the Securities issued on the Issue Date and
guaranteed by the Guarantors.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Coverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of EBITDA for the period of the most recent
four consecutive fiscal quarters for which internal financial statements are
available prior to the date of such determination to (ii) Consolidated Interest
Expense for such four fiscal quarters of the Company and its Restricted
Subsidiaries; provided, however, that (A) if the
-------- -------
-13-
Company or any Restricted Subsidiary has incurred any Indebtedness since the
beginning of such period that remains outstanding or if the transaction giving
rise to the need to calculate the Interest Coverage Ratio is an incurrence of
Indebtedness, or both, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been issued on the first day of such
period and the discharge of any other Indebtedness repaid, repurchased, defeased
or otherwise discharged with the proceeds of such new Indebtedness as if such
discharge had occurred on the first day of such period, (B) if since the
beginning of such period the Company or any Restricted Subsidiary has made any
Asset Sale, EBITDA for such period shall be reduced by an amount equal to EBITDA
(if positive), directly attributable to the assets which are the subject of such
Asset Sale for such period, or increased by an amount equal to EBITDA (if
negative), directly attributable thereto for such period and Consolidated
Interest Expense for such period shall be reduced by an amount equal to the
Consolidated Interest Expense directly attributable to any Indebtedness of the
Company or any Restricted Subsidiary repaid, repurchased, defeased or otherwise
discharged with respect to the Company and its continuing Restricted
Subsidiaries in connection with any such sale or other disposition for such
period (or, if the Capital Stock of any Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the Indebtedness of
such Subsidiary to the extent the Company and its continuing Restricted
Subsidiaries are no longer liable for such Indebtedness after such sale), (C) if
since the beginning of such period the Company or any Restricted Subsidiary (by
merger or otherwise) has made an Investment in any Restricted Subsidiary (or any
Person which becomes a Restricted Subsidiary) or an acquisition of assets,
including any acquisition of assets occurring in connection with a transaction
causing a calculation to be made under the Indenture, which constitutes all or
substantially all of an operating unit of a business, EBITDA and Consolidated
Interest Expense for such period shall be calculated after giving pro forma
effect thereto (including the incurrence of any Indebtedness) as if such
Investment or acquisition occurred on the first day of such period and (D) in
making such computation, Consolidated Interest Expense attributable to any
Indebtedness incurred under any revolving credit facility shall be computed
based on the average daily balance of such Indebtedness during such period. For
purposes of this definition, whenever pro forma effect is to be given to an
acquisition of assets, the amount of income or earnings relating thereto, and
the amount of Consolidated Interest Expense associated with any Indebtedness
incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting officer of the Company.
If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest on such
-14-
Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Investment" means any direct or indirect advance, loan, other
extension of credit or capital contribution (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) to, purchase or acquisition of Equity Interests, bonds, notes,
debentures or other securities of, or purchase or other acquisition of all or a
substantial part of the business, Equity Interests or other evidence of
beneficial ownership of, or any other investment in or guarantee of any
Indebtedness (other than guarantees of Indebtedness of the Company or any
Restricted Subsidiary permitted by Section 1008 hereof, any Person or any other
item that would be classified as an investment on a balance sheet prepared in
accordance with GAAP. Investments do not include advances to customers and
suppliers in the ordinary and customary course of business and on commercially
reasonable terms.
"Issue Date" means the date of first issuance of the Initial
Securities under this Indenture.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Securities for use by such Holders
in connection with the Exchange Offer.
"Lien" means any mortgage, pledge, lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement and any lease in the nature thereof).
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein provided
or as provided in this Indenture, whether at Stated Maturity, the Asset Sale
Purchase Date, the Change of Control Payment Date, or the Redemption Date and
whether by declaration of acceleration, Change of Control, call for redemption
or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
rating agency.
"Net Cash Proceeds" means, with respect to any issuance or sale of
Equity Interests or debt securities that have been converted into or exchanged
for Equity Interests, as referred to under Section 1006 hereof, the proceeds of
such issuance or sale
-15-
in the form of cash or cash equivalents, net of attorneys' fees, accountants'
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.
"Net Income" of any Person, for any period, means the net income
(loss) of such Person and its Subsidiaries (other than, in the case of the
Company, its Unrestricted Subsidiaries) determined in accordance with GAAP.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, the proceeds of insurance paid on account of the
loss of or damage to any property, or compensation or other proceeds for any
property taken by condemnation, eminent domain or similar proceedings, and any
non-cash consideration received by the Company or any Restricted Subsidiary from
any Asset Sale that is converted into or sold or otherwise disposed of for cash
within 90 days after the relevant Asset Sale), net of (i) the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees and sales commissions), (ii) any taxes paid or
payable as a result thereof, (iii) all amounts required to be applied to the
repayment of, or representing the amount of permanent reductions in the
commitments relating to, Indebtedness secured by a Lien on the asset or assets
the subject of such Asset Sale which Lien is permitted pursuant to the terms of
the Indenture, (iv) any reserve for adjustment in respect of the sale price of
such asset or assets required by GAAP, and (v) all distributions and other
payments required to be made (including any amounts held pending distribution)
to minority interest holders in Subsidiaries or joint ventures as a result of
such Asset Sale. The amount of any Net Proceeds other than cash shall be the
Fair Market Value thereof as determined in good faith by the Board of Directors
of the Company. The amount of any taxes required to be accrued as a liability
under GAAP as a consequence of an Asset Sale shall be the amount thereof as
determined in good faith by the Board of Directors of the Company.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, Vice Chairman, the President 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 delivered to the Trustee.
-16-
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, any of the Guarantors 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.
"Opinion of Independent Counsel" means a written opinion of counsel
issued by someone who is not an employee or consultant of the Company or any
Guarantor and who shall be reasonably acceptable 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;
(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) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders; 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, except to the extent provided in Sections 402 and 403
hereof, 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 proof reasonably satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands the Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, any Guarantor, or any other obligor upon the Securities or any
Affiliate of the Company, any Guarantor, or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice,
-17-
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.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to the Depositary, shall include Euroclear and
Cedel).
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Paying Agent" means any person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Permitted Holders" means (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; (ii) the spouse and
children or grandchildren (including children or grandchildren by adoption) of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; (iii) any controlled Affiliate of any of the foregoing; (iv)
in the event of the incompetence or death of any of the Persons described in
clause (i) and (ii), such Person's estate, executor, administrator, committee or
other personal representative, in each case who at any particular date shall
beneficially own or have the right to acquire, directly or indirectly, Capital
Stock of the Company; or (v) any trusts created for the benefit of the Persons
described in clause (i), (ii), or (iv) or any trust for the benefit of any such
trust.
"Permitted Indebtedness" means, collectively, the following:
(a) Indebtedness of the Company evidenced by the Securities and
Indebtedness of any Guarantor evidenced by the Guarantees;
(b) Indebtedness of the Company evidenced by the Exchange Notes and
Indebtedness of any Guarantor evidenced by the guarantees with respect to
the Exchange Notes;
(c) Indebtedness of the Company or any Restricted Subsidiary
constituting Existing Indebtedness and any extension, deferral, renewal,
refinancing or refunding thereof;
(d) Indebtedness of the Company or any Restricted Subsidiary incurred
under the Credit Agreements in an
-18-
aggregate principal amount at any one time outstanding not to exceed the
greater of (x) $40,000,000 and (y) the Borrowing Base at the time such
Indebtedness was incurred, or any refinancing, refunding, deferral, renewal
or extension thereof not in excess of such amount;
(e) Indebtedness of any Restricted Subsidiary which is a Foreign
Subsidiary in an aggregate principal amount at any one time outstanding not
to exceed the greater of (x) $10,000,000 (or the equivalent amount thereof,
at the time of incurrence, in other foreign currencies) and (y) the Foreign
Subsidiary Borrowing Base at the time such Indebtedness was incurred, or
any refinancing, refunding, deferral, renewal or extension thereof not in
excess of such amount;
(f) Capitalized Lease Obligations of the Company or any Restricted
Subsidiary and Indebtedness of the Company or any Restricted Subsidiary
secured by Liens that secure the payment of all or part of the purchase
price of assets or property acquired or constructed in the ordinary course
of business after the Issue Date; provided, however, that the aggregate
-------- -------
principal amount of such Capitalized Lease Obligations plus such
Indebtedness of the Company and all of the Restricted Subsidiaries does not
exceed $5,000,000 outstanding at any time;
(g) Indebtedness of the Company to any Restricted Subsidiary or of
any Restricted Subsidiary to the Company or another Restricted Subsidiary
(but only so long as such Indebtedness is held by the Company or a
Restricted Subsidiary);
(h) Indebtedness in respect of Hedging Obligations; provided,
--------
however, that the notional principal amount of any such Hedging Obligation
-------
does not exceed the principal amount of the Indebtedness to which such
Hedging Obligation relates;
(i) Indebtedness represented by performance, completion, guarantee,
surety and similar bonds provided by the Company or any Restricted
Subsidiary in the ordinary course of business consistent with past
practice;
(j) In addition to any Indebtedness otherwise permitted to be
incurred under the provisions of this Indenture, up to $25,000,000
aggregate principal amount of Indebtedness at any one time outstanding; and
(k) Any refinancing, refunding, deferral, renewal or extension (each,
a "Refinancing") of any Indebtedness of the Company or any Restricted
Subsidiary permitted by the
-19-
initial paragraph of this covenant (the "Refinancing Indebtedness");
provided, however, that (x) such Refinancing does not increase the total
-------- -------
Consolidated Indebtedness of the Company and its Restricted Subsidiaries
outstanding at the time of such Refinancing, (y) the Refinancing
Indebtedness does not provide for any mandatory redemption, amortization or
sinking fund requirement in an amount greater than or at a time prior to
the amounts and times specified in the Indebtedness being refinanced,
refunded, deferred, renewed or extended and (z) if the Indebtedness being
refinanced, refunded, deferred, renewed or extended is subordinated to the
Securities, the Refinancing Indebtedness incurred to refinance, refund,
defer, renew or extend such Indebtedness is subordinated in right of
payment to the Securities on terms at least as favorable to the Holders as
those contained in the documentation governing the Indebtedness being so
refinanced, refunded, deferred, renewed or extended.
"Permitted Investment" means (i) any Investment in Cash Equivalents,
(ii) any Investment in the Company, (iii) Investments in existence on the Issue
Date, (iv) intercompany notes permitted under clause (g) of the definition of
"Permitted Indebtedness" in this Section 101, (v) Investments in any Controlled
Subsidiary or any Guarantor, or any Person which, as a result of such
Investment, becomes a Controlled Subsidiary or a Guarantor, and (vi) Investments
that do not at one time outstanding exceed $20,000,000 in joint ventures,
corporations, limited liability companies, partnerships or Unrestricted
Subsidiaries.
"Permitted Liens" means as of any particular time, any one or more of
the following:
(a) Liens for taxes, rates and assessments not yet past due or, if
past due, the validity of which is being contested in good faith by the
Company or any Restricted Subsidiary by appropriate proceedings promptly
instituted and diligently conducted and against which the Company has
established appropriate reserves in accordance with GAAP;
(b) the Lien of any judgment rendered which is being contested in
good faith by the Company or any of its Restricted Subsidiaries by
appropriate proceedings promptly instituted and diligently conducted and
against which the Company has established appropriate reserves in
accordance with GAAP and which does not have a material adverse effect on
the ability of the Company and its Restricted Subsidiaries to operate their
business or operations;
(c) other than in connection with Indebtedness, any Lien arising in
the ordinary course of business (i) to
-20-
secure payments of workers' compensation, unemployment insurance, pension
or other social security or retirement benefits, or to secure the
performance of bids, tenders, leases, progress payments, contracts (other
than for the payment of money) or to secure public or statutory obligations
of the Company, or any Restricted Subsidiary, or to secure surety or appeal
bonds to which the Company or any Restricted Subsidiary is a party, (ii)
imposed by law dealing with materialmen's, mechanics', workmen's
repairmen's, warehousemen's, landlords', vendors' or carriers' Liens
created by law, or deposits or pledges which are not yet due or, if due,
the validity of which is being contested in good faith by the Company or
any Restricted Subsidiaries by appropriate proceedings promptly instituted
and diligently conducted and against which the Company has established
appropriate reserves in accordance with GAAP and (ii) rights of financial
institutions to setoff and chargeback arising by operation of law; and (iv)
similar Liens;
(d) servitudes, licenses, easements, encumbrances, restrictions,
rights-of-way and rights in the nature of easements or similar charges
which shall not in the aggregate materially adversely impair the use of the
subject property by the Company or a Restricted Subsidiary;
(e) zoning and building by-laws and ordinances, municipal bylaws and
regulations, and restrictive covenants, which do not materially interfere
with the use of the subject property by the Company or a Restricted
Subsidiary as such property is used as of the Issue Date; and
(f) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements), as a whole
or in part, of any of the Liens referred to in clauses (a) through (e) of
this definition or the Indebtedness secured thereby; provided that (i) such
extension, renewal, substitution or replacement Lien is limited to that
portion of the property or assets, now owned or hereafter acquired, that
secured the Lien prior to such extension, renewal, substitution or
replacement Lien and (ii) the Indebtedness secured by such Lien (assuming
all available amounts were borrowed) at such time is not increased.
"Person" means any individual, corporation, partnership, limited
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
-21-
"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 hereof 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.
"Preferred Stock," as applied to the Equity Interests of any
corporation, means stock of any class or classes (however designated) which is
preferred over shares of stock of any other class of such corporation as to the
distribution of assets on any voluntary or involuntary liquidation or
dissolution of such corporation or as to dividends.
"Prior Notes" means the 10% Senior Notes Due 2003 of the Company,
issued pursuant to an indenture, dated December 5, 1996, among the Company, the
guarantors thereto and First Union National Bank.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth in the first paragraph of Section 202 hereof.
"Public Equity Offering" means an underwritten public offering of
newly issued shares of common stock of the Company pursuant to an effective
registration statement under the Securities Act, on a primary basis (whether
alone or in conjunction with any secondary public offering).
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redeemable Stock" means any Equity Interest that by its terms or
otherwise (i) is required to be redeemed prior to the maturity of the
Securities, (ii) matures or is redeemable, in whole or in part, at the option of
the Company, any Subsidiary or the holder thereof or pursuant to a mandatory
sinking fund at any time prior to the maturity of the Securities, or (iii) is
convertible into or exchangeable for debt securities which provide for any
scheduled payment of principal prior to the maturity of the Securities at the
option of the issuer at any time prior to the maturity of the Securities, until
the right to so convert or exchange is irrevocably relinquished.
"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.
-22-
"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 Exchange and Registration
Rights Agreement dated as of October 15, 1997, by and among the Company, the
Guarantors and Bear, ▇▇▇▇▇▇▇ & Co. Inc., NatWest Capital Markets Limited and BT
Alex. ▇▇▇▇▇ Incorporated, as the same may be modified and supplemented and in
effect from time to time.
"Registration Statement" means a Registration Statement as defined and
described in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 15 and November 15 (whether or not a Business Day) next
preceding such Interest Payment Date.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Security" means the global security in the form
set forth in Article Two hereof bearing the Global Security Legend and the
Private Placement Legend guaranteed by the Guarantors and deposited with or on
behalf of and registered in the name of the Depository or its nominee, issued in
a denomination equal to the outstanding principal amount of the Securities
initially sold in reliance on Rule 903 of Regulation S.
"Resale Restriction Termination Date" means the date which is two
years after the later of the date of original issue of the Securities and the
last date on which the Company or any Affiliate of the Company was the owner of
such Securities (or any predecessor thereto).
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office or the agent of the Trustee
appointed hereunder, including any vice president, assistant vice president,
assistant secretary, or any other officer or assistant officer of the Trustee or
the 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 Global Security" means a Global Security bearing the
Private Placement Legend and guaranteed by the Guarantors.
"Restricted Investment" means any Investment other than a Permitted
Investment.
-23-
"Restricted Period" means the 40-day restricted period, within the
meaning of Regulation S, commencing on the Issue Date.
"Restricted Physical Security" means a Physical Security bearing the
Private Placement Legend and guaranteed by the Guarantors.
"Restricted Subsidiary" means (i) any Guarantor, (ii) any Subsidiary
of the Company in existence on the date hereof to which any line of business or
division (and the assets associated therewith) of any Guarantor are transferred
after the Issue Date, (iii) any Subsidiary of the Company organized or acquired
after the Issue Date, unless such Subsidiary has been designated as an
Unrestricted Subsidiary by a resolution of the Board of Directors as provided in
the definition of "Unrestricted Subsidiary" and (iv) any Unrestricted Subsidiary
which is designated as a Restricted Subsidiary by the Board of Directors;
provided, that, immediately after giving effect to any such designation (A) no
-------- ----
Default of Event of Default has occurred and is continuing and (B) in the case
of any designation referred to in clause (iii) or (iv) hereof, the Company could
incur at least $1.00 of Indebtedness pursuant to the covenant described in the
initial paragraph under Section 1008 hereof, on a pro forma basis taking into
account such designation. The Company shall evidence any such designation to
the Trustee by promptly filing with the Trustee an officer's certificate
certifying that such designation has been made and complies with the
requirements of the immediately preceding sentence. Notwithstanding any
provision of this Indenture to the contrary, each Guarantor shall be a
Restricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"S&P" means Standard & Poor's Ratings Group or any successor rating
agency.
"Sale and Leaseback Transaction" with respect to any Person, means any
arrangement with another Person for the leasing of any real or tangible personal
property, which property has been or is to be sold or transferred by such Person
to such other Person in contemplation of such leasing.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are
-24-
authenticated and delivered under this Indenture. For all purposes of this
Indenture, the term "Securities" shall include any Exchange Notes to be issued
and exchanged for any Initial Securities pursuant to the Registration Rights
Agreement and this Indenture and, for purposes of this Indenture, all Initial
Securities and Exchange Notes shall vote together as one series of securities
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305 hereof.
"Senior Indebtedness" means Indebtedness of any Person which is not
Subordinated Indebtedness.
"Shelf Registration Statement" means any registration statement filed
by the Company and the Guarantors with the Commission pursuant to the
Registration Rights Agreement, other than an Exchange Offer Registration
Statement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 309 hereof.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon, means the date specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest is due and payable.
"StyroChem Europe Acquisition" means the acquisition by the Company or
Affiliates of the Company of the polystyrene production and conversion
operations of Neste Oy, pursuant to a Sale of Assets Agreement dated as of
September 17, 1997 among the Company, certain of its Foreign Subsidiaries and
the sellers named therein.
"Subordinated Indebtedness" means Indebtedness of the Company, any
Guarantor or any other Person which expressly provides that such Indebtedness is
junior or subordinated in right of payment to the Securities or any Guarantee,
as the case may be.
"Subsidiary" means, with respect to the Company, (i) any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors, under ordinary circumstances,
is at the time owned, directly or indirectly, by the Company, by the Company and
one or more of its Subsidiaries or by one or more of the Company's Subsidiaries
or (ii) any other Person or entity of
-25-
which at least a majority of voting interest, under ordinary circumstances, is
at the time owned, directly or indirectly, by the Company, by the Company and
one or more of its Subsidiaries or by one or more of the Company's Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means the Person named as the "trustee" in the first
paragraph of this instrument, until a successor trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor trustee.
"Unrestricted Global Security" means a permanent global security as
set forth in Article Two hereof attached hereto that bears the Global Security
Legend and that has the "Schedule of Exchanges of Interests in the Global
Security" attached thereto, and that are guaranteed by the Guarantors and is
deposited with or on behalf of and registered in the name of the Depositary,
representing a series of Physical Securities that do not bear the Private
Placement Legend.
"Unrestricted Physical Security" means one or more Physical Securities
that are guaranteed by the Guarantors and do not bear and are not required to
bear the Private Placement Legend.
"Unrestricted Subsidiary" means, until such time as it may be
designated as a Restricted Subsidiary by the Board of Directors as provided in
and in compliance with the definition of "Restricted Subsidiary," (i) any
Subsidiary of the Company organized or acquired after the Issue Date designated
as an Unrestricted Subsidiary by the Board of Directors in which all investments
by the Company or any Restricted Subsidiary are made only from funds available
for the making of Restricted Payments as described under Section 1006 hereof and
(ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may
designate any Subsidiary of the Company (including any newly acquired or newly
formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Equity Interests of, or owns, or holds any Lien upon, any property of, any
Subsidiary of the Company which is not a Subsidiary of such Subsidiary to be so
designated; provided that each Subsidiary to be so designated and each of its
Subsidiaries has not, at the time of designation, and does not thereafter,
directly or indirectly, incur any Indebtedness pursuant to which the lender has
recourse to any of the assets of the Company or any of its Restricted
Subsidiaries. The Company shall evidence any such designation by promptly filing
with the Trustee an officers' certificate certifying that such designation has
been made and complies with the requirements of the immediately preceding
sentence.
-26-
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the 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 payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clause (i) or (ii) above, are not callable or redeemable at the option of the
issuer thereof.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or Persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly-Owned Restricted Subsidiary" means a Restricted Subsidiary all
of the Capital Stock of which (other than Capital Stock constituting directors'
qualifying shares or shares required to be held by foreign nationals, in each
case to the extent mandated by applicable law) is owned by the Company or one or
more Wholly-Owned Restricted Subsidiaries or by the Company and one or more
Wholly-Owned Restricted Subsidiaries.
Section 102. Other Definitions.
-----------------
Defined in
Term Section
---- -----------
"Act" 105
"Adjusted Net Assets" 1309
"Agent Members" 306
"Asset Sale Offer" 1009
"Asset Sale Offer ▇▇▇▇▇▇" ▇▇▇▇
"Asset Sale Offer Period" 1109
"Asset Sale Purchase Date" 1109
"Asset Sale Purchase Price" 1009
"Change of Control Date" 1014
"Change of Control Offer" 1014
"Change of Control Payment Date" 1014
"Change of Control Purchase Price" 1014
"Commencement Date" 1109
"Computation Date" 1006
"Computation Period" 1006
"covenant defeasance" 403
"Defaulted Interest" 309
"Defeasance" 402
"Defeasance Redemption Date" 404
"Defeased Securities" 401
"Excess Proceeds" 1009
-27-
Defined in
Term Section
---- -----------
"Funding Guarantor" 1309
"Physical Securities" 201
"Global Securities" 201
"Registration Default" 203
"Required Filing Date" 704
"Refinancing" 101*
"Refinancing Indebtedness" 101*
"Restricted Payment" 1006
_________________
* See "Permitted Indebtedness", paragraph (k).
Section 103. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company or any Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company,
any Guarantor and any other obligor on the Securities shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenants compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with, an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with, except that, in
the case of any such application or request as to which the furnishing of such
documents, certificates and/or opinions is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every 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
opinion has read 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 opinion contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
-28-
(d) a statement as to whether, in the opinion of each such
individual, 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 or opinion of an officer of the Company, any Guarantor
or other obligor of 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 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 of the
Securities stating that the information with respect to such factual matters is
in the possession of the Company, any Guarantor or other obligor of the
Securities, unless such counsel knows 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.
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 otherwise expressly
-29-
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, if made in the manner provided in this Section. The
fact and date of the execution by any Person of any such instrument or writing
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient in accordance with such
reasonable rules as the Trustee may determine.
(b) The ownership of Securities shall be proved by the Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security or the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company or any Guarantor in reliance thereon, whether or not notation of
such action is made upon such Security.
(d) 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, 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 solicitation is completed.
In the absence of any such record date fixed by the Company,
regardless as to whether a solicitation of the Holders is occurring on behalf of
the Company or any Holder, the Trustee may, at its option, fix in advance a
record date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Trustee shall have no obligation to do so. Any such record date shall be a date
not more than 30 days prior to the first solicitation of Holders generally in
connection
-30-
therewith and no later than a date such 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 the record date.
Section 106. Notices, etc., to Trustee, the Company and any
----------------------------------------------
Subsidiary 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 of the Securities shall be sufficient for every purpose
hereunder if in writing (including telecopy, with respect to the Company or
any Subsidiary Guarantor only) and mailed, first-class postage prepaid,
telecopied, hand delivered, or delivered by recognized overnight courier,
to or with the Trustee at First Union National Bank, Broad & ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Attention: Corporate
Trust Administration or at any other address previously furnished in
writing to the Holders, the Company, any Guarantor or any other obligor of
the Securities by the Trustee; or
(b) the Company or any Guarantor shall be sufficient for every
purpose hereunder if in writing (including telecopy) and mailed, first-
class postage prepaid, telecopied, hand delivered, or delivered by
recognized overnight courier, to the Company or such Guarantor addressed to
it at Three ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Attention: Treasurer, telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ or at any other
address previously furnished in writing to the Trustee by the Company or
such Guarantor.
-31-
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 his
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 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.
-32-
Section 110. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company and the
Guarantors shall bind their successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or the 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 and the Securities and the Guarantees shall be governed
by, and construed in accordance with, the laws of the State of New York.
Section 114. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal 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
the Interest Payment Date, Redemption Date or at the Stated Maturity and no
interest shall accrue with respect to such payment for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, to the next succeeding Business Day.
Section 115. 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 116. Counterparts.
------------
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such
-33-
counterparts shall together constitute but one and the same instrument.
Section 117. Communication by Holders with Other 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. The Company, the Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of Trust Indenture Act Section 312(c).
Section 118. No Recourse Against Others.
--------------------------
A director, officer, employee or stockholder, as such, of the Company
or any of the Guarantors, shall not have any liability for any obligations of
the Company under the Securities or this Indenture, for any obligation of the
Guarantors under the Guarantees or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder shall waive and release all such liability. The waiver
and release shall be part of the consideration for the issue of the Securities.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities, the Guarantees and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by the Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange, any
organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. 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.
Securities offered and sold in reliance on Rule 144A, Regulation S or
sold to Institutional Accredited Investors as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act shall be issued initially in
the form of one or more permanent global securities substantially in the form
set forth in this Article (the "Global Securities") deposited with the Trustee,
as custodian for the Depositary, duly executed by
-34-
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Securities offered and sold other than as described in the preceding
paragraph shall be issued in the form of permanent certificated Securities in
registered form in substantially the form set forth in this Article (the
"Physical Securities").
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.
Section 202. Restrictive Legends.
-------------------
Each Global Security and Physical Security shall bear the following
legend on the face thereof until after the Resale Restriction Termination Date,
unless and until a Security is exchanged for an Exchange Note in connection with
an effective registration pursuant to the Registration Rights Agreement or
another effective registration and resale of the Securities occurs pursuant to
the Registration Rights Agreement:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR"), OR (C) IT IS A NON-U.S. PERSON THAT IS
OUTSIDE THE UNITED STATES, (2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT
WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS
SECURITY OR THE LAST DATE ON WHICH THIS SECURITY WAS HELD BY AN AFFILIATE OF THE
COMPANY, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE), (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE), (E) OUTSIDE THE UNITED STATES TO A
PERSON THAT IS NOT A U.S.
-35-
PERSON (AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT IN EACH OF
THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF SUCH
HOLDER'S PROPERTY OR THE PROPERTY OF SUCH ACCOUNT AT ALL TIMES BE WITHIN ITS
CONTROL AND TO COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS; AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF ANY CERTIFICATED SECURITY WITHIN TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THE SECURITY OR THE LAST DATE ON WHICH SUCH CERTIFICATED
SECURITY WAS HELD BY AN AFFILIATE OF THE COMPANY, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE OF SUCH CERTIFICATED SECURITY RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT SUCH CERTIFICATED SECURITY TO THE
TRUSTEE. IF ANY PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR APPLICABLE SECURITIES LAWS OF ANY
JURISDICTION. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
Each Global Security, whether or not an Exchange Note, shall also bear
the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO., OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 307 OF THE INDENTURE.
-36-
Section 203. Form of Face of Securities.
--------------------------
The form of the face of the Securities shall be substantially as
follows:
RADNOR HOLDINGS CORPORATION
___________________
10% SERIES B SENIOR NOTES DUE 2003
CUSIP/CINS No. __________ $___________
RADNOR HOLDINGS CORPORATION, a Delaware 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 December 1, 2003, at the office or agency of the Company referred to
below, and to pay interest thereon from the date of original issuance, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on June 1 and December 1 in each year, commencing
December 1, 1997 at the rate of 10% per annum (subject to adjustment as provided
below), in United States dollars, until the principal hereof is paid or duly
provided for.
[In the event that (i) the Exchange Offer Registration Statement is
not filed with the Commission on or prior to the 60th day after the Issue Date
or declared effective on or prior to the 120th day after the Issue Date, (ii)
the Exchange Offer is not consummated on or prior to the 150th day following the
Issue Date, (iii) the Shelf Registration Statement is not filed or declared
effective within the required time periods or (iv) any of the Registration
Statements required by the Registration Rights Agreement is declared effective
but thereafter ceases to be effective (except as specifically permitted therein)
for a period of 15 consecutive days without being succeeded immediately by any
additional Registration Statement filed and declared effective (each such event,
a "Registration Default"), the interest rate borne by the Securities will be
increased by 25 basis points per annum for the 90-day period following such
Registration Default. Such interest rate shall increase by an additional 25
basis points per annum at the beginning of each subsequent 90-day period
following such Registration Default, up to a maximum aggregate increase of 100
basis points per annum and, accordingly, the maximum interest rate on the
Securities may not exceed 11%. Upon (x) the filing or the effectiveness of the
Exchange Offer Registration Statement, (y) the consummation of the Exchange
Offer or (z) the filing or the effectiveness of the Shelf Registration
Statement, as the case may be, the interest rate borne by the Securities shall
be reduced from and including
-37-
the date on which any of the events specified in clauses (x), (y) or (z) above
occur by the amount of the related increase in the interest rate.
Notwithstanding the foregoing, the Issuers shall not be required to
pay such additional interest with respect to the Securities held by a Holder if
the applicable Registration Default arises from the failure of the Issuers to
file, or cause to become effective, a Shelf Registration Statement within the
specified time periods by reason of the failure of such Holder to provide such
information as (i) the Company may reasonably request, with reasonable prior
written notice, for use in the Shelf Registration Statement or any prospectus
included therein to the extent the Company reasonably determines that such
information is required to be included therein by applicable law, (ii) the
National Association of Securities Dealers, Inc. or the Commission may request
in connection with such Shelf Registration Statement or (iii) is required to
comply with the agreements of such Holder contained in the penultimate paragraph
of Section 5 of the Registration Rights Agreement to the extent compliance
thereof is necessary for the Shelf Registration Statement to be declared
effective.]/1/
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date shall, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 15 and November 15 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
Securities, to the extent lawful, shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of, premium, if any, and interest on this
Security shall be made at the office or agency of the Company maintained for
that purpose, in such coin or
____________________
/1/ To be included in each Security prior to expiration of the obligations of
the Company and the Guarantors under the Registration Rights Agreement.
-38-
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. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
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 Guarantees by each of the
Guarantors of the punctual payment when due of the Indenture Obligations made in
favor of the Trustee for the benefit of the Holders. Such Guarantees shall be
senior unsecured obligations of each Guarantor, and will rank pari passu in
right of payment with all other existing and future Senior Indebtedness of such
Guarantor and senior to all Subordinated Indebtedness of such Guarantor. Such
Guarantees will be effectively subordinated in right of payment to all existing
and future secured indebtedness of the Guarantors. Reference is hereby made to
Article Thirteen of the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations under the Guarantees of each 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, 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 and its
corporate seal to be affixed or reproduced hereon.
Dated: RADNOR HOLDINGS CORPORATION
By _______________________
President
Attest:
______________________________
Secretary
-39-
Section 204. Form of Reverse of Securities.
-----------------------------
The form of the reverse of the Securities shall be substantially as
follows:
This Security is one of a duly authorized issue of Securities of the
Company designated as its 10% Series B Senior Notes due 2003 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate principal amount to $60,000,000, which may be issued
under an indenture (herein called the "Indenture") dated as of October 15, 1997,
among the Company, the Guarantors and First Union National Bank, as trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Guarantors, the Trustee and the Holders of the Securities, and of the terms upon
which the Securities and the Guarantees are, and are to be, authenticated and
delivered.
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 or
noncompliance with certain conditions set forth therein.
The Securities shall be senior unsecured obligations of the Company,
and shall rank pari passu with all existing and future Senior Indebtedness of
the Company and senior to all Subordinated Indebtedness of the Company. The
Securities will be effectively subordinated in right of payment to all existing
and future secured indebtedness of the Company and the Company's subsidiaries.
The Securities shall not be redeemable at the option of the Company
prior to December 1, 2000. On or after that date, the Securities shall be
redeemable at the option of the Company, in whole or in part from time to time,
on not less than 30 nor more than 60 days' prior notice, mailed by first-class
mail to the Holders' registered addresses, in cash, in amounts of $1,000 or an
integral multiple of $1,000 at the following Redemption Prices (expressed as
percentages of the principal amount), if redeemed in the 12-month period
commencing December 1, of the years indicated below:
Year Redemption
---- ----------
2000 105.0000%
2001 102.5000%
2002 and thereafter 100.0000%
-40-
in each case together with accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on relevant record
dates to receive interest due on an Interest Payment Date). If less than all of
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata, by lot or by any other method the Trustee shall deem fair and
appropriate.
The Securities shall not be subject to, or entitled to the benefits
of, any sinking fund.
In addition, at any time on or prior to December 1, 1999, the Company,
at its option, may redeem up to $21,000,000 in aggregate principal amount of the
Securities at a redemption price of 110% of the principal amount thereof, plus
accrued interest, if any, to the Redemption Date, with the net proceeds of one
or more Public Equity Offerings by the Company; provided that at least
$39,000,000 aggregate principal amount of the Securities must remain outstanding
after such redemption. The Trustee shall select the Securities or portions
thereof to be redeemed pro rata, by lot or by any other method the Trustee shall
deem fair and appropriate.
Upon the occurrence of a Change of Control, each Holder may require
the Company to repurchase all or a portion of such Holder's Securities in an
amount of $1,000 or integral multiples of $1,000, at a purchase price in cash
equal to 101% of the principal amount thereof, together with accrued and unpaid
interest, if any, to the Change of Control Payment Date.
Under certain circumstances, in the event the Net Proceeds received by
the Company from one or more Asset Sales, which proceeds are not applied within
180 days subsequent to the consummation of the Asset Sale to repay permanently
any Senior Indebtedness then outstanding or to an investment in the Company or
in one or more Restricted Subsidiaries, equals or exceeds $5,000,000 the Company
shall be required to apply such proceeds to repurchase the Securities tendered
to the Company for purchase at a price equal to at least 100% of the principal
amount thereof, plus accrued interest, if any, to the date of purchase pursuant
to an offer to purchase made by the Company with respect to the Securities.
In the case of any redemption or repurchase of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption or
Repurchase Date shall be payable to the Holders of such Securities of record as
of the close of business on the relevant record date referred to on the face
hereof. Securities (or portions thereof) for whose redemption or repurchase and
payment provision is made in accordance with the Indenture shall cease to bear
interest from and after the date of redemption or repurchase.
-41-
In the event of redemption of this Security 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 permits, with certain exceptions (including certain
amendments permitted without the consent of any 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 Guarantees at any time by the Company, the Guarantors and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company and the Guarantors with certain
provisions of the Indenture and the Guarantees and certain past Defaults under
the Indenture 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.
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 upon the Securities (in the event 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.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange or redemption of the Securities, but the
-42-
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to and at the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security is overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
[The Company and the Guarantors have entered into an Exchange and
Registration Rights Agreement dated as of October 15, 1997 (the "Registration
Rights Agreement") with the Initial Purchasers described therein. Pursuant to
the Registration Rights Agreement, the Company and the Guarantors have agreed,
among other things, for the benefit of the Holders that they shall, at their
expense, (i) file with the Commission on or prior to 60 days from the Issue Date
an Exchange Offer Registration Statement with the Commission with respect to a
registered offer to exchange this Security for an Exchange Note, (ii) use their
best efforts to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act by the 120th day after the Issue Date and
(iii) cause the Exchange Offer to be consummated by the 150th day after the
Issue Date.
Reference is hereby made to the Registration Rights Agreement for a
statement of the respective rights, duties and obligations thereunder of the
Company, the Guarantors and the Holders of the Securities.]/2/
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.
[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
_____________________
/2/ To be included in each Security prior to expiration of the obligations of
the Company and the Guarantors under the Registration Rights Agreement.
-43-
________________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________________________________
attorney to transfer said Security on the books of the Company with full power
of substitution in the premises.
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.
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 1014 or 1109 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 1014 or 1109 of the Indenture, state the amount (in
authorized denominations):
$__________.
Date: ______________
Your Signature: ______________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: ________________
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The form of Trustee's Certificate of Authority shall be set forth on
the Securities substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
-44-
FIRST UNION NATIONAL BANK
As Trustee
By_________________________________
Authorized Signatory
Section 206. Form of Schedule of Exchanges in the Global Securities.
------------------------------------------------------
Each Global Security, whether or not an Exchange Note, shall also
include the following schedule on the reverse thereof:
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Physical Security, or exchanges of
a part of another Global Security or Physical Security for an interest in this
Global Security, have been made:
Principal Amount
Amount of decrease in Amount of increase in of this Global Security Signature of
Principal Amount of Principal Amount of following such decrease authorized officer of
Date of Exchange this Global Security this Global Security (or increase) Trustee or Custodian
------------------ --------------------- --------------------- ------------------------ ---------------------
Section 207. Form of Guarantee of Each of the Guarantors.
-------------------------------------------
The form of Guarantee shall be set forth on the Securities
substantially as follows:
GUARANTEES
For value received, each of the undersigned hereby unconditionally
guarantees, jointly and severally, to the Holder of this Security the payment of
principal of, premium, if any, and interest on this Security in the amounts and
at the time when due and interest on the overdue principal 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 Thirteen of the Indenture.
This Guarantee shall not become effective until the Trustee duly
-45-
manually executes the certificate of authentication on this Security.
WINCUP HOLDINGS, INC.
Attest_________________________ By____________________________
Name: Name:
Title: Title:
SP ACQUISITION CO.
Attest________________________ By____________________________
Name: Name:
Title: Title:
STYROCHEM INTERNATIONAL, INC.
Attest________________________ By____________________________
Name: Name:
Title: Title:
RADNOR MANAGEMENT, INC.
Attest________________________ By____________________________
Name: Name:
Title: 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 $60,000,000 in
principal amount of Securities plus any Exchange Securities which may be issued
upon consummation of an Exchange Offer, 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, 1009,
1014 or 1108 hereof.
The Securities shall be known and designated as the "10% Series B
Senior Notes due 2003" of the Company. The Stated Maturity of the principal
amount of the Securities shall be December 1, 2003, and the Securities shall
each bear interest at the rate of 10% from the Issue Date or from the most
recent Interest Payment Date to which interest has been paid, as the case may
be, payable on December 1, 1997 and semiannually thereafter on June 1 and
December 1, in each year, until the
-46-
principal thereof is paid or duly provided for. If a Registration Default shall
occur, the interest rate borne by the Securities shall be increased by 25 basis
points per annum at the beginning of each 90-day period commencing at the date
of any such Registration Default, up to a maximum aggregate increase of 100
basis points per annum and, accordingly, the maximum interest rate on the
Securities may not exceed 11%. Upon (x) the filing or the effectiveness of the
Exchange Offer Registration Statement, (y) the consummation of the Exchange
Offer or (z) the filing or the effectiveness of the Shelf Registration
Statement, as the case may be, the interest rate borne by the Securities shall
be reduced from and including the date on which any of the events specified in
clauses (x), (y) or (z) above occur by the amount of the related increase in the
interest rate set forth above. Notwithstanding the foregoing, the Issuers shall
not be required to pay such additional interest with respect to the Securities
held by a Holder if the applicable Registration Default arises from the failure
of the Issuers to file, or cause to become effective, a Shelf Registration
Statement within the specified time periods by reason of the failure of such
Holder to provide such information as (i) the Company may reasonably request,
with reasonable prior written notice, for use in the Shelf Registration
Statement or any prospectus included therein to the extent the Company
reasonably determines that such information is required to be included therein
by applicable law, (ii) the National Association of Securities Dealers, Inc. or
the Commission may request in connection with such Shelf Registration Statement
or (iii) is required to comply with the agreements of such Holder contained in
the penultimate paragraph of Section 5 of the Registration Rights Agreement to
the extent compliance thereof is necessary for the Shelf Registration Statement
to be declared effective.
The principal and interest on any Global Security shall be payable to
the Depositary or its nominee, as the case may be, as the sole registered owner
and the sole Holder of such Global Security represented thereby. The principal
of, premium, if any, and interest on the Securities shall be payable at the
office or agency of the Company maintained for such purpose; provided, however,
-------- -------
that at the option of the Company interest may be paid by check mailed to
addresses of the Persons entitled thereto as such addresses shall appear on the
Security Register.
The Securities shall be redeemable as provided in Article Eleven.
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.
-47-
Section 302. Denominations.
-------------
The Securities shall be issuable only in 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 or one of its Vice Presidents under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries.
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 on 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 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.
Upon a Company Order, the Trustee shall authenticate and deliver an
additional series of notes in an aggregate principal amount not to exceed
$60,000,000 for issuance in exchange for all or a portion of the Initial
Securities previously issued and surrendered for cancellation pursuant to an
exchange offer registered under the Securities Act, in accordance with the
Registration Rights Agreement. The Exchange Notes may have such distinctive
series designation and such changes in the form thereof as are specified in the
Company Order referred to in the preceding sentence, and shall be guaranteed by
the Guarantors on substantially identical terms as the Initial Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence,
-48-
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
In case the Company or any Guarantor, pursuant to Article Eight, shall
be consolidated, merged with or into any other Person or shall sell, assign,
convey, transfer or lease 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 Person which shall have received a sale, assignment, conveyance, transfer
or lease 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 or lease 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 Company 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 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.
The Trustee (at the expense of the Company) 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
-49-
determine, as conclusively evidenced by their execution of such Securities.
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 hereof, 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 of Transfer and Exchange.
-------------------------------------
All provisions of this Section 305 shall be subject to Section 307
hereof.
The Company shall cause to be kept 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 and in any other office or agency designated
pursuant to Section 1002 hereof 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 or an agent thereof
or of the Company shall initially be the "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002 hereof, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denomination or denominations, of a like
aggregate principal amount.
Any Holder of a 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 the Security shall be required to be reflected in a book entry.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or
-50-
denominations (including an exchange of Initial Securities for Exchange Notes),
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, the Securities of the same series which the Holder making the exchange
is entitled to receive; provided that no exchanges of Initial Securities for
Exchange Notes shall occur until a Registration Statement shall have been
declared effective by the Commission and that any Initial Securities that are
exchanged for Exchange Notes shall be canceled by the Trustee.
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 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 or exchange or redemption of Securities, but the Company may require
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 connection
with any registration of transfer or exchange of Securities, other than
exchanges of Initial Securities for Exchange Notes and exchanges pursuant to
Section 303, 304, 305, 306, 307, 308, 906, 1009, 1014 or 1108 hereof 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
(i) 15 days before the date of selection of Securities for redemption under
Section 1104 hereof and ending at the close of business on the day of such
mailing or (ii) 15 days before an Interest Payment Date and ending on the close
of business on the Interest Payment Date, 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.
-51-
Section 306. Book-Entry Provisions for Global Securities.
-------------------------------------------
All provisions of this Section 306 shall be subject to Section 307
hereof.
(a) The Global Securities initially shall (i) be registered in the
name of the Depositary for such Global Security or the nominee of such
Depositary, (ii) be delivered to the Trustee as custodian for such Depositary
and (iii) bear legends as set forth in Section 202 hereof.
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 the
Global Security, and the Depositary may be treated by the Company, 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 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 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) Transfers of the Global Securities shall be limited to transfers
of such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in the
Global Security may be transferred in accordance with the rules and procedures
of the Depositary, the Applicable Procedures and the provisions of Section 307
hereof. Beneficial owners may obtain Physical Securities in exchange for their
beneficial interests in a Global Security upon request in accordance with the
Depositary's and the Registrar's procedures. In addition, Physical Securities
shall be transferred to all beneficial owners in exchange for their beneficial
interests in a Global Security if (i) the Depositary notifies the Company in
writing that it is unwilling or unable to continue as Depositary for the Global
Securities or ceases to be a "clearing agency" registered under the Exchange Act
and a successor depositary is not appointed by the Company within 90 days of
such notice or (ii) the Company, at its option, notifies the Trustee in writing
that it elects to cause the issuance of Securities in the form of Physical
Securities.
(c) In connection with any transfer of a portion of the beneficial
interest in a Global Security to beneficial owners of such Global Security
pursuant to Subsection (b) of this Section, the Security Registrar shall reflect
on its books and records the date and a decrease in the principal amount of the
Global Security in an amount equal to the principal amount of the
-52-
beneficial interest in the Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to Subsection (b) of this Section, the Global
Security shall be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Security, an equal aggregate principal amount of Physical
Securities of authorized denominations.
(e) Any Physical Security delivered in exchange for an interest in a
Global Security pursuant to Subsection (b) or Subsection (c) of this Section
shall, except as otherwise provided by Subsection (a)(i)(x) and Subsection (d)
of Section 307 hereof, bear the applicable legend regarding transfer
restrictions applicable to the Physical Security set forth in Section 202
hereof.
(f) The registered Holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 307. Special Transfer Provisions.
---------------------------
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Global
Securities that are held by the Agent Members through Euroclear or Cedel Bank.
(a) Unless and until an Initial Security is exchanged for an Exchange
Note in connection with an effective Exchange Offer Registration Statement or a
Shelf Registration Statement is declared effective with respect to such Initial
Securities and an Initial Security is sold pursuant to the plan of distribution
thereunder, the following provisions shall apply:
(i) Transfer of Beneficial Interests in the Same Global Security.
------------------------------------------------------------
Beneficial interest in any Restricted Global Security may be transferred to
persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Security in accordance with the transfer
restrictions in the legend set forth in Section 202 hereof; provided,
--------
however, that prior to the expiration of
-------
-53-
the Restricted Period transfers of beneficial interests in the Regulation S
Global Security may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Security may be transferred only to
persons who take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Security. No written orders or instruction shall be
required to be delivered to the Registrar to effect the transfers described
in this Section 307(a)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
------------------------------------------------------------
Global Securities. In connection with all transfers and exchanges of
-----------------
beneficial interests (other than a transfer of a beneficial interest in a
Global Security to a person who takes delivery thereof in the form of a
beneficial interest in the same Global Security), the transferor of such
beneficial interest must deliver to the Registrar either (A)(1) a written
order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Security in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B)(1) a written order from a Participant or
an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Physical Security in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to
the Registrar containing information regarding the person in whose name
such Physical Security shall be registered to effect the transfer or
exchange referred to in (1) above. Upon an Exchange Offer by the Company
in accordance with Section 307(c) hereof, the requirements of this Section
307(a)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Securities. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Securities contained
in this Indenture and the Securities and otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Security or Securities pursuant to Section 307(f) hereof.
(iii) Transfer of Beneficial Interests in a Restricted Global
-------------------------------------------------------
Security to Another Restricted Global Security. A beneficial interest in
----------------------------------------------
any Restricted Global Security may be
-54-
transferred to a person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Security if the transfer
complies with the requirements of clause (ii) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Security, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (i) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Security, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Security, then the transferor
must deliver (x) a certificate in the form of Exhibit B hereto,
including the certifications and certificates and an Opinion of
Counsel required by item (3) thereof, if applicable and (y) a
certificate from the transferee in the form of Exhibit A hereto.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
-------------------------------------------------------------
Global Security for Beneficial Interests in the Unrestricted Global
-------------------------------------------------------------------
Security. A beneficial interest in any Restricted Global Security may be
--------
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Security or transferred to a person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Security if the exchange or transfer complies with the requirements of
clause (ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a person participating in the distribution of the
Exchange Notes or (3) a person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange
-55-
Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Security proposed to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global Security,
a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof;
(2) if the holder of such beneficial interest in a
Restricted Global Security proposes to transfer such beneficial
interest to a person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security, a certificate
from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and
(3) in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and such beneficial
interest in a Restricted Global Security is being exchanged or
transferred in compliance with any applicable blue sky securities laws
of any State of the United States.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an authentication
order in accordance with Section 303 hereof, the Trustee shall authenticate
one or more Unrestricted Global Securities in an aggregate principal amount
equal to the principal amount of beneficial interests transferred pursuant
to subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Security cannot be
exchanged for, or transferred to persons who take delivery thereof in the
form of, a beneficial interest in a Restricted Global Security.
(b) Transfer or Exchange of Beneficial Interests for Physical
Securities.
-56-
(i) If any holder of a beneficial interest in a Restricted Global
Security proposes to exchange such beneficial interest for a Physical
Security or to transfer such beneficial interest to a person who takes
delivery thereof in the form of a Physical Security, then, upon receipt by
the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Security proposes to exchange such beneficial interest for a
Physical Security, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-
U.S. person in an offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable, and a certificate from the transferee to the effect set
forth in Exhibit A hereto;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
-57-
(G) if such beneficial interest is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Security to be reduced accordingly pursuant to Section 307(f)
hereof, and the Company shall execute and the Trustee shall authenticate
and deliver to the person designated in the instructions a Physical
Security in the appropriate principal amount. Any Physical Security issued
in exchange for a beneficial interest in a Restricted Global Security
pursuant to this Section 307(b)(i) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of
such beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Physical Securities to the persons in whose
names such Securities are so registered. Any Physical Security issued in
exchange for a beneficial interest in a Registered Global Security pursuant
to this Section 307(b)(i) shall bear the Private Placement Legend and shall
be subject to all restrictions on transfer contained therein.
(ii) Notwithstanding 307(b)(i) hereof, a holder of a beneficial
interest in a Restricted Global Security may exchange such beneficial
interest for an Unrestricted Physical Security or may transfer such
beneficial interest to a person who takes delivery thereof in the form of
an Unrestricted Physical Security only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a person participating in the distribution of the
Exchange Notes or (3) a person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
-58-
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such beneficial
interest for a Physical Security that does not bear the Private
Placement Legend, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(b) thereof;
(2) if the holder of such beneficial interest in a
Restricted Global Security proposes to transfer such beneficial
interest to a person who shall take delivery thereof in the form of a
Physical Security that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form reasonably acceptable to the Company, to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and such beneficial
interest in a Restricted Global Security is being exchanged or
transferred in compliance with any applicable blue sky securities laws
of any State of the United States.
(iii) If any holder of a beneficial interest in an Unrestricted
Global Security proposes to exchange such beneficial interest for a
Physical Security or to transfer such beneficial interest to a person who
takes delivery thereof in the form of a Physical Security, then upon
satisfaction of the conditions set forth in Section 307(a)(ii) hereof, the
Trustee shall cause the aggregate principal amount of the applicable Global
Security to be reduced accordingly pursuant to Section 307(g) hereof, and
the Company shall execute and the Trustee shall authenticate and deliver to
the person designated in the instructions a Physical Security in the
appropriate principal amount. Any Physical Security issued in exchange for
a beneficial interest pursuant to this Section 307(b)(ii) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Physical Securities
to the persons in whose names such Securities are so registered. Any
Physical Security issued
-59-
in exchange for a beneficial interest pursuant to this Section 307(b)(ii)
shall not bear the Private Placement Legend. A beneficial interest in an
Unrestricted Global Security cannot be exchanged for a Physical Security
bearing the Private Placement Legend or transferred to a person who takes
delivery thereof in the form of a Physical Security bearing the Private
Placement Legend.
(c) Transfer and Exchange of Physical Securities for Beneficial
-----------------------------------------------------------
Interests.
---------
(i) If any Holder of a Restricted Physical Security proposes to
exchange such Security for a beneficial interest in a Restricted Global
Security or to transfer such Physical Securities to a person who takes
delivery thereof in the form of a beneficial interest in a Restricted
Global Security, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Physical Security proposes
to exchange such Security for a beneficial interest in a Restricted
Global Security, a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (2)(b) thereof;
(B) if such Physical Security is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such Physical Security is being transferred to a Non-U.S.
person in an offshore transaction in accordance with Rule 903 or Rule
904 under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Physical Security is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;
(E) if such Physical Security is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a
-60-
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable and a certificate from the transferee to
the effect set forth in Exhibit A hereto;
(F) if such Physical Security is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such Physical Security is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Physical Security, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Security, in the case of clause
(B) above, the 144A Global Security, in the case of clause (C) above, the
Regulation S Global Security, in the case of clause (D) above, the
appropriate Restricted Global Security, in the case of clause (E) above,
the IAI Global Security, in the case of clause (F) above,the Trustee shall
cancel the Physical security without a corresponding increase in any Global
Security and, in the case of clause (G) above, the Unrestricted Global
Security.
(ii) A Holder of a Restricted Physical Security may exchange such
Security for a beneficial interest in an Unrestricted Global Security or
transfer such Restricted Physical Security to a person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Security only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registrations Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, is not (1) a broker-dealer, (2) a person
participating in the distribution of the Exchange Notes or (3) a
person who is a affiliate (as defined in Rule 144) or the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
-61-
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Physical Securities proposes to
exchange such Securities for a beneficial interest in the Unrestricted
Global Security, a certificate from such Holder in the form of Exhibit
C hereto, including the certifications in item (1)(c) thereof;
(2) if the Holder of such Physical Securities proposes to
transfer such Securities to a person who shall take delivery thereof
in the form of a beneficial interest in the Unrestricted Global
Security, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof; and
(3) in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form reasonably acceptable to the Company to
the effect that such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer contained herein and
in the Private Placement Legend are not required in order to maintain
compliance with the Securities Act, and such Physical Securities are
being exchanged or transferred in compliance with any applicable blue
sky securities laws of any State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 307(c)(ii), the Trustee shall cancel the Physical Securities and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Security.
(iii) A Holder of an Unrestricted Physical Security may exchange such
Security for a beneficial interest in an Unrestricted Global Security or
transfer such Physical Securities to a person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Security at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Physical Security and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Securities.
-62-
If any such exchange or transfer from a Physical Security to a
beneficial interest in a Global Security is effected pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Security
has not yet been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 303 hereof, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of beneficial interests
transferred pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above.
(d) Transfer and Exchange of Physical Securities for Physical
---------------------------------------------------------
Securities. Upon request by a Holder of Physical Securities and such Holder's
----------
compliance with the provisions of this Section 307(d), the Registrar shall
register the transfer of exchange of Physical Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Physical Securities duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, pursuant to the provisions of this
Section 307(d).
(i) Restricted Physical Securities may be transferred to and
registered in the name of persons who take delivery thereof if the
Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver (x) a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable; and
(D) if the transfer is being made to an Institutional Accredited
Investor and effected pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144,
Rule
-63-
903 or Rule 904 under the Securities Act, a certificate from the
transferee in the form of Exhibit A hereto.
(ii) Any Restricted Physical Security may be exchanged by the Holder
thereof for an Unrestricted Physical Security or transferred to a person or
persons who take delivery thereof in the form of an Unrestricted Physical
Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, is not (1) a broker-dealer, (2) a person
participating in the distribution of the Exchange Notes or (3) a
person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating Broker-
Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Physical Securities
proposes to exchange such Securities for an Unrestricted Physical
Security, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
(2) if the Holder of such Restricted Physical Securities
proposes to transfer such Securities to a person who shall take
delivery thereof in the form of an Unrestricted Physical Security, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this subparagraph (D),
an Opinion of Counsel in form reasonably acceptable to the Company to
the effect that such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer contained herein and
in the Private Placement Legend are not required in order to maintain
compliance with the Securities Act, and such Restricted Physical
Security is being exchanged or transferred in
-64-
compliance with any applicable blue sky securities laws of any State
of the United States.
(iii) A Holder of Unrestricted Physical Securities may transfer such
Securities to a person who takes delivery thereof in the form of an
Unrestricted Physical Security. Upon receipt of a request for such a
transfer, the Registrar shall register the Unrestricted Physical Securities
pursuant to the instructions from the Holder thereof. Unrestricted
Physical Securities cannot be exchanged for or transferred to persons who
take delivery thereof in the form of a Restricted Physical Security.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer in
--------------
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an authentication order in accordance with Section 303 hereof,
the Trustee shall authenticate (i) one or more Unrestricted Global Securities in
an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Securities tendered for acceptance by persons
that are not (x) broker-dealers, (y) persons participating in the distribution
of the Exchange Notes or (z) persons who are affiliates (as defined in Rule 144)
of the Company and accepted for exchange in the Exchange Offer and (ii) Physical
Securities in an aggregate principal amount equal to the principal amount of the
Restricted Physical Securities accepted for exchange in the Exchange Offer.
Concurrent with the issuance of such Securities, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Securities to be
reduced accordingly, and the Company and the Guarantors shall execute and the
Trustee shall authenticate and deliver to the persons designated by the Holders
of Physical Securities so accepted Physical Securities in the appropriate
principal amount.
(f) Cancellation and/or Adjustment of Global Securities. At such
---------------------------------------------------
times as all beneficial interests in a particular Global Security have been
exchanged for Physical Securities or a particular Global Security has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Security shall be returned to or retained and canceled by the Trustee in
accordance with Section 311 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a person who will take delivery thereof in the form of a beneficial interest in
another Global Security or for Physical Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security, by the Trustee or by the
Depositary at the direction of the Trustee, to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a person who
will take delivery thereof in the form of a
-65-
beneficial interest in another Global Security, such other Global Security shall
be increased accordingly and an endorsement shall be made on such Global
Security, by the Trustee or by the Depositary at the direction of the Trustee,
to reflect such increase.
(g) Private Placement Legend. Any Security authenticated and issued
------------------------
hereunder shall not be required to bear the legend set forth in Section 202
hereof, if such Security shall be issued upon:
(i) the transfer or exchange of a Security and contemporaneously
therewith the Company shall have received an Opinion of Counsel, at its
expense, in form and substance reasonably satisfactory to the Company, to
the effect that such Security to be issued upon such transfer or exchange
may be so issued without such legend because (A) such Security is being
exchanged for an Exchange Note, (B) such Security shall have been
registered under the Securities Act, the registration statement in
connection therewith shall have been declared effective and such Security
shall have been disposed of pursuant to such effective registration
statement, or (C) the requested transfer is on or after the Resale
Restriction Termination Date and the Company shall have delivered to the
Trustee and the Security Registrar a copy of such Opinion of Counsel
together with an Officers' Certificate directing the Trustee and the
Security Registrar to deliver an unlegended Security in connection with
such transfer or exchange; such Officers' Certificate and Opinion of
Counsel shall be delivered by the Company as soon as practicable after its
receipt of a written request by a Holder for such a transfer or exchange;
or
(ii) the transfer or exchange of a Security not bearing such legend.
(h) General.
-------
(i) 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 shall transfer such Security only as
provided in this Indenture.
(ii) Prior to any transfer or exchange of a legended Security for
another legended Security, the Company shall have received an opinion of
counsel of the Holder (which may include in-house counsel of such Holder
experienced in matters of Federal securities law), at its expense, in form
and substance reasonably satisfactory to the Company to the effect that
such transfer does not require registration
-66-
under the Securities Act and the Company shall have delivered to the
Trustee and the Security Registrar a copy of such opinion of counsel of the
Holder together with an Officers' Certificate directing the Trustee and the
Security Registrar to transfer or exchange the legended Security for
another legended Security.
The Trustee and the Security Registrar shall forward copies of all
letters, notices and other written communications received pursuant to Section
306 hereof or this Section 307 to the Company for approval prior to any transfer
or exchange.
Notwithstanding anything to the contrary set forth herein, the Trustee
and the Security Registrar shall have no duty to monitor compliance with any
Federal, state or other securities laws.
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, each 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 its written 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.
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 thereof and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security 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 the Guarantors, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and
-67-
shall be entitled to all benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 309. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the then applicable interest rate borne by the Securities,
to the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the Regular Record Date; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in Subsection (a) or
(b) below:
(a) the Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date (not less than 30 days after such
notice) of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
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 proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company in
writing of such Special Record Date. In the name and at the expense of the
Company, the Trustee shall cause notice of
-68-
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities 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 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, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security (including any Exchange Security issued in
exchange for an Initial Security) shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 310. Persons Deemed Owners.
---------------------
The Company, any Guarantor, the Trustee and any agent of the Company
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 hereof) interest on such Security
and for all other purposes 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 311. 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, except as expressly permitted by this Indenture.
-69-
All canceled Securities held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company. 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 312. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 313. Deposit of Moneys.
-----------------
Prior to 10:00 a.m., New York City time, on each Interest Payment Date
and at Maturity, the Company shall have deposited with the Trustee or a Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date or at Maturity, as the case may be, in a
timely manner which permits the Trustee or such Paying Agent to remit payment to
the Holders on such Interest Payment Date or at Maturity, as the case may be.
Section 314. CUSIP Number.
------------
The Company in issuing the Securities shall use a "CUSIP" or CINS
number(s), as applicable, and, the Trustee shall use the CUSIP or CINS number(s)
in notices of redemption or exchange as a convenience to Holders, provided that
any such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP or CINS number(s) printed in the notice or on the
Securities and that reliance may be placed on the other identification numbers
printed on the Securities.
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
hereof 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.
------------------------
Upon the Company's exercise under Section 401 hereof of the option
applicable to this Section 402, the Company, each of the Guarantors and any
other obligor upon the Securities, if any,
-70-
shall be deemed to have been discharged from its obligations with respect to the
Defeased Securities on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the Defeased Securities, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 405 hereof and the other Section
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 written 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 hereof 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 1018 hereof, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder including, without limitation,
the Trustee's rights under Section 606 hereof and the Company's obligations in
connection therewith, 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 hereof with
respect to the Securities.
Section 403. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 401 hereof 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 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1014, 1015, 1016,
1019 and 1020 hereof with respect to the Defeased Securities on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Defeased Securities shall thereafter be deemed 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 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 or Article, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or Article or by
reason of any reference in any such Section or Article to any other provision
herein or in any other document and such omission to
-71-
comply shall not constitute a Default or an Event of Default under Section
501(3) or (4) hereof 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 hereof to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 608 hereof who shall agree to comply with the provisions of this
Article Four applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (a)
United States dollars in an amount, or (b) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms shall provide, not later than one
day before the due date of any payment, money in an amount, or (c) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants 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 (or other qualifying 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 installment of principal or
interest (such date being referred to as the "Defeasance Redemption Date"),
if when exercising under Section 401 hereof either its option applicable to
Section 402 hereof or its option applicable to Section 403 hereof, the
Company shall have delivered to the Trustee an irrevocable notice to redeem
all of the Outstanding Securities on the Defeasance Redemption Date);
provided that the Trustee shall have been irrevocably instructed to apply
such United States dollars or the proceeds of such U.S. Government
Obligations to said payments with respect to the Securities.
(2) In the case of an election under Section 402 hereof, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in
the United States of America stating that (A) the Company has received from
the Internal Revenue Service a ruling or (B) since the Issue Date, there
has been a change in the applicable federal income tax law, including by
means of a Revenue Ruling published by the Internal Revenue Service, in
either case to
-72-
the effect that, and based thereon such Opinion of Independent Counsel in
the United States of America 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 hereof, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in
the United States of America 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 Subsection 501(10) or
(11) hereof is concerned, at any time during the period ending on the 91st
day after the date of deposit.
(5) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a Default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any Guarantor is a party or by which it is bound.
(6) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel to the effect that (A) the trust funds will not be
subject to any rights of holders of Senior Indebtedness of the Company or
of any Guarantor and (B) 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.
(7) 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.
(8) 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
-73-
relating to either the defeasance under Section 402 hereof or the covenant
defeasance under Section 403 hereof (as the case may be) have been complied
with as contemplated by this Section 404.
Opinions of Counsel or Opinions of Independent Counsel required to be delivered
under this Section may have qualifications customary for opinions of the type
required and counsel delivering such opinions 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.
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 1018
hereof, all United States dollars and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee--
collectively for purposes of this Section 405, the "Trustee") pursuant to
Section 404 hereof 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
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal, 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 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the 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 hereof 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.
-74-
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
hereof, 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 and each Guarantor's obligations under this
Indenture and the Securities (including, without limitation, the provisions of
Article Thirteen hereof) shall be revived and reinstated as though no deposit
had occurred pursuant to Section 402 or 403 hereof, 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 hereof, 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 money held by the Trustee or
Paying Agent.
Section 407. Repayment of the Company.
------------------------
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 be
paid to the Company on its written 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, 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), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than thirty (30) days from the date of such notification or publication,
any unclaimed balance of such money then remaining shall promptly be repaid to
the Company.
-75-
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
-----------------
An "Event of Default" shall occur if:
(1) there shall be a default in the payment of interest on any
Security when the same becomes due and payable and the Default continues
for a period of thirty (30) days;
(2) there shall be a default in the payment of the principal of, or
premium with respect to, any Security when the same becomes due and
payable, at maturity, upon redemption, in connection with a Change of
Control, an Asset Sale or otherwise;
(3) the Company or any Guarantor fails to observe or perform any
covenant, condition or agreement on the part of the Company or such
Guarantor to be observed or performed pursuant to Article Eight hereof;
(4) the Company or any Guarantor fails to observe or perform any
covenant, condition or agreement on the part of the Company or such
Guarantor to be observed or performed pursuant to Section 1006, 1008, 1009,
1010, 1012, 1014, 1019 or 1020 hereof and such failure continues for the
period and after the notice specified below;
(5) the Company or any Guarantor fails to observe or perform any
other covenant, condition or agreement in this Indenture or the Securities
and such failure continues for the period and after the notice specified
below;
(6) the Company denies or disaffirms its obligations under this
Indenture or the Securities;
(7) a Guarantor denies or disaffirms its obligations under its
Guarantee, or any Guarantee for any reason ceases to be, or is 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;
(8) a default occurs under any Indebtedness of the Company or any of
its Subsidiaries (other than the Securities or the Guarantees), whether
such Indebtedness now exists or is created after the Closing Date if either
(A) such default results from the failure to pay the final scheduled
principal installment in respect of any such
-76-
Indebtedness on the stated maturity date thereof (after giving effect to
any grace period) or (B) as a result of such default, the maturity of such
Indebtedness has been accelerated prior to its express maturity and, in
each case, the principal amount of such Indebtedness, together with the
principal amount of all other Indebtedness with respect to which the
principal amount remains unpaid at its final maturity (after giving effect
to any grace period in respect of such final scheduled principal
installment) or the maturity of which has been so accelerated, aggregates
$5,000,000 or more;
(9) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company
or any of its Restricted Subsidiaries and such judgment or judgments remain
undischarged, unbonded or unstayed for a period of sixty (60) days,
provided that the aggregate of all such judgments (other than any judgment
as to which and only to the extent, a reputable insurance company has
acknowledged coverage of such claim in writing) exceeds $5,000,000;
(10) the Company, any Guarantor or any other Restricted Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in
an involuntary case in which it is a debtor,
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(d) makes a general assignment for the benefit of its creditors,
or
(e) admits in writing its inability to pay debts as the same
become due; or
(11) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company, any Guarantor or any other
Restricted Subsidiary in an involuntary case in which it is a debtor,
(b) appoints a Custodian of the Company, any Guarantor or any
other Restricted Subsidiary or for all or substantially all of their
property,
-77-
(c) orders the liquidation of the Company, any Guarantor or any
other Restricted Subsidiary,
and the order or decree remains unstayed and in effect for sixty (60) days.
The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
A Default under clauses (4) or (5) is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the Securities then Outstanding notify the Company and the Trustee, of
the Default and the Company does not cure the Default within (i) in the case of
a Default under clause (4), thirty (30) days after receipt of such notice and
(ii) in the case of clause (5), sixty (60) days after receipt of such notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default."
The failure to make any payment on the Securities when due shall,
after the expiration date of any applicable grace period, constitute an Event of
Default under this Indenture.
Section 502. Acceleration.
------------
If an Event of Default (other than an Event of Default specified in
clauses (10) and (11) of Section 501 hereof) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in principal
amount of the Securities then Outstanding by written notice to the Company and
the Trustee, may declare the unpaid principal of and any accrued interest on all
the Securities to be due and payable. Upon such declaration the principal and
interest shall be due and payable immediately. If an Event of Default specified
in clause (10) or (11) of Section 501 hereof occurs, such an amount shall ipso
----
facto become and be immediately due and payable without any declaration or other
-----
act on the part of the Trustee or any Holder. The Holders of a majority (or, in
the case of the failure to make a Change of Control Offer pursuant to Section
1014 hereof, two-thirds) in principal amount of Securities then Outstanding by
written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and 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,
-78-
expenses, disbursements and advances of the Trustee, its agents and
counsel,
(ii) all overdue interest on all Securities,
(iii) the principal of and premium, if any, on any Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at a 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;
and
(b) all Events of Default, other than the non-payment of principal of
the Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 504 hereof.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon provided in Section 504 hereof.
Section 503. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy (under this Indenture or otherwise) to collect the
payment of principal, premium, if any, or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default.
No 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 504. Waiver of Past Defaults.
-----------------------
Holders of a majority (or, in the case of the failure by the Company
to make a Change of Control Offer pursuant to Section 1014 hereof, two-thirds)
in aggregate principal amount of the Securities then Outstanding by notice to
the Trustee may
-79-
waive an existing Default or Event of Default and its conse quences, except a
continuing Default or Event of Default in the payment of the principal of or
interest on any Security held by a non-consenting Holder. 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 505. Control by Majority.
-------------------
The Holders of a majority in principal amount of the Securities then
Outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders, or that may involve the Trustee in
personal liability.
Section 506. Limitation on Suits.
-------------------
A Holder may pursue a remedy with respect to this Indenture or the
Securities only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the Securities
then Outstanding make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within sixty (60)
days after receipt of the request and the offer and, if requested, the
provision of the indemnity; and
(5) during such sixty (60) day period the Holders of a majority in
principal amount of the Securities then Outstanding do not give the Trustee
a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
-80-
Section 507. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, but subject to
Article Thirteen the right of any Holder of a Security to receive payment of
principal, premium, if any, and interest on the Security, on or after the
respective due dates expressed in the Security (or, in the case of redemption or
repurchase, on the Redemption Date or repurchase date), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder, subject to Article
Thirteen.
Section 508. Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 501(1) or (2) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company or any Guarantor
for the whole amount of principal, premium, if any, and interest remaining
unpaid on the Securities and interest on overdue principal and, to the extent
lawful, premium and interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, subject to Article Thirteen.
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
or any Guarantor or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture or the Guarantees 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 505 hereof.
-81-
Section 509. Trustee May File Proofs of Claim.
--------------------------------
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company or any
Guarantor or any other obligor upon the Securities, their creditors or their
property and shall be entitled and empowered, subject to Article Thirteen, to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 606 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 606 hereof out of the estate in any such proceeding
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties which the Holders of the Securities may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. 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 510. Priorities.
----------
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 606 hereof, including payment of all compensation, expenses and
liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: subject to Article Thirteen, to Holders for amounts due and
unpaid on the Securities for principal, premium, if any, and interest
ratably, without preference or priority of any kind, according to the
amounts due and
-82-
payable on the Securities for principal, premium, if any, and interest,
respectively;
Third: subject to Article Thirteen, without duplication, to Holders
for any other Indenture Obligations owing to the Holders under this
Indenture or the Securities; and
Fourth: subject to Article Thirteen, to the Company or to such party
as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders.
Section 511. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 507 hereof or a suit by Holders of more than 10% in
principal amount of the Securities then Outstanding 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 or repurchase, on or
after the Redemption Date or repurchase date).
Section 512. Waiver of Stay, Extension or Usury Laws.
----------------------------------------
Each of the Company and any Guarantor covenants (to the extent that it
may lawfully do so) that it shall 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
any Guarantor (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it shall not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and
-83-
permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
------------------
Within ninety (90) days after the occurrence of any Default, the
Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, notice of such Default hereunder known to the
Trustee, unless such Default shall have been cured or waived; provided, however,
-------- -------
that, except in the case of a Default in the payment of the principal of,
premium, if any, or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.
Section 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of 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 any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of Indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) the Trustee may consult with counsel and any written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(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
-84-
the Trustee against the costs, expenses and liabilities which might be
incurred therein or thereby in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than
any liabilities arising out of the gross negligence 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 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, that 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;
(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; and
(h) 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.
-85-
Section 603. 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 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 a Statement of Eligibility on Form T-1, if any, supplied to the Company
are true and accurate subject to the qualifications set forth therein. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 604. 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 605. Money Held in Trust.
-------------------
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Except for funds or securities deposited with the
Trustee pursuant to Article Four, the Trustee may invest all moneys received by
the Trustee, until used or applied as herein provided, in Cash Equivalents in
accordance with the written directions of the Company. The Trustee shall not be
liable for any losses incurred in connection with any investments made in
accordance with Section 605 hereof, unless the Trustee acted with gross
negligence or in bad faith. With respect to any losses on investments made
under this Section 605, the Company is liable for the full extent of any such
loss.
-86-
Section 606. 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, subject to the terms of any written agreement
by the Trustee concerning the amount of its compensation (which 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 it 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 negligence or bad faith.
The Company also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability, tax, assessment or
other governmental charge (other than taxes applicable to the Trustee's
compensation hereunder) or expense incurred without gross negligence or bad
faith on such Trustee's part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and such
Trustee's duties hereunder, including enforcement of this Section 606 and also
including any liability which the Trustee may incur as a result of failure to
withhold, pay or report any tax, assessment or other governmental charge, and
the costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Company under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute an additional obligation hereunder and shall
survive the satisfaction and discharge of this Indenture, or the resignation or
removal of any Trustee.
To secure the Company's payment obligations in this Section 606, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(10) or 501(11) hereof the
expenses and the compensation for the services shall be preferred over the
status of Holders in any proceeding under any Bankruptcy Law and are intended to
constitute expenses of administration under any Bankruptcy Law.
-87-
Section 607. Conflicting Interests.
---------------------
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act.
Section 608. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act Section 310(a)(1) and which
shall have a combined capital and surplus of at least $50,000,000 or which shall
be a wholly owned subsidiary of a corporation that has a combined capital and
surplus of at least $50,000,000, to the extent there is an institution eligible
and willing to serve. If the Trustee does not have an office in The City of
Philadelphia, the Trustee may appoint an agent in The City of Philadelphia
reasonably acceptable to the Company to conduct any activities which the Trustee
may be required under this Indenture to conduct in The City of Philadelphia. If
the Trustee does not have an office in The City of Philadelphia or has not
appointed an agent in The City of Philadelphia, the Trustee shall be a
participant in the Depository Trust Company and FAST distribution systems. If
such corporation 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, 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, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article Six.
Section 609. 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 610 hereof.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice thereof to the Company. 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, 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 thirty (30) days
after the giving of such notice of resignation, the resigning Trustee may, or
any Holder who has been a bona fide Holder of a Security for at least
-88-
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper,
appoint a successor trustee.
(c) The Trustee may be removed at any time by an Act of the Holders
of 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, or
(2) the Trustee shall cease to be eligible under Section 608
hereof and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose 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 511 hereof, 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. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor trustee so
appointed shall, forthwith upon its
-89-
acceptance of such appointment, become the successor trustee and supersede the
successor trustee appointed by the Company. If no successor trustee shall have
been so appointed by the Company or the Holders of the Securities and accepted
appointment in the manner hereinafter provided, the Holder of any Security who
has been a bona fide Holder for at least six months may, subject to Section 511
hereof, 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 610. 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 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. Any Trustee ceasing to act shall, nevertheless, retain
a prior claim upon all property or funds held or collected by such Trustee or
such successor trustee to secure any amounts then due such Trustee pursuant to
the provisions of Section 606 hereof.
No successor trustee with respect to the Securities shall accept
appointment as provided in this Section 610 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 shall
have a combined capital and surplus of at least $50,000,000 or which shall be a
wholly owned subsidiary of a company that has a combined capital and surplus of
at least $50,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 608 hereof.
-90-
Upon acceptance of appointment by any successor trustee as provided in
this Section 610, 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 resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
609 hereof. If the Company fails to give such notice within ten (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 611. 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, shall be the successor of the Trustee hereunder,
provided 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 $50,000,000 or which shall be a wholly owned subsidiary of a company that
has a combined capital and surplus of at least $50,000,000 and have a Corporate
Trust Office or an agent selected in accordance with Section 608 hereof 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 predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
-91-
Section 612. 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.
Section 613. Certain Duties and Responsibilities.
-----------------------------------
(1) Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture, but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture but shall not be required to
verify the contents thereof.
(2) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.
-------
The Company shall furnish or cause to be furnished to the Trustee
(a) semiannually, not more than ten (10) days after each Regular
Record Date, a list, in such form as the
-92-
Trustee may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing, within
thirty (30) days after receipt by the Company of any such request, a list
of similar form and content as of a date not more than fifteen (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.
--------------------------------------------
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
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.
------------------
Within sixty (60) days after November 1 of each year commencing with
the first November 1 after the Issue Date, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in the Security Register, as
provided in Trust Indenture Act Section 313(c), a brief report dated as of such
November 1 in accordance with and to the extent required by Trust Indenture Act
Section 313(a). The Trustee shall also comply with Trust Indenture Act Section
313(b).
Commencing at the time this Indenture is qualified under the Trust
Indenture Act, a copy of each report at the time of its mailing to Holders shall
be filed with the Commission and each stock exchange on which the Securities are
listed of which the Company has notified the Trustee in writing. The Company
shall notify the Trustee when Securities are listed on any stock exchange.
Section 704. Reports by Company and Guarantors.
---------------------------------
(a) Whether or not the Company is subject to Section 13(a) or 15(d)
of the Exchange Act, the Company shall, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with
-93-
the Commission pursuant to such Section 13(a) or 15(d) if the Company were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company shall also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders of Securities, as their names and addresses
appear in the security register, without cost to such Holders and (ii) file with
the Trustee copies of the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act if the Company were subject to
such Sections and (y) if filing such documents by the Company 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 of Securities at the
Company's cost.
(b) For so long as any of the Securities remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13(a), 13(c) or 15(d) under the
Exchange Act, make available to any Holder of the Securities in connection with
any sale thereof and any prospective purchaser of the Securities from such
Holder, in each case upon request, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act.
(c) The Trustee has no duty to review any financial or other reports
for purposes of determining compliance with this or any other provisions of this
Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 801. When the Company May Merge, Etc.
--------------------------------
(a) The Company shall not consolidate with or merge into, or sell,
assign, convey, lease or transfer all or substantially all of its assets and
those of its Subsidiaries taken as a whole to, any Person, unless
(i) the resulting, surviving or transferee Person expressly assumes
all the obligations of the Company under the Securities and this Indenture;
-94-
(ii) such Person shall be organized and existing under the laws of the
United States of America, a state thereof or the District of Columbia;
(iii) at the time of the occurrence of such transaction and after
giving effect to such transaction on a pro forma basis, such Person could
incur $1.00 of additional Indebtedness pursuant to the covenant described
in the initial paragraph under Section 1008 hereof (assuming a market rate
of interest with respect to such additional Indebtedness);
(iv) at the time of the occurrence of such transaction and after
giving effect to such transaction on a pro forma basis, the Consolidated
Net Worth of such Person shall be equal to or greater than the Consolidated
Net Worth of the Company immediately prior to such transaction;
(v) each Guarantor, to the extent applicable, shall by supplemental
indenture confirm that its Guarantee shall apply to such Person's
obligations under the Securities; and
(vi) immediately before and immediately after giving effect to such
transaction and treating any Indebtedness which becomes an obligation of
the Company or any of its Subsidiaries or of such Person as a result of
such transaction as having been incurred by the Company or such Subsidiary
or such Person, as the case may be, at the time of such transaction, no
Default or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel, covering clauses (i), (ii), (v) and (vi) above, stating that
the proposed transaction and such supplemental indentures comply with this
Indenture and with Section 903 hereof. The Trustee shall be entitled to
conclusively rely upon such Officers' Certificate and Opinion of Counsel which
opinion shall also comply with Section 903 hereof.
(b) No Guarantor shall, and the Company shall not permit a Guarantor
to, in a single transaction or series of related transactions merge or
consolidate with or into any other corporation (other than the Company or any
other Guarantor) or other entity, or sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of its properties and assets to
any entity (other than the Company or any other Guarantors) unless at the time
and giving effect thereto:
(i) either (1) such Guarantor shall be the continuing corporation or
(2) the entity (if other than such Guarantor)
-95-
formed by such consolidation or into which such Guarantor is merged or the
entity which acquires by sale, assignment, conveyance, transfer, lease or
disposition the properties and assets of such Guarantor shall be a
corporation duly organized and validly existing under the laws of the
jurisdiction under which such Subsidiary was organized or under the laws of
the United States of America, any state thereof or the District of Columbia
or under the laws of any jurisdiction within the European Union and
expressly assumes by a supplemental indenture, executed and delivered to
the Trustee, in a form reasonably satisfactory to the Trustee, all the
obligations of such Guarantor under the Securities, the Indenture and the
Guarantee provided by such Guarantor; and
(ii) immediately before and immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing.
Such Guarantor shall deliver to the Trustee prior to the consummation
of the proposed transaction, in form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, conveyance, transfer, lease
or disposition and such supplemental indenture, if required, comply with this
Indenture. The Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel, which opinion shall also comply
with Section 903 hereof.
The provisions of this Section 801(b) shall not apply to any
transaction (including any Asset Sale made in accordance with Section 1009
hereof) with respect to any Guarantor if the Guarantee of such Guarantor is
released in connection with such transaction in accordance with Section 1019(b)
hereof.
Section 802. Successor Substituted.
---------------------
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer or disposition of all or substantially all of the properties and assets
of the Company or any Guarantor in accordance with Section 801 hereof, 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 such 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 such Guarantee, as the case may be.
When a
-96-
successor assumes all the obligations of its predecessor under this Indenture,
the Securities or a Guarantee, as the case may be, the predecessor shall be
released from those obligations; 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 a Guarantee, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without Consent
------------------------------------------------------
of Holders.
----------
Without the consent of any Holders, the Company and the Guarantors,
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 any Guarantee, in form and
substance satisfactory to the Trustee, for any of the following purposes:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for the assumption pursuant to Article Eight of the
Company's or a Guarantor's obligations to the Holders in the case of a
merger, consolidation or sale of assets;
(iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(iv) to make any change that does not adversely affect the rights
hereunder or thereunder of any Holder;
(v) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the Trust Indenture
Act;
(vi) to add a Guarantor pursuant to the requirements of Section 1019
hereof;
(vii) to evidence and provide the acceptance of the appointment of a
successor trustee hereunder;
(viii) to provide collateral for the Securities or the Guarantees, and
in connection therewith, to modify covenants, to provide additional
indemnity to the Trustee, and to modify other provisions of this Indenture,
the Securities or the Guarantees that relate to such collateral or that
will or may be impacted by the providing of such collateral, and to enter
into agreements, documents or other instruments to effect the foregoing;
-97-
(ix) to comply with any requirement of the Commission or applicable
law to effectuate the Exchange Offer; or
(x) 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 herein conferred upon the Company, any Guarantor or
any other obligor upon the Securities, as applicable, herein, in the Securities
or in any Guarantee.
Section 902. Supplemental Indentures and Agreements with Consent of
------------------------------------------------------
Holders.
-------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company, each Guarantor, and the Trustee, the Company, and each
Guarantor (if a party thereto) when authorized by a Board Resolution, and the
Trustee may 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 changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders under this
Indenture, the Securities or any Guarantee; provided, however, that no such
-------- -------
supplemental indenture, agreement or instrument shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(i) reduce the principal amount of Securities whose Holders must
consent to an amendment or waiver;
(ii) reduce the rate of, or change the time for payment of, interest,
including default interest, on any Security;
(iii) reduce the principal of or change the fixed maturity of any
Security, or alter the optional redemption provisions, or alter the price
at which the Company shall offer to purchase such Securities pursuant to
Sections 1014 or 1109 hereof;
(iv) make any Security payable in money other than that stated in the
Security;
(v) make any change in Sections 504 or 507 hereof;
(vi) waive a Default or Event of Default in the payment of principal
of, premium, if any, or interest on the Securities, including any such
obligation arising under Sections 1009 and 1109 or Section 1014 hereof
(except a rescission of acceleration of the Securities pursuant to Section
502 hereof by the Holders of at least a majority (or
-98-
in the case of the failure to make a Change of Control Offer, two-thirds)
in aggregate principal amount of the Securities then Outstanding and a
waiver of the payment default that resulted from such acceleration);
(vii) waive a purchase payment required to be made under Section 1009
and 1109 or Section 1014 or a payment under Article Thirteen hereof with
respect to any Security; or
(viii) make any change in the provisions of this Section 902.
Upon the written request of the Company and each Guarantor,
accompanied by a copy of a Board Resolution 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, subject
to Section 903 hereof, 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 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.
Section 903. Execution of Supplemental Indentures and Agreements.
---------------------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement or instrument permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Trust Indenture Act Section 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 is authorized or permitted
by this Indenture, that no consent is required or that all requisite consents
have been received and that such supplemental indenture constitutes the legal,
valid and binding obligation of the Company, such Guarantor or successor, as the
case may be, enforceable against such entity in accordance with its terms,
subject to customary exceptions. 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.
-99-
Section 904. Revocation Effect of Supplemental Indentures.
--------------------------------------------
Until a supplemental indenture, amendment or waiver becomes effective,
a consent to it by a Holder of a Security is a continuing consent by the Holder
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation of
consent is not made on any Security.
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 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 may bear a notation in form
satisfactory to 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 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.
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 (or cause to be maintained) an office or
agency where Securities may be presented or surrendered for payment. The
Company also shall maintain (or cause to be maintained) in The City of
Philadelphia an office or
-100-
agency where Securities may be surrendered for registration or 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 Company shall
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 (or cause to be maintained) 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 agent
of the Trustee described above and the Company hereby appoints such agent as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices
or agencies (in or outside of The City of Philadelphia) 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 shall 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.
Section 1003. Compliance Certificate.
----------------------
(a) The Company shall deliver to the Trustee, within one hundred and
twenty (120) days after the end of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether each has kept, observed,
performed and fulfilled its Indenture Obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge each has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
or thereof (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action each is taking or proposes to take with respect thereto).
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered to the Trustee pursuant to Section 704(a) shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation reasonably
satisfactory to the Trustee) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
which would lead
-101-
them to believe that the Company or any of its Subsidiaries has violated any
provisions of Article Eight or Sections 1006, 1008 and 1010 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default, Event of Default or other event of default and what action the Company
is taking or propose to take with respect thereto.
Section 1004. Taxes.
-----
The Company shall, and shall cause each of its Subsidiaries to, pay
prior to delinquency all material taxes, assessments and governmental levies
except as are being contested in good faith and by appropriate proceedings
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 1005. Limitations on Investments.
--------------------------
The Company shall not, and shall not permit any Restricted
Subsidiaries, directly or indirectly, to make any Investment after the Issue
Date, other than (i) Permitted Investments; and (ii) Restricted Investments
permitted pursuant to Section 1006 hereof.
Section 1006. Limitations on Restricted Payments.
----------------------------------
Subject to the other provisions of this Section 1006, the Company
shall not, nor shall it cause, permit or suffer any Restricted Subsidiary to,
(i) declare or pay any dividends or make any other distributions (including
through mergers, liquidations or other transactions) on any class of Equity
Interests of the Company or such Restricted Subsidiary (other than dividends or
distributions payable by a Wholly-Owned Restricted Subsidiary on account of its
Equity Interests held by the Company or another Restricted Subsidiary or payable
in shares of Capital Stock of the Company other than Redeemable Stock), (ii)
make any payment on account of, or set apart money for a sinking or other
analogous fund for, the purchase, redemption or other retirement of such Equity
Interests, (iii) purchase, defease, redeem or otherwise retire any Indebtedness
issued by the Company or any Restricted Subsidiary that is Subordinated
Indebtedness to the Securities, or (iv) make any Restricted Investment, either
directly or indirectly, whether in cash or
-102-
property or in obligations of the Company (all of the foregoing being called
"Restricted Payments"), unless (x) in the case of a dividend, such dividend is
payable not more than 60 days after the date of declaration and (y) after giving
effect to such proposed Restricted Payment, all the conditions set forth in
clauses (1) through (3) below are satisfied (A) at the date of declaration (in
the case of any dividend), (B) at the date of such setting apart (in the case of
any such fund) or (C) on the date of such other payment or distribution (in the
case of any other Restricted Payment) (each such date being referred to as a
"Computation Date"):
(1) no Default or Event of Default shall have occurred and be
continuing or would result from the making of such Restricted Payment;
(2) at the Computation Date for such Restricted Payment and after
giving effect to such Restricted Payment on a pro forma basis, the Company
or such Restricted Subsidiary could incur $1.00 of additional Indebtedness
pursuant to the covenant described in the initial paragraph under Section
1008 hereof; and
(3) the aggregate amount of Restricted Payments declared, paid or
distributed subsequent to the Issue Date (including the proposed Restricted
Payment) shall not exceed the sum of (i) 50% of the cumulative Consolidated
Net Income of the Company for the period (taken as one accounting period)
commencing on the first day of the first full quarter after the Issue Date
to and including the last day of the Company's last fiscal quarter ending
prior to the Computation Date (each such period to constitute a
"Computation Period") (or, in the event Consolidated Net Income of the
Company during the Computation Period is a deficit, then minus 100% of such
deficit), (ii) the aggregate Net Cash Proceeds of the issuance or sale or
the exercise (other than to a Subsidiary or an employee stock ownership
plan or other trust established by the Company or any of its Subsidiaries
for the benefit of their employees) of the Company's Equity Interests
(other than Redeemable Stock) subsequent to the Issue Date, and (iii)
$15,000,000.
If no Default or Event of Default has occurred and is continuing or
would occur as a result thereof, the prohibitions set forth above are subject to
the following exceptions: (a) Restricted Investments acquired by the Company in
connection with any Asset Sale consummated in accordance with Section 1009,
hereof, to the extent such Investments are permitted under such covenant,
provided, however, that such Restricted Investments shall be excluded in the
-------- -------
calculation of the amount of Restricted Payments previously made for purposes of
clause (3) of the preceding paragraph; (b) any purchase or redemption of Equity
-103-
Interests or Subordinated Indebtedness made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Equity Interests of the
Company (other than Redeemable Stock and other than Equity Interests issued or
sold to a Subsidiary or an employee stock ownership plan), provided, however,
-------- -------
that (x) such purchase or redemption shall be excluded in the calculation of the
amount of Restricted Payments previously made for purposes of clause (3) of the
preceding paragraph and (y) the Net Cash Proceeds from such sale shall be
excluded for purposes of clause 3(ii) of the preceding paragraph to the extent
utilized for purposes of such purchase or redemption; (c) any purchase or
redemption of Subordinated Indebtedness of the Company made by exchange for, or
out of the proceeds of the substantially concurrent sale of, Subordinated
Indebtedness of the Company or any Restricted Subsidiary which is permitted to
be issued pursuant to the provisions of Section 1008 hereof, provided, however,
-------- -------
that such purchase or redemption shall be excluded in the calculation of the
amount of Restricted Payments previously made for purposes of clause (3) of the
preceding paragraph; and (d) the purchase of Capital Stock held by employees of
the Company or any Subsidiary pursuant to any employee stock ownership plan
thereof upon the termination, retirement or death of any such employee in
accordance with the provisions of any such plan in an amount not greater than
$1,000,000 in any calendar year, provided, however, that any such purchase shall
-------- -------
be included in the calculation of the amount of Restricted Payments previously
made for purposes of clause (3) of the preceding paragraph.
For purposes of this Section 1006, (a) the amount of any Restricted
Payment declared, paid or distributed in property of the Company or any
Restricted Subsidiary shall be deemed to be the net book value of any such
property that is intangible property and the Fair Market Value (as determined in
good faith by and set forth in a resolution of the Board of Directors) of any
such property that is tangible property at the Computation Date, in each case,
after deducting related reserves for depreciation, depletion and amortization;
(b) the amount of any Restricted Payment declared, paid or distributed in
obligations of the Company or any Restricted Subsidiary shall be deemed to be
the principal amount of such obligations as of the date of the adoption of a
resolution by the Board of Directors or such Restricted Subsidiary authorizing
such Restricted Payment; and (c) a distribution to holders of the Company's
Equity Interests of (i) shares of Capital Stock or other Equity Interests of any
Restricted Subsidiary of the Company or (ii) other assets of the Company,
without, in either case, the receipt of equivalent consideration therefor shall
be regarded as the equivalent of a cash dividend equal to the excess of the Fair
Market Value of the Equity Interests or other assets being so distributed at the
time of such distribution over the consideration, if any, received therefor.
-104-
Section 1007. Limitations on Payment Restrictions Affecting
---------------------------------------------
Restricted Subsidiaries.
-----------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (i) pay dividends or make any other
distribution to the Company or its Restricted Subsidiaries on its Equity
Interests, (ii) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary, (iii) make loans or advances to the Company or any other Restricted
Subsidiary or (iv) transfer any of its property or assets to the Company or any
other Restricted Subsidiary, except (A) consensual encumbrances or restrictions
contained in or created pursuant to the Credit Agreements and Existing
Indebtedness listed on Schedule 1 hereto, (B) consensual encumbrances or
restrictions in the Securities and the Indenture, (C) any restriction, with
respect to a Restricted Subsidiary of the Company that is not a Subsidiary of
the Company on the Issue Date, in existence at the time such entity becomes a
Restricted Subsidiary of the Company and not created as a result of or in
anticipation of such entity becoming a Restricted Subsidiary of the Company;
provided that such encumbrance or restriction is not created in anticipation of
or in connection with such entity becoming a Subsidiary of the Company and is
not applicable to any Person or the properties or assets of any Person other
than a Person that becomes a Subsidiary, (D) any encumbrances or restrictions
pursuant to an agreement effecting a refinancing of Indebtedness referred to in
clauses (A) or (C) of this Section 1007 or contained in any amendment to any
agreement creating such Indebtedness, provided that the encumbrances and
restrictions contained in any such refinancing or amendment are not more
restrictive taken as a whole (as determined in good faith by the chief financial
officer of the Company) than those provided for in such Indebtedness being
refinanced or amended, (E) encumbrances or restrictions contained in any other
Indebtedness permitted to be incurred subsequent to the Issue Date pursuant to
Section 1008 hereof, provided that any such encumbrances or restrictions are not
more restrictive taken as a whole (as determined in good faith by the chief
financial officer of the Company) than the most restrictive of those provided
for in the Indebtedness referred to in clauses (A) or (C) of this Section 1007,
(F) any such encumbrance or restriction consisting of customary nonassignment
provisions in leases governing leasehold interests to the extent such provisions
restrict the transfer of the lease, (G) any restriction with respect to a
Restricted Subsidiary imposed pursuant to an agreement entered into for the sale
or disposition of all or substantially all of the Capital Stock or assets of
such Restricted Subsidiary in compliance with the Indenture pending the closing
of such sale or disposition, provided that such restrictions apply solely to the
Capital Stock or assets of such Restricted Subsidiary which are
-105-
being sold; or (H) any encumbrance or restriction due to applicable law.
Section 1008. Limitations on Indebtedness.
---------------------------
The Company shall not, and shall not permit its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become liable with respect to or become responsible for the payment
of, contingently or otherwise ("incur"), any Indebtedness (including any
Acquired Indebtedness); provided, however, that the Company or a Guarantor of
-------- -------
the Company, may incur Indebtedness if at the time of such incurrence and after
giving pro forma effect thereto, the Company's Interest Coverage Ratio for the
most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
Indebtedness is incurred, calculated on a pro forma basis as if such
Indebtedness was incurred on the first day of such four full fiscal quarter
period, would be at least 2.0 to 1.0.
Notwithstanding the foregoing, the limitations of this Section 1008
shall not apply to the incurrence of Permitted Indebtedness.
Section 1009. Limitations on Asset Sales.
--------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Asset Sale (other than to the Company or another
Restricted Subsidiary) unless (i) 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 assets sold or otherwise disposed of, and at least 85% of
the consideration received by the Company or such Restricted Subsidiary from
such Asset Sale is in the form of cash or Cash Equivalents and (ii) the Net
Proceeds received by the Company or such Restricted Subsidiary from such Asset
Sale are applied in accordance with the following paragraphs.
(b) (i) If all or a portion of the Net Proceeds of any Asset Sale
are not required to be applied to repay permanently any Senior Indebtedness
of the Company then outstanding as required by the terms thereof, or the
Company determines not to apply such Net Proceeds to the permanent
prepayment of any Senior Indebtedness outstanding or if no such Senior
Indebtedness is then outstanding, then the Company may within 180 days of
the Asset Sale, invest the Net Proceeds in the Company or one or more
Restricted Subsidiaries. The amount of such Net Proceeds neither used to
permanently repay or prepay Senior Indebtedness nor used or invested as set
forth in this paragraph constitutes "Excess Proceeds."
-106-
(ii) When the aggregate amount of Excess Proceeds from one or more
Asset Sales equals $5,000,000 or more, the Company shall apply 100% of such
Excess Proceeds within 180 days subsequent to the consummation of the Asset
Sale which resulted in the Excess Proceeds equalling $5,000,000 or more to
the purchase of Securities tendered to the Company for purchase at a price
(the "Asset Sale Purchase Price") equal to 100% of the principal amount
thereof, plus accrued interest, if any, to the date of purchase pursuant to
an offer to purchase made by the Company (an "Asset Sale Offer") with
respect to the Securities. Any Asset Sale Offer may include a pro rata
offer under similar circumstances to purchase other Senior Indebtedness
requiring a similar offer.
(c) Until such time as the Net Proceeds from any Asset Sale are
applied in accordance with this Section 1009, such Net Proceeds shall be
segregated from the other assets of the Company and the Subsidiaries and
invested in cash or Cash Equivalents, except that the Company or any Restricted
Subsidiary may use any Net Proceeds pending the utilization thereof in the
manner (and within the time period) described above, to repay revolving loans
(under the Credit Agreements or otherwise) without a permanent reduction of the
commitment thereunder.
(d) Any Asset Sale Offer shall be made substantially in accordance
with the procedures described under Section 1109 hereof. The Company shall
cause a notice of any Asset Sale Offer to be mailed to the Holders at their
registered addresses not less than 30 days nor more than 60 days before the
purchase date. Such notice shall contain all instructions and materials
necessary to enable Holders to tender their Securities to the Company. Upon
receiving notice of an Asset Sale Offer, Holders may elect to tender their
Securities in whole or in part in integral multiples of $1,000 in exchange for
cash. To the extent that Holders properly tender Securities in an amount
exceeding the Asset Sale Offer, Securities of tendering Holders shall be
repurchased on a pro rata basis (based on amounts tendered).
(e) In the event the Company is required to make an Asset Sale Offer
at a time when the Company is prohibited from making such Offer, the Company
shall, on or prior to the date that the Company is required to make an Asset
Sale Offer, to (i) seek the consent of its lenders to repurchase the Securities
pursuant to such Asset Sale Offer or (ii) refinance the Indebtedness that
prohibits such Asset Sale Offer; provided, however, that the failure to make or
-------- -------
consummate the Asset Sale Offer as provided herein shall constitute an Event of
Default.
(f) The Company shall comply, to the extent applicable, with the
requirements of Rule 14e-1 under the Exchange Act, any other tender offer rules
under the Exchange Act
-107-
and other securities laws or regulations in connection with any offer to
repurchase and the repurchase of the Securities as described above.
(g) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create or permit to exist or become effective any consensual
restriction (other than restrictions not more restrictive taken as a whole (as
determined in good faith by the chief financial officer of the Company) than
those in effect under Existing Indebtedness, and Indebtedness under the Credit
Agreements) that would materially impair the ability of the Company to comply
with the provisions of this Section 1009.
Section 1010. Limitations on Sale and Leaseback Transactions.
----------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into any Sale and Leaseback Transaction unless at the time of the
occurrence of such transaction and after giving effect to such transaction and
(x) in the case of a Sale and Leaseback Transaction which is a Capitalized Lease
Obligation, giving effect to the Indebtedness in respect thereof, and (y) in the
case of any other Sale and Leaseback Transaction, giving effect to the
Attributable Indebtedness in respect thereof, the Company or such Restricted
Subsidiary could incur $1.00 of additional Indebtedness pursuant to the covenant
described in the initial paragraph under Section 1008 hereof, (ii) at the time
of the occurrence of such transaction, the Company or such Restricted Subsidiary
could incur Indebtedness secured by a Lien on property in a principal amount
equal to or exceeding the Attributable Indebtedness in respect of such Sale and
Leaseback Transaction pursuant to Section 1012 hereof, and (iii) the transfer of
assets in such Sale and Leaseback Transaction is permitted by, and the Company
applies the proceeds of such transaction in compliance with, Section 1009.
Section 1011. Limitations on Transactions With Affiliates.
-------------------------------------------
(a) The Company and its Restricted Subsidiaries shall not, directly
or indirectly, enter into any transaction or series of related transactions with
or for the benefit of any of their respective Affiliates other than with the
Company or any Restricted Subsidiaries, except on an arm's-length basis and if
(x)(i) in the case of any such transaction in which the aggregate remuneration,
rental value or other consideration (including the value of a loan), together
with the aggregate remuneration, rental value or other consideration (including
the value of a loan) of all such other transactions consummated in the year
during which such transaction is proposed to be consummated,
-108-
exceeds $1,000,000, the Company delivers board resolutions to the Trustee
evidencing that the Board of Directors and the Independent Directors that are
disinterested each have (by a majority vote) determined in good faith that such
transaction is in the best interests of the Company and that the aggregate
remuneration, rental value or other consideration (including the value of any
loan) inuring to the benefit of such affiliate from any such transaction is not
greater than that which would be charged to or extended by the Company or its
Subsidiaries, as the case may be, on an arm's-length basis for similar
properties, assets, rights, goods or services by or to a Person not affiliated
with the Company or its Subsidiaries, as the case may be, and (ii) in the case
of any such transaction in which the aggregate remuneration, rental value or
other consideration (including the value of any loan), together with the
aggregate remuneration, rental value or other consideration (including the value
of any loan) of all such other transactions consummated in the year during which
such transactions are proposed to be consummated, exceeds $5,000,000, in
addition to the requirements set forth in clause (x)(i) above, the Company
delivers to the Trustee an opinion evidencing that a nationally recognized
investment banking firm, unaffiliated with the Company and the Affiliate which
is party to such transaction, has determined that the aggregate remuneration,
rental value or other consideration (including the value of a loan) inuring to
the benefit of such Affiliate from any such transaction is not greater than that
which would be charged to or extended by the Company or its Subsidiaries, as the
case may be, on an arm's-length basis for similar properties, assets, rights,
goods or services by or to a Person not affiliated with the Company or its
Subsidiaries, as the case may be, and (y) all such transactions referred to in
clauses (x)(i) and (ii) of this Section 1011 are entered into in good faith.
Any transaction required to be approved by Independent Directors pursuant to the
preceding paragraph must be approved by at least one such Independent Director.
(b) The provisions of the preceding paragraph do not prohibit (i) any
Restricted Payment permitted to be paid pursuant to the provisions of Section
1006 hereof, (ii) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved by the
Board of Directors, (iii) loans or advances to employees in the ordinary course
of business consistent with past practices, not to exceed $1,000,000 aggregate
principal amount outstanding at any time, and (iv) the payment of fees and
compensation to, and indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any of its Subsidiaries, as
determined by the Board of Directors in good faith and as paid or provided
pursuant to agreements or arrangements entered into in the ordinary course of
business.
-109-
Section 1012. Limitations on Liens.
--------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, create, incur, assume or suffer to exist any Lien upon any of their
respective assets or properties now owned or acquired after the Issue Date, or
any income or profits therefrom, unless the Securities are directly secured
equally and ratably (or prior to in the case of Liens with respect to
Indebtedness subordinated to the Securities or the Guarantees, as the case may
be), excluding, however, from the operation of the foregoing any of the
following:
(a) Liens existing as of the Issue Date or pursuant to an agreement
in existence on the Issue Date, including the Credit Agreements;
(b) Permitted Liens;
(c) Liens on assets or properties of the Company, or on assets or
properties of Restricted Subsidiaries, to secure the payment of all or a
part of the purchase price of assets or property acquired or constructed
after the Issue Date; provided, however, that (i) the aggregate principal
-------- -------
amount of Indebtedness secured by such Liens shall not exceed the original
cost or purchase price of the assets or property so acquired or
constructed, (ii) the Indebtedness secured by such Liens is otherwise
permitted to be incurred hereunder and (iii) such Liens shall not encumber
any other assets or property of the Company or any Restricted Subsidiary
and the Indebtedness secured by the Lien shall not be created more than 90
days after the later of the acquisition, completion of construction,
repair, improvement, addition or commencement of full operation of the
property subject to the Lien;
(d) Liens on the assets or property acquired by the Company or any
Restricted Subsidiary after the Issue Date; provided, however, that (i)
-------- -------
such Liens existed on the date such asset or property was acquired and were
not incurred as a result of or in anticipation of such acquisition and (ii)
such Liens shall not extend to or cover any property or assets of the
Company or any Restricted Subsidiary other than the property or assets so
acquired;
(e) Liens securing Indebtedness which is incurred to refinance
Indebtedness which has been secured by a Lien permitted under the Indenture
and which is permitted to be refinanced under the Indenture; provided,
--------
however, that such Liens shall not extend to or cover any property or
-------
assets of the Company or any Restricted Subsidiary not securing the
Indebtedness so refinanced;
-110-
(f) Liens on assets or property of the Company or any Restricted
Subsidiary that is subject to a Sale and Leaseback Transaction, provided,
that the aggregate principal amount of Attributable Indebtedness in respect
of all Sale and Leaseback Transactions then outstanding shall not at the
time such a Lien is incurred exceed $5,000,000;
(g) Liens on property or shares of Capital Stock of a Person at the
time such Person becomes a Restricted Subsidiary; provided, however, that
-------- -------
such Liens are not created, incurred or assumed in contemplation of the
acquisition thereof by the Company or a Subsidiary; provided, further, that
-------- -------
such Liens shall not extend to any other property owned by the Company or a
Restricted Subsidiary;
(h) Liens securing Indebtedness of a Restricted Subsidiary owing to
the Company or a Wholly-Owned Restricted Subsidiary;
(i) Liens on inventory, accounts receivable, general intangibles,
trademarks and licenses and the proceeds thereof of the Company or any
Restricted Subsidiary securing the obligations incurred under clause (d) of
the definition of "Permitted Indebtedness" in Section 101 hereof;
(j) Liens on assets or properties of Restricted Subsidiaries that are
Foreign Subsidiaries securing the obligations incurred under clause (e) of
the definition of "Permitted Indebtedness" in Section 101 hereof; and
(k) Liens securing Indebtedness in respect of Hedging Obligations
permitted to be incurred pursuant to the provisions of the definition of
"Permitted Indebtedness" in Section 101 hereof.
Section 1013. 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 (i) its corporate
existence and the corporate or other existence of each of its Subsidiaries, in
accordance with their respective organizational documents (as the same may be
amended from time to time) and (ii) its (and its Subsidiaries) rights (charter
and statutory), licenses and franchises; provided, however, that the Company
-------- -------
shall not be required to preserve any such right, license or franchise, or the
corporate or other existence of any Subsidiary, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries taken as a whole and that the
loss thereof is not adverse in any material respect to the Holders.
-111-
Section 1014. Change of Control.
-----------------
(a) In the event of a Change of Control (the date of such occurrence
being the "Change of Control Date"), the Company shall notify the Holders in
writing of such occurrence and shall make an irrevocable offer (the "Change of
Control Offer") to purchase on a Business Day (the "Change of Control Payment
Date") not later than 60 days following the Change of Control Date, all
Securities then outstanding at a purchase price (the "Change of Control Purchase
Price") equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Change of Control Payment Date.
(b) Notice of a Change of Control Offer shall be mailed by the
Company to the Holders at their registered addresses not less than 30 days nor
more than 45 days before the Change of Control Payment Date. The Change of
Control Offer shall remain open for at least 20 Business Days and until 5:00
p.m., New York City time, on the Business Day next preceding the Change of
Control Payment Date. Substantially simultaneously with mailing of the notice,
the Company shall cause a copy of such notice to be published in a newspaper of
general circulation in the Borough of Manhattan, The City of New York.
(c) The notice, which governs the terms of the Change of Control
Offer, shall state:
(i) that the Change of Control Offer is being made pursuant to this
Section 1014 and that all Securities (or portions thereof) tendered will be
accepted for payment;
(ii) the Change of Control Purchase Price and the Change of Control
Payment Date;
(iii) that any Securities not surrendered or accepted for payment shall
continue to accrue interest;
(iv) 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 Payment Date;
(v) that any Holder electing to have a Security purchased (in whole
or in part) pursuant to a Change of Control Offer shall be required to
surrender the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the Paying Agent at
the address specified in the notice (or otherwise make effective delivery
of the Security pursuant to book-entry procedures and the related rules of
the applicable
-112-
Depositary) at least five Business Days before the Change of Control
Payment Date;
(vi) that any Holder shall be entitled to withdraw its election if the
Paying Agent receives, not later than three (3) Business Days prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase, the certificate number of the
Security and a statement that such Holder is withdrawing his or her
election to have such Security purchased;
(vii) that Holders whose Securities are purchased only in part shall be
issued Securities representing the unpurchased portion of the Securities
surrendered, which unpurchased portion must be equal to $1,000 principal
amount or an integral multiple thereof;
(viii) the instructions that Holders must follow in order to tender
their Securities; and
(ix) the circumstances and relevant facts regarding such Change of
Control (including but not limited to information with respect to pro forma
financial information after giving effect to such Change of Control, and
information regarding the Persons acquiring control).
(d) On the Change of Control Payment Date, the Company shall:
(i) accept for payment the Securities, or portions thereof,
surrendered and properly tendered and not withdrawn, pursuant to the Change
of Control Offer;
(ii) deposit with the Paying Agent money sufficient to pay the Change
of Control Purchase Price of all the Securities, or portions thereof, so
accepted; and
(iii) deliver to the Trustee the Securities so accepted together with
an Officers' Certificate stating that such Securities have been 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 and
the Trustee shall promptly authenticate and mail to such Holders a new Security
equal in principal amount to the unpurchased portion of the Security
surrendered.
(e) Subject to applicable escheat laws, as provided in the
Securities, the Trustee and the Paying Agent shall upon the
-113-
Company's written request 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 Payment Date the Trustee shall return any such excess to the Company
together with interest, if any, thereon.
(f) The Company shall comply, to the extent applicable, with the
requirements of Rule 14e-1 under the Exchange Act, any other tender offer rules
under the Exchange Act and other securities laws or regulations in connection
with the offer to repurchase and the repurchase of the Securities as described
above.
(g) In the event a Change of Control occurs at a time when the
Company is prohibited from purchasing Securities, the Company shall, within
thirty (30) days following a Change of Control (i) seek the consent of its
lenders to the purchase of the Securities or (ii) refinance the Indebtedness
that prohibits such purchase; provided, however, that the failure to make or
-------- -------
consummate the Change of Control Offer shall constitute an Event of Default.
(h) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create or permit to exist or become effective any restriction
(other than restrictions not more restrictive taken as a whole (as determined in
good faith by the chief financial officer of the Company) than those in effect
under Existing Indebtedness and Indebtedness under the Credit Agreements) that
would materially impair the ability of the Company to make a Change of Control
Offer to purchase the Securities or, if such Change of Control Offer is made, to
pay for the Securities tendered for purchase.
Section 1015. Maintenance of Properties.
-------------------------
The Company shall, and shall cause its Restricted Subsidiaries to,
maintain their respective properties and assets in normal working order and
condition as on the Issue Date (reasonable wear and tear excepted) and make all
repairs, renewals, replacements, additions, betterments and improvements
thereto, as shall be reasonably necessary for the proper conduct of the business
of the Company and its Restricted Subsidiaries taken as a whole, provided that
nothing herein shall prevent the Company or any of its Restricted Subsidiaries
from discontinuing any maintenance of any such properties if such discontinuance
is
-114-
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole.
Section 1016. Maintenance of Insurance.
------------------------
The Company shall, and shall cause its Restricted Subsidiaries to
maintain liability, casualty and other insurance (subject to customary
deductibles and retentions) with responsible insurance companies in such amounts
and against such risks as is customarily carried by responsible companies
engaged in similar businesses and owning similar assets in the general areas in
which the Company and its Restricted Subsidiaries operate (which may include
self-insurance in comparable form to that maintained by such responsible
companies).
Section 1017. [Intentionally omitted].
Section 1018. Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Company shall at any time act as its own Paying Agent, it
shall, 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 shall promptly notify
the Trustee of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company shall,
before 10:00 a.m. New York City time on each due date of the principal of,
premium, if any, or interest on any Securities, deposit with a Paying Agent a
sum in same-day funds sufficient to pay the principal, premium, if any, or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of such
action or any failure so to act.
If the Company is not acting as Paying Agent, the Company shall 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 shall:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
-115-
(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;
(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
disabilities 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), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than thirty
(30) days from the date of such notification or publication, any unclaimed
balance of such money then remaining shall promptly be repaid to the Company.
Section 1019. Subsidiary Guarantees.
---------------------
(a) If (i) any Domestic Subsidiary of the Company becomes a
Restricted Subsidiary after the Issue Date, (ii) the Company or any Subsidiary
of the Company that is a Guarantor transfers or causes to be transferred, in one
transaction or a series of related transactions, property or assets (including,
-116-
without limitation, businesses, divisions, real property, assets or equipment)
which in the aggregate have a value equal to or greater than 15% of the
Company's total assets determined on a consolidated basis as of the time of
transfer to any Subsidiary or Subsidiaries of the Company that is not a
Guarantor or are not Guarantors, or (iii) any Domestic Subsidiary of the Company
which has a value equal to or greater than 5% of the Company's total assets
determined on a consolidated basis as of the time of determination directly or
indirectly guarantees any Senior Indebtedness of the Company, or (iv) any
Foreign Subsidiary of the Company which has a value equal to or greater than 5%
of the Company's total assets determined on a consolidated basis as of the time
of determination and is not a Guarantor (x) directly or indirectly guarantees
any Senior Indebtedness of the Company (other than the Prior Notes) or (y)
causes more than two-thirds of its Capital Stock to be pledged to secure any
Senior Indebtedness of the Company, the Company shall cause such Subsidiary or
Subsidiaries to execute and deliver to the Trustee a supplemental indenture
pursuant to which such Subsidiary or Subsidiaries shall unconditionally
guarantee, in accordance with Article Thirteen hereof, all of the Company's
obligations under the Indenture and the Securities on the same terms as the
other Guarantors, which Guarantee shall rank pari passu with any Senior
Indebtedness of such Subsidiary. The provisions of clauses (ii) and (iii) of
this paragraph shall not apply to any transaction permitted by Section 1009.
The Company may, at its option, cause any Subsidiary of the Company which is a
Foreign Subsidiary to execute and deliver a Guarantee in accordance with the
provisions of Article XIII of this Indenture.
(b) Each guarantee created pursuant to the provisions described in
the foregoing paragraph is referred to as a "Guarantee" and the issuer of each
such Guarantee is referred to as a "Guarantor." Notwithstanding the foregoing,
any Guarantee shall be automatically and unconditionally released and discharged
upon (i) any sale, exchange, transfer or other disposition (by way of merger,
consolidation or otherwise), to any Person (provided, that if such Person is a
--------
Guarantor, the Guarantee of such Person shall not also be released and
discharged) of all of the Equity Interests of any Guarantor, or all or
substantially all of the assets of any Guarantor, which is in compliance with
this Indenture, or (ii) the designation by the Company of any Guarantor to be an
Unrestricted Subsidiary in accordance with the Indenture, or (iii) the release
of the guarantee or other obligation of any Guarantor with respect to any other
Senior Indebtedness of the Company which caused such Guarantor to guarantee the
Company's obligations under this Indenture and the Securities in accordance with
clause (iii) or (iv) of paragraph (a) of this section.
-117-
Section 1020. Limitation on Issuances and Sales of Capital Stock of
-----------------------------------------------------
Restricted Subsidiaries.
-----------------------
The Company (i) shall not, and shall not permit any Restricted
Subsidiary to, transfer, convey, sell, lease or otherwise dispose of any Capital
Stock of any Restricted Subsidiary to any Person other than the Company or a
Wholly-Owned Restricted Subsidiary), unless (a) such transfer, conveyance, sale,
lease or other disposition is of all the Capital Stock of such Restricted
Subsidiary and (b) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with the covenant in
Section 1009 hereof, and (ii) shall not permit any Restricted Subsidiary to
issue any of its Capital Stock (other than directors' qualifying shares or
shares to be held by foreign nationals, in each case to the extent mandated by
applicable law ) to any Person other than to the Company or a Wholly-Owned
Restricted Subsidiary.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.
--------------------
The Securities shall not be redeemable at the option of the Company
prior to December 1, 2000. On or after that date, the Securities shall be
redeemable at the option of the Company, in whole or in part from time to time,
on not less than thirty (30) nor more than sixty (60) days' prior notice, mailed
by first-class mail to the Holders' registered addresses, in cash, at the
following redemption prices (expressed as percentages of the principal amount),
if redeemed in the 12-month period commencing December 1 in the year indicated
below, in each case plus accrued and unpaid interest to the date fixed for
redemption:
Year Redemption
---- ----------
2000 105.0000%
2001 102.5000%
2002 and thereafter 100.0000%
The Securities will not be subject to, or entitled to the benefits of,
any sinking fund.
Notwithstanding the foregoing, at any time prior to December 1, 1999,
the Company, at its option, may redeem up to $21,000,000 aggregate principal
amount of the Securities from the net proceeds of one or more Public Equity
Offerings by the Company, at a redemption price of 110% of the principal amount
thereof, plus accrued interest to the date fixed for redemption; provided that
at least $39,000,000 in aggregate principal amount of the Securities must remain
outstanding after such redemption.
-118-
In order to effect the foregoing redemption, the Company shall be required to
send the redemption notice not later than sixty (60) days after the receipt of
the proceeds of such public offering.
Securities may be redeemed or repurchased as set forth in Sections
1009, 1014 and 1109 hereof. Any redemption pursuant to this Section 1101 shall
be made pursuant to the provisions of Sections 1102 through 1108 hereof.
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.
Section 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant to
Section 1101 hereof 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 thirty (30) nor more than sixty (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, the Redemption Price 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 hereof to be redeemed shall be selected not more than
thirty (30) days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, pro rata, by lot or
such other method as the Trustee shall deem fair and appropriate, and the
amounts to be redeemed may 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.
-119-
Section 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than thirty (30) nor more than sixty (60) days prior to
the Redemption Date, to each Holder of Securities to be redeemed, at his 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 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, 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 place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(h) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being redeemed;
and
(i) the CUSIP number, if any, relating to such Securities.
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.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not
-120-
the Holder receives such notice. In any case, failure to mail such notice, or
any defect in any notice so mailed, to any particular 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 10:00 a.m. New York City time on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1018 hereof) 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) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date. When the Redemption Date falls
on an Interest Payment Date, payments of interest due on such date are to be
paid as provided hereunder as if no such redemption were occurring.
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 according to the terms and the
provisions of Section 309 hereof.
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 hereof (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument
-121-
of transfer in form satisfactory to the Company, 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,
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.
Section 1109. Asset Sale Offers.
-----------------
In the event that the Company shall commence an Asset Sale Offer
pursuant to Section 1009 hereof, it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for twenty (20) Business Days
after the date on which such Asset Sale Offer is commenced (the "Commencement
Date") except to the extent required to be extended pursuant to applicable law
(as so extended, the "Asset Sale Offer Period"). No later than one Business Day
after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase
Date"), the Company shall purchase the principal amount (the "Asset Sale Offer
Amount") of Securities required pursuant to Section 1009 hereof to be purchased
in such Asset Sale Offer or, if less than the Asset Sale Offer Amount has been
tendered, all Securities tendered in response to the Asset Sale Offer.
If the Asset Sale Purchase Date is on or after a Regular Record Date
and on or before the related Interest Payment Date, any accrued interest shall
be paid to the Person in whose name a Security is registered at the close of
business on such Regular Record Date, and no additional interest shall be
payable to Holders who tender Securities pursuant to the Asset Sale Offer.
On any Commencement Date, the Company shall send or cause to be sent,
by first class mail, a notice to each of the Holders, with a copy to the
Trustee. Such notice, which shall govern the terms of the Asset Sale Offer,
shall contain all instructions and materials necessary to enable the Holders to
tender Securities pursuant to the Asset Sale Offer and shall state:
(1) that the Asset Sale Offer is being made pursuant to Section 1009
hereof and this Section 1109 and the length of time the Asset Sale Offer
shall remain open;
(2) the Asset Sale Offer Amount, the Asset Sale Purchase Price and
the Asset Sale Purchase Date;
-122-
(3) that any Security not tendered or accepted for payment shall
continue to accrue interest in accordance with this Indenture;
(4) that, unless the Company defaults in the payment of the Asset
Sale Purchase Price, all Securities accepted for payment pursuant to the
Asset Sale Offer shall cease to accrue interest after the Asset Sale
Purchase Date;
(5) that Holders electing to have Securities purchased pursuant to
any Asset Sale Offer shall be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Asset Sale Purchase
Date;
(6) that Holders shall be entitled to withdraw their election if the
Company, Depositary or Paying Agent, as the case may be, receives not later
than the close of business on the Business Day preceding the termination of
the Asset Sale Offer Period, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase, the certificate number on the
Security and a statement that such Holder is withdrawing his election to
have the Security purchased;
(7) that, if the aggregate principal amount of Securities surrendered
by Holders exceeds the Asset Sale Offer Amount, the Company shall select
the Securities to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Securities in
denominations of $1,000, or integral multiples thereof, shall be
purchased); and
(8) that Holders whose Securities are purchased only in part shall be
issued new Securities equal in principal amount to the unpurchased portion
of the Securities surrendered, which unpurchased portion must be equal to
$1,000 principal amount or an integral multiples thereof.
On or before 10:00 a.m. New York City time on each Asset Sale Purchase
Date, the Company shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate Asset Sale Purchase Price with respect
to a principal amount of Securities equal to the Asset Sale Offer Amount,
together with accrued interest thereon, to be held for payment in accordance
with the terms of this Section 1109. On the Asset Sale Purchase Date, the
Company shall, to the extent lawful, (i) accept for payment, on a pro rata basis
to the extent
-123-
necessary, an aggregate principal amount equal to the Asset Sale Offer Amount of
Securities tendered pursuant to the Asset Sale Offer, or if less than the Asset
Sale Offer Amount has been tendered, all Securities or portions thereof
tendered, (ii) deliver, or cause the Paying Agent or depositary, as the case may
be, to deliver to the Trustee Securities so accepted and (iii) deliver to the
Trustee an Officers' Certificate stating that such Securities or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 1109. The Company, a depositary or Paying Agent, as the case may
be, shall promptly (but in any case not later than two (2) Business Days after
the Asset Sale Purchase Date) mail or deliver to each tendering Holder an amount
equal to the Asset Sale Purchase Price with respect to the Securities tendered
by such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Security, and the Trustee shall authenticate and mail or
deliver such new Security, to such Holder, equal in principal amount to any
unpurchased portion of such Holder's Securities surrendered. Any Security not
accepted in the Asset Sale Offer shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce in a
newspaper of general circulation the results of the Asset Sale Offer on the
Asset Sale Purchase Date.
The Asset Sale Offer shall be made by the Company in compliance with
all applicable laws, including, without limitation, the requirements of Rule
14e-1 under the Exchange Act, any other tender offer rules under the Exchange
Act and all other applicable federal and state securities laws.
Subject to applicable escheat laws, as provided in the Securities, 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 Asset Sale Purchase Price; provided, however, that (x) to the extent that
-------- -------
the aggregate amount of an Asset Sale Offer exceeds the aggregate Asset Sale
Purchase Price of the Securities or portions thereof to be purchased, 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 Asset
Sale Purchase Date the Trustee shall return any such excess to the Company
together with interest or dividends, if any, thereon.
Other than as specifically provided in this Section 1109, each
purchase pursuant to this Section 1109 shall be made pursuant to the provisions
of Sections 1101 through 1108 hereof.
-124-
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for) and the Trustee, on demand of 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) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 308 hereof
or (ii) all Securities for whose payment United States dollars have
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 1018 hereof) have been delivered to
the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee
for cancellation (x) have become due and payable, (y) shall become due
and payable at their Stated Maturity within one year, or (z) are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company, and the Company or
any Guarantor, in the case of (2)(x), (y) or (z) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose 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,
for the principal of, premium, if any, and accrued interest at such
Stated Maturity or Redemption Date;
(b) the Company or any Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company or any Guarantor; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that (i) all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with and (ii) such satisfaction and discharge shall
-125-
not result in a breach or violation of or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company or any Guarantor is a party or by which the Company or any
Guarantor is bound.
Opinions of Counsel required to be delivered under this Section 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.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606 hereof and, if
United States dollars shall have been deposited with the Trustee pursuant to
subclause (2) of Subsection (a) of this Section, the obligations of the Trustee
under Section 1202 and the last paragraph of Section 1018 hereof shall survive.
Section 1202. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1018
hereof, all United States dollars deposited with the Trustee pursuant to Section
1201 hereof 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
GUARANTEE
Section 1301. Guarantors' Guarantee.
---------------------
For value received, each of the Guarantors, in accordance with this
Article Thirteen, hereby absolutely, unconditionally and irrevocably guarantees,
jointly and severally, 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).
-126-
Section 1302. Continuing Guarantee; No Right of Set-Off; Independent
------------------------------------------------------
Obligation.
----------
(a) This Guarantee shall be a continuing guarantee of the payment and
performance for 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 of the Guarantors'
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 shall 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 Thirteen
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 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
-127-
promises now or at any time hereafter made by the Company to any Guarantor.
Section 1303. 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;
(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;
(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,
-128-
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 Holder's 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;
(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;
(l) the sale of the Company's or any Guarantor's business or any
part thereof;
(m) subject to Section 1314 hereof, 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 or other
existence, structure or ownership of the Company or any Guarantor;
(n) the insolvency, bankruptcy, liquidation, winding-up, dissolution,
receivership 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 or the loss of corporate or
other existence;
-129-
(o) subject to Section 1314 hereof, any arrangement or plan of
reorganization affecting the Company or any Guarantor;
(p) 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
(q) 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.
Section 1304. 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 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,
unless otherwise agreed in writing by the Trustee, 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.
Section 1305. 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. 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
-130-
expressly waives (to the extent permitted by law) diligence, presentment,
protest and demand for payment.
(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) initiate or exhaust any rights, remedies or recourse against the
Company, any Guarantor or any other Person;
(ii) value, realize upon, or dispose of any security of the Company or
any other Person held by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the Trustee or the
Holders may have in law or equity;
before requiring or becoming entitled to demand payment from such Guarantor
under this Guarantee.
Section 1306. 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 become 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 Thirteen
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 hereof shall
apply to the Securities and the Guarantors shall be responsible for the payment
thereof to the Trustee or the Holders upon demand.
Section 1307. Fraudulent Conveyance; Subrogation.
----------------------------------
(a) Any term or provision of this Guarantee to the contrary
notwithstanding, the aggregate amount of the Indenture Obligations guaranteed
hereunder shall be reduced to the extent necessary to prevent this Guarantee
from violating or becoming voidable under applicable law relating to fraudulent
conveyance
-131-
or fraudulent transfer or similar laws affecting the rights of creditors
generally.
(b) Each Guarantor hereby waives until repayment in full of the
Indenture Obligations and except as provided in Section 1309, 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 Thirteen.
Section 1308. 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 1309. Contribution.
------------
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
----- --
distribution is made by any Guarantor (a "Funding Guarantor") under its
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the "Adjusted Net Assets" (as
--- ----
defined below) of each Guarantor (including the Funding Guarantor) for all
payments, damages and expenses incurred by that Funding Guarantor in discharging
the Company's obligations with respect to the Securities or any other
Guarantor's obligation with respect to its Guarantee. "Adjusted Net Assets"
means, with respect to any Guarantor, at any date, the lesser of the amount by
which (x) the fair value of the property of such Guarantor exceeds the total
amount of liabilities, including, without limitation, contingent liabilities
(after giving effect to all other fixed and contingent liabilities incurred or
assumed on such date), but excluding liabilities under the Guarantee, of such
Guarantor at such date and (y) the present fair salable value of assets of such
Guarantor at such date exceeds the amount that shall be required to pay the
probable liability of such Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities incurred or assumed on such date),
excluding debt in respect of its Guarantee, as they become absolute and matured.
-132-
Section 1310. No Bar to Further Actions.
-------------------------
Except as provided by law, no action or proceeding brought or
instituted under Article Thirteen 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 Thirteen and this Guarantee by
reason of any further default or defaults under Article Thirteen and this
Guarantee or in the payment of any of the Indenture Obligations owing by the
Company.
Section 1311. Failure to Exercise Rights Shall Not Operate as a
-------------------------------------------------
Waiver.
------
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
Thirteen 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.
Section 1312. Trustee's Duties; Notice to Trustee.
-----------------------------------
(a) Any provision in this Article Thirteen 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 subject to Section 602(d)
and 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 Subsidiary Guarantor or the officers,
directors or agents acting or purporting to act on their respective behalf.
Section 1313. Successors and Assigns.
----------------------
All terms, agreements and conditions of this Article Thirteen 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.
-133-
Section 1314. 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 Thirteen. 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 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 1019(b) hereof.
Section 1315. Execution of Guarantee.
----------------------
To evidence the Guarantee, each Guarantor hereby agrees to execute the
guarantee substantially in the form set forth in Section 206 hereof, 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, 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.
If an officer whose signature is on this Indenture no longer holds
that office at the time the Trustee authenticates a Security on which a
Guarantee is endorsed, such Guarantee shall be valid nevertheless.
Section 1316. Payment Permitted by Each of the Subsidiary Guarantors
------------------------------------------------------
if No Default.
-------------
Nothing contained in this Article, elsewhere in this Indenture or in
any of the Securities shall affect the obligation of any Guarantor to make, or
prevent any Guarantor from making at any time, payments pursuant to the
Securities.
Section 1317. Notice to Trustee by Each of the Guarantors. Each
-------------------------------------------
Guarantor shall give prompt written notice to
-134-
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 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 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 at least three (3) Business Days 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 or any other Indenture Obligations), then, anything
herein contained to the contrary notwithstanding, 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.
Section 1318. 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 this Section 1318 shall not apply to the Company or any Affiliate
-------
of the Company if it or such Affiliate acts as Paying Agent.
Section 1319. 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 the provisions described under Article Five and as
set forth in this Indenture or to pursue any rights or remedies hereunder or
under applicable law.
-135-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
RADNOR HOLDINGS CORPORATION
Attest /s/ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- --------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary Title: President
WINCUP HOLDINGS, INC.
Attest /s/ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- --------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary Title: President
SP ACQUISITION CO.
Attest /s/ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- --------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary Title: President
STYROCHEM INTERNATIONAL, INC.
Attest /s/ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- --------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary Title: President
RADNOR MANAGEMENT, INC.
Attest /s/ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- --------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary Title: President
FIRST UNION NATIONAL BANK,
as Trustee
Attest /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------- ---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President Title: AVP
-136-
EXHIBIT A
---------
TRANSFEREE LETTER OF REPRESENTATION
Radnor Holdings Corporation
Three ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
First Union National Bank
Broad & Walnut Streets
PA 1249
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
In connection with our proposed purchase of $________ aggregate
principal amount of 10% Series B Senior Notes due 2003 (the "Notes") of Radnor
-----
Holdings Corporation, a Delaware corporation (the "Company"), we confirm that:
-------
1. We understand that the Notes and the Guarantees thereon (together,
the "Securities") have not been registered under the Securities Act of
----------
1933, as amended (the "Securities Act") or under the securities laws of any
--------------
state and, unless so registered, may not be sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date which is three years
after the later of the date of original issue and the last date on which
the Company or any affiliate of the Company was the owner of such
Securities (or any predecessor thereto) (the "Resale Restriction
------------------
Termination Date") only (a) to the Company, (b) pursuant to a registration
----------------
statement which has been declared effective under the Securities Act, (c)
so long as the Securities are eligible for resale pursuant to Rule 144A
under the Securities Act, to a person we reasonably believe is a qualified
institutional buyer under Rule 144A (a "QIB") that purchases for its own
---
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales to non-U.S. persons that occur outside the United States of America
within the meaning of Regulation S under the Securities Act, (e) to an
institutional "accredited investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the
A-1
Securities Act that is purchasing for his own account or for the account of
such an institutional "accredited investor," for investment purposes and
not with a view to, or for offer or sale in connection with, any
distribution thereof in violation of the Securities Act or (f) pursuant to
any other available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such
investor account or accounts be at all times within our or their control
and to compliance with any applicable state securities laws. The foregoing
restrictions on resale shall not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Securities is
proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the Trustee,
which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act and that it is
acquiring such Securities for investment purposes and not for distribution
in violation of the Securities Act. We acknowledge on our own behalf and
on behalf of any investor account for which we are purchasing Securities
that the Company and the Trustee reserve the right prior to any offer, sale
or other transfer prior to the Resale Restriction Termination Date of the
Securities pursuant to clauses (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications and/or other information
satisfactory to the Company and the Trustee.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Securities for investment
purposes and not with a view to, or for offer or sale in connection with,
any distribution in violation of the Securities Act and we have such
knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and
we and any accounts for which we are acting are each able to bear the
economic risk of our or its investments.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts as to each of which we exercise sole
investment discretion.
A-2
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
_______________________
(Name of Purchaser)
By:_____________________
Date:___________________
Upon transfer the Notes should be registered in the name of the new
beneficial owner as follows:
Name: ______________________
Address:_____________________
Taxpayer ID Number:__________
A-3
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Radnor Holdings Corporation
Three ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Registrar address block]
Re: 10% Series B Senior Notes due 2003
Reference is hereby made to the Indenture, dated as of October 15,
1997 (the "Indenture"), between Radnor Holdings Corporation, as issuer (the
---------
"Company"), the guarantors thereof and First Union National Bank, as trustee.
--------
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
___________, (the "Transferor") owns and proposes to transfer the
----------
Security [Securities] or interest in such Security [Securities] in the principal
amount of $__________ in such Security [Securities] or interests (the
"Transfer"), to ___________ (the "Transferee"), as further specified in Annex A
-------- ----------
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
144A GLOBAL SECURITY OR A PHYSICAL SECURITY PURSUANT TO RULE 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
--------------
accordingly, the Transferor hereby further certifies that the beneficial
interest or Physical Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Physical Security for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Physical Security will be subject to the restrictions on transfer enumerated
in the Private Placement
B-1
Legend printed on the 144A Global Security and/or the Physical Security and in
the Indenture and the Securities Act.
2. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL SECURITY OR A PHYSICAL SECURITY PURSUANT TO REGULATION S.
The Offer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Physical Security will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Security and/or the Physical Security and in the
Indenture and the Securities Act.
3. [_] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL SECURITY OR A PHYSICAL SECURITY PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a subsidiary
thereof;
B-2
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the
Transferor hereby further certifies that the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Security
or Restricted Physical Securities and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the Transferee
in the form of Exhibit A to the Indenture and (2) if such Transfer is in respect
of a principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Physical Security will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI Global
Security and/or the Physical Securities and in the Indenture and the Securities
Act.
4. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED PHYSICAL SECURITY.
(a) [_] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Physical
Security will no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Securities, on
Restricted Physical Securities and in the Indenture.
B-3
(b) [_] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws or any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Physical Security will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities, on Restricted Physical Securities and in the Indenture.
(c) [_] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144A, Rule
144, Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Physical Security will not be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities or Restricted Physical Securities and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________
[Insert Name of Transferor]
By:___________________________
Name:
Title:
Dated:___________________________
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Security (CUSIP____________________), or
(ii) [_] Regulation S Global Security (CINS_________________),
or
(iii) [_] IAI Global Security (CUSIP__________________); or
(b) [_] a Restricted Physical Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Security (CUSIP_________________), or
(ii) [_] Regulation S Global Security (CINS ______________), or
(iii) [_] IAI Global Security (CUSIP _______________); or
(iv) [_] Unrestricted Global Security (CUSIP _______________);
or
(b) [_] a Restricted Physical Security; or
(c) [_] an Unrestricted Physical Security, in accordance with the terms
of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Radnor Holdings Corporation
Three ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Registrar address block]
Re: 10% Series A Senior Notes due 2003
(CUSIP __________)
Reference is hereby made to the Indenture, dated as of October 15,
1997 (the "Indenture"), between Radnor Holdings Corporation, as issuer (the
---------
"Company"), the guarantors thereof and First Union National Bank, as trustee.
--------
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
__________, (the "Owner") owns and proposed to exchange the Security
-----
[Securities] or interest in such Security [Securities] specified herein, in the
principal amount of $ __________ in such Security [Securities] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
--------
1. EXCHANGE OF RESTRICTED PHYSICAL SECURITIES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED PHYSICAL SECURITIES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY.
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. In connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Security for a beneficial interest in an
Unrestricted Global Security in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global
Securities and pursuant to and in accordance with the United States
Securities Act of 1933, as amended (the "Securities Act"), (iii) the
--------------
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and
C-1
(iv) the beneficial interest in an Unrestricted Global Security is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(b) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED PHYSICAL SECURITY. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Security for an Unrestricted Physical Security, the Owner hereby certifies
(i) the Physical Security is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to the Restricted Global Securities
and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Physical Security is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(c) [_] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITY TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with
the Owner's Exchange of a Restricted Physical Security for a beneficial
interest in an Unrestricted Global Security, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to Restricted Physical Securities and
pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(d) [_] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITY TO
UNRESTRICTED PHYSICAL SECURITY. In connection with the Owner's Exchange of
Restricted Physical Security for an Unrestricted Physical Security, the
Owner hereby certifies (i) the Unrestricted Physical Security is being
acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable
to Restricted Physical Securities and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Physical Security is being
C-2
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
2. EXCHANGE OF RESTRICTED PHYSICAL SECURITIES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL SECURITIES FOR RESTRICTED PHYSICAL SECURITIES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITIES.
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO RESTRICTED PHYSICAL SECURITY. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Security for a Restricted Physical Security with an equal principal amount,
the Owner hereby certifies that the Restricted Physical Security is being
acquired for the Owner's own account without transfer. Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Physical Security issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Physical Security and in the Indenture and the Securities
Act.
(b) [_] CHECK IF EXCHANGE IS FROM RESTRICTED PHYSICAL SECURITY TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection with
the Exchange of the Owner's Restricted Physical Security for a beneficial
interest in the [CHECK ONE] 144A Global Security, Regulation S
Global Security, IAI Global Security with an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
the Restricted Global Securities and pursuant to and in accordance with the
Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the relevant Restricted Global
Security and in the Indenture and the Securities Act.
C-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
______________________________
[Insert Name of Owner]
By: _________________________
Name:
Title:
Dated: ____________
C-4
SCHEDULE 1
----------
EXISTING INDEBTEDNESS
None.