BUCKEYE TECHNOLOGIES INC.,
as Issuer
each of the Guarantors from time to time party hereto,
as Guarantors
and
THE BANK OF NEW YORK,
as Trustee
______________________________________________________
INDENTURE
Dated as of September 22, 2003
______________________________________________________
8 1/2% Senior Notes due 2013
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of September 22, 2003
Trust Indenture Indenture
Act Section Section
Section 310 (a)(1)...........................................................6.9
(a)(2)...........................................................6.9
(b)........................................................6.8, 6.10
Section 311 (a).............................................................6.13
Section 312 (a)...... .......................................................7.1
(c)..............................................................7.2
Section 313 (a)..............................................................7.3
(c)..............................................................7.3
Section 314 (a)............................................................10.20
(a)(4).........................................................10.20
(c)(1)...........................................................1.3
(c)(2)...........................................................1.3
(e)..............................................................1.3
Section 315 (a)...........................................................6.1(b)
(b)..............................................................6.2
(c)...........................................................6.1(a)
(d)......................................................6.1(c), 6.3
(e).............................................................5.14
Section 316 (a) (last sentence)..............................1.1 ("Outstanding")
(a)(1)(A)..................................................5.2, 5.12
(a)(1)(B).......................................................5.13
(b)..............................................................5.8
(c)..............................................................1.5
Section 317 (a)(1)...........................................................5.3
(a)(2)...........................................................5.4
(b).............................................................10.3
Section 318 (a)..............................................................1.8
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions......................................................1
SECTION 1.2. Other Definitions...............................................17
SECTION 1.3. Compliance Certificates and Opinions............................18
SECTION 1.4. Form of Documents Delivered to Trustee..........................18
SECTION 1.5. Acts of Holders.................................................19
SECTION 1.6. Notices, etc., to the Trustee, the Company and the Guarantors...20
SECTION 1.7. Notice to Holders; Waiver.......................................20
SECTION 1.8. Conflict with Trust Indenture Act...............................21
SECTION 1.9. Effect of Headings and Table of Contents........................21
SECTION 1.10. Successors and Assigns..........................................21
SECTION 1.11. Separability Clause.............................................21
SECTION 1.12. Benefits of Indenture...........................................21
SECTION 1.13. Governing Law...................................................21
SECTION 1.14. Legal Holidays..................................................21
SECTION 1.15. Independence of Covenants.......................................22
SECTION 1.16. Exhibits........................................................22
SECTION 1.17. Counterparts....................................................22
ARTICLE TWO
SECURITY FORMS
SECTION 2.1. Forms Generally.................................................22
SECTION 2.2. Form of Face of Securities......................................25
SECTION 2.3. Form of Reverse of Securities...................................25
SECTION 2.4. Form of Guarantee...............................................25
ARTICLE THREE
THE SECURITIES
SECTION 3.1. Title and Terms.................................................25
SECTION 3.2. Denominations...................................................26
SECTION 3.3. Execution, Authentication, Delivery and Dating..................26
SECTION 3.4. Temporary Securities............................................27
SECTION 3.5. Registration, Registration of Transfer and Exchange.............28
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities................31
SECTION 3.7. Payment of Interest; Interest Rights Preserved..................32
SECTION 3.8. Persons Deemed Owners...........................................33
SECTION 3.9. Cancellation....................................................33
SECTION 3.10. Computation of Interest.........................................33
SECTION 3.11. CUSIP Numbers...................................................33
SECTION 3.12. Issuance of Additional Securities...............................33
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ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 4.1. Company's Option to Effect Defeasance or Covenant Defeasance....34
SECTION 4.2. Defeasance and Discharge........................................34
SECTION 4.3. Covenant Defeasance.............................................35
SECTION 4.4. Conditions to Defeasance or Covenant Defeasance.................35
SECTION 4.5. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.........................37
SECTION 4.6. Reinstatement...................................................37
ARTICLE FIVE
REMEDIES
SECTION 5.1. Events of Default...............................................38
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment..............39
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.40
SECTION 5.4. Trustee May File Proofs of Claim................................41
SECTION 5.5. Trustee May Enforce Claims without Possession of Securities.....42
SECTION 5.6. Application of Money Collected..................................42
SECTION 5.7. Limitation on Suits.............................................42
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest..................................................43
SECTION 5.9. Restoration of Rights and Remedies..............................43
SECTION 5.10. Rights and Remedies Cumulative..................................43
SECTION 5.11. Delay or Omission Not Waiver....................................43
SECTION 5.12. Control by Holders..............................................44
SECTION 5.13. Waiver of Past Defaults.........................................44
SECTION 5.14. Undertaking for Costs...........................................44
SECTION 5.15. Waiver of Stay, Extension or Usury Laws.........................44
SECTION 5.16. Remedies Subject to Applicable Law..............................45
ARTICLE SIX
THE TRUSTEE
SECTION 6.1. Duties of Trustee...............................................45
SECTION 6.2. Notice of Defaults..............................................46
SECTION 6.3. Certain Rights of Trustee.......................................46
SECTION 6.4. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.................48
SECTION 6.5. Trustee and Agents May Hold Securities; Collections; etc........48
SECTION 6.6. Money Held in Trust.............................................48
SECTION 6.7. Compensation and Indemnification of Trustee and Its
Prior Claim...................................................49
SECTION 6.8. Conflicting Interests...........................................49
SECTION 6.9. Corporate Trustee Required; Eligibility.........................49
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee.......50
SECTION 6.11. Acceptance of Appointment by Successor..........................51
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SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.....52
SECTION 6.13. Preferential Collection of Claims Against Company...............52
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.......52
SECTION 7.2. Disclosure of Names and Addresses of Holders....................53
SECTION 7.3. Reports by Trustee..............................................53
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, etc., Only on Certain Terms............53
SECTION 8.2. Successor Substituted...........................................54
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures and Agreements without
Consent of Holders............................................55
SECTION 9.2. Supplemental Indentures and Agreements with
Consent of Holders............................................55
SECTION 9.3. Execution of Supplemental Indentures............................57
SECTION 9.4. Effect of Supplemental Indentures...............................57
SECTION 9.5. Conformity with Trust Indenture Act.............................57
SECTION 9.6. Reference in Securities to Supplemental Indentures..............57
SECTION 9.7. Notice of Supplemental Indentures...............................57
SECTION 9.8. Revocation and Effect of Consents...............................57
ARTICLE TEN
COVENANTS
SECTION 10.1. Payment of Principal, Premium, Interest and
Additional Interest...........................................58
SECTION 10.2. Maintenance of Office or Agency.................................58
SECTION 10.3. Money for Security Payments to Be Held in Trust.................58
SECTION 10.4. Corporate Existence.............................................59
SECTION 10.5. Payment of Taxes and Other Claims...............................60
SECTION 10.6. Maintenance of Properties.......................................60
SECTION 10.7. Insurance.......................................................60
SECTION 10.8. Limitation on Indebtedness......................................60
SECTION 10.9. Limitation on Restricted Payments...............................64
SECTION 10.10.Limitation on Transactions with Affiliates......................67
SECTION 10.11.Limitation on Liens.............................................68
SECTION 10.12.Limitation on Sale of Assets....................................68
SECTION 10.13.Limitation on Issuances of Subsidiary Guarantees................72
SECTION 10.14.[Reserved.].....................................................72
SECTION 10.15.Restriction on Transfer of Assets...............................72
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SECTION 10.16.Purchase of Securities upon a Change in Control.................72
SECTION 10.17.Limitation on Subsidiary Capital Stock..........................75
SECTION 10.18.Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries..................................................76
SECTION 10.19.Limitation on Unrestricted Subsidiaries.........................76
SECTION 10.20.Provision of Financial Statements...............................76
SECTION 10.21.Statement by Officers as to Default.............................77
SECTION 10.22.Waiver of Certain Covenants.....................................77
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1. Rights of Redemption............................................78
SECTION 11.2. Applicability of Article........................................78
SECTION 11.3. Election to Redeem; Notice to Trustee...........................78
SECTION 11.4. Selection by Trustee of Securities to Be Redeemed...............78
SECTION 11.5. Notice of Redemption............................................79
SECTION 11.6. Deposit of Redemption Price.....................................80
SECTION 11.7. Securities Payable on Redemption Date...........................80
SECTION 11.8. Securities Redeemed or Purchased in Part........................80
ARTICLE TWELVE
GUARANTEES
SECTION 12.1. Guarantee.......................................................81
SECTION 12.2. Execution and Delivery of Guarantee.............................82
SECTION 12.3. Limitation of Guarantee.........................................82
SECTION 12.4. Waiver of Subrogation...........................................82
SECTION 12.5. Release of Guarantee............................................83
SECTION 12.6. Contribution from Other Guarantors..............................83
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
SECTION 13.1. Satisfaction and Discharge of Indenture.........................84
SECTION 13.2. Application of Trust Money......................................85
EXHIBIT A Form of Initial Global Security
EXHIBIT B Form of Initial Certificated Security
EXHIBIT C Form of Exchange Global Security
EXHIBIT D Form of Exchange Certificated Security
EXHIBIT E Form of Guarantee
EXHIBIT F Form of Certificate to be Delivered upon Exchange or Registration
of Transfer of Notes
EXHIBIT G Form of Transferee Letter of Representation
EXHIBIT H Form of Certificate to be Delivered in Connection with
Regulation S Transfers
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INDENTURE, dated as of September 22, 2003, by and among Buckeye
Technologies Inc., a Delaware corporation (the "Company"), the Guarantors and
The Bank of New York, a New York banking corporation, as trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 8 1/2% Senior
Notes due 2013 (the "Initial Securities"), of substantially the tenor and amount
hereinafter set forth, and to provide therefor and for, if and when issued in
exchange for the Initial Securities pursuant to this Indenture and the
Registration Rights Agreement, the Company's 8 1/2% Senior Notes due 2013 (the
"Exchange Securities") this Company has duly authorized the execution and
delivery of this Indenture and the Securities (as defined herein);
All acts and things necessary have been done to make the Securities, when
duly issued and executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company and this Indenture a valid
agreement of the Company 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 Initial
Securities by the Holders (as defined therein) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. 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;
(e) all references to $, US$, dollars or United States dollars shall
refer to the lawful currency of the United States of America;
(f) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Security, such mention shall be deemed
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to include mention of the payment of Additional Interest to the extent
that, in such context, Additional Interest is, was or would be payable in
respect thereof; and
(g) all references herein to particular Sections or Articles refer to
this Indenture unless otherwise so indicated.
Certain terms used principally in Article Four are defined in Article
Four.
The following terms shall have the following meanings:
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
the time such Person becomes a Subsidiary of the Company or (ii) assumed in
connection with the acquisition of assets from such Person, in each case,
other than Indebtedness incurred in connection with, or in contemplation
of, such Person becoming a Subsidiary of the Company or such acquisition,
as the case may be. Acquired Indebtedness shall be deemed to be incurred on
the date of the related acquisition of assets from any Person or the date
the acquired Person becomes a Subsidiary of the Company, as the case may
be.
"Additional Interest" has the meaning set forth in Exhibit A.
"Additional Securities" means 8 1/2% Senior Notes due 2013 issued from
time to time after the Issue Date under the terms of this Indenture and
subject to the limitations of and the Company's compliance with Section
10.8 (other than issuances pursuant to Section 3.4, 3.6, 10.12, 10.16 or
11.8 of this Indenture and other than Exchange Securities issued pursuant
to an exchange offer for other Securities outstanding under this
Indenture).
"Affiliate" means, with respect to any specified Person: (i) any other
Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person; (ii) any other
Person that owns, directly or indirectly, 5% or more of such specified
Person's Capital Stock or any officer or director of any such specified
Person or other Person or, with respect to any natural Person, any person
having a relationship with such Person by blood, marriage or adoption not
more remote than first cousin; or (iii) any other Person 5% or more of the
Voting Stock of which is beneficially owned or held directly or indirectly
by such specified Person. For the purposes of this definition, "control"
when used with respect to any specified Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a
"transfer"), directly or indirectly, in one or a series of related
transactions, of: (i) any Capital Stock of any Subsidiary of the Company;
(ii) all or substantially all of the properties and assets of any division
or line of business of the Company or any of its Subsidiaries; or (iii) any
other properties or assets of the Company or any Subsidiary of the Company
other than in the ordinary course of business. For the purposes of this
definition, the term "Asset Sale" shall not include any transfer of
properties and assets (A) that is governed by Article Eight, (B) that is by
any Subsidiary of the Company to the Company or any Wholly Owned Subsidiary
in accordance with the terms of this Indenture, (C) that is of inventory in
the ordinary course of business, (D) leases or subleases, in the ordinary
course of business, to third parties of real property owned in fee or
leased by the Company or its Subsidiaries, (E) the sale of Cash Equivalents
and other marketable securities or any disposition of cash, (F) the sale or
factoring of receivables on customary market terms; provided that the
Company or the applicable Subsidiary receives consideration in an
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amount at least equal to the Fair Market Value of the receivables so sold
or factored and at least 75% of such consideration is in the form of any
combination of cash and/or Cash Equivalents, (G) that is of obsolete
equipment in the ordinary course of business or (H) the Fair Market Value
of which in the aggregate during any 12-month period, for all such
transfers, does not exceed $10 million.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the
date of determination to the date or dates of each successive scheduled
principal payment of such Indebtedness multiplied by (b) the amount of each
such principal payment by (ii) the sum of all such principal payments.
"Bank Credit Facility" means the Credit Agreement, dated as of April
16, 2001, among the Company, the Banks, and Fleet National Bank (the
"Existing Bank Credit Facility"), as such agreement, in whole or in part,
may be amended, renewed, extended, substituted, refinanced, restructured,
replaced, supplemented or otherwise modified from time to time (including,
without limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings, replacements, supplementations or other
modifications of the foregoing regardless of the amount of borrowings
permitted thereunder, which borrowings were incurred in accordance with
this Indenture) including, without limitation, through one or more debt
facilities or other financing arrangements (including commercial paper
facilities, revolving credit loans, term loans, receivables financings,
letters of credit and any debt securities or other form of debt,
convertible debt or exchangeable debt financing), in each case, whether by
the same or any other lender or group of lenders or creditor or group of
creditors.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code of
1978, 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.
"Banks" means the lenders under the Bank Credit Facility.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions or trust companies
in The City of New York, Memphis, Tennessee or the city in which the
Corporate Trust Office of the Trustee is located are authorized or
obligated by law, regulation or executive order to close.
"Capital Lease Obligation" of any Person means any obligation of such
Person and its Subsidiaries on a Consolidated basis under any capital lease
of real or personal property which, in accordance with GAAP, has been
recorded as a capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock or other equity interests, and any rights (other
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than debt securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock, whether now
outstanding or issued after the date of this Indenture.
"Cash Equivalents" means (i) any evidence of Indebtedness, maturing
not more than one year after the date of acquisition, issued by the United
States of America, or an instrumentality or agency thereof, and guaranteed
fully as to principal, premium, if any, and interest by the United States
of America, (ii) any money market deposit account, demand deposit account,
time deposit or certificate of deposit, maturing not more than one year
after the date of acquisition, of a commercial banking institution
organized under the laws of the United States of America, any State
thereof, the District of Columbia, or any foreign country recognized by the
United States of America and which institution has combined capital and
surplus and undivided profits of not less than $200 million, (iii) any time
deposit or certificate of deposit, maturing more than one year after the
date of acquisition, of a commercial banking institution organized under
the laws of the United States of America, any State thereof, the District
of Columbia, or any foreign country recognized by the United States of
America and which institution has combined capital and surplus and
undivided profits of not less than $200 million and whose debt has a
rating, at the time as of which any investment therein is made, of "P-1"
(or higher) according to ▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P, or
any successor rating agency, and (iv) commercial paper, maturing not more
than one year after the date of acquisition, issued by a corporation (other
than an Affiliate or Subsidiary of the Company) organized and existing
under the laws of the United States of America with a rating, at the time
as of which any investment therein is made, of "P-1" (or higher) according
to ▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P.
"Certificated Securities" means the Securities issued in definitive,
fully registered and certificated form.
"Change in Control" means the occurrence of any of the following
events: (i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have beneficial ownership of all shares that such
Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
more than 50% of the total voting power of all outstanding Voting Stock of
the Company; (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 66 2/3% of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved), cease for any reason
to constitute a majority of such Board of Directors then in office; (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,
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, other than any such transaction where the outstanding
Voting Stock of the Company is not affected or is not changed or exchanged
at all (except to the extent necessary to reflect a change in the
jurisdiction of incorporation of the Company or where (A) the outstanding
Voting Stock of the Company is changed into or exchanged for (x) Voting
Stock of the surviving corporation which is not Redeemable Capital Stock or
(y) cash, securities and other property (other than Capital Stock of the
surviving corporation) in an amount which could be paid by the Company as a
Restricted Payment in accordance with Section 10.9 (and such amount shall
be treated as a Restricted Payment subject to the provisions described
under Section 10.9), and (B) no "person" or "group" "beneficially owns"
immediately after such transaction, directly or indirectly more than 50% of
the total voting power of all outstanding Voting Stock of the
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surviving corporation); or (iv) the Company is liquidated or dissolved or
adopts a plan of liquidation or dissolution other than in a transaction
which complies with the provisions described under Article Eight.
"Commodity Price Protection Agreement" means any forward contract,
commodity swap, commodity option or other similar financial agreement or
arrangement relating to, or the value of which is dependent upon,
fluctuations in commodity prices.
"Common Stock" means the common stock, par value $0.01 per share, of
the Company.
"Company" means Buckeye Technologies Inc., 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,
its Vice-Chairman, its President, its Chief Executive Officer, its Chief
Operating Officer or a Senior Vice President (regardless of Senior Vice
Presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Fixed Charge Coverage Ratio" of any Person means, for
any period, the ratio of (a) the sum of (i) Consolidated Net Income (Loss),
plus (ii) Consolidated Interest Expense, plus (iii) Consolidated Income Tax
Expense, plus (iv) Consolidated Non-cash Charges deducted in computing
Consolidated Net Income (Loss), plus (v) expenses incurred during such
period in connection with the early extinguishment of Indebtedness, and
less (vi) non-cash items increasing Consolidated Net Income (Loss), in each
case, for such period, of such Person and its Subsidiaries on a
Consolidated basis, all determined in accordance with GAAP to (b) the
Consolidated Interest Expense for such period; provided that (i) in making
such computation, the Consolidated Interest Expense attributable to
interest on any Indebtedness computed on a pro forma basis and (A) bearing
a floating interest rate shall be computed as if the rate in effect on the
date of computation had been the applicable rate for the entire period and
(B) which was not outstanding during the period for which the computation
is being made but which bears, at the option of such Person, a fixed or
floating rate of interest, shall be computed by applying at the option of
such Person either the fixed or floating rate and (ii) in making such
computation, the Consolidated Interest Expense of such Person attributable
to interest on any Indebtedness under a revolving credit facility computed
on a pro forma basis shall be computed based upon the average daily balance
of such Indebtedness during the applicable period.
"Consolidated Income Tax Expense" of any Person means, for any period,
the provision for federal, state, local and foreign income taxes of such
Person and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP.
"Consolidated Interest Expense" of any Person means, without
duplication, for any period, the sum of (a) the interest expense of such
Person and its Subsidiaries for such period, on a Consolidated basis,
including, without limitation, (i) amortization of debt discount, (ii) the
net costs associated with Interest Rate Agreements, Currency Hedging
Agreements and Commodity Price Protection Agreements (including
amortization of discounts), (iii) the interest portion of any deferred
payment obligation and (iv) accrued interest, plus (b) (i) the interest
component of the Capital Lease Obligations paid, accrued and/or scheduled
to be paid or accrued by such Person and its Subsidiaries during such
period and (ii) all capitalized interest of such Person and its
Subsidiaries plus (c) the interest expense under any Guaranteed Debt of
such Person and its Subsidiaries to the extent not included under clause
(a)(iv) above, plus (d) the ag-
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gregate amount during such period of cash or non-cash dividends paid on any
Redeemable Capital Stock or Preferred Stock of the Company and its
Subsidiaries, in each case as determined on a Consolidated basis in
accordance with GAAP.
"Consolidated Net Income (Loss)" of the Company means, for any period,
the Consolidated net income (or loss) of the Company and its Subsidiaries
for such period on a Consolidated basis as determined in accordance with
GAAP, adjusted, to the extent included in calculating such net income (or
loss), by excluding, without duplication, (i) all extraordinary gains or
losses (less all fees and expenses relating thereto), (ii) the portion of
net income (or loss) of the Company and its Subsidiaries on a Consolidated
basis allocable to a Person other than a Subsidiary to the extent that cash
dividends or distributions have not actually been received by the Company
or one of its Consolidated Subsidiaries, (iii) net income (or loss) of any
Person combined with the Company or any of its Subsidiaries on a "pooling
of interests" basis attributable to any period prior to the date of
combination, (iv) any gain or loss, net of taxes, realized upon the
termination of any employee pension benefit plan, (v) net gains (or losses)
(less all fees and expenses relating thereto) in respect of dispositions of
assets other than in the ordinary course of business, (vi) the net income
of any Subsidiary of the Company to the extent that the declaration of
dividends or similar distributions by that Subsidiary of that income is not
at the time permitted, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary or its
stockholders, (vii) any restoration to income of any contingency reserve,
except to the extent provision for such reserve was made out of income
accrued at any time following the date of this Indenture, or (viii) any
gain arising from the acquisition of any securities, or the extinguishment,
under GAAP, of any Indebtedness of such Person.
"Consolidated Non-cash Charges" of any Person means, for any period,
the aggregate depreciation, amortization and other non-cash charges of such
Person and its Subsidiaries on a Consolidated basis for such period, as
determined in accordance with GAAP (excluding any non-cash charge which
requires an accrual or reserve for cash charges for any future period).
"Consolidated Tangible Assets" of any Person means, the aggregate
amount of assets after deducting therefrom all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense (to the extent
included in said aggregate amount of assets) and other like intangibles, as
shown on the balance sheet of such Person for the most recently ended
fiscal quarter for which financial statements are available, determined on
a Consolidated basis in accordance with GAAP. Consolidated Tangible Assets
will be determined as of the time of the occurrence of the event(s) giving
rise to the requirement to determine Consolidated Tangible Assets and after
giving effect to such event(s).
"Consolidation" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its Subsidiaries (other than
Unrestricted Subsidiaries) if and to the extent the accounts of such Person
and each of its Subsidiaries (other than Unrestricted Subsidiaries) would
normally be consolidated with those of such Person, all in accordance with
GAAP. The term "Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 8 West,
New York, New York 10286, Attention: Corporate Trust Administration, or
such other address as the Trustee may designate from time to time by notice
to the Holders and the Company, or the principal corporate trust office of
any successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Company).
-7-
"Currency Hedging Arrangements" means one or more of the following
agreements which shall be entered into by one or more financial
institutions: foreign exchange contracts, currency swap agreements or other
similar agreements or arrangements designed to protect against the
fluctuations in currency values.
"Default" means any event which is, or after notice or passage of any
time or both would be, an Event of Default.
"Depositary" or "DTC" means The Depository Trust Company, its nominees
and their respective successors.
"Disinterested Director" means, with respect to any transaction or
series of related transactions, a member of the Board of Directors of the
Company who does not have any material direct or indirect financial
interest (other than solely as a result of equity ownership in the Company)
in or with respect to such transaction or series of related transactions.
"Domestic Subsidiary" means a Subsidiary other than a Foreign
Subsidiary.
"Equity Offering" means a public or private offer and sale of Capital
Stock of the Company (other than Redeemable Capital Stock and other than an
offer and sale of Capital Stock on Form S-8 or any successor form or forms
or a registration statement relating to securities issuable by or in
connection with any benefit plan of such Person).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute.
"Exchange Certificated Securities" means Securities issued in
definitive, fully registered form to beneficial owners of interests in the
Exchange Global Securities pursuant to Section 3.5 hereof.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Exchange Securities" has the meaning set forth in the Recitals of the
Company and more particularly means any of the Securities authenticated and
delivered under this Indenture pursuant to the Registered Exchange Offer.
"Existing Bank Credit Facility" has the meaning set forth in the
definition of Bank Credit Facility.
"Existing Notes Indentures" means the Indentures related to the
Existing Notes.
"Existing Notes" means the 9 1/4% Senior Subordinated Notes due 2008
and the 8% Senior Subordinated Notes due 2010 of the Company.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
-8-
"Fenholloway River" means the river in Florida into which the
Company's ▇▇▇▇▇ Plant discharges treated waste water.
"Final Memorandum" means the final Offering Memorandum, dated
September 15, 2003, used in connection with the Initial Placement.
"Foreign Subsidiary" means a Subsidiary that is formed or otherwise
incorporated in a jurisdiction other than the United States or a State
thereof or the District of Columbia.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied,
which are in effect on the date of this Indenture.
"Global Securities" means the Initial Global Securities and the
Exchange Global Security.
"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of
Indebtedness below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (i) to pay or purchase such Indebtedness or to advance
or supply funds for the payment or purchase of such Indebtedness, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such Indebtedness
against loss, (iii) to supply funds to, or in any other manner invest in,
the debtor (including any agreement to pay for property or services without
requiring that such property be received or such services be rendered),
(iv) to maintain working capital or equity capital of the debtor, or
otherwise to maintain the net worth, solvency or other financial condition
of the debtor or (v) otherwise to assure a creditor against loss; provided
that the term "guarantee" shall not include endorsements for collection or
deposit in either case, in the ordinary course of business.
"Guarantor" means a Subsidiary of the Company that executes a
Guarantee pursuant to Section 10.13 hereof; provided that any Person
constituting a Guarantor as described above shall cease to constitute a
Guarantor when its Guarantee is released in accordance with the terms of
this Indenture.
"Holder" means (i) in the case of any Certificated Security, the
Person in whose name such Certificated Security is registered in the
Security Register, and (ii) in the case of any Global Security, the
Depositary.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, excluding any trade payables and
other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit issued
under letter of credit facilities, acceptance facilities or other similar
facilities and in connection with any agreement to purchase, redeem,
exchange, convert or otherwise acquire for value any Capital Stock of such
Person, or any warrants, rights or options to acquire such Capital Stock,
now or hereafter outstanding, (ii) all obligations of such Person evidenced
by bonds, notes, debentures or other similar instruments, (iii) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
if the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property),
but excluding trade payables arising in the ordinary course of business,
(iv) all obligations under Interest Rate Agreements, Currency Hedging
Agreements or Commodity Price Protection Agreements of such Person, (v) all
Capital Lease Obligations of such Person, (vi) all Indebtedness referred to
in
-9-
clauses (i) through (v) above of other Persons and all dividends of
other Persons, the payment of which is secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien, upon or with respect to property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
Indebtedness, (vii) all Guaranteed Debt of such Person, (viii) all
Redeemable Capital Stock issued by such Person valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and
unpaid dividends, and (ix) any amendment, supplement, modification,
deferral, renewal, extension, refunding or refinancing of any liability of
the types referred to in clauses (i) through (viii) above. For purposes
hereof, the "maximum fixed repurchase price" of any Redeemable Capital
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock as if such
Redeemable Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such
price is based upon, or measured by, the Fair Market Value of such
Redeemable Capital Stock, such Fair Market Value to be determined in good
faith by the Board of Directors of the issuer of such Redeemable Capital
Stock.
"Indenture" means this instrument as originally executed (including
all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company, any
Guarantor and any other obligor under this Indenture or under the
Securities to pay principal of, premium, if any, and interest when due and
payable, and all other amounts due or to become due under or in connection
with this Indenture, the Securities and the performance of all other
obligations to the Trustee and the holders under this Indenture and the
Securities, according to the respective terms thereof.
"Initial Certificated Securities" means Securities issued in
definitive, fully registered form to beneficial owners of interest in the
Initial Global Security pursuant to Section 3.5 hereof.
"Initial Placement" means the initial sales of the Securities by the
Initial Purchasers.
"Initial Purchasers" means Citigroup Global Markets Inc., UBS
Securities LLC and Fleet Securities, Inc.
"Initial Securities" has the meaning set forth in the Recitals of the
Company and, more particularly, means any of the Securities (including any
Additional Securities) authenticated and delivered under this Indenture
other than pursuant to the Registered Exchange Offer.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial
institutions: interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar
agreements) and/or other types of interest rate hedging agreements from
time to time.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others), or any purchase, acquisition or ownership by
such Person of any Capital Stock, bonds, notes, debentures or other
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securities issued or owned by any other Person and all other items that
would be classified as investments on a balance sheet prepared in
accordance with GAAP.
"Issue Date" means September 22, 2003, the date on which the
Securities are originally issued.
"Lien" means any mortgage or deed of trust, charge, pledge, lien
(statutory or otherwise), security interest, assignment, deposit,
arrangement, easement, hypothecation, claim, preference, priority or other
encumbrance upon or with respect to any property of any kind (including any
conditional sale, capital lease or other title retention agreement, any
leases in the nature thereof, and any agreement to give any security
interest), real or personal, movable or immovable, now owned or hereafter
acquired.
"Maturity" means, when used with respect to the Securities, the date
on which the principal of the Securities becomes due and payable as therein
provided or as provided in this Indenture, whether at Stated Maturity, the
Offer Date or the redemption date and whether by declaration of
acceleration, Offer in respect of Excess Proceeds, Change in Control Offer
in respect of a Change in Control, call for redemption or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
rating agency.
"Net Cash Proceeds" means (a) with respect to any Asset Sale by any
Person, the proceeds thereof (without duplication in respect of all Asset
Sales) in the form of cash including payments in respect of deferred
payment obligations when received in the form of, or stock or other assets
when disposed of for, cash (except to the extent that such obligations are
financed or sold with recourse to the Company or any of its Subsidiaries)
net of (i) brokerage commissions and other reasonable fees and expenses
(including fees and expenses of counsel and investment bankers) related to
such Asset Sale, (ii) provisions for all taxes payable as a result of such
Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties the subject of
such Asset Sale, (iv) amounts required to be paid to any Person (other than
the Company or any Subsidiary of the Company) owning a beneficial interest
in the assets subject to the Asset Sale, (v) appropriate amounts to be
provided by the Company or any Subsidiary of the Company, as the case may
be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any
Subsidiary of the Company, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities
under any indemnification obligations associated with such Asset Sale, all
as reflected in an Officers' Certificate delivered to the Trustee and (vi)
any amounts required to be placed by the Company or any Subsidiary of the
Company in a restricted escrow or reserve account by the terms of the
agreements pursuant to which the Asset Sale is made; provided that any such
amounts shall be deemed to be Net Cash Proceeds of an Asset Sale upon the
release of such amounts to the Company or any of its Subsidiaries and (b)
with respect to any issuance or sale of Capital Stock or options, warrants
or rights to purchase Capital Stock, or debt securities or Capital Stock
that have been converted into or exchanged for Capital Stock as referred to
in Section 10.9, the proceeds of such issuance or sale in the form of cash
including payments in respect of deferred payment obligations when received
in the form of, or stock or other assets when disposed of for, cash (except
to the extent that such obligations are financed or sold with recourse to
the Company or any of its Subsidiaries), net of attorney's fees,
accountant's fees and brokerage, consultation, underwriting and other fees
and expenses actually incurred in connection with such issuance or sale and
net of taxes paid or payable as a result thereof.
"Non-Guarantor Subsidiary" means any Subsidiary of the Company that is
not a Guarantor.
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"Officers' Certificate" means a certificate signed by the Chairman of
the Board, Vice Chairman, the President, the Chief Executive Officer, the
Chief Operating Officer or a Senior Vice President (regardless of Senior
Vice Presidential designation), and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, 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 (other than
non-employee legal counsel) of the Company but who may be regular outside
counsel to the Company 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 cancelled 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 of
such Securities; provided that if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor reasonably satisfactory to the Trustee
has been made;
(c) Securities, except to the extent provided in Sections 4.2 and
4.3, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article Four; and
(d) Securities paid in lieu of replacement pursuant to Section
3.6 and Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee and the Company proof
reasonably satisfactory to each of them that such Securities are held
by a bona fide purchaser in whose hands the Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee actually 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 or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor.
-12-
"Pari Passu Indebtedness" means any Indebtedness of the Company that
is pari passu in right of payment to the Securities.
"Paying Agent" means any Person (including the Company) authorized by
the Company to pay the principal of, premium, if any, or interest on any
Securities on behalf of the Company.
"Permitted Investment" means (i) Investments in any Wholly Owned
Subsidiary or any Person which, as a result of such Investment (whether in
one transaction or a series of substantially concurrent related
transactions), (a) becomes a Wholly Owned Subsidiary or (b) is merged or
consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or any Wholly Owned
Subsidiary; (ii) Indebtedness of the Company or a Subsidiary of the Company
described under clauses (v), (vi) and (vii) of the definition of "Permitted
Indebtedness"; (iii) Cash Equivalents; (iv) Investments acquired by the
Company or any Subsidiary of the Company in connection with an Asset Sale
permitted under Section 10.12 to the extent such Investments are non-cash
proceeds as permitted under such Section; (v) any acquisition of assets
solely in exchange for the issuance of Qualified Capital Stock of the
Company; (vi) Investments deemed to have been made as a result of the
acquisition of a Person that, at the time of such acquisition, held
Investments that were not acquired in contemplation of, or in connection
with, the acquisition of such Person; (vii) Investments in securities of
trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of
such trade creditors or customers; (viii) Investments in existence on the
date of this Indenture; (ix) Investments in the Securities; (x) Guarantees
of Indebtedness of the Company or any Subsidiary issued in accordance with
Section 10.8; (xi) loans or advances to employees made in the ordinary
course of business and consistent with past practices of the Company and
its Subsidiaries not to exceed $5 million outstanding at any one time in
the aggregate; (xii) loans made to employees (including guarantees of loans
by third parties to employees) from time to time in an aggregate principal
amount at any one time outstanding not to exceed $1 million, the proceeds
of which are used to purchase Capital Stock of the Company; (xiii) sales of
goods on trade credit terms, consistent with the past practices of the
Company or any Subsidiary of the Company or as otherwise consistent with
trade credit terms in common use in the industry; (xiv) Investments in
joint ventures or similar entities having an aggregate Fair Market Value,
taken together with all other Investments made pursuant to this clause
(xiv) then outstanding, not to exceed 5% of the Consolidated Tangible
Assets of the Company and its Subsidiaries at the time of such Investment
(with the Fair Market Value being measured at the time made and without
giving effect to subsequent changes in value); and (xv) in addition to
Investments described in clauses (i) through (xiv) of this definition of
"Permitted Investments," Investments valued at Fair Market Value at the
time made not to exceed $25 million outstanding at any one time in the
aggregate.
"Permitted Liens" means the following types of Liens: (i) Liens
existing as of the date of this Indenture to the extent and in the manner
such Liens are in effect on the date of this Indenture; (ii) Liens securing
Pari Passu Indebtedness under the Bank Credit Facility incurred pursuant to
clause (i) of the second paragraph of Section 10.8; (iii) Liens securing
the Securities and the Guarantees (and concurrent Liens securing to the
same extent any Additional Securities, if any); (iv) Liens in favor of the
Company or a Guarantor; (v) Liens for taxes, assessments or governmental
charges or claims either (A) not delinquent or (B) contested in good faith
by appropriate proceedings and, in each case, as to which the Company or
any Subsidiary shall have set aside on its books such reserves as may be
required pursuant to GAAP; (vi) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen and
other Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or that are bonded or that are being contested in
good faith if an adequate reserve or other appropriate provision, if any,
as shall be required by GAAP shall have been made in respect thereof; (vii)
Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation,
-13-
unemployment insurance and other types of social security, including any
Lien securing letters of credit issued in the ordinary course of business
consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money); (viii) judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within which
such proceedings may be initiated shall not have expired; (ix) easements,
rights-of-way, building, zoning restrictions and other similar charges or
encumbrances in respect of real property, or leases or subleases granted to
others, in any case not impairing in any material respect the ordinary
conduct of the business of the Company or any of its Subsidiaries; (x) (a)
mortgages, liens, security interests, restrictions, encumbrances or any
other matters of record that have been placed by any developer, landlord or
other third party on property over which the Company or any Subsidiary has
easement rights or on any real property leased by the Company or any
Subsidiary and subordination or similar agreements relating thereto, and
(b) any condemnation or eminent domain proceedings or compulsory purchase
order affecting any real property; (xi) any interest or title of a lessor
under any Capital Lease Obligation; provided that such Liens do not extend
to any property or asset which is not leased property subject to such
Capital Lease Obligation; (xii) Liens upon specific items of inventory or
other goods and proceeds of any Person securing such Person's obligations
in respect of bankers' acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage of such
inventory or other goods; (xiii) Liens securing reimbursement obligations
with respect to commercial letters of credit which encumber documents and
other property relating to such letters of credit and products and proceeds
thereof; (xiv) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements of
the Company or any of its Subsidiaries, including rights of offset and
set-off; (xv) Liens securing obligations under Interest Rate Agreements
which Interest Rate Agreements relate to Indebtedness that is otherwise
permitted under this Indenture; (xvi) Liens securing Purchase Money
Obligations permitted pursuant to clause (ix) of the definition of
Permitted Indebtedness; (xvii) Liens securing Indebtedness under Currency
Hedging Agreements and Commodity Price Protection Agreements; (xviii) Liens
securing Acquired Indebtedness (and any Indebtedness which refinances such
Acquired Indebtedness) incurred in accordance with Section 10.8; provided
that (A) such Liens secured the Acquired Indebtedness at the time of and
prior to the incurrence of such Acquired Indebtedness by the Company or a
Subsidiary and were not granted in connection with, or in anticipation of,
the incurrence of such Acquired Indebtedness by the Company or a
Subsidiary; and (B) such Liens do not extend to or cover any property or
assets of the Company or of any of its Subsidiaries other than the property
or assets that secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company or a Subsidiary;
(xix) Liens securing Indebtedness which is incurred to refinance any
Indebtedness secured by a Lien permitted under this Indenture; provided,
however, that such Liens do not extend to or cover any property or assets
of the Company or any of the Subsidiaries not securing the Indebtedness so
refinanced; (xx) Liens on any Capital Stock of an Unrestricted Subsidiary
solely to secure Indebtedness of such Unrestricted Subsidiary; and (xxi)
additional Liens not to exceed 5% of the Consolidated Tangible Assets of
the Company and its Subsidiaries at any one time outstanding.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Preferred Stock" means, with respect to any Person, any Capital Stock
of any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the dis-
-14-
tribution of assets tribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Person, over the Capital Stock of any
other class in such Person.
"Private Placement Legends" means the legends in the form set forth in
Article Two hereof.
"Purchase Money Obligation" means any Indebtedness secured by a Lien
on assets related to the business of the Company or any of its Subsidiaries
and any additions and accessions thereto, which are purchased by the
Company or any of its Subsidiaries at any time after the Securities are
issued; provided that (i) the security agreement or conditional sales or
other title retention contract pursuant to which the Lien on such assets is
created (collectively, a "Purchase Money Security Agreement") shall be
entered into within 90 days after the purchase, acquisition or substantial
completion of the construction of such assets and shall at all times be
confined solely to the assets so purchased, acquired or constructed, any
additions and accessions thereto and any proceeds therefrom, (ii) at no
time shall the aggregate principal amount of the outstanding Indebtedness
secured thereby be increased, except in connection with the purchase of
additions and accessions thereto and except in respect of fees and other
obligations in respect of such Indebtedness and (iii) (A) the aggregate
outstanding principal amount of Indebtedness secured thereby (determined on
a per asset basis in the case of any additions and accessions) shall not at
the time such Purchase Money Security Agreement is entered into exceed 100%
of the purchase price to the Company or its Subsidiaries of the assets
subject thereto and (B) the Indebtedness secured thereby shall be with
recourse solely to the assets so purchased or acquired, any additions and
accessions thereto and any proceeds therefrom.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms or by the terms of any security into which it is convertible or
exchangeable or otherwise, is or upon the happening of an event or passage
of time would be, required to be redeemed prior to any Stated Maturity of
the principal of the Securities or is redeemable at the option of the
holder thereof at any time prior to any such Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to
any such Stated Maturity at the option of the holder thereof.
"Redemption Date" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the date fixed
for such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the price at
which it is to be redeemed pursuant to this Indenture.
"Registered Exchange Offer" has the meaning given to such term in the
Registration Rights Agreement.
"Registrar" means any Person (including the Company) authorized by the
Company to maintain the Security Register.
"Registration Rights Agreement" means (i) in the case of the Initial
Securities the Registration Rights Agreement relating to the Securities,
dated September 22, 2003 among the Company, the Guarantors and the Initial
Purchasers and (ii) in the case of any Additional Securities, any future
registration rights agreement entered into in connection with the issuance
of such Additional Securities providing for, inter alia, the exchange of
Exchange Securities for such Additional Securities.
-15-
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 15 or September 15 (whether or not a Business Day)
next preceding such Interest Payment Date.
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including
any vice president, assistant vice president, assistant treasurer, trust
officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Rule 144" means Rule 144 under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (including any
successor regulation thereto), as it may be amended from time to time.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or any successor rating agency.
"SEC" 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 the SEC 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.
"Securities" means the Initial Securities, any Additional Securities
and the Exchange Securities treated as a single class of securities, as
amended or supplemented from time to time in accordance with the terms
hereof, that are issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" means, when used with respect to any Indebtedness or
any installment of interest thereon, the dates specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness
or such installment of interest, as the case may be, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
subordinated in right of payment to the Securities.
"Subsidiary" means any Person, a majority of the equity ownership or
the Voting Stock of which is at the time owned, directly or indirectly, by
another Person or by one or more of such other Person's other Subsidiaries,
or by such other Person and one or more of such other Person's other
Subsidiaries; provided that each Unrestricted Subsidiary of the Company
shall be deemed to not be a Subsidiary of the Company under this Indenture
and the Securities.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, or any successor statute.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor trustee.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination shall be an Unrestricted Subsidiary (as
designated by the Board of Directors of the Company, as provided below) and
(ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors
of the Company may designate any Subsidiary of the Company (including any
newly acquired or newly formed Subsidiary of the Company) to be an
Unrestricted Subsidiary if all of the following conditions apply: (A)
neither the Company nor any of its Subsidiaries provides credit support for
Indebtedness of such Unrestricted Subsidiary (including any undertaking,
agreement or instrument evidencing such Indebtedness), (B) such
Unrestricted Subsidiary is not liable, directly or indirectly, with respect
to any Indebtedness other than Unrestricted Subsidiary Indebtedness, (C)
any Investment in such Unrestricted Subsidiary made as a result of
designating such Subsidiary an Unrestricted Subsidiary shall not violate
the provisions of Section 10.19 and such Unrestricted Subsidiary is not
party to any agreement, contract, arrangement or understanding at such time
with the Company or any other Subsidiary of the Company unless the terms of
any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such other Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company or,
in the event such condition is not satisfied, the value of such agreement,
contract, arrangement or understanding to such Unrestricted Subsidiary
shall be deemed a Restricted Payment; and (D) such Unrestricted Subsidiary
does not own any Capital Stock in any Subsidiary of the Company which is
not simultaneously being designated an Unrestricted Subsidiary. Any such
designation by the Board of Directors of the Company shall be evidenced to
the Trustee by filing with the Trustee a Board Resolution giving effect to
such designation and an Officers' Certificate certifying that such
designation complies with the foregoing conditions and shall be deemed a
Restricted Payment on the date of designation in an amount equal to the
greater of (1) the net book value of such Investment or (2) the Fair Market
Value of such Investment as determined in good faith by the Board of
Directors. The Board of Directors may designate any Unrestricted Subsidiary
as a Subsidiary of the Company; provided that either (x) the Unrestricted
Subsidiary to be designated a Subsidiary of the Company has total assets of
$1,000 or less at the time of its designation or (y) (i) immediately after
giving effect to such designation, the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to the
restrictions under Section 10.8 and (ii) all Indebtedness of such
Unrestricted Subsidiary shall be deemed to be incurred on the date such
Unrestricted Subsidiary is designated a Subsidiary of the Company.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted Subsidiary
means Indebtedness of such Unrestricted Subsidiary (i) as to which neither
the Company nor any of its Subsidiaries is directly or indirectly liable
(by virtue of the Company or any such Subsidiary being the primary obligor
on, guarantor of, or otherwise liable in any respect to, such
Indebtedness), except Guaranteed Debt of the Company or any of its
Subsidiaries to any Affiliate, in which case (unless the incurrence of such
Guaranteed Debt resulted in a Restricted Payment at the time of incurrence)
the Company shall be deemed to have made a Restricted Payment equal to the
principal amount of any such Indebtedness to the extent guaranteed at the
time such Affiliate is designated an Unrestricted Subsidiary and (ii)
which, upon the occurrence of a default with respect thereto, does not
result in, or permit any holder of any Indebtedness of the Company or any
of its Subsidiaries to declare, a default on such Indebtedness of the
Company or any of its Subsidiaries or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity.
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"Voting Stock" means Capital Stock of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors,
managers or trustees of a corporation (irrespective of whether or not at
the time Capital Stock of any other class or classes shall have or might
have voting power by reason of the happening of any contingency).
"Wholly Owned Subsidiary" means a Subsidiary of the Company all the
Capital Stock of which is owned by the Company or another Wholly Owned
Subsidiary. For purposes of this definition any directors' qualifying
shares or investments by foreign nationals mandated by applicable law shall
be disregarded in determining the ownership of a Subsidiary of the Company.
SECTION 1.2. Other Definitions.
Term Defined in Section
"Act" 1.5
"Change in Control Offer" 10.16
"Change in Control Purchase Date" 10.16
"Change in Control Purchase Notice" 10.16
"Change in Control Purchase Price" 10.16
"covenant defeasance" 4.3
"Defaulted Interest" 3.7
"defeasance" 4.2
"Defeasance Redemption Date" 4.4
"Defeased Securities" 4.1
"Event of Default 5.1
"Excess Proceeds" 10.12
"Exchange Global Security 2.1
"Guarantee" 10.13
"incur" 10.8
"Initial Global Security" 2.1
"Offer" 10.12
"Offer Date" 10.12
"Offered Price" 10.12
"Pari Passu Debt Amount" 10.12
"Pari Passu Offer" 10.12
"payment default" 5.1
"Permitted Indebtedness" 10.8
"refinancing" 10.8
"Required Filing Date" 10.20
"Restricted Payments" 10.9
"Security Amount" 10.12
"Security Register" 3.5
"Security Registrar" 3.5
"Special Payment Date" 3.7
"Surviving Entity" 8.1
"U.S. Government Obligations" 4.4
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SECTION 1.3. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Trustee shall be entitled to
receive and conclusively rely upon an Officers' Certificate in a form and
substance reasonably acceptable to the Trustee stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with, and an Opinion of Counsel in a form and
substance reasonably acceptable to the Trustee stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
each from the Company and any other obligor on the Securities.
Every certificate or Opinion of Counsel with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
individual or firm signing such opinion has read such covenant or condition
and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual or such
firm, he or it has made such examination or investigation as is necessary
to enable him or it to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual
or such firm, such condition or covenant has been complied with.
SECTION 1.4. 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 or other obligor on
the Securities may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or
other obligor on the Securities stating that the information with respect to
such factual matters is in the possession of the Company or other obligor on the
Securities, unless such officer or counsel knows, or in the exercise of
reasonable care should know that the certificate or opinion or representations
with respect to such matters are erroneous. Opinions of Counsel required to be
delivered to the Trustee may have qualifications customary for opinions of the
type required and counsel delivering such Opinions of Counsel may rely on
certificates of the
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Company or government or other officials customary for opinions of the type
required, which certificates shall be limited to matters of fact, including that
various financial covenants have been complied with.
Any certificate or opinion of an officer of the Company or other obligor on
the Securities may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer knows or in the
exercise of reasonable care should know that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate or opinion may be based are erroneous. Any certificate or opinion of
any independent firm of public accountants filed with the Trustee shall contain
a statement that such firm is independent with respect to the Company.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.5. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 1.5.
(b) The ownership of Securities shall be proved by the Security Register.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holder of any Security shall bind every future Holder of the
same Security or the Holder of every Security issued upon the transfer thereof
or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(d) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate of affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have
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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.
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 1.6. Notices, etc., to the Trustee, the Company and the Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any other obligor
on the Securities shall be sufficient for every purpose hereunder if in
writing and mailed, first-class postage prepaid to the Company addressed to
it at ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, or delivered by
recognized overnight courier, to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration, or at any other address
previously furnished in writing to the Holders, the Company or any other
obligor on the Securities by the Trustee, and shall be deemed effective
upon receipt; or
(b) the Company or any Guarantor by the Trustee or any Holder shall be
sufficient for every purpose hereunder if in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier,
to the Company addressed to it at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.7. 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.
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In case by reason of the suspension of regular mail service or by reason of
any other cause, it shall be impracticable to 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 1.8. 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 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and any
Guarantor shall bind successors and assigns, whether so expressed or not.
SECTION 1.11. 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 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent, the Holders and the holders of Senior Indebtedness)
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.13. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. (WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAWS PRINCIPLES THEREOF).
SECTION 1.14. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Maturity or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Maturity or Stated Maturity and no interest shall accrue
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with respect to such payment for the period from and after such Interest Payment
Date, Redemption Date, Maturity or Stated Maturity, as the case may be, to the
next succeeding Business Day.
SECTION 1.15. Independence of Covenants.
All covenants and agreements in this Indenture shall be given independent
effect so that if a particular action or condition is not permitted by any such
covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
SECTION 1.16. Exhibits.
All exhibits attached hereto are by this reference made a part hereof with
the same effect as if herein set forth in full.
SECTION 1.17. Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
ARTICLE TWO
SECURITY FORMS
SECTION 2.1. Forms Generally.
(a) The Initial Securities and any Additional Securities and the Trustee's
certificate of authentication thereon shall be in substantially the forms set
forth in Exhibit A or Exhibit B hereto, as applicable, which are hereby
incorporated in and expressly made a part of this Indenture. The Exchange
Securities and the certificate of authentication of the Trustee thereon shall be
substantially in the form of Exhibit C or Exhibit D hereto, as applicable, which
are hereby incorporated in and expressly made a part of this Indenture. The
Securities may have such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends,
notations, 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. The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Security conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Initial Securities and any Additional Securities shall be issued
initially in the form of a permanent, global note in definitive, fully
registered form, without coupons, substantially in the form of Exhibit A hereto
(the "Initial Global Security"). Upon issuance, such Initial Global Security
shall be duly
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executed by the Company and authenticated by the Trustee as hereinafter provided
and deposited with the Trustee as custodian for the Depositary. Any Initial
Certificated Security that may be issued pursuant to Section 3.5 hereof, shall
be issued in the form of a note in definitive, fully registered form, without
coupons, substantially in the form set forth in Exhibit B hereto. Upon issuance,
any such Initial Certificated Security shall be duly executed by the Company and
authenticated by the Trustee as hereinafter provided.
(c) In the event Exchange Securities are issued pursuant to a Registered
Exchange Offer in exchange for Initial Securities held in the form of the
Initial Global Security, such Exchange Securities shall be issued initially in
the form of a permanent global note in definitive, fully registered form,
without coupons, substantially in the form set forth in Exhibit C hereto (the
"Exchange Global Security"). Upon issuance, such Exchange Global Security shall
be duly executed by the Company and authenticated by the Trustee as hereinafter
provided and deposited with the Trustee as custodian for the Depositary. Any
Exchange Certificated Security that may be issued pursuant to Section 3.5 hereof
or in exchange for Initial Certificated Securities pursuant to a Registered
Exchange Offer, shall be issued in the form of a note in definitive, fully
registered form, without coupons, substantially in the form set forth in Exhibit
D hereto. Upon issuance, any such Exchange Certificate Securities shall be duly
executed by the Company and authenticated by the Trustee as hereinafter
provided.
(d) The following legends shall appear on each Global Security and each
Certificated Security as indicated below:
(i) Except as provided in Section 3.5 hereof, each Initial Global
Security and Initial Certificated Security shall bear the following legend
on the face thereof:
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) (AN "IAI");
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
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RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS SECURITY) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE
TO THE ISSUER OR THE TRUSTEE, IF THE ISSUER OR THE TRUSTEE SO
REQUESTS, THAT SUCH TRANSFER COMPLIES WITH THE SECURITIES ACT,
(F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE ISSUER) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION;
AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION
S UNDER THE SECURITIES ACT. THE INDENTURE GOVERNING THIS SECURITY
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING.
(ii) Each Global Security shall bear the following legend on the
face thereof:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO BUCKEYE TECHNOLOGIES, INC. OR THE
REGISTRAR FOR REGISTRATION OF TRANSFER OR EXCHANGE AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
ENTITY AS HAS BEEN REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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.
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TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS
IN WHOLE, AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST
COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 305 OF THE INDENTURE, DATED AS OF SEPTEMBER 22, 2003 BY
AND AMONG BUCKEYE TECHNOLOGIES, INC., THE GUARANTORS NAMED
THEREIN AND THE TRUSTEE NAMED THEREIN, PURSUANT TO WHICH THIS
NOTE WAS ISSUED.
(e) 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 ruok les 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 2.2. Form of Face of Securities.
See Exhibits A, B,C and D.
SECTION 2.3. Form of Reverse of Securities.
See Exhibits A, B, C and D.
SECTION 2.4. Form of Guarantee.
See Exhibit E.
ARTICLE THREE
THE SECURITIES
SECTION 3.1. Title and Terms.
The Securities may be issued in two or more series, a series of Initial
Securities, a series of Exchange Securities and one or more series of Additional
Securities.
The Securities shall be known and designated as the "8 1/2% Senior Notes
due 2013" of the Company. The Stated Maturity of the Securities shall be October
1, 2013, and the Securities shall each bear interest at the rate of 8 1/2% from
September 22, 2003, or from the most recent Interest Payment Date to which
interest has been paid, as the case may be, payable semiannually on April 1 and
October 1, in each year, commencing April 1, 2004, until the principal thereof
is paid or duly provided for. Interest on any overdue principal, interest (to
the extent lawful) or premium, if any, shall be payable on demand.
The 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 in
The City of New York, and at such other office or agency of the Company as may
be maintained for such purpose; provided, however, that interest may be
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paid at the option of the Company by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Security Register.
The Securities shall be subject to repurchase by the Company pursuant to an
Offer as provided in Section 10.12.
Holders shall have the right to require the Company to purchase their
Securities, in whole or in part, in the event of a Change in Control pursuant to
Section 10.16.
The Securities shall be redeemable as provided in Article Eleven and in the
Securities.
At the election of the Company, the entire Indebtedness on the Securities
or certain of the Company's obligations and covenants and certain Events of
Default thereunder may be defeased as provided in Article Four.
SECTION 3.2. Denominations.
The Securities shall be issuable only in fully registered form without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by one of its
Chairman of the Board, its President, its Chief Executive Officer, its Chief
Operating Officer or one of its Senior Vice Presidents attested by its Secretary
or one of its Assistant Secretaries. The signatures of any of these officers on
the Securities may be manual or facsimile.
Upon compliance by the Company with the provisions of the previous
paragraph, the Trustee shall, upon receipt of a Company Order requesting such
action, authenticate (a) (i) Initial Securities for original issuance in an
aggregate principal amount not to exceed $200,000,000 in the form of the Initial
Global Security and (ii) to the extent permitted by Section 3.12, Additional
Securities for original issuance in an unlimited aggregate principal amount or
(b) Exchange Securities for issuance pursuant to a Registered Exchange Offer for
Initial Securities or Additional Securities in a principal amount equal to the
principal amount of Initial Securities or Additional Securities exchanged in
such Registered Exchange Offer. Any Company Order or Company Orders shall
specify the amount of Securities to be authenticated and the date on which, in
the case of clause (a) above, the Initial Securities or Additional Securities
or, in the case of clause (b) above, the Exchange Securities are to be
authenticated and shall further provide instructions concerning registration,
amounts for each Holder and delivery. Any Company Order, in the case of an
issuance of Additional Securities pursuant to Section 3.12 after the Issue Date,
shall certify that such issuance will not be prohibited by Section 10.8.
Upon the occurrence of any event specified in Section 3.5(c) hereof and
compliance by the Company with the provisions of the first paragraph of this
Section 3.3, the Company shall execute and the Trustee shall authenticate and
deliver to each beneficial owner identified by the Depositary, in exchange for
such beneficial owner's interest in the Initial Global Security or Exchange
Global Security, as the case may be, Initial Certificated Securities or Exchange
Certificated Securities, as the case may be, representing Securities theretofore
represented by the Initial Global Security or Exchange Global Security, as the
case may be.
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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.
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, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be consolidated or
merged with or into any other Person or shall sell, assign, convey, transfer,
lease or otherwise dispose of 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 shall have been consolidated or
merged, or the successor Person which shall have participated in the sale,
assignment, conveyance, transfer, lease or other disposition as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to
Article Eight, any of the Securities authenticated or delivered prior to such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposition may, from time to time, at the request of the successor Person, be
exchanged for other Securities executed in the name of the successor Person with
such changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon 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 3.3 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 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 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company shall cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall
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be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 10.2 (or in accordance with Section 3.3, in the case of
Initial Securities), 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 alike
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 3.5. Registration, Registration of Transfer and Exchange.
(a) The following provisions of this paragraph (a) are applicable only to
Initial Securities:
(i) By its acceptance of any Initial Security represented by a
certificate bearing the Private Placement Legend, each Holder of, and
beneficial owner of an interest in, such Initial Security acknowledges the
restrictions on transfer of such Initial Security set forth in the Private
Placement Legend and under the heading "Notice to Investors" in the Final
Memorandum and agrees that it will transfer such Initial Security only in
accordance with the Private Placement Legend and the restrictions set forth
under the heading "Notice to Investors" in the Final Memorandum.
(ii) In connection with any transfer of an Initial Security bearing
the Private Placement Legend other than to a Person whom the Holder
reasonably believes to be a "qualified institutional buyer" under the
Securities Act, such Holder shall deliver or caused to be delivered to the
Company such satisfactory evidence (including, without limitation, the
certificates set forth in Exhibits F, G and H to the extent applicable)
which may include to the extent provided in the Private Placement Legend,
an Opinion of Independent Counsel licensed to practice law in the State of
New York, as reasonably may be requested by the Company to confirm that
such transfer is being made in accordance with the limitations set forth in
the Private Placement Legend. In the event the Company reasonably
determines that any such transfer is not in accordance with the Private
Placement Legend, the Company shall so inform the Registrar who shall not
register such transfer; provided that the Registrar shall not be required
to determine (but may rely on a determination made by the Company with
respect to) the sufficiency of any such evidence.
(iii) Upon the registration of transfer, exchange or replacement of an
Initial Security not bearing the Private Placement Legend, the Trustee
shall deliver an Initial Security or Initial Securities that do not bear
the Private Placement Legend. Upon the transfer, exchange or replacement of
an Initial Security bearing the Private Placement Legend, the Trustee shall
deliver an Initial Security or Initial Securities bearing the Private
Placement Legend, unless such legend may be removed from such Security as
provided in the next sentence. The Private Placement Legend may be removed
from an Initial Security if there is delivered to the Company such
satisfactory evidence, which may include an Opinion of Independent Counsel
licensed to practice law in the State of New York, as reasonably may be
requested by the Company to confirm that neither such legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers of such Initial Security will not violate the registration and
prospect us delivery requirements of the Securities Act; provided that the
Trustee shall not be required to determine (but may rely on a determination
made by the Company with respect to) the sufficiency of any such evidence.
Upon provision of such evidence, the Trustee shall authenticate and deliver
in exchange for such Initial Security an Initial Security or Initial
Securities (representing the same aggregate principal amount of the Initial
Security being exchanged) without such legend. If the Private Placement
Legend has
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been removed from an Initial Security, as provided above, no other Initial
Security issued in exchange for all or any part of such Initial Security
shall bear such legend, unless the Company has reasonable cause to believe
that such other Initial Security represents a "restricted security" within
the meaning of Rule 144 and instructs the Trustee in writing to cause a
legend to appear thereon.
(iv) The Company shall deliver to the Trustee, and the Trustee shall
retain for two years, copies of all documents received pursuant to this
Section 3.5. The Company shall have the right to inspect and make copies of
all such documents at any reasonable time upon the giving of reasonable
written notice to the Trustee.
(b) Any Initial Securities which are presented to the Registrar for
exchange pursuant to a Registered Exchange Offer shall be exchanged for Exchange
Securities or equal principal amount upon surrender to the Registrar of the
Initial Securities to be exchanged in accordance with the terms of the
Registered Exchange Offer; provided that the Initial Securities so surrendered
for exchange are duly endorsed and accompanied by a letter of transmittal or
written instrument of transfer in form satisfactory to the Company, the Trustee
and the Registrar and duly executed by the Holder thereof or such Holder's
attorney who shall be duly authorized in writing to execute such document on
behalf of such Holder. Whenever any Initial Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver to the surrendering Holder thereof Exchange Securities in the same
aggregate principal amount as the Initial Securities so surrendered.
(c) The Initial Global Security or Exchange Global Security, as the case
may be, shall be exchanged by the Company for one or more Initial Certificated
Securities or Exchange Certificated Securities, as the case may be, if the
Depositary (i) has notified the Company that it is no longer willing or able to
act as a depositary, or ceases to be, a registered as a clearing agency
registered under the Exchange Act and (ii) a successor depositary registered as
a clearing agency under the Exchange Act is not appointed by the Company within
90 calendar days of such notice or cessation. If an Event of Default occurs and
is continuing and the Registrar has received a request from the Depositary to
issue Certificated Securities, the Company shall, upon surrender by the
Depositary of the Global Securities and at the request of the Holder thereof,
exchange all or part of the Initial Global Security or Exchange Global Security,
as the case may be, for one or more Initial Certificated Securities or Exchange
Certificated Securities, as the case may be; provided that the principal amount
of each of such Initial Certificated Securities or Exchange Certificated
Securities, as the case may be, and such Global Security, after such exchange,
shall be $1,000 or an integral multiple thereof. Whenever a Global Security is
exchanged as a whole for one or more Initial Certificated Securities or Exchange
Certificated Securities, as the case may be, it shall be surrendered by the
Holder thereof to the Trustee for cancellation. Whenever a Global Security is
exchanged in part for one or more Initial Certificated Securities or Exchange
Certificated Securities, as the case may be, it shall be surrendered by the
Holder thereof to the Trustee and the Trustee shall make the appropriate
notations thereon. All Initial Certificated Securities or Exchange Certificated
Securities, as the case may be, issued in exchange for a Global Security or any
portion thereof shall be registered in such names, and delivered, as the
Depositary shall instruct the Trustee. Any Initial Certificated Securities
issued pursuant to this Section 3.5 shall include the Private Placement Legend,
except as set forth in this Section 3.5 hereof. Interests in a Global Security
may not be exchanged for Certificated Securities other than as provided in this
Section 3.5.
(d) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge
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that may be imposed in connection with any registration of transfer of
Securities (other than in respect of a Registered Exchange Offer, except as
provided in the Registration Rights Agreement).
(e) All Securities issued upon any registration of transfer or exchange
pursuant to the terms of this Indenture will evidence the same debt and will be
entitled to the same benefits under this Indenture as the Securities surrendered
for such registration of transfer or exchange.
(f) Prior to the effectiveness under the Securities Act of a Shelf
Registration Statement, or at any time during the suspension or following the
termination thereof, Holders of Initial Securities (or holders of interests
therein) and prospective purchasers designated by such Holders of Initial
Securities (or such holders of interests therein) shall have the right to obtain
from the Company upon request by such Holders (or such holders of interests) or
prospective purchasers, during any period in which the Company is not subject to
Section 13 or Section 15(d) of the Exchange Act, or is exempt from reporting
pursuant to 12g3- 2(b) under the Exchange Act, the information required by
paragraph (d)(4)(i) of Rule 144A in connection with any transfer or proposed
transfer of such Securities or interests.
(g) 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 represented thereby shall be required to be reflected in book
entry form. Transfers of a Global Security shall be limited to transfers in
whole and not in part, to the Depositary, its successors, and their respective
nominees. Interests of beneficial owners in a Global Security may be transferred
in accordance with the rules and procedures of the Depositary (or its
successors).
(h) The Bank of New York shall initially be the "Security Registrar" for
the purpose of registering Securities and transfers of Securities as herein
provided. The Company shall cause the Registrar to keep, so long as it is the
Security Registrar, at its Corporate Trust Office, or such other office as the
Registrar may designate, a register (the register maintained in such office or
in any other office or agency designated pursuant to Section 10.2 being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as the Registrar may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Company
may appoint one or more co-registrars.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 10.2, 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.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, 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.
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.
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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 pursuant to Section 3.3, 3.4, 3.5, 3.6, 9.6, 10.12, 10.16 or 11.8 not
involving any transfer.
The Company shall not be required (a) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the mailing of a notice of redemption of the Securities selected for
redemption under Section 11.4 and ending at the close of business on the day of
such mailing or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
Securities being redeemed in part.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security), other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 3.6. 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 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 or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon a Company Request the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a replacement Security
of like tenor and principal amount, bearing a number not contemporaneously
Outstanding.
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 charge that may
be imposed in relation thereto 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 any other obligor upon the Securities,
whether or not the destroyed, lost or stolen Security shall be at any time
enforce-
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able by anyone, and 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 3.7. 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 payment.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on the Stated Maturity of such 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 (the "Special Payment Date"), and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the Special Payment Date, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this subsection provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the Special Payment Date and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company in writing of such Special Record Date.
In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to 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 and Special Payment
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities (or their respective
Predecessor 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 to the Persons in whose name the
Securities are registered at the close of business on the Special Record
Date 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 pro-
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visions of this Section 3.7, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 3.8. Persons Deemed Owners.
Prior to due presentment of a 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 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 3.7) interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.9. Cancellation.
All Securities surrendered for payment, purchase, redemption, registration
of transfer or exchange shall be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 3.9, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be returned to the Company. The Trustee shall provide the Company a list of all
Securities that have been cancelled from time to time as requested in writing by
the Company.
SECTION 3.10. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 3.11. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
SECTION 3.12. Issuance of Additional Securities.
The Company shall be entitled to issue Additional Securities under this
Indenture which shall have identical terms as and be considered the same as the
Initial Securities issued on the Issue Date, other than with respect to the date
of issuance; provided that the incurrence of Indebtedness represented by such
Additional Securities is at such time permitted by Section 10.8. The Initial
Securities issued on the Issue Date, any Additional Securities and all Exchange
Securities issued in exchange therefor shall be treated as a single class for
all purposes under this Indenture.
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With respect to any Additional Securities, the Company shall set forth in a
Board Resolution and in an Officers' Certificate, a copy of each of which shall
be delivered to the Trustee, the following information:
(a) the aggregate principal amount of such Additional Securities to be
authenticated and delivered pursuant to this Indenture; and
(b) the issue price, the issue date and the CUSIP number of such
Additional Securities and the amount of interest payable on the first
payment date applicable thereto.
The Company shall also deliver to the Trustee customary opinions for such
issuance.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 4.1. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 4.2 or Section 4.3 be
applied to all of the Outstanding Securities (the "Defeased Securities"), upon
compliance with the conditions set forth below in this Article Four.
SECTION 4.2. Defeasance and Discharge.
Upon the Company's exercise under Section 4.1 of the option applicable to
this Section 4.2, the Company and any other obligor upon the Securities, if any,
shall be deemed to have been discharged from its obligations with respect to the
Defeased Securities on the date the conditions set forth in Section 4.4 below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that each of the Company and any other obligor upon the Securities shall
be deemed to have paid and discharged the entire Indebtedness represented by the
Defeased Securities, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.5 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, and, upon Company
Request, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Securities to receive, solely
from the defeasance trust fund described in Section 4.4 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 3.4, 3.5,
3.6, 10.2 and 10.3, (c) the rights, powers, trusts, duties, indemnities and
immunities of the Trustee hereunder, including, without limitation, the
Trustee's rights under Section 6.6, and (d) this Article Four. Subject to
compliance with this Article Four, the Company may exercise its option under
this Section 4.2 notwithstanding the prior exercise of its option under Section
4.3 with respect to the Securities.
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SECTION 4.3. Covenant Defeasance.
Upon the Company's exercise under Section 4.1 of the option applicable to
this Section 4.3, the Company and any other obligor upon the Securities shall be
released from its obligations under any covenant or provision contained or
referred to in Sections 10.5 through 10.20, inclusive, and the provisions of
clauses (iii) and (iv) of Section 8.1(a) shall not apply, with respect to the
Defeased Securities on and after the date the conditions set forth in Section
4.4 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 any such obligor 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 or in such Defeased Securities or other documents to
any such Section or Article or by reason of any reference in any such Section or
Article to any other provision herein or in any other document and such omission
to comply shall not constitute a Default or an Event of Default under Section
5.1(c) but, except as specified above, the remainder of this Indenture and such
Defeased Securities shall be unaffected thereby.
SECTION 4.4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 4.2
or Section 4.3 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.9 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, (b) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms and with no further reinvestment will
provide, not later than one day before the due date of any payment, money
in an amount, or (c) a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants or a nationally recognized investment banking firm
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (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 (or on any date after
October 1, 2008 (such date being referred to as the "Defeasance Redemption
Date")), if at or prior to exercising under Section 4.1 either its option
applicable to Section 4.2 or its option applicable to Section 4.3, 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. For this
purpose, "U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the timely payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof,
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and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act), as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depository receipt, provided that (except
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 4.2, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel stating
that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this Indenture,
there has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of Independent
Counsel 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 4.3, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel to the
effect that the Holders of the Outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as subsections 5.1(g) and
(h) are concerned, at any time during the period ending on the 91st day
after the date of deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest as defined in this Indenture and for
purposes of the Trust Indenture Act with respect to any securities of the
Company or any other obligor upon the Securities (assuming the Securities
are in default within the meaning of said Act).
(6) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which it is bound.
(7) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, unless such
trust shall be qualified under such Act or exempt from regulation
thereunder.
(8) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel to the effect that after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
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(9) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the holders of the Securities over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others.
(10) No event or condition shall exist that would prevent the Company
from making payments of the principal of, premium, if any, and interest on
the Securities on the date of such deposit or at any time ending on the
91st day after the date of such deposit.
(11) The Company will have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 4.2 or the covenant defeasance under Section 4.3 (as the case may
be) have been complied with as contemplated by this Section 4.4.
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, which certificates shall be limited as to matters of fact,
including that various financial covenants have been complied with.
SECTION 4.5. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all United
States dollars and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 4.4 in respect of the Defeased
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (excluding the Company or any of its
Affiliates acting as Paying Agent) as the Trustee may determine, to the Holders
of such Securities of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 4.4 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 4.4 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect defeasance or covenant defeasance.
SECTION 4.6. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars
or U.S. Government Obligations in accordance with Section 4.2 or 4.3, 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,
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then the Company's obligations under this Indenture and the Securities, and the
provisions of Article Twelve hereof, shall be revived and reinstated as though
no deposit had occurred pursuant to Section 4.2 or 4.3, 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
4.2 or 4.3, as the case may be; provided, however, that if the Company makes any
payment to the Trustee or Paying Agent of principal, premium, if any, or
interest on any Security following the reinstatement of its obligations, the
Trustee or Paying Agent shall promptly pay any such amount to the Holders of the
Securities and the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the United States dollars and U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) there shall be a default in the payment of any interest on any
Security when it becomes due and payable, and such default shall continue
for a period of 30 days;
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity (upon acceleration,
optional or mandatory redemption, if any, required repurchase or
otherwise);
(c) (i) there shall be a default in the performance, or breach, of any
covenant or agreement of the Company under this Indenture (other than a
default in the performance, or breach, of a covenant or agreement which is
specifically dealt with in subsection (a) or (b) of this Section 5.1 or in
clauses (ii), (iii) and (iv) of this subsection (c) of this Section 5.1)
and such default or breach shall continue for a period of 30 days after
written notice has been given, (x) to the Company by the Trustee or (y) to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities, specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; (ii) there shall be a default in the
performance or breach of the provisions of Article Eight; (iii) the Company
shall have failed to make or consummate an Offer in accordance with the
provisions of Section 10.12; or (iv) the Company shall have failed to make
or consummate a Change in Control Offer in accordance with the provisions
of Section 10.16;
(d) one or more defaults under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company or of any Subsidiary (or the
payment of which is guaranteed by the Company or any Subsidiary), whether
such Indebtedness now exists or is created after the date of this
Indenture, which default (A) is caused by a failure to pay principal of
such Indebtedness after any applicable grace period provided in such
Indebtedness on the date of such default (a "payment default") or
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(B) results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a payment default or the maturity of which has been so
accelerated, aggregates $10 million or more;
(e) one or more judgments, orders or decrees for the payment of money
in excess of $10 million, either individually or in the aggregate, shall be
rendered against the Company or any of its Subsidiaries or any of their
respective properties and shall not be discharged and either (i) any
creditor shall have commenced an enforcement proceeding upon such judgment,
order or decree or (ii) there shall have been a period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of an appeal or otherwise, shall not be in effect;
(f) any Guarantee of a Subsidiary of the Company ceases to be in full
force and effect or any Guarantee of such a Subsidiary is declared to be
null and void and unenforceable or any Guarantee of such a Subsidiary is
found to be invalid or any Guarantor denies its liability under its
Guarantee (other than by reason of release of such Guarantor in accordance
with the terms of this Indenture);
(g) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company
or any of its Subsidiaries in an involuntary case or proceeding under any
applicable Bankruptcy Law or (ii) a decree or order adjudging the Company
or any of its Subsidiaries bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any of its Subsidiaries under any applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any of
its Subsidiaries or of any substantial part of their respective properties,
or ordering the winding up or liquidation of their respective affairs, and
any such decree or order for relief shall continue to be in effect, or any
such other decree or order shall be unstayed and in effect, for a period of
60 consecutive days; or
(h) (i) the Company or any of its Subsidiaries commences a voluntary
case or proceeding under any applicable Bankruptcy Law or any other case or
proceeding to be adjudicated bankrupt or insolvent, (ii) the Company or any
of its Subsidiaries consents to the entry of a decree or order for relief
in respect of the Company or any such Subsidiary in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, (iii) the
Company or any of its Subsidiaries files a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law,
(iv) the Company or any of its Subsidiaries (1) consents to the filing of
such petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or any such Subsidiary or of any substantial part of their
respective properties, (2) makes an assignment for the benefit of creditors
or (3) admits in writing its inability to pay its debts generally as they
become due, or (v) the Company or any of its Subsidiaries takes any
corporate action in furtherance of any such actions in this paragraph (h).
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Sections 5.1(g) and (h)) shall occur and be continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities
Outstanding may, and the Trustee at the request of the Holders of not less than
25% in aggregate principal amount of the Securities Outstanding shall, declare
all unpaid principal of, premium, if any, and accrued interest on all the
Securities to be due and payable immediately, by a notice in writing
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to the Company (and to the Trustee if given by the Holders of the Securities)
and upon any such declaration, such principal, premium, if any, and interest
shall become due and payable immediately. If an Event of Default specified in
clause (g) or (h) of Section 5.1 occurs and is continuing, then all the
Securities shall ipso facto become and be due and payable immediately in an
amount equal to the principal amount of the Securities, together with premium,
if any, and accrued and unpaid interest, if any, to the date the Securities
become due and payable, without any declaration or other act on the part of the
Trustee or any Holder. Thereupon, the Trustee may, at its discretion, proceed to
protect and enforce the rights of the Holders of Securities by appropriate
judicial proceedings.
After such declaration of acceleration but before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Securities Outstanding, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee under Section 6.7
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel,
(ii) all overdue interest on all Outstanding Securities,
(iii) the principal of and premium, if any, on any Outstanding
Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at 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 5.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or (b) default is made in the payment of the principal
of or premium, if any, on any Security at the Stated Maturity thereof,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the
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Securities; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company 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 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 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 by such appropriate private or judicial proceedings
as the Trustee shall deem most effectual to protect and enforce such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein or therein, or
to enforce any other proper remedy, subject however to Section 5.12. No recovery
of any such judgment upon any property of the Company shall affect or impair any
rights, powers or remedies of the Trustee or the Holders.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal, and
premium, if any, and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or similar
official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
6.7.
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.
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SECTION 5.5. Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or otherwise on
behalf of the Holders or the Trustee pursuant to this Article or through any
proceeding or any arrangement or restructuring in anticipation or in lieu of any
proceeding contemplated by this Article shall be applied, subject to applicable
law, in the following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal, premium, if any,
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal, premium, if any, and interest, in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company, provided that all sums due and owing to the Holders and
the Trustee have been paid in full as required by this Indenture.
SECTION 5.7. Limitation on Suits.
No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as trustee hereunder;
(c) such Holder or Holders have offered to the Trustee an indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 15 days after its receipt of such notice, request
and offer (and if requested, provision) of indemnity has failed to
institute any such proceeding; and
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(e) no direction inconsistent with such written request has been given
to the Trustee during such 15-day period by the Holders of a majority in
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or any Security to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture or any Security,
except in the manner provided in this Indenture and for the equal and ratable
benefit of all the Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right based on the terms stated herein, which is
absolute and unconditional, to receive payment of the principal of, premium, if
any, and (subject to Section 3.7) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or the repurchase date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, any other obligor on
the Securities, the Trustee and the Holders shall, subject to any determination
in such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as provided in Section 3.6, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture (including, without limitation, Section 5.7), expose the Trustee
to personal liability, or be unduly prejudicial to Holders not joining therein;
and
(b) subject to the provisions of Section 315 of the Trust Indenture Act,
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past Default hereunder and its consequences, except a Default:
(a) in the payment of the principal of, premium, if any, or interest
on any Security; or
(b) in respect of a covenant or a provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Security Outstanding affected by such modification or amendment.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium, if any, or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Stay, Extension or Usury Laws.
Each of the Company and any other obligor upon the Securities covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim
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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 such obligor 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 such obligor
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.16. Remedies Subject to Applicable Law.
All rights, remedies and powers provided by this Article Five may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE SIX
THE TRUSTEE
SECTION 6.1. Duties of Trustee.
Subject to the provisions of Trust Indenture Act Section 315(a) through
315(d):
(a) if a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in its
exercise thereof as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) except during the continuance of a Default or an Event of Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee; and
(2) in the absence of bad faith or willful misconduct on its
part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, 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 examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture, but need not
confirm or investigate the accuracy of mathematical calculations or
other facts stated therein.
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(c) the Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this subsection (c) does not limit the effect of subsection
(b) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith, in accordance with a direction
of the Holders of a majority in principal amount of Outstanding
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power confirmed upon the Trustee under this Indenture.
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (c) and (d) of this Section 6.1.
(f) the Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from
other assets except to the extent required by law.
SECTION 6.2. Notice of Defaults.
Within 90 days after the occurrence of any Default, the Trustee shall
transmit by mail to all Holders and any other persons entitled to receive
reports pursuant to Section 313(c) of the Trust Indenture Act, as their names
and addresses appear in the Security Register, notice of such Default hereunder
known to the Trustee, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default in the payment of the
principal of, premium, if any, or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as a trust committee of
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1 hereof and Trust Indenture Act
Sections 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of Indebtedness or other
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paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred
therein 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 negligence, bad faith or willful
misconduct of the Trustee;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper
or document, but 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) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(h) 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;
(i) 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;
(j) in no event shall the Trustee be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
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(k) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
(l) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and each agent, custodian and other Person employed
to act hereunder; and
(m) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
SECTION 6.4. 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 supplied to the Company are true and accurate subject to
the qualifications set forth therein. The Trustee shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof.
SECTION 6.5. 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
Sections 6.8 and 6.13 hereof and 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 6.6. 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 shall be required to invest all
moneys received by the Trustee, until used or applied as herein provided, in
Cash Equivalents in accordance with the specific written directions of the
Company. In the absence of written instructions, moneys received shall remain
uninvested.
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SECTION 6.7. Compensation and Indemnification of Trustee and Its Prior
Claim.
The Company and the Guarantors, jointly and severally, covenant and agrees
to pay to the Trustee from time to time, and the Trustee shall be entitled to,
such compensation as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) and the Company and the Guarantors, jointly and severally, covenant and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence, bad faith or willful misconduct. The Company and the
Guarantors, jointly and severally, also covenant and agree to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
and all claim, loss, damage, liability, tax, assessment or other governmental
charge (other than taxes applicable to the Trustee's compensation hereunder) or
expense incurred without negligence, bad faith or willful misconduct on its
part, arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and its duties hereunder, including
enforcement of this Section 6.7 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 or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligations of the Company under this Section 6.7 to compensate, reimburse 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 and the resignation or removal of
the Trustee and each predecessor Trustee.
The Trustee shall have a lien prior to the Securities as to all property
and funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 6.7, except with respect to funds held in trust
for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(g) or Section 5.1(h), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
SECTION 6.8. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 6.9. 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)(5) and which shall have
an office in The City of New York, 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 New York, the
Trustee may appoint an agent in The City of New York reasonably acceptable to
the Company to conduct any activities which the Trustee may be required under
this Indenture to conduct in The City of New York. If such 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
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6.9, the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, the Trustee shall resign
promptly in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor trustee under Section 6.11.
(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.
(1) 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.
(c) If at any time:
(1) the Trustee shall fail to comply with the provisions of Trust
Indenture Act Section 310(b) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at least
six months,
(2) the Trustee shall cease to be eligible under Section 6.9 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 5.14, 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.
(d) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor trustee and shall
comply with the applicable requirements of Section 6.11. If an instrument of
acceptance by a successor trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, or after such
removal or incapacity, the resigning Trustee may, at the expense of the Company,
or any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of compe-
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tent 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. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, the Company has not appointed a successor
Trustee, a successor trustee shall be appointed by the Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee. Such successor trustee so appointed shall
forthwith upon its acceptance of such appointment become the successor trustee
and supersede the successor trustee appointed by the Company. If no successor
trustee shall have been so appointed by the Company or the Holders of the
Securities and accepted appointment in the manner hereinafter provided, the
Holder of any Security who has been a bona fide Holder for at least six months
may, subject to Section 5.14, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor trustee.
(e) 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 6.11. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Company or the successor trustee,
upon payment of its charges pursuant to Section 6.7 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 lien 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 6.7.
No successor trustee with respect to the Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under 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 and have a Corporate
Trust Office or an agent selected in accordance with Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, 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
6.10. If the Company fails to give such notice within 10 days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Company.
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SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all 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 and have a Corporate Trust Office or an agent selected in
accordance with Section 6.9 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, amalgamation, conversion or consolidation.
SECTION 6.13. 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 the Trust Indenture Act Section 311 (a) to the
extent indicated therein.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 10 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request, a
list of similar form and content to that in subsection (a) hereof as of a
date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
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SECTION 7.2. Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities, and the Trustee shall comply with Trust Indenture Act Section
312(b). The Company, the Trustee, the Registrar and any other Person shall have
the protection of Trust Indenture Act Section 312(c). Further, every Holder of
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee or any agent of either of them
shall be held accountable by reason of the disclosure of any information as to
the names and addresses of the Holders in accordance with Trust Indenture Act
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Trust Indenture Act Section 312.
SECTION 7.3. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first May
15 after the issuance of Securities, the Trustee, if so required under the Trust
Indenture Act, shall transmit by mail to all Holders, in the manner and to the
extent provided in Trust Indenture Act Section 313(c), a brief report dated as
of such May 15 in accordance with and with respect to the matters required by
Trust Indenture Act Section 313(a). The Trustee shall also transmit by mail to
all Holders, in the manner and to the extent provided in Trust Indenture Act
Section 313(c), a brief report in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(b)(2).
(b) A copy of each report transmitted to Holders pursuant to this Section
7.3 shall, at the time of such transmission, be mailed to the Company and filed
with each stock exchange, if any, upon which the securities are listed and also
with the SEC. The Company will promptly notify the Trustee when the Securities
are listed on any stock exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any other Person or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of
affiliated Persons, or permit any of its Subsidiaries to enter into any such
transaction or series of related transactions if such transaction or series of
related transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company and its Subsidiaries on a Consolidated
basis to any other Person or group of affiliated Persons, unless at the time and
after giving effect thereto:
(i) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company and its
Subsidiaries on a Consolidated basis (the "Surviving Entity") shall be a
corporation duly organized and validly existing
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under the laws of the United States of America, any state thereof or the
District of Columbia and such Person expressly assumes, by a supplemental
indenture, executed and delivered to the Trustee, in a form satisfactory to
the Trustee, all the obligations of the Company under the Securities and
this Indenture, as the case may be, and the Securities and this Indenture
shall remain in full force and effect as so supplemented;
(ii) immediately before and immediately after giving effect to such
transaction on a pro forma basis (and treating any Indebtedness not
previously an obligation of the Company or any of its Subsidiaries which
becomes an obligation of the Company or any of its Subsidiaries in
connection with or as a result of such transaction as having been incurred
at the time of such transaction), no Default or Event of Default shall have
occurred and be continuing;
(iii) immediately before and immediately after giving effect to such
transaction on a pro forma basis (on the assumption that the transaction
occurred on the first day of the four-quarter period immediately prior to
the consummation of such transaction with the appropriate adjustments with
respect to the transaction being included in such pro forma calculation),
the Company (or the Surviving Entity if the Company is not the continuing
obligor under this Indenture) could incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under Section 10.8; and
(iv) at the time of the transaction the Company or the Surviving
Entity shall have delivered, or caused to be delivered, to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each to the effect that such
consolidation, merger, sale, assignment, conveyance, transfer, lease or
other transaction and the supplemental indenture in respect thereof comply
with this Indenture and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 8.2. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company in accordance with Section 8.1, the successor Person
formed by such consolidation or into which the Company 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 under this Indenture and the Securities
with the same effect as if such successor had been named as the Company herein
and in the Securities. When a successor (other than a successor that is an
Affiliate of the Company) assumes all the obligations of its predecessor under
this Indenture or the Securities, 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.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures and Agreements without Consent of
Holders.
Without the consent of any Holders, the Company and any other obligor upon
the Securities, when authorized by a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form and substance satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company or any
other obligor upon the Securities, and the assumption by any such successor
of the covenants of the Company or such obligor herein and in the
Securities in accordance with Article Eight;
(b) to add to the covenants of the Company 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 or any other obligor upon the
Securities, as applicable, herein or in the Securities;
(c) to cure any ambiguity or to correct or supplement any provision
herein or in the Securities which may be defective or inconsistent with any
other provision herein or in the Securities or to make any other provisions
with respect to matters or questions arising under this Indenture or the
Securities; provided that, in each case, such provisions shall not
adversely affect the interests of the Holders;
(d) to comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act,
as contemplated by Section 9.5 or otherwise;
(e) to add a Guarantor pursuant to the requirements of Section 10.13
or 10.15;
(f) to evidence and provide the acceptance of the appointment of a
successor trustee hereunder; or
(g) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the Holders as additional security
for the payment and performance of the Indenture Obligations, in any
property or assets, including any which are required to be mortgaged,
pledged or hypothecated, or in which a security interest is required to be
granted to the Trustee pursuant to this Indenture or otherwise.
SECTION 9.2. Supplemental Indentures and Agreements with Consent of
Holders.
With the consent of the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by Board
Resolutions, and the Trustee may (i) enter into an indenture or indentures
supplemental hereto in form and substance satisfactory to the Trustee, for the
purpose of adding any provisions to or amending, modifying or changing in any
manner or eliminating any of the provisions of this
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Indenture or the Securities (including but not limited to, for the purpose of
modifying in any manner the rights of the Holders under this Indenture or the
Securities) or (ii) waive compliance with any provision in this Indenture or the
Securities (other than waivers of past Defaults covered by Section 5.13 and
waivers of covenants which are covered by Section 10.22); provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any Security or waive a default in the payment of the
principal or interest on any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which the principal
of any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date);
(b) amend, change or modify the obligation of the Company to make and
consummate an Offer with respect to any Asset Sale or Asset Sales in
accordance with Section 10.12 or the obligation of the Company to make and
consummate a Change in Control Offer in the event of a Change in Control in
accordance with Section 10.16, including amending, changing or modifying
any definitions with respect thereto;
(c) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with one or more of the provisions of this Indenture
or one or more of the defaults hereunder and their consequences provided
for in this Indenture;
(d) modify any of the provisions of this Section 9.2 or Section 5.13
or 10.22, except to increase the percentage in principal amount of the
Outstanding Securities the consent of whose Holders is required for any
such actions or to provide that one or more other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Security affected thereby;
(e) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company of any of its rights and obligations
under this Indenture;
(f) amend or modify any of the provisions of this Indenture relating
to the ranking of the Securities or the Guarantees in any manner adverse to
the Holders; or
(g) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with the terms of
this Indenture.
Upon the written request of the Company accompanied by a copy of Board
Resolutions authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this Section 9.2 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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SECTION 9.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture or waiver permitted by this Article Nine or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Trust Indenture Act Section 315(a)
through 315(d) and Section 6.2 hereof) shall be fully protected in relying upon,
an Opinion of Counsel and an Officers' Certificate stating that the execution of
such supplemental indenture (a) is authorized or permitted by this Indenture and
(b) does not violate the provisions of any agreement or instrument evidencing
any other Indebtedness of the Company or any of its Subsidiaries. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture and the Securities 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 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 9.7. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 1.6, setting forth in general terms the
substance of such supplemental indenture.
SECTION 9.8. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same Indebtedness as
the consenting Holder's Security, even if a notation of the consent is not made
on any Security. However, any such Holder, or subsequent Holder, may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
An amendment or waiver shall become effective in accordance with its terms and
thereafter bind every Holder.
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ARTICLE TEN
COVENANTS
SECTION 10.1. Payment of Principal, Premium, Interest and Additional
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. The Company shall also pay such amounts of
Additional Interest as specified in the applicable form of Security.
SECTION 10.2. Maintenance of Office or Agency.
The Company shall maintain in The City of New York an office or agency
where Securities may be presented or surrendered for payment, and where
Securities may be surrendered for registration of transfer, redemption or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location and any change in the location of
any such offices or agencies. If at any time the Company shall fail to maintain
any such required offices or agencies or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the office of the 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 New York) where the Securities may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation. The Company will give prompt written notice to the
Trustee of any such designation or rescission and any change in the location of
any such office or agency.
SECTION 10.3. Money for Security Payments to Be Held in Trust.
If the Company or any of its Affiliates shall at any time act as Paying
Agent, it will, on or before each due date of the principal of, premium, if any,
or interest on any of the Securities, segregate and hold in trust for the
benefit of the Holders entitled thereto a sum sufficient to pay the principal,
premium, if any, or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
If the Company or any of its Affiliates is not acting as Paying Agent, the
Company shall, on or before each due date of the principal of, premium, if any,
or interest on, any Securities, deposit with a Paying Agent a sum in same day
funds sufficient to pay the principal, premium, if any, or interest so becoming
due, such sum to be held in trust for the benefit of the 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 will:
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(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;
(b) give the Trustee notice of any Default by the Company (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), and mail to each such Holder, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such notification,
publication and mailing, any unclaimed balance of such money then remaining will
promptly be repaid to the Company.
SECTION 10.4. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and related rights and franchises (charter and statutory) of the
Company and each of its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right or franchise or the corporate
existence of any such Subsidiary if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries as a whole and that the loss
thereof would not reasonably be expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder; and provided,
further, however, that the foregoing shall not prohibit a sale, transfer or
conveyance of a Subsidiary of the Company or any of its assets in compliance
with the terms of this Indenture.
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SECTION 10.5. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged, on or
before the date the same shall become due and payable, (a) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
of its Subsidiaries shown to be due on any return of the Company or any of its
Subsidiaries or otherwise assessed or upon the income, profits or property of
the Company or any of its Subsidiaries if failure to pay or discharge the same
could reasonably be expected to have a material adverse effect on the ability of
the Company to perform its obligations hereunder and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, would by law become a Lien upon
the property of the Company or any of its Subsidiaries, except for any Lien
permitted to be incurred under Section 10.11, if failure to pay or discharge the
same could reasonably be expected to have a material adverse effect on the
ability of the Company to perform its obligations hereunder; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and in respect of which
appropriate reserves (in the good faith judgment of management of the Company)
are being maintained in accordance with GAAP.
SECTION 10.6. Maintenance of Properties.
The Company shall cause all material properties owned by the Company or any
of its Subsidiaries or used or held for use in the conduct of its business or
the business of any of its Subsidiaries to be maintained and kept in good
condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the reasonable judgment of the Company may be consistent with sound business
practice and necessary so that the business carried on in connection therewith
may be properly conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the maintenance of any of
such properties if such discontinuance is, in the reasonable judgment of the
Company, desirable in the conduct of its business or the business of any of its
Subsidiaries and not reasonably expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder.
SECTION 10.7. Insurance.
The Company shall at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurers, believed by
the Company in good faith to be financially sound and responsible, against loss
or damage to the extent that property of similar character is usually so insured
by corporations similarly situated and owning like properties in the same
general geographic areas in which the Company and its Subsidiaries operate,
except where the failure to do so could not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs or prospects of the Company and its Subsidiaries, taken as a
whole.
SECTION 10.8. Limitation on Indebtedness.
The Company shall not, and shall not permit any of its Subsidiaries to,
create, issue, incur, assume, guarantee or otherwise in any manner become
directly or indirectly liable for the payment of or otherwise incur
(collectively, "incur"), any Indebtedness (including any Acquired Indebtedness);
provided, however, that the Company and any Guarantor may incur Indebtedness
(including, without limitation, Acquired Indebtedness) if on the date of the
incurrence of such Indebtedness, after giving effect to the incurrence, the
Company's Consolidated Fixed Charge Coverage Ratio for the four full fiscal
quarters
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for which financial results are available immediately preceding the incurrence
of such Indebtedness taken as one period would be at least equal to or greater
than 2.0 to 1.0. In determining the Company's Consolidated Fixed Charge Coverage
Ratio for purposes of this Section 10.8, the Company's calculations shall give
pro forma effect to (i) the incurrence of such Indebtedness and (if applicable)
the application of the net proceeds therefrom, including to refinance other
Indebtedness, as if such Indebtedness was incurred, and the application of such
proceeds occurred, on the first day of such applicable period; (ii) the
incurrence, repayment or retirement of any other Indebtedness by the Company and
its Subsidiaries since the first day of such applicable period as if such
Indebtedness was incurred, repaid or retired at the beginning of such applicable
period (except that, in making such computation, the amount of Indebtedness
under any revolving credit facility shall be computed based upon the average
daily balance of such Indebtedness during such applicable period); (iii) in the
case of Acquired Indebtedness or any acquisition occurring at the time of the
incurrence of such Indebtedness, the related acquisition, assuming such
acquisition had been consummated on the first day of such applicable period; and
(iv) any acquisition or disposition by the Company and its Subsidiaries of any
company or any business or any assets out of the ordinary course of business,
whether by merger, stock purchase or sale or asset purchase or sale, or any
related repayment of Indebtedness, in each case since the first day of such
applicable period, assuming such acquisition or disposition had been consummated
on the first day of such applicable period.
The first paragraph of this Section 10.8 will not prohibit the incurrence
of any of the following items of Indebtedness (collectively, "Permitted
Indebtedness"):
(i) Indebtedness of the Company and its Subsidiaries under the Bank
Credit Facility in an aggregate principal amount at any one time
outstanding not to exceed the greater of (a) $250 million, less the amount
of any such Indebtedness permanently retired with the Net Cash Proceeds
from any Asset Sale applied from and after the date of this Indenture to
reduce the outstanding amounts pursuant to Section 10.12 and (b) the sum of
85% of accounts receivable and 50% of inventory of the Company and its
Subsidiaries under a borrowing-based facility based on accounts receivable
and inventory (each as determined in accordance with GAAP)); provided that
the aggregate amount of Indebtedness of Non-Guarantor Subsidiaries
outstanding under this clause (i) shall not at any one time exceed $75
million;
(ii) Indebtedness of the Company pursuant to the Securities issued in
the offering described in the Final Memorandum;
(iii) guarantees of any of the Company's Subsidiaries of Indebtedness
of the Company; provided such Indebtedness and guarantees are incurred in
accordance with the terms of this Indenture;
(iv) Indebtedness of the Company or any of its Subsidiaries
outstanding on the date of this Indenture (other than Indebtedness under
clauses (i) and (ii) above);
(v) Indebtedness of the Company owing to any of its Subsidiaries;
provided that any Indebtedness of the Company owing to a Subsidiary of the
Company is made pursuant to an intercompany note and is subordinated in
right of payment from and after such time as the Securities shall become
due and payable (whether at Stated Maturity, acceleration or otherwise) to
the payment and performance of the Company's obligations under the
Securities; provided, further, that any disposition, pledge or transfer of
any such Indebtedness to a Person (other than a disposition, pledge or
transfer to a Subsidiary of the Company) shall be deemed to be an
incurrence of such Indebtedness by the Company not permitted by this clause
(v);
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(vi) Indebtedness of a Wholly Owned Subsidiary owing to the Company or
another Wholly Owned Subsidiary; provided that any such Indebtedness is
made pursuant to an intercompany note; and provided, further, that (a) any
disposition, pledge or transfer of any such Indebtedness to a Person (other
than the Company or a Wholly Owned Subsidiary) shall be deemed to be an
incurrence of such Indebtedness by the obligor not permitted by this clause
(vi), and (b) any transaction pursuant to which any Wholly Owned
Subsidiary, which has Indebtedness owing to the Company or any other Wholly
Owned Subsidiary, ceases to be a Wholly Owned Subsidiary shall be deemed to
be the incurrence of Indebtedness by such Wholly Owned Subsidiary that is
not permitted by this clause (vi);
(vii) obligations of the Company entered into in the ordinary course
of business (a) pursuant to Interest Rate Agreements designed to protect
the Company or any of its Subsidiaries against fluctuations in interest
rates in respect of Indebtedness of the Company or any of its Subsidiaries,
as long as such obligations do not exceed the aggregate principal amount of
such Indebtedness then outstanding, (b) under any Currency Hedging
Arrangements, which if related to Indebtedness, do not increase the amount
of such Indebtedness other than as a result of foreign exchange
fluctuations, or (c) under any Commodity Price Protection Agreements, which
if related to Indebtedness, do not increase the amount of such Indebtedness
other than as a result of fluctuations in the relevant commodity prices or
by reason of fees, indemnities and compensation thereunder;
(viii) Indebtedness of the Company or any of its Subsidiaries incurred
to finance environmental expenditures related to the Fenholloway River, not
to exceed $40 million outstanding at any one time in the aggregate;
(ix) Indebtedness of the Company or any of its Subsidiaries evidenced
by Purchase Money Obligations and Capital Lease Obligations not to exceed
$20 million outstanding at any one time in the aggregate;
(x) Indebtedness of the Company or any of its Subsidiaries incurred in
the ordinary course of business after the date of this Indenture relating
to (A) workers' compensation claims, (B) payment obligations in connection
with self-insurance or similar obligations, (C) bankers' acceptances,
performance, surety, judgment, appeal and similar bonds, instruments or
obligations, (D) bank overdrafts (and letters of credit in respect
thereof), provided that such Indebtedness is extinguished within five
Business Days of incurrence, and (E) completion guarantees (and letters of
credit issued with respect thereto);
(xi) Indebtedness arising from agreements of the Company or a
Subsidiary providing for indemnification, adjustment of purchase price or
other similar obligations, in each case, incurred or assumed in connection
with the purchase price or disposition of any business, assets or Capital
Stock of a Subsidiary other than guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or Capital
Stock for the purpose of financing such acquisition; provided that the
maximum aggregate liability in respect of all such Indebtedness shall at no
time exceed the gross proceeds actually received, or paid, as the case may
be, by the Company and its Subsidiaries in connection with such purchase or
disposition;
(xii) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness incurred pursuant to the first paragraph of this Section 10.8
or described in clauses (ii) and (iv) of this definition of "Permitted
Indebtedness,"
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including any successive refinancings, so long as the aggregate principal
amount of Indebtedness represented thereby is not increased by such
refinancing plus the lesser of (I) the stated amount of any premium or
other payment required to be paid in connection with such a refinancing
pursuant to the terms of the Indebtedness being refinanced or (II) the
amount of premium or other payment actually paid at such time to refinance
the Indebtedness, plus, in either case, the amount of expenses of the
Company incurred in connection with such refinancing and (A) in the case of
any refinancing of Indebtedness that is Subordinated Indebtedness, such new
Indebtedness is made subordinated to the Securities at least to the same
extent as the Indebtedness being refinanced and (B) such refinancing does
not reduce the Average Life to Stated Maturity or the Stated Maturity of
such Indebtedness; and
(xiii) Indebtedness of the Company and its Subsidiaries in addition to
that described in clauses (i) through (xii) above, and any renewals,
extensions, substitutions, refinancings or replacements of such
Indebtedness, so long as the aggregate principal amount of all such
Indebtedness shall not exceed $50 million outstanding at any one time in
the aggregate; provided that the aggregate amount of Indebtedness of
Non-Guarantor Subsidiaries outstanding under this clause (xiii) shall not
at any one time exceed $25 million.
For purposes of determining compliance with this Section 10.8:
(1) in the event that an item of Indebtedness meets the criteria of
more than one of the categories of Indebtedness described in clauses (i)
through (xiii) of the second paragraph of this Section 10.8, or is entitled
to be incurred pursuant to the first paragraph of this Section 10.8, the
Company may, in its sole discretion, classify such item of Indebtedness on
the date of its incurrence or, subject to clause (2) below, later
reclassify all or a portion of such item of Indebtedness in any manner that
complies with this Section 10.8;
(2) Indebtedness under the Existing Bank Credit Facility outstanding
on the date of this Indenture will be deemed to have been incurred pursuant
to clause (i) of the second paragraph of this Section 10.8 and the Company
shall not be permitted to reclassify any portion of such Indebtedness
thereafter;
(3) accrual of interest, accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms and the payment of dividends on
Redeemable Capital Stock in the form of additional shares of the same class
of Redeemable Capital Stock shall not be deemed to be an incurrence of
Indebtedness for purposes of this Section 10.8;
(4) the maximum amount of Indebtedness that the Company or any
Subsidiary may incur pursuant to this Section 10.8 shall not be deemed to
be exceeded, with respect to any outstanding Indebtedness, due solely to
the result of fluctuations in the exchange rates of currencies; and
(5) for purpose of determining any particular amount of Indebtedness
under this Section 10.8, guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of a particular amount of Indebtedness will not be included.
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SECTION 10.9. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Company's Capital Stock (other than dividends
or distributions payable solely in its shares of Qualified Capital Stock or
in options, warrants or other rights to acquire shares of such Qualified
Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, the Company's Capital Stock or any Capital Stock of
any Affiliate of the Company (other than Capital Stock of any Wholly Owned
Subsidiary) or options, warrants or other rights to acquire such Capital
Stock;
(iii) make any principal payment on, or repurchase, redeem, defease,
retire or otherwise acquire for value, prior to any scheduled principal
payment, sinking fund payment or maturity, any Subordinated Indebtedness
(other than a payment, repurchase, redemption, defeasance, retirement or
other acquisition for value in anticipation of satisfying a scheduled final
maturity, scheduled repayment or scheduled sinking fund payment, in each
case, due within one year of the date of such payment, repurchase,
redemption, defeasance, retirement or acquisition);
(iv) declare or pay any dividend or distribution on any Capital Stock
of any Subsidiary of the Company to any Person (other than (a) to the
Company or any Wholly Owned Subsidiary or (b) to all holders of Capital
Stock of such Subsidiary on a pro rata basis);
(v) incur, create or assume any guarantee of Indebtedness of any
Affiliate of the Company (other than (a) guarantees of Indebtedness of a
Wholly Owned Subsidiary given by the Company or (b) guarantees of
Indebtedness of the Company given by any Subsidiary of the Company, in each
case, in accordance with the terms of this Indenture); or
(vi) make any Investment in any Person (other than any Permitted
Investments)
(any of the foregoing actions described in clauses (i) through (vi), other than
any such action that is a Permitted Payment (as defined below), collectively,
"Restricted Payments") (the amount of any such Restricted Payment, if other than
cash, as determined by the Board of Directors of the Company, whose
determination shall be conclusive and evidenced by a Board Resolution), unless
(1) immediately before and immediately after giving effect to such Restricted
Payment on a pro forma basis, no Default or Event of Default shall have occurred
and be continuing and such Restricted Payment shall not be an event which is, or
after notice or lapse of time or both, would be, an "event of default" under the
terms of any Indebtedness of the Company or its Subsidiaries; (2) immediately
before and immediately after giving effect to such Restricted Payment on a pro
forma basis, the Company could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) under the provisions contained in Section 10.8; and
(3) after giving effect to the proposed Restricted Payment, the aggregate amount
of all such Restricted Payments declared or made after the date of this
Indenture, does not exceed the sum of:
(A) $25 million;
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(B) 50% of the aggregate cumulative Consolidated Net Income of
the Company accrued on a cumulative basis during the period
beginning on October 1, 2003 and ending on the last day of
the Company's last fiscal quarter ending prior to the date
of the Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such
loss);
(C) the aggregate Net Cash Proceeds received after the date of
this Indenture by the Company from the issuance or sale
(other than to any of its Subsidiaries) of Qualified Capital
Stock of the Company or any options, warrants or rights to
purchase such Qualified Capital Stock of the Company
(except, in each case, to the extent such proceeds are used
to purchase, redeem or otherwise retire Capital Stock or
Subordinated Indebtedness as set forth in clause (ii) or
(iii) of paragraph (b) of this Section 10.9);
(D) the aggregate Net Cash Proceeds received after the date of
this Indenture by the Company (other than from any of its
Subsidiaries) upon the exercise of any options, warrants or
rights to purchase Qualified Capital Stock of the Company;
(E) the aggregate Net Cash Proceeds received after the date of
this Indenture by the Company from the conversion or
exchange, if any, of debt securities or Redeemable Capital
Stock of the Company or its Subsidiaries into or for
Qualified Capital Stock of the Company plus, to the extent
such converted debt securities or Redeemable Capital Stock
were issued after the date of this Indenture, the aggregate
Net Cash Proceeds from their original issuance; and
(F) to the extent not otherwise included in the Company's
Consolidated Net Income, the aggregate payments in cash of
interest on Indebtedness or dividends or other distributions
received by the Company or any of its Subsidiaries after the
date of this Indenture from any Unrestricted Subsidiary (or
from redesignation of an Unrestricted Subsidiary as a
Subsidiary of the Company), except to the extent any such
payments are in respect of taxes to be paid by the Company
with respect to the operations of such Unrestricted
Subsidiary.
(b) Notwithstanding the foregoing, and in the case of clauses (ii) through
(ix) below, so long as there is no Default or Event of Default continuing, the
foregoing provisions shall not prohibit the following actions (each of clauses
(i) through (ix) being referred to as a "Permitted Payment"):
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment was
permitted by the provisions of paragraph (a) of this Section 10.9;
(ii) the repurchase, redemption, or other acquisition or retirement of
any shares of any class of Capital Stock of the Company in exchange for
(including any such exchange pursuant to the exercise of a conversion right
or privilege in connection with which cash is paid in lieu of the issuance
of fractional shares or scrip), or out of the Net Cash Proceeds of a
substantially concurrent issue and sale for cash (other than to a
Subsidiary of the Company) of, other shares of Qualified Capital Stock of
the Company; provided that the Net Cash Proceeds from the issuance of such
shares of Qualified Capital Stock are, to the extent so used, excluded from
clause (3)(C) of paragraph (a) of this Section 10.9;
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(iii) the repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or in an amount not in excess of the net
proceeds of, a substantially concurrent issuance and sale for cash (other
than to any Subsidiary of the Company) of any Qualified Capital Stock of
the Company, provided that the Net Cash Proceeds from the issuance of such
shares of Qualified Capital Stock are, to the extent so used, excluded from
clause (3)(C) of paragraph (a) of this Section 10.9;
(iv) the repurchase, redemption, defeasance, retirement, refinancing,
acquisition for value or payment of principal of any Subordinated
Indebtedness (other than Redeemable Capital Stock) through the
substantially concurrent issuance of new Subordinated Indebtedness of the
Company; provided that any such new Subordinated Indebtedness (1) shall be
in a principal amount that does not exceed the principal amount so
refinanced (or, if such Subordinated Indebtedness provides for an amount
less than the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, then such lesser amount as of the date
of determination), plus the lesser of (I) the stated amount of any premium
or other payment required to be paid in connection with such a refinancing
pursuant to the terms of the Subordinated Indebtedness being refinanced or
(II) the amount of premium or other payment actually paid at such time to
refinance the Subordinated Indebtedness, plus, in either case, the amount
of expenses of the Company incurred in connection with such refinancing;
(2) has an Average Life to Stated Maturity greater than the remaining
Average Life to Stated Maturity of the Securities; (3) has a Stated
Maturity for its final scheduled principal payment later than the Stated
Maturity for the final scheduled principal payment of the Securities; and
(4) is expressly subordinated in right of payment to the Securities at
least to the same extent as the Subordinated Indebtedness to be refinanced;
(v) the repurchase of any Subordinated Indebtedness of the Company at
a purchase price not greater than 101% of the principal amount of such
Subordinated Indebtedness in the event of a Change in Control pursuant to a
provision similar to Section 10.16; provided that prior to or
simultaneously with such repurchase, the Company has made the Change in
Control Offer as provided in Section 10.16 and all Securities validly
tendered for payment in connection with such Change in Control Offer shall
have been repurchased;
(vi) the repurchase of any Subordinated Indebtedness of the Company,
at a purchase price not greater than 100% of the principal amount of such
Indebtedness in the event of an Asset Sale pursuant to a provision similar
to Section 10.12; provided that (A) prior to such repurchase the Company
has made an Offer to purchase the Securities as provided in Section 10.12
and all Securities validly tendered for payment in connection with such
Offer shall have been repurchased and (B) the aggregate amount of all such
repurchases of Subordinated Indebtedness may not exceed the amount of Net
Cash Proceeds remaining after the Company has complied with the terms of
Section 10.12(c);
(vii) the repurchase of shares of Capital Stock of the Company from
employees of the Company upon termination of employment, death or
retirement pursuant to the terms of an employee benefit plan or employment
agreement; provided that the aggregate amount of all such repurchases in
any calendar year may not exceed $2 million plus the aggregate amount by
which repurchases in prior calendar years was less than $2 million;
(viii) repurchases of Capital Stock of the Company deemed to occur
upon the exercise of stock options granted to employees of the Company if
such Capital Stock represents a portion
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of the exercise price thereof; provided that no cash payment in respect of
such repurchase shall be made by the Company or any Subsidiary; and
(ix) cash payments in lieu of fractional shares pursuant to the
exercise or conversion of any exercisable convertible securities; provided
that such payment will not be for the purpose of evading the limitations of
this Section 10.9 (as determined in good faith by the Board of Directors).
The amount of all Restricted Payments (if other than cash) will be the Fair
Market Value on the date of the Restricted Payment of the assets or securities
proposed to be transferred or issued by the Company or its Subsidiaries, as the
case may be, in connection with the Restricted Payment. The Fair Market Value of
any non-cash Restricted Payment shall be determined in good faith by the Board
of Directors.
In making the computations required by this Section 10.9, the Company shall
be permitted to rely in good faith on its financial statements and other
financial data derived from its books and records and the books and records of
its Subsidiaries that are available on the date of determination. If the Company
or any Subsidiary makes a Restricted Payment which, at the time of the making
thereof, the Board of Directors determined in good faith was permitted under
this Section 10.9, such Restricted Payment shall not be deemed to have been made
in violation of this Section 10.9 because a subsequent adjustment is made to the
Company's or any Subsidiary's financial statements affecting Consolidated Net
Income for any period relevant in determining whether such Restricted Payment
was permitted.
SECTION 10.10. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into any transaction or series of related
transactions (including, without limitation, the sale, purchase, exchange or
lease of assets, property or services) with any Affiliate of the Company (other
than the Company or a Wholly Owned Subsidiary) unless (a) such transaction or
series of related transactions is in writing and on terms that are no less
favorable to the Company or such Subsidiary, as the case may be, than those that
would be available in a comparable transaction in arm's-length dealings with an
unrelated third party, (b) with respect to any transaction or series of related
transactions involving an aggregate value in excess of $2.5 million, such
transaction or series of related transactions has been approved by a majority of
the Disinterested Directors of the Company, or in the event there is only one
Disinterested Director, by such Disinterested Director, and (c) with respect to
any transaction or series of related transactions involving an aggregate value
in excess of $10 million or with respect to which there are no Disinterested
Directors, the Company delivers to the Trustee a written opinion of an
investment banking firm of national standing or other recognized independent
expert with experience appraising the terms and conditions of the type of
transaction or series of related transactions for which an opinion is required
stating that the transaction or series of related transactions is fair to the
Company or such Subsidiary from a financial point of view; provided, however,
that this provision shall not apply to: (1) any transaction with an officer or
director of the Company or any of its Subsidiaries entered into in the ordinary
course of business (including compensation or employee benefit arrangements with
any officer or director of the Company or any of its Subsidiaries, including
under any stock option or stock incentive plans); and (2) transactions pursuant
to agreements in effect on the date of this Indenture or pursuant to amendments,
extensions or renewals of such agreements; provided that any such amendment,
extension or renewal, taken as a whole, is no less favorable in any material
respect to the Holders of Securities than the terms of such existing agreements.
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SECTION 10.11. Limitation on Liens.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur or affirm any Lien of any kind (other than
Permitted Liens) upon any property or assets (including any intercompany notes)
of the Company or any of its Subsidiaries owned on the date of this Indenture or
acquired after the date of this Indenture, or any income or profits therefrom,
unless the Securities are directly secured equally and ratably with (or, in the
case of Subordinated Indebtedness, prior or senior thereto, with the same
relative priority as the Securities shall have with respect to such Subordinated
Indebtedness) the obligation or liability secured by such Lien.
SECTION 10.12. Limitation on Sale of Assets.
(a) The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, consummate an Asset Sale unless (i) at least 75% of the
consideration from such Asset Sale are received in any combination of cash
and/or Cash Equivalents and (ii) the Company or such Subsidiary receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets subject to such Asset Sale (as determined by the Board of
Directors and evidenced in a Board Resolution); provided that the amount of (A)
any liabilities (as shown on the Company's or such Subsidiary's most recent
balance sheet), of the Company or any of its Subsidiaries (including any
Subsidiary that ceases to be a Subsidiary as a result of such Asset Sale), other
than contingent liabilities and liabilities that are by their terms subordinated
to the Securities, that are assumed by the transferee of any such assets shall
be deemed to be cash for purposes of this clause (ii); and (B) any securities,
notes or other obligations received by the Company or any such Subsidiary from
such transferee that are converted by the Company or such Subsidiary into cash
(to the extent of the cash received) within 180 days following the closing of
such Asset Sale shall be deemed to be cash for purposes of this clause (ii).
(b) If all or a portion of the Net Cash Proceeds of any Asset Sale are not
required to be applied to repay permanently any Pari Passu Indebtedness under
the Bank Credit Facility then outstanding as required by the terms thereof, or
the Company determines not to apply such Net Cash Proceeds to the permanent
prepayment of such Pari Passu Indebtedness under the Bank Credit Facility, or if
no such Pari Passu Indebtedness under the Bank Credit Facility is then
outstanding, then the Company or any of its Subsidiaries may, within 12 months
of the Asset Sale, invest (or enter into a legally binding commitment to invest,
provided that the investment to which such commitment relates is consummated
within 12 months of the date that such commitment is entered into) the Net Cash
Proceeds in properties and other assets that (as determined by the Board of
Directors) replace the properties and assets that were the subject of the Asset
Sale or in properties and assets that will be used in the businesses of the
Company or its Subsidiaries existing on the date of this Indenture or in
businesses reasonably related thereto. If any such legally binding commitment to
invest such Net Cash Proceeds is terminated, then the Company may, within 90
days of such termination or within 12 months of such Asset Sale, whichever is
later, invest such Net Cash Proceeds as provided above. The amount of such Net
Cash Proceeds not used or invested as set forth in this subsection (b) of this
Section 10.12 constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $15 million, the
Company shall apply the Excess Proceeds to the repayment of the Securities and
any other Pari Passu Indebtedness outstanding with similar provisions requiring
the Company to make an offer to purchase such Indebtedness with the proceeds
from any Asset Sale as follows: (A) the Company shall make an offer to purchase
(an "Offer") from all Holders of the Securities in accordance with the
procedures set forth in this Indenture in the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased out of
an amount (the "Security Amount") equal to the product of such Excess Proceeds
multiplied by a
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fraction, the numerator of which is the outstanding principal amount of the
Securities, and the denominator of which is the sum of the outstanding principal
amount of the Securities and such Pari Passu Indebtedness (subject to proration
in the event such amount is less than the aggregate Offered Price (as defined
herein) of all Securities tendered) and (B) to the extent required by such Pari
Passu Indebtedness to reduce permanently the principal amount of such Pari Passu
Indebtedness, the Company shall make an offer to purchase or otherwise
repurchase or redeem Pari Passu Indebtedness (a "Pari Passu Offer") in an amount
(the "Pari Passu Debt Amount") equal to the excess of the Excess Proceeds over
the Security Amount; provided that in no event shall the Company be required to
make a Pari Passu Offer in a Pari Passu Debt Amount exceeding the principal
amount of such Pari Passu Indebtedness. The offer price for the Securities will
be payable in cash in an amount equal to 100% of the principal amount of the
Securities plus accrued and unpaid interest, if any, to the date (the "Offer
Date") such Offer is consummated (the "Offered Price"), in accordance with the
procedures set forth in this Indenture. To the extent that the aggregate Offered
Price of the Securities tendered pursuant to the Offer is less than the Security
Amount relating thereto or the aggregate amount of Pari Passu Indebtedness that
is purchased in a Pari Passu Offer is less than the Pari Passu Debt Amount, the
Company may use any remaining Excess Proceeds for general corporate purposes. If
the aggregate principal amount of Securities and Pari Passu Indebtedness
surrendered by holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Securities to be purchased on a pro rata basis. Upon
the completion of the purchase of all the Securities tendered pursuant to an
Offer and the completion of a Pari Passu Offer, the amount of Excess Proceeds,
if any, shall be reset at zero.
(d) When the aggregate amount of Excess Proceeds exceeds $15 million, such
Excess Proceeds shall, prior to any purchase of Securities described in
subsection (c) of this Section 10.12, be set aside by the Company in a separate
account pending (i) deposit with the depository or a paying agent of the amount
required to purchase the Securities tendered in an Offer or Pari Passu
Indebtedness tendered in a Pari Passu Offer, (ii) delivery by the Company of the
Offered Price to the holders of the Securities tendered in an Offer or Pari
Passu Indebtedness tendered in a Pari Passu Offer and (iii) application, as set
forth above, of Excess Proceeds in the business of the Company and its
Subsidiaries for general corporate purposes. Such Excess Proceeds may be
invested in Cash Equivalents; provided that the maturity date of any such
investment made after the amount of Excess Proceeds exceeds $15 million shall
not be later than the Offer Date. The Company shall be entitled to any interest
or dividends accrued, earned or paid on such Cash Equivalents; provided that the
Company shall not withdraw such interest from the separate account if an Event
of Default has occurred and is continuing.
(e) If the Company becomes obligated to make an Offer pursuant to
subsection (c) of this Section 10.12, the Securities and the Pari Passu
Indebtedness shall be purchased by the Company, at the option of the holders
thereof, in whole or in part in integral multiples of $1,000, on a date that is
not earlier than 45 days and not later than 60 days from the date the notice of
the Offer is given to holders, or such later date as may be necessary for the
Company to comply with the requirements under the Exchange Act.
(f) The Company shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws or regulations in connection with an Offer.
(g) The Company shall not, and shall not permit any of its Subsidiaries to,
create or permit to exist or become effective any restriction (other than
restrictions existing under (1) Indebtedness as in effect on the date of this
Indenture, as such Indebtedness may be refinanced from time to time or (2)
Indebtedness incurred thereafter under clause (i) of the second paragraph under
Section 10.8; provided
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that such restrictions are no less favorable to the Holders of Securities than
those existing on the date of this Indenture) that would materially impair the
ability of the Company to make an Offer to purchase the Securities or, if such
Offer is made, to pay for the Securities tendered for purchase.
(h) Subject to paragraph (f) above, within 30 days after the date on which
the amount of Excess Proceeds equals or exceeds $15 million, the Company shall
send or cause to be sent by first-class mail, postage prepaid, to the Trustee
and to each Holder, at his address appearing in the Security Register, a notice
stating or including:
(1) that the Holder has the right to require the Company to
repurchase, subject to proration, such Holder's Securities at the Offered
Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in order to have his
Securities purchased in accordance with subsection (c) of this Section
10.12;
(4) (i) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q, as applicable, and any
Current Report on Form 8-K of the Company filed subsequent to such
Quarterly Report, other than Current Reports describing Asset Sales
otherwise described in the offering materials (or corresponding successor
reports) (or in the event the Company is not required to prepare any of the
foregoing Forms, the comparable information required pursuant to Section
10.20), (ii) a description of material developments in the Company's
business subsequent to the date of the latest of such Reports, (iii) if
material, appropriate pro forma financial information, and (iv) such other
information, if any, concerning the business of the Company which the
Company in good faith believes will enable such Holders to make an informed
investment decision regarding the Offer;
(5) the Offered Price;
(6) the names and addresses of the Paying Agent and the offices or
agencies referred to in Section 10.2;
(7) that Securities must be surrendered at least one Business Day
prior to the Offer Date to the Paying Agent to an office or agency referred
to in Section 10.2 to collect payment;
(8) that any Securities not tendered will continue to accrue interest
and that unless the Company defaults in the payment of the purchase price,
any Security accepted for payment pursuant to the Offer shall cease to
accrue interest on and after the Offer Date; and
(9) the procedures for withdrawing a tender.
(i) Holders electing to have Securities purchased hereunder will be
required to surrender such Securities at the address specified in the notice at
least three Business Days prior to the Offer Date. Holders will be entitled to
withdraw their election to have their Securities purchased pursuant to this
Section 10.12 if the Company receives, not later than the Offer Date, a
facsimile transmission or letter setting forth (1) the name of the Holder, (2)
the certificate number of the Security in respect of which such notice of
withdrawal is being submitted, (3) the principal amount of the Security (which
shall be $1,000 or an
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integral multiple thereof) delivered for purchase by the Holder as to which his
election is to be withdrawn, (4) a statement that such Holder is withdrawing his
election to have such principal amount of such Security purchased, and (5) the
principal amount, if any, of such Security (which shall be $1,000 or an integral
multiple thereof) that remains subject to the original notice of the Offer and
that has been or will be delivered for purchase by the Company.
(j) The Company shall (i) not later than the Offer Date, accept for payment
Securities or portions thereof tendered pursuant to the Offer, (ii) not later
than 10:00 a.m. (New York time) on the Offer Date, deposit with the Trustee or
with a Paying Agent (or, if the Company or any of its Affiliates is acting as
Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount
of money in same day funds (or New York Clearing House funds if such deposit is
made prior to the Offer Date) sufficient to pay the aggregate Offered Price of
all the Securities or portions thereof which are to be purchased on that date
and (iii) not later than 10:00 a.m. (New York time) on the Offer Date, deliver
to the Paying Agent (if other than the Company) an Officers' Certificate stating
the Securities or portions thereof accepted for payment by the Company. 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
Offered Price; provided, however, that (x) to the extent that the aggregate
amount of cash deposited by the Company with the Trustee in respect of an Offer
exceeds the aggregate Offered Price of the Securities or portions thereof to be
purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, promptly after the Business
Day following the Offer Date the Trustee shall return any such excess to the
Company together with interest or dividends, if any, thereon.
(k) Securities to be purchased shall, on the Offer Date, become due and
payable at the Offered Price and from and after such date (unless the Company
shall default in the payment of the Offered Price) such Securities shall cease
to bear interest. Such Offered Price shall be paid to such Holder promptly
following the later of the Offer Date and the time of delivery of such Security
to the relevant Paying Agent at the office of such Paying Agent by the Holder
thereof in the manner required. Upon surrender of any such Security for purchase
in accordance with the foregoing provisions, such Security shall be paid by the
Company at the Offered Price; provided, however, that installments of interest
whose Stated Maturity is on or prior to the Offer Date shall be payable to the
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 3.7; provided, further, that Securities to be purchased
are subject to proration in the event the Security Amount is less than the
aggregate Offered Price of all Securities tendered for purchase, with such
adjustments as may be appropriate by the Trustee so that only Securities in
denominations of $1,000 or integral multiples thereof, shall be purchased. If
any Security tendered for purchase shall not be so paid upon surrender thereof
by deposit of funds with the Trustee or a Paying Agent in accordance with
subsection (j) of this Section 10.12, the principal thereof (and premium, if
any, thereon) shall, until paid, bear interest from the Offer Date at the rate
borne by such Security. Any Security that is to be purchased only in part shall
be surrendered to a Paying Agent at the office of such Paying Agent (with, if
the Company, the Security Registrar or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Security Registrar or the Trustee duly executed by, the Holder thereof or
such Holder's attorney duly authorized in writing), and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, one or more new Securities of any authorized
denomination as requested by such Holder in an aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased. The Company shall publicly announce the
results of the Offer on or as soon as practicable after the Offer Date.
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SECTION 10.13. Limitation on Issuances of Subsidiary Guarantees.
The Company shall not cause or permit any of its Subsidiaries to directly
or indirectly, assume, guarantee or in any other manner become liable with
respect to any Indebtedness of the Company or any Subsidiary (other than the
guarantee by any Foreign Subsidiary or Indebtedness that is exclusively
Indebtedness of one or more other Foreign Subsidiaries) unless, in each case,
such Subsidiary:
(1) executes and delivers to the Trustee a supplemental indenture in
form reasonably satisfactory to the Trustee pursuant to which such
Subsidiary shall unconditionally guarantee (each, a "Guarantee") all of the
Company's obligations under the Securities and this Indenture on the terms
set forth in this Indenture; and
(2) delivers to the Trustee an Opinion of Counsel (which may contain
customary exceptions) that such supplemental indenture has been duly
authorized, executed and delivered by such Subsidiary and constitutes a
legal, valid, binding and enforceable obligation of such Subsidiary.
Thereafter, such Subsidiary will be a Guarantor for all purposes of this
Indenture until such Guarantee is released in accordance with Section 12.5. The
Company may cause any other Subsidiary of the Company to issue a Guarantee and
become a Guarantor.
SECTION 10.14. [Reserved.]
SECTION 10.15. Restriction on Transfer of Assets.
The Company shall not sell, convey, transfer or otherwise dispose of its
assets or property to any Subsidiary of the Company that is not a Guarantor,
except for sales, conveyances, transfers or other dispositions (a) made in the
ordinary course of business or (b) to any Subsidiary of the Company if such
Subsidiary simultaneously executes and delivers a supplemental indenture to this
Indenture providing for a Guarantee by such Subsidiary of the Securities.
SECTION 10.16. Purchase of Securities upon a Change in Control.
(a) If a Change in Control shall occur at any time (unless all of the
Securities have been called for redemption pursuant to Section 11.1(a)), then
each Holder shall have the right to require that the Company purchase such
Holder's Securities in whole or in part in integral multiples of $1,000, at a
purchase price (the "Change in Control Purchase Price") in cash in an amount
equal to 101% of the principal amount of such Securities, plus accrued and
unpaid interest, if any, to the date of purchase (the "Change in Control
Purchase Date"), pursuant to the offer described below in this Section 10.16
(the "Change in Control Offer") and in accordance with the procedures set forth
in this Section 10.16.
(b) Within 30 days following any Change in Control (unless all of the
Securities have been called for redemption pursuant to Section 11.1(a)), the
Company shall notify the Trustee thereof and give written notice (a "Change in
Control Purchase Notice") of such Change in Control to each Holder by
first-class mail, postage prepaid, at his address appearing in the Security
Register stating or including:
(1) that a Change in Control has occurred, the date of such event, and
that such Holder has the right to require the Company to repurchase such
Holder's Securities at the Change in Control Purchase Price;
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(2) the circumstances and relevant facts regarding such Change in
Control (including but not limited to information with respect to pro forma
historical income, cash flow and capitalization after giving effect to such
Change in Control);
(3) (i) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q, as applicable, and any
Current Report on Form 8-K of the Company filed subsequent to such
Quarterly Report (or in the event the Company is not required to prepare
any of the foregoing Forms, the comparable information required to be
prepared by the Company pursuant to Section 10.20), (ii) a description of
material developments in the Company's business subsequent to the date of
the latest of such reports and (iii) such other information, if any,
concerning the business of the Company which the Company in good faith
believes will enable such Holders to make an informed investment decision
regarding the Change in Control Offer;
(4) that the Change in Control Offer is being made pursuant to this
Section 10.16 and that all Securities properly tendered pursuant to the
Change in Control Offer will be accepted for payment at the Change in
Control Purchase Price;
(5) the Change in Control Purchase Date which shall be fixed by the
Company and shall be a Business Day no earlier than 30 days nor later than
60 days from the date such notice is mailed, or such later date as is
necessary to comply with requirements under the Exchange Act;
(6) the Change in Control Purchase Price;
(7) the names and addresses of the Paying Agent and the offices or
agencies referred to in Section 10.2;
(8) that Securities must be surrendered at least one Business Day
prior to the Change in Control Purchase Date to the Paying Agent at the
office of the Paying Agent or to an office or agency referred to in Section
10.2 to collect payment;
(9) that the Change in Control Purchase Price for any Security which
has been properly tendered and not properly withdrawn will be paid promptly
following the Change in Control Offer Purchase Date;
(10) the procedures for withdrawing a tender of Securities and Change
in Control Purchase Notice;
(11) that any Security not tendered will continue to accrue interest;
and
(12) that, unless the Company defaults in the payment of the Change in
Control Purchase Price, any Securities accepted for payment pursuant to the
Change in Control Offer shall cease to accrue interest after the Change in
Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of Securities, the
Holder of the Security in respect of which such proper tender was made shall
(unless the tender of such Security is properly withdrawn) thereafter be
entitled to receive solely the Change in Control Purchase Price with respect to
such Security. Upon surrender of any such Security for purchase in accordance
with the foregoing provisions, such Security shall be paid by the Company at the
Change in Control Purchase Price; provided,
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however, that installments of interest whose Stated Maturity is on or prior to
the Change in Control Purchase Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such on the
relevant Regular Record Dates according to the terms and the provisions of
Section 3.7. If any Security tendered for purchase in accordance with the
provisions of this Section 10.16 shall not be so paid upon surrender thereof,
the principal thereof (and premium, if any, thereon) shall, until paid, bear
interest from the Change in Control Purchase Date at the rate borne by such
Security. Any Security that is to be purchased only in part shall be surrendered
to a Paying Agent at the office of such Paying Agent (with, if the Company, the
Security Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar or the Trustee, as the case may be, duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, one or more new Securities of any
authorized denomination as requested by such Holder in an aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Security so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change in Control Purchase
Date, accept for payment Securities or portions thereof tendered pursuant to the
Change in Control Offer, (ii) not later than 10:00 a.m. (New York time) on the
Change in Control Purchase Date, deposit with the Paying Agent an amount of cash
sufficient to pay the aggregate Change in Control Purchase Price of all the
Securities or portions thereof which are to be purchased as of the Change in
Control Purchase Date and (iii) not later than 10:00 a.m. (New York time) on the
Change in Control Purchase Date, deliver to the Paying Agent an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the Change in Control
Purchase Price of the Securities purchased from each such Holder, and the
Company shall execute and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. The Company shall publicly announce the results
of the Change in Control Offer on the Change in Control Purchase Date. For
purposes of this Section 10.16, the Company shall choose a Paying Agent which
shall not be the Company.
(e) A tender made in response to a Change in Control Purchase Notice may be
withdrawn before or after delivery by the Holder to the Paying Agent at the
office of the Paying Agent of the Security to which such tender relates, by
means of a written notice of withdrawal delivered by the Holder to the Paying
Agent at the office of the Paying Agent or to the office or agency referred to
in Section 10.2 to which the related tender was delivered prior to the Change in
Control Purchase Date specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted;
(3) the principal amount of the Security (which shall be $1,000 or an
integral multiple thereof) delivered for purchase by the Holder as to which
such notice of withdrawal is being submitted; and
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(4) the principal amount, if any, of such Security (which shall be
$1,000 or an integral multiple thereof) that remains subject to the
original Change in Control Purchase Notice and that has been or will be
delivered for purchase by the Company.
(f) 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 or dividends, if any, thereon, held by them
for the payment of the Change in 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 subsection (e) of this Section 10.16 exceeds
the aggregate Change in 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 in Control Purchase Date the Trustee shall
return any such excess to the Company together with interest, if any, thereon.
The Company shall not be required to make a Change in Control Offer upon a
Change in Control if a third party makes the Change in Control Offer in the
manner, at the times and otherwise in compliance with the requirements
applicable to a Change in Control Offer made by the Company and purchases all
Securities validly tendered and not withdrawn under such Change in Control
Offer.
(g) The Company shall comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws or regulations in connection with a Change in Control Offer.
(h) The Company shall not, and shall not permit any of its Subsidiaries to,
create or permit to exist or become effective any restriction (other than
restrictions existing under the Bank Credit Facility (or any guarantee thereof)
or under Indebtedness as in effect on the date of this Indenture) and any
extensions, refinancings, renewals or replacements of any of the foregoing that
would materially impair the ability of the Company to make a Change in Control
Offer to purchase the Securities or, if such Change in Control Offer is made, to
pay for the Securities tendered for purchase; provided that the restrictions in
any such extensions, refinancings, renewals or replacements are no less
favorable in any material respect to the holders of the Securities than those
under the Indebtedness being extended, refinanced, renewed or replaced.
SECTION 10.17. Limitation on Subsidiary Capital Stock.
The Company shall not permit (a) any Subsidiary of the Company to issue,
sell or transfer any Capital Stock, except for (i) Capital Stock issued or sold
to, held by or transferred to the Company or a Wholly Owned Subsidiary, (ii) the
ownership by directors of directors' qualifying shares or the ownership by
foreign nationals of Capital Stock of any Subsidiary of the Company, to the
extent required by applicable law, and (iii) Capital Stock issued by a Person
prior to the time (A) such Person becomes a Subsidiary of the Company, (B) such
Person merges with or into a Subsidiary of the Company or (C) a Subsidiary of
the Company merges with or into such Person; provided that such Capital Stock
was not issued or incurred by such Person in anticipation of the type of
transaction contemplated by subclause (A), (B) or (C) or (b) any Person (other
than the Company or a Wholly Owned Subsidiary) to acquire Capital Stock of any
Subsidiary of the Company from the Company or any Wholly Owned Subsidiary
except, in the case of clause (a) or (b), upon the acquisition of all the
outstanding Capital Stock of such Subsidiary which is not in violation with any
other terms of this Indenture.
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SECTION 10.18. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of any of its
Subsidiaries to (i) pay dividends or make any other distribution on its Capital
Stock, (ii) pay any Indebtedness owed to the Company or any other of its
Subsidiaries, (iii) make any Investment in the Company or any other Subsidiary
of the Company or (iv) transfer any of its properties or assets to the Company
or any other of its Subsidiaries, except for: (a) any agreement in effect on the
date of this Indenture; (b) any encumbrance or restriction, with respect to a
Subsidiary of the Company that is not a Subsidiary of the Company on the date of
this Indenture, in existence at the time such Person becomes a Subsidiary of the
Company and not incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary of the Company; (c) any encumbrance or restriction
existing by reason of applicable law; (d) any encumbrance or restriction
existing under any customary non-assignment provisions of any lease governing a
leasehold interest of the Company or any Subsidiary of the Company; (e) any
encumbrance or restriction contained in any working capital facility of a
Foreign Subsidiary of the Company; and (f) any encumbrance or restriction
existing under any agreement that extends, renews, refinances or replaces the
agreements containing the encumbrances or restrictions in the foregoing clauses
(a) and (b), or in this clause (f); provided that the terms and conditions of
any such encumbrances or restrictions are no more restrictive in any material
respect than those under or pursuant to the agreement evidencing the
Indebtedness so extended, renewed, refinanced or replaced.
SECTION 10.19. Limitation on Unrestricted Subsidiaries.
The Company shall not make, and shall not permit its Subsidiaries to make,
any Investment in an Unrestricted Subsidiary if, at the time thereof, the amount
of such Investment would exceed the amount of Restricted Payments then permitted
to be made pursuant to Section 10.9 plus the amount of Permitted Investments
described in clause (xiv) of the definition thereof then permitted to be made.
Any Investment in an Unrestricted Subsidiary permitted to be made pursuant to
this Section 10.19 (i) will be treated as a Restricted Payment (unless such
Investment was a Permitted Investment) in calculating the amount of Restricted
Payments made by the Company and (ii) may be made in cash or property.
SECTION 10.20. Provision of Financial Statements.
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 SEC the annual reports, quarterly reports and other documents
which the Company would have been required to file with the SEC pursuant to such
Section 13(a) or 15(d) if the Company were so subject, such documents to be
filed with the SEC on or prior to the date (the "Required Filing Date") by which
the Company would have been required so to file such documents if the Company
were so subject. The Company will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, 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 SEC
pursuant to Section 13(a) or 15(d) of the Exchange Act if the Company were
subject to either of such Sections and (y) if filing such documents by the
Company with the SEC is not permitted under the Exchange Act, promptly upon
written request and payment of the reasonable cost of duplication and delivery,
supply copies of such documents to any prospective holder at the Company's cost.
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In addition, for so long as any Securities remain outstanding, the Company
shall furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act. The Company shall also comply with
the provisions of TIA Section 314(a).
Should the Company deliver to the Trustee any such information, reports or
certificates or any annual reports, information, documents and other reports
pursuant to Section 314(a) of the Trust Indenture Act, delivery of such
information, reports or certificates or any annual reports, information,
documents and other reports to the Trustee is for informational purposes only
and the Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 10.21. Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, not more than 120 days after
the end of each fiscal year of the Company ending after the date hereof, a
written statement signed by two executive officers of the Company, one of whom
shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating whether or not, after a
review of the activities of the Company during such year and of the Company's
performance under this Indenture, to the best knowledge, based on such review,
of the signers thereof, the Company has fulfilled all of its obligations and is
in compliance with all conditions and covenants under this Indenture throughout
such year and, if there has been a Default specifying each Default and the
nature and status thereof and any actions being taken by the Company with
respect thereto.
(b) When any Default or Event of Default has occurred and is continuing, or
if the Trustee or any Holder or the trustee for or the holder of any other
evidence of Indebtedness of the Company or any of its Subsidiaries gives any
notice or takes any other action with respect to a claimed default the Company
shall deliver to the Trustee by registered or certified mail or facsimile
transmission followed by hard copy an Officers' Certificate specifying such
Default, Event of Default, notice or other action, the status thereof and what
actions the Company is taking or proposes to take with respect thereto, within
10 Business Days of its occurrence.
SECTION 10.22. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 10.6 through 10.11, 10.13, 10.15 and 10.17
through 10.20, if, before or after the time for such compliance, the Holders of
not less than a majority in aggregate principal amount of the Securities at the
time Outstanding shall, by Act of such Holders, waive such compliance in such
instance with such covenant or condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1. Rights of Redemption.
(a) The Securities are subject to redemption, at any time on or after
October 1, 2008, at the option of the Company, in whole or in part, subject to
the conditions, and at the Redemption Prices, specified in the form of Security,
together with accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on relevant Regular Record Dates and
Special Record Dates to receive interest due on applicable Interest Payment
Dates and Special Payment Dates).
(b) Up to 35% of the aggregate principal amount of the Securities may be
redeemed at any time prior to October 1, 2006, at the option of the Company
within 60 days after the consummation of one or more Equity Offerings by the
Company from the net cash proceeds to the Company of such Equity Offerings, upon
not less than 20 nor more than 60 days' prior notice to the Holders, in amounts
of $1,000 or integral multiples of $1,000, at a redemption price equal to 108.5%
of the principal amount, together, in each case, with accrued and unpaid
interest if any, to the Redemption Date (subject to the right of Holders of
record on applicable Record Dates or Special Record Dates to receive interest
due on applicable Interest Payment Dates or Special Payment Dates). However,
after giving effect to any such redemption, at least 65% aggregate principal
amount of the Securities originally issued must remain outstanding, and such
redemption must occur within 60 days following the closing of each such Equity
Offering.
SECTION 11.2. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article Eleven.
SECTION 11.3. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to Section
11.1 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 30 nor more than 60 days prior to the Redemption Date fixed by the Company,
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities to be redeemed.
SECTION 11.4. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities or portions thereof to be redeemed shall be selected not more than 30
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities being redeemed are listed, or if the Securities are not listed on a
national securities exchange, pro rata, by lot or such other method as the
Trustee deems fair and reasonable; provided that: (x) no Securities of a
principal amount of $1,000 or less will be redeemed in part; and (y) if a
partial redemption is made with the proceeds of a Equity Offering, selection of
the Securities or portions thereof for redemption will be made by the Trustee
only on a pro rata basis. Notwithstanding the foregoing, all selections by the
Trustee of Securities to be redeemed shall be made in accordance with DTC
procedures, unless such method is otherwise prohibited.
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The Trustee shall promptly notify the Company and the Security Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 11.5. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed to each Holder of Securities to be redeemed, at his address appearing in
the Security Register as follows:
(i) if the Company is redeeming the Securities pursuant to Section
11.1(a), not less than 30 nor more than 60 days prior to the Redemption
Date; or
(ii) if the Company is redeeming the Securities pursuant to
Section 11.1(b), not less than 20 nor more than 60 days prior to the
Redemption Date.
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 to be
redeemed, and that (unless the Company shall default in payment of the
Redemption Price) interest thereon shall cease to accrue on and after
said date;
(g) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(h) 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
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the Company. If the Company elects to give notice of redemption, it shall
provide the Trustee with a certificate stating that such notice has been given
in compliance with the requirements of this Section 11.5.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been given, whether or not the Holder receives such notice and
shall be deemed to have been given on the date of the mailing of such notice. In
any case, failure to give such notice by mail or any defect in the notice to the
Holder of any Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security.
SECTION 11.6. Deposit of Redemption Price.
On or prior to 10:00 a.m. (New York time) on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company or any of its Affiliates is acting as Paying Agent, segregate and hold
in trust as provided in Section 10.3) an amount of money in same day funds
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date or Special Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
All money earned on funds held in trust by the Trustee or any Paying Agent shall
be remitted to the Company.
SECTION 11.7. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such on the relevant Regular Record Dates and Special Record Dates according to
the terms and the provisions of Section 3.7.
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 11.8. 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 10.2 (with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar or the
Trustee, as the case may be, duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to,
and in exchange for, the unredeemed portion of the principal of the Security so
surrendered that is not redeemed or purchased.
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ARTICLE TWELVE
GUARANTEES
SECTION 12.1. Guarantee.
Subject to the provisions of this Article Twelve and Section 10.13, each
Guarantor in respect of the Securities hereby jointly and severally
unconditionally guarantees, on a senior unsecured basis, to each Holder of a
Security authenticated and delivered by the Trustee and to the Trustee and its
successors, irrespective of (i) the validity and enforceability of this
Indenture, the Securities or the obligations of the Company or any other
Guarantors to the Holders of the Securities or the Trustee hereunder or
thereunder or (ii) the absence of any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
default of a Guarantor, that: (a) the principal of, premium, if any, interest,
if any, with respect to the Securities shall be duly and punctually paid in full
when due, whether at maturity, by acceleration or otherwise, and interest on the
overdue principal and (to the extent permitted by law) interest, if any, with
respect to the Securities and all other obligations of the Company or any
Guarantor to the Holders of the Securities or the Trustee hereunder or
thereunder and all other obligations under this Indenture with respect to the
Securities or the Securities shall be promptly paid in full or performed, all in
accordance with the terms of this Indenture and thereof and (b) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, the same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so Guaranteed, or failing performance of any other obligation of the Company to
the Holders of the Securities, for whatever reason, each Guarantor shall be
obligated to pay, or to perform or cause the performance of, the same
immediately. An Event of Default under this Indenture or the Securities shall
constitute an event of default under the Guarantee, and shall entitle the
Holders of Securities or the Trustee to accelerate the obligations of the
Guarantors of such Securities hereunder in the same manner and to the same
extent as the obligations of the Company.
Each Guarantor, by execution of the Guarantee, waives the benefit of
diligence, presentment, demand for payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that such Guarantee shall not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture and
such Guarantee. The Guarantee is a guarantee of payment and not of collection.
If any Holder or the Trustee is required by any court or otherwise to return to
the Company or to any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or such Guarantor, any amount
paid by the Company or such Guarantor to the Trustee or such Holder of the
Securities, the Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders of the Securities and the Trustee,
on the other hand, (a) subject to this Article Twelve, the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five of
this Indenture for the purposes of the Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby and (b) in the event of any acceleration of such
obligations as provided in Article Five of this Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of such Guarantee.
The Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become
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insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities are pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee on
the Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
No shareholder, officer, director, employee or incorporator, past, present
or future, or any Guarantor, as such, shall have any personal liability under
this Guarantee by reason of his, her or its status as such shareholder, officer,
director, employee or incorporator.
SECTION 12.2. Execution and Delivery of Guarantee.
To further evidence the Guarantee set forth in Section 12.1 of this
Indenture, each Guarantor hereby agrees that a notation of such Guarantee,
substantially in the form included in Exhibit E to this Indenture, shall be
endorsed on each Security authenticated and delivered by the Trustee after this
Article Twelve with respect to such Guarantor becomes effective in accordance
with Section 12.1 of this Indenture and such Guarantee shall be executed by
either manual or facsimile signature of an officer of each Guarantor. The
validity and enforceability of any Guarantee shall not be affected by the fact
that it is not affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 12.1 of this Indenture shall remain in full force and effect
notwithstanding any failure to endorse on each Security a notation of such
Guarantee.
If an officer of a Guarantor whose signature is on this Indenture or a
Guarantee no longer holds that office at the time the Trustee authenticates the
Security on which such Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 12.3. Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum amount as
shall, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, result in the obligations of such Guarantor under the Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law.
SECTION 12.4. Waiver of Subrogation.
Each Guarantor, by execution of its Guarantee, waives to the extent
permitted by law any claim or other rights which it may now or hereafter acquire
against the Company that arise from the existence, payment, performance or
enforcement of such Guarantor's obligations under such Guarantee and this In-
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denture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of the Securities against the Company, whether or
not such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment on account of such claim or other rights. If any
amount shall be paid to any Guarantor in violation of the preceding sentence and
the Securities shall not have been paid in full, such amount shall have been
deemed to have been paid to such Guarantor for the benefit of, and held in trust
for the benefit of, the Holders of the Securities, and shall forthwith be paid
to the Trustee for the benefit of such Holders to be credited and applied upon
the Securities, whether matured or unmatured, in accordance with the terms of
this Indenture. Each Guarantor, by execution of its Guarantee, shall acknowledge
that it shall receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and that the waiver set forth in
this Section 12.4 is knowingly made in contemplation of such benefits.
SECTION 12.5. Release of Guarantee.
The Guarantee of a Guarantor will be released:
(a) in connection with any sale or other disposition of all of the
Capital Stock of such Guarantor to a Person other than the Company or any
Subsidiary of the Company, if the sale complies with Section 10.12;
(b) in connection with the sale or other disposition of all or
substantially all of the assets of such Guarantor, including by way of
merger, consolidation or otherwise, to a Person other than the Company or
any Subsidiary of the Company, if the sale or disposition complies with
Section 10.12;
(c) if the Company designates such Guarantor to be an Unrestricted
Subsidiary in accordance with Section 10.19;
(d) upon the release or discharge of the guarantee of such Subsidiary
of Indebtedness of the Company and each Guarantor which resulted in the
obligation to Guarantee the Securities pursuant to Section 10.13; or
(e) in connection with the liquidation, dissolution or winding-up of a
Guarantor, if such liquidation, dissolution or winding-up complies with the
provisions of this Indenture.
SECTION 12.6. Contribution from Other Guarantors.
Each Guarantor that makes a payment or distribution under its Guarantee
shall be entitled to a contribution from each other Guarantor in a pro rata
amount based on the net assets of each Guarantor, determined in accordance with
GAAP, so long as the exercise of such right does not impair the rights of
Holders of Securities under any Guarantee.
-84-
ARTICLE Thirteen
SATISFACTION AND DISCHARGE
SECTION 13.1. Satisfaction and Discharge of Indenture.
This Indenture will be discharged and will cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of
Securities expressly provided for herein) and the Trustee, upon Company Request
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(1) all the Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 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 10.3) have been delivered to the
Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee
cancelled or for cancellation (x) have become due and payable, (y)
will 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 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, including the principal of, premium, if any,
and accrued interest on such Securities at such Maturity, Stated
Maturity or Redemption Date;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Independent 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 will not result in a breach or violation of, or constitute a
default under, this Indenture or any other material agreement or instrument
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if United
States dollars shall have been deposited with the Trustee pursuant to subclause
(2) of subsection (a) of this Section 13.1, the obligations of the Trustee under
Section 13.2 and the last paragraph of Section 10.3 shall survive.
-85-
SECTION 13.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all United
States dollars deposited with the Trustee pursuant to Section 13.1 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.
* * *
-86-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
BUCKEYE TECHNOLOGIES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman & Chief
Executive Officer
BUCKEYE FLORIDA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BFOL 2 INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BFC 2 INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BFOL 3 LLC
By: BFC 2 Inc., its Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
-87-
BFC 3 LLC
By: BFOL 2 Inc., its Managing
Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BUCKEYE FLORIDA, LIMITED PARTNERSHIP
By: Buckeye Florida Corporation,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BUCKEYE LUMBERTON INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BUCKEYE MT. ▇▇▇▇▇ LLC
By: Buckeye Lumberton Inc.,
its sole member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BKI LENDING INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
-88-
BKI HOLDING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Title: President
BKI ASSET MANAGEMENT CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Title: President
BKI FINANCE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BKI INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BUCKEYE TECHNOLOGIES CANADA INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
MERFIN SYSTEMS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Cheif Executive Officer
-89-
Attest: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary of
Buckeye Technologies, Inc.
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
FORM OF INITIAL GLOBAL SECURITY
BUCKEYE TECHNOLOGIES INC.
No. [ ] CUSIP No. [ ]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI");
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR 904 OF
REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT (E) TO AN IAI THAT, PRIOR
TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY) AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUER, IF THE ISSUER SO REQUESTS, THAT SUCH TRANSFER COMPLIES WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE ISSUER) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
A-1
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE GOVERNING THIS SECURITY CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO BUCKEYE TECHNOLOGIES INC. OR THE REGISTRAR FOR
REGISTRATION OF TRANSFER OR EXCHANGE AND ANY SECURITY ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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,
AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 3.5 OF THE INDENTURE, DATED AS OF SEPTEMBER 22, 2003 BY AND
AMONG BUCKEYE TECHNOLOGIES INC., THE GUARANTORS NAMED THEREIN AND THE TRUSTEE
NAMED THEREIN, PURSUANT TO WHICH THIS SECURITY WAS ISSUED.
A-2
GLOBAL SECURITY
REPRESENTING 8 1/2% SENIOR NOTES DUE 2013
Buckeye Technologies Inc., a Delaware corporation, for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, the principal
sum indicated on Schedule A hereof, on October 1, 2013.
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.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, the Company has caused this Security to be fully
executed.
Dated:
BUCKEYE TECHNOLOGIES INC.
By: ___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
_________________________________________
The Bank of New York, as Trustee,
certifies that this is one of the
Securities referred to in the Indenture.
By: ___________________________________
Authorized Signatory
A-3
REVERSE SIDE OF FORM OF INITIAL GLOBAL SECURITY
BUCKEYE TECHNOLOGIES INC.
GLOBAL SECURITY
REPRESENTING 8 1/2% SENIOR NOTES DUE 2013
1. Indenture.
This Security is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its "8 1/2% Senior Notes due 2013"
(herein called the "Securities"), issued under an indenture dated as of
September 22, 2003 (as amended or supplemented from time to time, the
"Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee," which term includes any successor Trustee under the Indenture), to
which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and each Holder of Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The summary of the
terms of this Security contained herein does not purport to be complete and is
qualified by reference to the Indenture. All terms used in this Security which
are not defined herein shall have the same meanings assigned to them in the
Indenture.
The Indenture imposes certain limitations on the ability of the Company to,
among other things, make certain Investments and Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by its
Subsidiaries, enter into or permit certain transactions with Affiliates, create
or incur Liens, and make Asset Sales. The Indenture also imposes limitations on
the ability of the Company to consolidate or merge with or into any other Person
or permit any other Person to merge with or into the Company, or sell, convey,
assign, transfer, lease or otherwise dispose of all or substantially all of the
Property of the Company to any other Person and on the ability of the Company's
Subsidiaries to issue Capital Stock.
2. Principal and Interest.
Buckeye Technologies Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture, being herein called the
"Company"), promises to pay the principal amount set forth on Schedule A of this
Security to the Holder hereof on October 1, 2013.
The Company shall pay interest at a rate of 8 1/2%, per annum, from
September 22, 2003 or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually on April 1 and
October 1 of each year, commencing on April 1, 2004, in cash, to the Holder
hereof until the principal amount hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Security (or the Security in
exchange or substitution for which this Security was issued) is registered at
the close of business on the Regular Record Date for interest payable on such
Interest Payment Date. The Regular Record Date for any interest payment is the
close of business on March 15 or September 15, as the case may be, whether or
not a Business Day, immediately preceding the Interest Payment Date on which
such interest is payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") shall forthwith cease to be payable to the
Holder on such Regular Record Date and shall be paid as provided in Section 3.7
of the Indenture. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
A-4
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Security is exchanged in an Exchange Offer (as such term is defined
in the Registration Rights Agreement) prior to the Regular Record Date for the
first Interest Payment Date following such exchange, accrued and unpaid
interest, if any, on this Security, up to but not including the date of issuance
of the Exchange Security or Exchange Securities issued in exchange for this
Security, shall be paid on the first Interest Payment Date for such Exchange
Security or Exchange Securities to the Holder or Holders of such Exchange
Security or Exchange Securities on the first Regular Record Date with respect to
such Exchange Security or Exchange Securities. If this Security is exchanged in
an Exchange Offer subsequent to the Regular Record Date for the first Interest
Payment Date following such exchange but on or prior to such Interest Payment
Date, then any such accrued and unpaid interest with respect to this Security
and any accrued and unpaid interest on the Exchange Security or Exchange
Securities issued in exchange for this Security, through the day before such
Interest Payment Date, shall be paid on such Interest Payment Date to the Holder
of this Security on such Regular Record Date.
3. Additional Interest.
The Holder of this Security is entitled to the benefits of the Registration
Rights Agreement. Subject to compliance by the Holder with Sections 2(e) and
3(b)(iv) of the Registration Rights Agreement, if (i) on or prior to the 90th
day following the Issue Date (or, if such 90th day is not a Business Day, the
next succeeding Business Day), neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement has been filed with the SEC, (ii) on or
prior to the 180th day following the Issue Date (or, if such 180th day is not a
Business Day, the next succeeding Business Day), neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been declared
effective, (iii) on or prior to the 30th Business Day after the Exchange Offer
Registration Statement is declared effective, the Registered Exchange Offer has
not been consummated, (iv) the Company is otherwise required to file a Shelf
Registration Statement and the Shelf Registration Statement is not filed within
90 days after the date on which a request has been made or the Company is
otherwise required to so file the Shelf Registration Statement in accordance
with the terms of the Registration Rights Agreement or such Shelf Registration
Statement has not been declared effective within 180 days after the date on
which such a request has been made or the Company is otherwise required to so
file the Shelf Registration Statement in accordance with the terms of the
Registration Rights Agreement the time period provided for in the Registration
Rights Agreement, or (v) after either the Exchange Offer Registration Statement
or the Shelf Registration Statement has been declared effective, such
registration statement ceases to be effective or usable (subject to exceptions
set forth in the Registration Rights Agreement) in connection with resales of
Securities or Exchange Securities in connection with and during the periods
specified in the Registration Rights Agreement (each such event referred to in
clauses (i) through (v) a "Registration Default"), then, as liquidated damages,
additional interest (the "Additional Interest") will accrue on the Securities
and the Exchange Securities (in addition to the stated interest on the
Securities and the Exchange Securities) from and including the date on which any
such Registration Default shall occur but excluding the date on which all
Registration Defaults have been cured. Additional Interest will accrue at an
initial rate of 0.25% per annum during the 90-day period immediately following
the occurrence of such registration default and will increase by 0.25% per annum
at the end of each subsequent 90-day period, but in no event will such rate
exceed 0.75% per annum.
Except as expressly provided in this paragraph 3, Additional Interest shall
be treated as interest and any date on which Additional Interest is due and
payable shall be treated as an Interest Payment Date, for all purposes under
this Security and the Indenture.
A-5
4. Method of Payment.
The Company, through the Paying Agent, shall pay interest on this Security
to the registered Holder of this Security, as provided above. The Holder must
surrender this Security to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States of America
that at the time of payment is legal tender for payment of all debts public and
private. Principal and interest will be payable at the office of the Paying
Agent but, at the option of the Company, interest may be paid by check mailed to
the registered Holders at their registered addresses.
5. Paying Agent and Registrar.
Initially, The Bank of New York will act as the Transfer Agent, Paying
Agent and Registrar under the Indenture. The Company may, upon written notice to
the Paying Agent and Trustee, appoint and change any Transfer Agent, Paying
Agent or Registrar. The Company or any of its subsidiaries may act as Transfer
Agent, Paying Agent or Registrar.
6. Optional Redemption.
On or after October 1, 2008, the Securities will be subject to redemption
at the option of the Company, in whole or in part, upon not less than 30
calendar days, nor more than 60 calendar days' notice, at the prices (expressed
as percentages of principal amounts) set forth below, plus accrued and unpaid
interest thereon (if any) at the applicable Redemption Date, if redeemed during
the twelve-month period beginning October 1 of the years indicated below:
Year Percentage
2008 104.250%
2009 102.833%
2010 101.417%
2011 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to October 1, 2006, the
Company may redeem up to 35% of the aggregate principal amounts of Securities
with the net proceeds of one or more Equity Offerings of the Company at a
redemption price equal to 108.50% of the aggregate principal amount thereof, on
the date of redemption. However, after giving effect to any such redemption, at
least 65% of the aggregate principal amount of the Securities originally issued
must remain outstanding and such redemption must occur within 60 days following
the closing of each such Equity Offering.
7. Notice of Redemption.
At least 30 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall send a notice of redemption, first-class
mail, postage prepaid, to Holders of Securities to be redeemed at the addresses
of such Holders as they appear in the Security Register.
If less than all of the Securities are to be redeemed at any time, the
Securities to be redeemed will be chosen by the Trustee in accordance with the
Indenture. If any Security is redeemed subsequent to a Regular Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid on such Interest
Payment Date to the Holder of the Security on such Regular Record Date. If money
in an amount sufficient to pay the Redemption Price of all Securities (or
portions thereof) to be redeemed on the Redemption Date is deposited with the
A-6
Paying Agent on or before the applicable Redemption Date and certain other
conditions are satisfied, interest on the Securities to be redeemed on the
applicable Redemption Date will cease to accrue.
The Securities are not subject to any sinking fund.
8. Repurchase at the Option of Holders upon Change of Control.
Upon the occurrence of a Change of Control, each Holder of Securities shall
have the right to require the Company to purchase such Holder's Securities, in
whole, or in part in a principal amount that is an integral multiple of $1,000,
pursuant to a Change of Control Offer, at a purchase price in cash equal to 101%
of the aggregate principal amount thereof on any Change of Control Purchase
Date, plus accrued and unpaid interest, if any, to the Change of Control
Purchase Date.
Within 30 calendar days following any Change of Control, the Company shall
send, or cause to be sent, by first-class mail, postage prepaid, a notice
regarding the Change of Control Offer to each Holder of Securities. The Holder
of this Security may elect to have this Security or a portion hereof in an
authorized denomination purchased by completing the form entitled "Option of
Holder to Require Purchase" appearing below and tendering this Security pursuant
to the Change of Control Offer. Unless the Company defaults in the payment of
the Change of Control Purchase Price with respect thereto, all Securities or
portions thereof accepted for payment pursuant to the Change of Control Offer
will cease to accrue interest from and after the Change of Control Purchase
Date.
9. Repurchase at the Option of Holders upon Asset Sale.
If at any time the aggregate amount of Excess Proceeds calculated as of
such date exceeds $15 million, the Company shall, within 30 days of the date the
amount of Excess Proceeds exceeds $15 million, use such Excess Proceeds to make
an offer to purchase (an "Asset Sale Offer") on a pro rata basis, from all
holders, outstanding Securities, at a purchase price (the "Offered Price") in
cash equal to 100% of the principal amount thereof, plus, in each case, accrued
and unpaid interest, if any, to the purchase date, in accordance with the
procedures set forth in the relevant indenture. Upon completion of an Asset Sale
Offer (including payment of the Offered Price), any surplus Excess Proceeds that
were the subject of such offer shall cease to be Excess Proceeds, and the
Company may then use such amounts for general corporate purposes.
Within 30 calendar days of the date the amount of Excess Proceeds equals or
exceeds $15 million, the Company shall send, or cause to be sent, by first-class
mail, postage prepaid, a notice regarding the Asset Sale Offer to each Holder of
Securities. The Holder of this Security may elect to have this Security or a
portion hereof in an authorized denomination purchased by completing the form
entitled "Option of Holder to Require Purchase" appearing below and tendering
this Security pursuant to the Asset Sale Offer. Unless the Company defaults in
the payment of the Offered Price with respect thereto, all Securities or
portions thereof selected for payment pursuant to the Asset Sale Offer will
cease to accrue interest from and after the Offer Date.
10. The Global Security.
So long as this Global Security is registered in the name of the Depositary
or its nominee, members of, or participants in, the Depositary ("Agent Members")
shall have no rights under the Indenture with respect to this Global Security
held on their behalf by the Depositary or the Trustee as its custodian, 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 this Global Security for all
purposes. Notwithstanding the foregoing, nothing herein shall (i) prevent the
Company, the Trustee or any agent of the Company or the Trustee,
A-7
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or (ii) impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of Securities.
The Holder of this Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in this Global Security through Agent Members, to take any action
which a Holder of Securities is entitled to take under the Indenture or the
Securities.
Whenever, as a result of optional redemption by the Company, a Change of
Control Offer, an Asset Sale Offer, a Registered Exchange Offer or an exchange
for Certificated Securities, this Global Security is redeemed, repurchased or
exchanged in part, this Global Security shall be surrendered by the Holder
thereof to the Trustee who shall cause an adjustment to be made to Schedule A
hereof so that the principal amount of this Global Security will be equal to the
portion not redeemed, repurchased or exchanged and shall thereafter return this
Global Security to such holder; provided that this Global Security shall be in a
principal amount of $1,000 or an integral multiple of $1,000.
11. The Registered Exchange Offer.
Any Initial Securities represented by this Global Security which are
presented to the Registrar for exchange pursuant to the Registered Exchange
Offer shall be exchanged for a Global Security representing Exchange Securities
of equal principal amount upon surrender of this Global Security to the
Registrar in accordance with the terms of the Registered Exchange Offer and the
Indenture.
12. Transfer and Exchange.
By its acceptance of any Security represented by a certificate bearing the
Private Placement Legend, each Holder of, and beneficial owner of an interest
in, such a Security acknowledges the restrictions on transfer of such a Security
set forth in the Private Placement Legend and under the heading "Notice to
Investors" in the Final Memorandum, and agrees that it will transfer such a
Security only in accordance with the Private Placement Legend and that it will
transfer such a Security only in accordance under the heading "Notice to
Investors" in the Final Memorandum.
In connection with any registration of transfer of a Security bearing the
Private Placement Legend other than to a Person whom the Holder reasonably
believes to be a "qualified institutional buyer" under the Securities Act, such
Holder shall deliver to the Company such satisfactory evidence, which may
include, to the extent provided in the Private Placement Legend, an Opinion of
Independent Counsel licensed to practice law in the State of New York, as
reasonably may be requested by the Company to confirm that such transfer is
being made in accordance with the limitations set forth in the Private Placement
Legend. In the event the Company reasonably determines that any such transfer is
not in accordance with the Private Placement Legend, the Company shall so inform
the Registrar who shall not register such transfer; provided that the Registrar
shall not be required to determine (but may rely on a determination made by the
Company with respect to) the sufficiency of any such evidence.
Upon the registration of transfer, exchange or replacement of a Security
not bearing the Private Placement Legend, the Trustee shall deliver a Security
that does not bear the Private Placement Legend. Upon the registration of
transfer, exchange or replacement of a Security bearing the Private Placement
Legend, the Trustee shall deliver a Security bearing the Private Placement
Legend, unless such legend may be removed from such Security as provided in the
next sentence. The Private Placement Legend may be removed from a Security if
there is delivered to the Company such satisfactory evidence, which may include
an Opinion of Independent Counsel licensed to practice law in the State of New
York, as reasonably may be requested by the Company to confirm that neither such
legend nor the restrictions on transfer
A-8
set forth therein are required to ensure that transfers of such Security will
not violate the registration and prospectus delivery requirements of the
Securities Act; provided that the Trustee shall not be required to determine
(but may rely on a determination made by the Company with respect to) the
sufficiency of any such evidence. Upon provision of such evidence, the Trustee
shall authenticate and deliver in exchange for such Security, a Security or
Securities (representing the same aggregate principal amount of the Security
being exchanged) without such legend. If the Private Placement Legend has been
removed from a Security, as provided above, no other Security issued in exchange
for all or any part of such Security shall bear such legend, unless the Company
has reasonable cause to believe that such other Security represents a
"restricted security" within the meaning of Rule 144 and instructs the Trustee
to cause a legend to appear thereon.
The Holder of this Global Security shall, by acceptance of this Global
Security, agree that transfers of beneficial interests in this Global Security
may be effected only through a book entry system maintained by such Holder (or
its agent), and that ownership of a beneficial interest in the Securities
represented thereby shall be required to be reflected in book entry form.
Transfers of this Global Security shall be limited to transfers in whole,
and not in part, to the Depositary, its successors and their respective
nominees. Interests of beneficial owners in this Global Security may be
transferred in accordance with the rules and procedures of the Depositary (or
its successors).
This Global Security will be exchanged by the Company for one or more
Certificated Securities if (a) the Depositary (i) has notified the Company that
it is unwilling to or unable to continue as, or ceases to be, a clearing agency
registered under Section 17A of the Exchange Act and (ii) a successor to the
Depositary registered as a clearing agency under Section 17 A of the Exchange
Act is not able to be appointed by the Company within 90 calendar days or (b)
the Depositary is at any time unwilling to or unable to continue as Depositary
and a successor to the Depositary is not able to be appointed by the Company
within 90 calendar days. If an Event of Default occurs and is continuing, the
Company shall, at the request of the Holder hereof, exchange all or part of this
Global Security for one or more Certificated Securities; provided that the
principal amount of each of such Certificated Securities and this Global
Security, after such exchange, shall be $1,000 or an integral multiple thereof.
Whenever this Global Security is exchanged as a whole for one or more
Certificated Securities, it shall be surrendered by the Holder to the Trustee
for cancellation. Whenever this Global Security is exchanged in part for one or
more Certificated Securities, it shall be surrendered by the Holder to the
Trustee and the Trustee shall make the appropriate notations thereon pursuant to
Section 3.5 of the Indenture. All Certificated Securities issued in exchange for
this Global Security or any portion hereof shall be registered in such names as
the Depositary shall instruct the Trustee. Any Certificated Securities issued in
exchange for this Global Security shall include the Private Placement Legend
except as set forth in Section 3.5 of the Indenture. Interests in this Global
Security may not be exchanged for Certificated Securities other than as provided
in this paragraph.
Prior to the effectiveness of a Shelf Registration Statement or following
the suspension or termination thereof, the Holder of this Security (or holders
of interests therein) and prospective purchasers designated by such Holder (or
such holders of interests therein) shall have the right to obtain from the
Company upon request by such Holder (or such holders of interests) or
prospective purchasers, during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act, or exempt from reporting pursuant to
12g3-2(b) under the Exchange Act, the information required by paragraph
(d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of
such Security or interest.
13. Denominations.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof of principal amount.
A-9
14. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its request unless an abandoned property law designates another Person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment unless such abandoned property law designates
another Person.
15. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations for
the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
16. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in principal amount of the Outstanding Securities and (ii) any
past Default and its consequences may be waived with the written consent of the
Holders of at least a majority in principal amount of the Outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Company and the Trustee may amend
Indenture or the Securities (i) to evidence the succession of another Person to
the Company and the assumption by such successor of the covenants of the company
under the Indenture and contained in the Securities; (ii) to add additional
covenants or to surrender rights and powers conferred on the Company; (iii) to
add any additional Events of Default; (iv) to provide for uncertificated
Securities in addition to or in place of Certificated Securities; (v) to
evidence and provide for the acceptance of appointment under the Indenture of a
successor Trustee; (vi) to secure the Securities; (vii) to cure any ambiguity in
the Indenture, to correct or supplement any provision in the Indenture which may
be inconsistent with any other provision therein or to add any other provisions
with respect to matters or questions arising under the Indenture, provided that
such actions shall not adversely affect the interests of the Holders in any
material respect; or (viii) to comply with the requirements of the SEC in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Securities, subject to certain
limitations, may declare all the Securities to be immediately due and payable.
Certain events of bankruptcy or insolvency are Events of Default and shall
result in the Securities being immediately due and payable upon the occurrence
of such Events of Default without any further act of the Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power under
the Indenture. The Holders of a majority in principal amount of the outstanding
Securities, by written notice to the Company and the Trustee, may rescind any
declaration of acceleration and its consequences if the rescission would not
conflict with any judgment or decree, and if all Events of Default have been
cured or waived except nonpayment of principal and interest that has become due
solely because of the acceleration.
A-10
18. Individual Rights of Trustee.
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee or any Paying Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee, Paying Agent or Registrar, as the case may be, under the Indenture.
19. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, solely by reason of its status as
a director, officer, employee, incorporator or stockholder of the Company. By
accepting a Security, each Holder waives and releases all such liability (but
only such liability) as part of the consideration for issuance of such Security
to such Holder.
20. Governing Law.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security. Requests may be made to:
Buckeye Technologies Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
A-11
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security shall be $200,000,000. The
following decreases/increases in the principal amount of this Security have been
made:
Total Principal
Date of Decrease in Increase in Amount
Decrease/ Principal Principal Following Such Notation Made by or
Increase Amount Amount Decrease/Increase on Behalf of Trustee
A-12
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED _________________________ hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF TRANSFEREE
_____________________________________________
_____________________________________________
_____________________________________________
(Please print name and address of transferee)
_____________________________________________
this Security, together with all right, title and interest herein, and does
hereby irrevocably constitute and appoint ______________________ Attorney to
transfer this Security on the Security Register, with full
power of substitution.
_____________________________________________
Dated: _______________________
_____________________________________ ________________________________
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-13
OPTION OF HOLDER TO ELECT PURCHASE
(Check as appropriate)
[ ] In connection with the Change of Control Offer made pursuant to Section
10.16 of the Indenture, the undersigned hereby elects to have [ ]
$__________ ($1,000 in principal amount or an integral multiple thereof) of
this Security
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or ___________ an amount in cash equal to 101% with
respect to the principal amount indicated in the preceding sentence or the
principal amount indicated in the preceding sentences, as the case may be,
plus accrued and unpaid interest thereon, if any, to the Change of Control
Payment Date.
[ ] In connection with the Asset Sale Offer made pursuant to Section 10.15 of
the Indenture, the undersigned hereby elects to have [ ] $_________ ($1,000
in principal amount or an integral multiple thereof) of this Security
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or _____________ an amount in cash equal to 100%
with respect to the principal amount indicated in the preceding sentence,
plus accrued and unpaid interest thereon, if any, to the Asset Sale Payment
Date.
Dated: __________________
_____________________________________ ________________________________
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-14
EXHIBIT B
Form of Face of Initial Securities and Additional Securities
Form of Reverse of Initial Securities and Additional Securities
B-1
EXHIBIT B
FORM OF INITIAL CERTIFICATED SECURITY
BUCKEYE TECHNOLOGIES INC.
No. [ ] CUSIP No. [ ]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI");
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR 904 OF
REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT (E) TO AN IAI THAT, PRIOR
TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY) AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUER, IF THE ISSUER SO REQUESTS, THAT SUCH TRANSFER COMPLIES WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE ISSUER) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SE-
B-2
CURITIES ACT. THE INDENTURE GOVERNING THIS SECURITY CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING.
B-3
8 1/2% SENIOR NOTES DUE 2013
Buckeye Technologies Inc., a Delaware corporation, for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, $[ ], on
October 1, 2013.
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.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, the Company has caused this Security to be fully
executed.
Dated:
BUCKEYE TECHNOLOGIES INC.
By: ___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
___________________________________________
The Bank of New York, as Trustee, certifies
that this is one of the Securities referred
to in the Indenture.
By: _______________________________________
Authorized Signatory
B-4
REVERSE SIDE OF FORM OF INITIAL CERTIFICATED SECURITY
BUCKEYE TECHNOLOGIES INC.
CERTIFICATED SECURITY
8 1/2% SENIOR NOTES DUE 2013
1. Indenture.
This Security is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its "8 1/2% Senior Notes due 2013"
(herein called the "Securities"), issued under an indenture dated as of
September 22, 2003 (as amended or supplemented from time to time, the
"Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee," which term includes any successor Trustee under the Indenture), to
which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and each Holder of Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The summary of the
terms of this Security contained herein does not purport to be complete and is
qualified by reference to the Indenture. All terms used in this Security which
are not defined herein shall have the same meanings assigned to them in the
Indenture.
The Indenture imposes certain limitations on the ability of the Company to,
among other things, make certain Investments and other Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by its
Subsidiaries, enter into or permit certain transactions with Affiliates, create
or incur Liens, and make Asset Sales. The Indenture also imposes limitations on
the ability of the Company to consolidate or merge with or into any other Person
or permit any other Person to merge with or into the Company, or sell, convey,
assign, transfer, lease or otherwise dispose of all or substantially all of the
Property of the Company to any other Person and on the ability of the Company's
Subsidiaries to issue Capital Stock.
2. Principal and Interest.
Buckeye Technologies Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture, being herein called the
"Company"), promises to pay $[ ] to the Holder hereof on October 1, 2013.
The Company shall pay interest at a rate of 8 1/2%, per annum, from
September 22, 2003 or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually on April 1 and
October 1 of each year, commencing on April 1, 2004, in cash, to the Holder
hereof until the principal amount hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Security (or the Security in
exchange or substitution for which this Security was issued) is registered at
the close of business on the Regular Record Date for interest payable on such
Interest Payment Date. The Regular Record Date for any interest payment is the
close of business on March 15 or September 15, as the case may be, whether or
not a Business Day, immediately preceding the Interest Payment Date on which
such interest is payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") shall forthwith cease to be payable to the
Holder on such Regular Record Date and shall be paid as provided in Section 3.7
of the Indenture. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
B-5
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Security is exchanged in an Exchange Offer (as such term is defined
in the Registration Rights Agreement) prior to the Regular Record Date for the
first Interest Payment Date following such exchange, accrued and unpaid
interest, if any, on this Security, up to but not including the date of issuance
of the Exchange Security or Exchange Securities issued in exchange for this
Security, shall be paid on the first Interest Payment Date for such Exchange
Security or Exchange Securities to the Holder or Holders of such Exchange
Security or Exchange Securities on the first Regular Record Date with respect to
such Exchange Security or Exchange Securities. If this Security is exchanged in
an Exchange Offer subsequent to the Regular Record Date for the first Interest
Payment Date following such exchange but on or prior to such Interest Payment
Date, then any such accrued and unpaid interest with respect to this Security
and any accrued and unpaid interest on the Exchange Security or Exchange
Securities issued in exchange for this Security, through the day before such
Interest Payment Date, shall be paid on such Interest Payment Date to the Holder
of this Security on such Regular Record Date.
3. Additional Interest.
The Holder of this Security is entitled to the benefits of the Registration
Rights Agreement. Subject to compliance by the Holder with Sections 2(e) and
3(b)(iv) of the Registration Rights Agreement, if (i) on or prior to the 90th
day following the Issue Date (or, if such 90th day is not a Business Day, the
next succeeding Business Day), neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement has been filed with the SEC, (ii) on or
prior to the 180th day following the Issue Date (or, if such 180th day is not a
Business Day, the next succeeding Business Day), neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been declared
effective, (iii) on or prior to the 30th Business Day after the Exchange Offer
Registration Statement is declared effective, the Registered Exchange Offer has
not been consummated, (iv) the Company is otherwise required to file a Shelf
Registration Statement and the Shelf Registration Statement is not filed within
90 days after the date on which a request has been made or the Company is
otherwise required to so file the Shelf Registration Statement in accordance
with the terms of the Registration Rights Agreement or such Shelf Registration
Statement has not been declared effective within 180 days after the date on
which such a request has been made or the Company is otherwise required to so
file the Shelf Registration Statement in accordance with the terms of the
Registration Rights Agreement the time period provided for in the Registration
Rights Agreement, or (v) after either the Exchange Offer Registration Statement
or the Shelf Registration Statement has been declared effective, such
registration statement ceases to be effective or usable (subject to exceptions
set forth in the Registration Rights Agreement) in connection with resales of
Securities or Exchange Securities in connection with and during the periods
specified in the Registration Rights Agreement (each such event referred to in
clauses (i) through (v) a "Registration Default"), then, as liquidated damages,
additional interest (the "Additional Interest") will accrue on the Securities
and the Exchange Securities (in addition to the stated interest on the
Securities and the Exchange Securities) from and including the date on which any
such Registration Default shall occur but excluding the date on which all
Registration Defaults have been cured. Additional Interest will accrue at an
initial rate of 0.25% per annum during the 90-day period immediately following
the occurrence of such registration default and will increase by 0.25% per annum
at the end of each subsequent 90-day period, but in no event will such rate
exceed 0.75% per annum.
Except as expressly provided in this paragraph 3, Additional Interest shall
be treated as interest and any date on which Additional Interest is due and
payable shall be treated as an Interest Payment Date, for all purposes under
this Security and the Indenture.
B-6
4. Method of Payment.
The Company, through the Paying Agent, shall pay interest on this Security
to the registered Holder of this Security, as provided above. The Holder must
surrender this Security to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States of America
that at the time of payment is legal tender for payment of all debts public and
private. Principal and interest will be payable at the office of the Paying
Agent but, at the option of the Company, interest may be paid by check mailed to
the registered Holders at their registered addresses.
5. Transfer Agent, Paying Agent and Registrar.
Initially, The Bank of New York will act as Transfer Agent, Paying Agent
and Registrar ("Paying Agent") under the Indenture. The Company may, upon
written notice to the Paying Agent and Trustee, appoint and change any Transfer
Agent, Paying Agent or Registrar. The Company or any of its subsidiaries may act
as Transfer Agent, Paying Agent or Registrar.
6. Optional Redemption.
On or after October 1, 2008, the Securities will be subject to redemption
at the option of the Company, in whole or in part, upon not less than 30
calendar days, nor more than 60 calendar days' notice, at the prices (expressed
as percentages of principal amounts) set forth below, plus accrued and unpaid
interest thereon (if any) at the applicable Redemption Date, if redeemed during
the twelve-month period beginning October 1 of the years indicated below:
Year Percentage
2008.............................. 104.250%
2009.............................. 102.833%
2010.............................. 101.417%
2011 and thereafter............... 100.000%
Notwithstanding the foregoing, at any time prior to October 1, 2006, the
Company may redeem up to 35% of the aggregate principal amounts of Securities
with the net proceeds of one or more Equity Offerings of the Company at a
redemption price equal to 108.50% of the aggregate principal amount thereof, on
the date of redemption. However, after giving effect to any such redemption, at
least 65% of the aggregate principal amount of the Securities originally issued
remain outstanding and such redemption must occur within 60 days following the
closing of each such Equity Offering.
7. Notice of Redemption.
At least 30 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall send a notice of redemption, first-class
mail, postage prepaid, to Holders of Securities to be redeemed at the addresses
of such Holders as they appear in the Security Register.
If less than all of the Securities are to be redeemed at any time, the
Securities to be redeemed will be chosen by the Trustee in accordance with the
Indenture. If any Note is redeemed subsequent to a Regular Record Date with
respect to any Interest Payment Date specified above and on or prior to such
Interest Payment Date, then any accrued interest will be paid on such Interest
Payment Date to the Holder of the Security on such Regular Record Date. If money
in an amount sufficient to pay the Redemption Price of all Securities (or
portions thereof) to be redeemed on the Redemption Date is deposited with the
Paying
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Agent on or before the applicable Redemption Date and certain other conditions
are satisfied, interest on the Securities to be redeemed on the applicable
Redemption Date will cease to accrue.
The Securities are not subject to any sinking fund.
8. Repurchase at the Option of Holders upon Change of Control.
Upon the occurrence of a Change of Control, each Holder of Securities shall
have the right to require the Company to purchase such Holder's Securities, in
whole, or in part in a principal amount that is an integral multiple of $1,000,
pursuant to a Change of Control Offer, at a purchase price in cash equal to 101%
of the aggregate principal amount thereof on any Change of Control Purchase
Date, plus accrued and unpaid interest, if any, to the Change of Control
Purchase Date.
Within 30 calendar days following any Change of Control, the Company shall
send, or cause to be sent, by first-class mail, postage prepaid, a notice
regarding the Change of Control Offer to each Holder of Securities. The Holder
of this Security may elect to have this Security or a portion hereof in an
authorized denomination purchased by completing the form entitled "Option of
Holder to Require Purchase" appearing below and tendering this Security pursuant
to the Change of Control Offer. Unless the Company defaults in the payment of
the Change of Control Purchase Price with respect thereto, all Securities or
portions thereof accepted for payment pursuant to the Change of Control Offer
will cease to accrue interest from and after the Change of Control Purchase
Date.
9. Repurchase at the Option of Holders upon Asset Sale.
If at any time the aggregate amount of Excess Proceeds calculated as of
such date exceeds $15 million, the Company shall, within 30 days of the date the
amount of Excess Proceeds exceeds $15 million, use such Excess Proceeds to make
an offer to purchase (an "Asset Sale Offer") on a pro rata basis, from all
holders, outstanding Securities, at a purchase price (the "Offered Purchase
Price") in cash equal to 100% of the principal amount thereof, plus, in each
case, accrued and unpaid interest, if any, to the purchase date, in accordance
with the procedures set forth in the relevant indenture. Upon completion of an
Asset Sale Offer (including payment of the Offered Price), any surplus Excess
Proceeds that were the subject of such offer shall cease to be Excess Proceeds,
and the Company may then use such amounts for general corporate purposes.
Within 30 calendar days of the date the amount of Excess Proceeds exceeds
$15 million the Company shall send, or cause to be sent, by first-class mail,
postage prepaid, a notice regarding the Asset Sale Offer to each Holder of
Securities. The Holder of this Security may elect to have this Security or a
portion hereof in an authorized denomination purchased by completing the form
entitled "Option of Holder to Require Purchase" appearing below and tendering
this Security pursuant to the Asset Sale Offer. Unless the Company defaults in
the payment of the Offered Price with respect thereto, all Securities or
portions thereof selected for payment pursuant to the Asset Sale Offer will
cease to accrue interest from and after the Offer Date.
10. The Registered Exchange Offer.
Any Initial Securities represented by this Certificated Security which are
presented to the Registrar for exchange pursuant to the Registered Exchange
Offer shall be exchanged for a Certificated Security representing Exchange
Securities of equal principal amount upon surrender of this Certificated
Security to the Registrar in accordance with the terms of the Registered
Exchange Offer and the Indenture.
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11. Transfer and Exchange.
By its acceptance of any Security represented by a certificate bearing the
Private Placement Legend, each Holder of, and beneficial owner of an interest
in, such a Security acknowledges the restrictions on transfer of such a Security
set forth in the Private Placement Legend and under the heading "Notice to
Investors" in the Final Memorandum, and agrees that it will transfer such a
Security only in accordance with the Private Placement Legend and that it will
transfer such a Security only in accordance under the heading "Notice to
Investors" in the Final Memorandum.
In connection with any registration of transfer of a Security bearing the
Private Placement Legend other than to a Person whom the Holder reasonably
believes to be a "qualified institutional buyer" under the Securities Act, such
Holder shall deliver to the Company such satisfactory evidence, which may
include, to the extent provided in the Private Placement Legend, an Opinion of
Independent Counsel licensed to practice law in the State of New York, as
reasonably may be requested by the Company to confirm that such transfer is
being made in accordance with the limitations set forth in the Private Placement
Legend. In the event the Company reasonably determines that any such transfer is
not in accordance with the Private Placement Legend, the Company shall so inform
the Registrar who shall not register such transfer; provided that the Registrar
shall not be required to determine (but may rely on a determination made by the
Company with respect to) the sufficiency of any such evidence.
Upon the registration of transfer, exchange or replacement of a Security
not bearing the Private Placement Legend, the Trustee shall deliver a Security
that does not bear the Private Placement Legend. Upon the registration of
transfer, exchange or replacement of a Security bearing the Private Placement
Legend, the Trustee shall deliver a Security bearing the Private Placement
Legend, unless such legend may be removed from such Security as provided in the
next sentence. The Private Placement Legend may be removed from a Security if
there is delivered to the Company such satisfactory evidence, which may include
an Opinion of Independent Counsel licensed to practice law in the State of New
York, as reasonably may be requested by the Company to confirm that neither such
legend nor the restrictions on transfer set forth therein are required to ensure
that transfers of such Security will not violate the registration and prospectus
delivery requirements of the Securities Act; provided that the Trustee shall not
be required to determine (but may rely on a determination made by the Company
with respect to) the sufficiency of any such evidence. Upon provision of such
evidence, the Trustee shall authenticate and deliver in exchange for such
Security, a Security or Securities (representing the same aggregate principal
amount of the Security being exchanged) without such legend. If the Private
Placement Legend has been removed from a Security, as provided above, no other
Security issued in exchange for all or any part of such Security shall bear such
legend, unless the Company has reasonable cause to believe that such other
Security represents a "restricted security" within the meaning of Rule 144 and
instructs the Trustee to cause a legend to appear thereon.
Prior to the effectiveness of a Shelf Registration Statement or following
the suspension or termination thereof, the Holder of this Security (or holders
of interests therein) and prospective purchasers designated by such Holder (or
such holders of interests therein) shall have the right to obtain from the
Company upon request by such Holder (or such holders of interests) or
prospective purchasers, during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act, or exempt from reporting pursuant to
12g3-2(b) under the Exchange Act, the information required by paragraph
(d)(4)(i) of Rule 144A in connection with any transfer or proposed transfer of
such Security or interest.
B-9
12. Denominations.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof of principal amount.
13. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its request unless an abandoned property law designates another Person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment unless such abandoned property law designates
another Person.
14. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations for
the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
15. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in principal amount of the Outstanding Securities and (ii) any
past Default and its consequences may be waived with the written consent of the
Holders of at least a majority in principal amount of the Outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Company and the Trustee may amend
Indenture or the Securities (i) to evidence the succession of another Person to
the Company and the assumption by such successor of the covenants of the company
under the Indenture and contained in the Securities; (ii) to add additional
covenants or to surrender rights and powers conferred on the Company; (iii) to
add any additional Events of Default; (iv) to provide for uncertificated
Securities in addition to or in place of Certificated Securities; (v) to
evidence and provide for the acceptance of appointment under the Indenture of a
successor Trustee; (vi) to secure the Securities; (vii) to cure any ambiguity in
the Indenture, to correct or supplement any provision in the Indenture which may
be inconsistent with any other provision therein or to add any other provisions
with respect to matters or questions arising under the Indenture, provided that
such actions shall not adversely affect the interests of the Holders in any
material respect; or (viii) to comply with the requirements of the SEC in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Securities, subject to certain
limitations, may declare all the Securities to be immediately due and payable.
Certain events of bankruptcy or insolvency are Events of Default and shall
result in the Securities being immediately due and payable upon the occurrence
of such Events of Default without any further act of the Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power under
the Indenture. The Holders of a
B-10
majority in principal amount of the outstanding Securities, by written notice to
the Company and the Trustee, may rescind any declaration of acceleration and its
consequences if the rescission would not conflict with any judgment or decree,
and if all Events of Default have been cured or waived except nonpayment of
principal and interest that has become due solely because of the acceleration.
17. Individual Rights of Trustee.
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee or any Paying Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee, Paying Agent or Registrar, as the case may be, under the Indenture.
18. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, solely by reason of its status as
a director, officer, employee, incorporator or stockholder of the Company. By
accepting a Security, each Holder waives and releases all such liability (but
only such liability) as part of the consideration for issuance of such Security
to such Holder.
19. Governing Law.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security. Requests may be made to:
Buckeye Technologies Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
B-11
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF TRANSFEREE
______________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Security, together with all right, title and interest herein, and does
hereby irrevocably constitute and appoint ______________________ Attorney to
transfer this Security on the Security Register, with full power of
substitution.
________________________________________________________________________________
Dated: _______________
_________________________________________ ______________________________
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust
Company Or Member Firm of the
New York Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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OPTION OF HOLDER TO ELECT PURCHASE
(Check as appropriate)
[ ] In connection with the Change of Control Offer made pursuant to Section
10.16 of the Indenture, the undersigned hereby elects to have [ ]
$__________ ($1,000 in principal amount or an integral multiple thereof) of
this Security repurchased by the Company. The undersigned hereby directs
the Trustee or Paying Agent to pay it or ___________ an amount in cash
equal to 101% with respect to the principal amount indicated in the
preceding sentence or the principal amount indicated in the preceding
sentences, as the case may be, plus accrued and unpaid interest thereon, if
any, to the Change of Control Payment Date.
[ ] In connection with the Asset Sale Offer made pursuant to Section 10.17 of
the Indenture, the undersigned hereby elects to have [ ] $_________ ($1,000
in principal amount or an integral multiple thereof) of this Security
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or ______________ an amount in cash equal to 100%
with respect to the principal amount indicated in the preceding sentence,
plus accrued and unpaid interest thereon, if any, to the Asset Sale Payment
Date.
Dated: __________________
______________________________________ _____________________________
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust
Company Or Member Firm of
New York Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-13
C-1
EXHIBIT C
Form of Face of Exchange Securities
Form of Reverse of Exchange Securities
C-1
EXHIBIT C
FORM OF EXCHANGE GLOBAL SECURITY
BUCKEYE TECHNOLOGIES INC.
No. __ CUSIP No. _____
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO BUCKEYE TECHNOLOGIES INC. OR THE REGISTRAR FOR
REGISTRATION OF TRANSFER OR EXCHANGE AND ANY SECURITY ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS HAS BEEN REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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,
AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 3.5 OF THE INDENTURE, DATED AS OF SEPTEMBER 22, 2003, BY
AND AMONG BUCKEYE TECHNOLOGIES INC., THE GUARANTORS NAMED THEREIN AND THE
TRUSTEE NAMED THEREIN, PURSUANT TO WHICH THIS SECURITY WAS ISSUED.
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GLOBAL SECURITY
REPRESENTING 8 1/2% SENIOR NOTES DUE 2013
Buckeye Technologies Inc., a Delaware corporation, for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, the principal
sum indicated on Schedule A hereof, on October 1, 2013.
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.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
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IN WITNESS WHEREOF, the Company has caused this Security to be fully
executed.
Dated:
BUCKEYE TECHNOLOGIES INC.
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
_______________________________________________,
The Bank of New York , as Trustee, certifies
that this is one of the Securities referred to
in the Indenture.
By: ____________________________________________
Authorized Signatory
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REVERSE SIDE OF FORM OF EXCHANGE GLOBAL SECURITY
BUCKEYE TECHNOLOGIES INC.
GLOBAL SECURITY
REPRESENTING 8 1/2% SENIOR NOTES DUE 2013
1. Indenture.
This Security is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its "8 1/2% Senior Notes due 2013"
(herein called the "Securities"), issued under an indenture dated as of
September 22, 2003 (as amended or supplemented from time to time, the
"Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee," which term includes any successor Trustee under the Indenture), to
which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and each Holder of Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The summary of the
terms of this Security contained herein does not purport to be complete and is
qualified by reference to the Indenture. All terms used in this Security which
are not defined herein shall have the same meanings assigned to them in the
Indenture.
The Indenture imposes certain limitations on the ability of the Company to,
among other things, make certain Investments and Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by its
Subsidiaries, enter into or permit certain transactions with Affiliates, create
or incur Liens, and make Asset Sales. The Indenture also imposes limitations on
the ability of the Company to consolidate or merge with or into any other Person
or permit any other Person to merge with or into the Company, or sell, convey,
assign, transfer, lease or otherwise dispose of all or substantially all of the
Property of the Company to any other Person and on the ability of the Company's
Subsidiaries to issue Capital Stock.
2. Principal and Interest.
Buckeye Technologies Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture, being herein called the
"Company"), promises to pay the principal amount set forth on Schedule A of this
Security to the Holder hereof on October 1, 2013.
The Company shall pay interest at a rate of 8 1/2%, per annum, from
September 22, 2003 or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually on April 1 and
October 1 of each year, commencing on April 1, 2004, in cash, to the Holder
hereof until the principal amount hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Security (or the Security in
exchange or substitution for which this Security was issued) is registered at
the close of business on the Regular Record Date for interest payable on such
Interest Payment Date. The Regular Record Date for any interest payment is the
close of business on March 15 or September 15, as the case may be, whether or
not a Business Day, immediately preceding the Interest Payment Date on which
such interest is payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") shall forthwith cease to be payable to the
Holder on such Record Date and shall be paid as provided in Section 3.7 of the
Indenture. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
C-5
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
3. Additional Interest.
The Holder of this Security is entitled to the benefits of the Registration
Rights Agreement. Subject to compliance by the Holder with Sections 2(e) and
3(b)(iv) of the Registration Rights Agreement, if (i) on or prior to the 90th
day following the Issue Date (or, if such 90th day is not a Business Day, the
next succeeding Business Day), neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement has been filed with the SEC, (ii) on or
prior to the 180th day following the Issue Date (or, if such 180th day is not a
Business Day, the next succeeding Business Day), neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been declared
effective, (iii) on or prior to the 30th Business Day after the Exchange Offer
Registration Statement is declared effective, the Registered Exchange Offer has
not been consummated, (iv) the Company is otherwise required to file a Shelf
Registration Statement and the Shelf Registration Statement is not filed within
90 days after the date on which a request has been made or the Company is
otherwise required to so file the Shelf Registration Statement in accordance
with the terms of the Registration Rights Agreement or such Shelf Registration
Statement has not been declared effective within 180 days after the date on
which such a request has been made or the Company is otherwise required to so
file the Shelf Registration Statement in accordance with the terms of the
Registration Rights Agreement the time period provided for in the Registration
Rights Agreement, or (v) after either the Exchange Offer Registration Statement
or the Shelf Registration Statement has been declared effective, such
registration statement ceases to be effective or usable (subject to exceptions
set forth in the Registration Rights Agreement) in connection with resales of
Securities or Exchange Securities in connection with and during the periods
specified in the Registration Rights Agreement (each such event referred to in
clauses (i) through (v) a "Registration Default"), then, as liquidated damages,
additional interest (the "Additional Interest") will accrue on the Securities
and the Exchange Securities (in addition to the stated interest on the
Securities and the Exchange Securities) from and including the date on which any
such Registration Default shall occur but excluding the date on which all
Registration Defaults have been cured. Additional Interest will accrue at an
initial rate of 0.25% per annum during the 90-day period immediately following
the occurrence of such registration default and will increase by 0.25% per annum
at the end of each subsequent 90-day period, but in no event will such rate
exceed 0.75% per annum.
Except as expressly provided in this paragraph 3, Additional Interest shall
be treated as interest and any date on which Additional Interest is due and
payable shall be treated as an Interest Payment Date, for all purposes under
this Security and the Indenture.
4. Method of Payment.
The Company, through the Paying Agent, shall pay interest on this Security
to the registered Holder of this Security, as provided above. The Holder must
surrender this Security to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States of America
that at the time of payment is legal tender for payment of all debts public and
private. Principal and interest will be payable at the office of the Paying
Agent but, at the option of the Company, interest may be paid by check mailed to
the registered Holders at their registered addresses.
5. Paying Agent and Registrar.
Initially, The Bank of New York will act as Transfer Agent, Paying Agent
and Registrar under the Indenture. The Company may, upon written notice to the
Paying Agent and Trustee, appoint and
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change any Transfer Agent, Paying Agent or Registrar. The Company or any of its
subsidiaries may act as Transfer Agent, Paying Agent or Registrar.
6. Optional Redemption.
On or after October 1, 2008, the Securities will be subject to redemption
at the option of the Company, in whole or in part, upon not less than 30
calendar days, nor more than 60 calendar days' notice, at the prices (expressed
as percentages of principal amounts) set forth below, plus accrued and unpaid
interest thereon (if any) at the applicable Redemption Date, if redeemed during
the twelve-month period beginning October 1 of the years indicated below:
Year Percentage
---- ----------
2008............................ 104.250%
2009............................ 102.833%
2010............................ 101.417%
2011 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to October 1, 2006, the
Company may redeem up to 35% of the aggregate principal amounts of Securities
with the net proceeds of one or more Equity Offerings of the Company at a
redemption price equal to 108.50% of the aggregate principal amount thereof, on
the date of redemption. However, after giving effect to any such redemption, at
least 65% aggregate principal amount of the Securities originally issued must
remain outstanding and such redemption must occur within 60 days following the
closing of each such Equity Offering.
7. Notice of Redemption.
At least 30 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall send a notice of redemption, first-class
mail, postage prepaid, to Holders of Securities to be redeemed at the addresses
of such Holders as they appear in the Security Register.
If less than all of the Securities are to be redeemed at any time, the
Securities to be redeemed will be chosen by the Trustee in accordance with the
Indenture. If any Security is redeemed subsequent to a Record Date with respect
to any Interest Payment Date specified above and on or prior to such Interest
Payment Date, then any accrued interest will be paid on such Interest Payment
Date to the Holder of the Security on such Record Date. If money in an amount
sufficient to pay the Redemption Price of all Securities (or portions thereof)
to be redeemed on the Redemption Date is deposited with the Paying Agent on or
before the applicable Redemption Date and certain other conditions are
satisfied, interest on the Securities to be redeemed on the applicable
Redemption Date will cease to accrue.
The Securities are not subject to any sinking fund.
8. Repurchase at the Option of Holders upon Change of Control.
Upon the occurrence of a Change of Control, each Holder of Securities shall
have the right to require the Company to purchase such Holder's Securities, in
whole, or in part in a principal amount that is an integral multiple of $1,000,
pursuant to a Change of Control Offer, at a purchase price in cash equal to 101%
of the aggregate principal amount thereof on any Change of Control Purchase
Date, plus accrued and unpaid interest, if any, to the Change of Control
Purchase Date.
C-7
Within 30 calendar days following any Change of Control, the Company shall
send, or cause to be sent, by first-class mail, postage prepaid, a notice
regarding the Change of Control Offer to each Holder of Securities. The Holder
of this Security may elect to have this Security or a portion hereof in an
authorized denomination purchased by completing the form entitled "Option of
Holder to Require Purchase" appearing below and tendering this Security pursuant
to the Change of Control Offer. Unless the Company defaults in the payment of
the Change of Control Purchase Price with respect thereto, all Securities or
portions thereof accepted for payment pursuant to the Change of Control Offer
will cease to accrue interest from and after the Change of Control Purchase
Date.
9. Repurchase at the Option of Holders upon Asset Sale.
If at any time the aggregate amount of Excess Proceeds calculated as of
such date exceeds $15 million, the Company shall, within 30 days of the date the
amount of Excess Proceeds exceeds $15 million, use such Excess Proceeds to make
an offer to purchase (an "Asset Sale Offer") on a pro rata basis, from all
holders, outstanding Securities, at a purchase price (the "Offered Purchase
Price") in cash equal to 100% of the principal amount thereof, plus, in each
case, accrued and unpaid interest, if any, to the purchase date, in accordance
with the procedures set forth in the relevant indenture. Upon completion of an
Asset Sale Offer (including payment of the Offered Purchase Price), any surplus
Excess Proceeds that were the subject of such offer shall cease to be Excess
Proceeds, and the Company may then use such amounts for general corporate
purposes.
Within 30 calendar days of the date the amount of Excess Proceeds equals or
exceeds $15 million, the Company shall send, or cause to be sent, by first-class
mail, postage prepaid, a notice regarding the Asset Sale Offer to each Holder of
Securities. The Holder of this Security may elect to have this Security or a
portion hereof in an authorized denomination purchased by completing the form
entitled "Option of Holder to Require Purchase" appearing below and tendering
this Security pursuant to the Asset Sale Offer. Unless the Company defaults in
the payment of the Offered Purchase Price with respect thereto, all Securities
or portions thereof selected for payment pursuant to the Asset Sale Offer will
cease to accrue interest from and after the Offer Date.
10. The Global Security.
So long as this Global Security is registered in the name of the Depositary
or its nominee, members of, or participants in, the Depositary ("Agent Members")
shall have no rights under the Indenture with respect to this Global Security
held on their behalf by the Depositary or the Trustee as its custodian, 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 this Global Security for all
purposes. Notwithstanding the foregoing, nothing herein shall (i) 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 (ii) impair, as between the Depositary and its Agent Members,
the operation of customary practices governing the exercise of the rights of a
Holder of Securities.
The Holder of this Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in this Global Security through Agent Members, to take any action
which a Holder of Securities is entitled to take under the Indenture or the
Securities.
Whenever, as a result of optional redemption by the Company, a Change of
Control Offer, an Asset Sale Offer, a Registered Exchange Offer or an exchange
for Certificated Securities, this Global Security is redeemed, repurchased or
exchanged in part, this Global Security shall be surrendered by the Holder
thereof to the Trustee who shall cause an adjustment to be made to Schedule A
hereof so that the principal amount of this Global Security will be equal to the
portion not redeemed, repurchased or ex-
C-8
changed and shall thereafter return this Global Security to such holder;
provided that this Global Security shall be in a principal amount of $1,000 or
an integral multiple of $1,000.
11. Transfer and Exchange.
The Holder of this Global Security shall, by acceptance of this Global
Security, agree that transfers of beneficial interests in this Global Security
may be effected only through a book entry system maintained by such Holder (or
its agent), and that ownership of a beneficial interest in the Securities
represented thereby shall be required to be reflected in book entry form.
Transfers of this Global Security shall be limited to transfers in whole,
and not in part, to the Depositary, its successors and their respective
nominees. Interests of beneficial owners in this Global Security may be
transferred in accordance with the rules and procedures of the Depositary (or
its successors).
This Global Security will be exchanged by the Company for one or more
Certificated Securities if (a) the Depositary (i) has notified the Company that
it is unwilling to or unable to continue as, or ceases to be, a clearing agency
registered under Section 17A of the Exchange Act and (ii) a successor to the
Depositary registered as a clearing agency under Section 17 A of the Exchange
Act is not able to be appointed by the Company within 90 calendar days or (b)
the Depositary is at any time unwilling to or unable to continue as Depositary
and a successor to the Depositary is not able to be appointed by the Company
within 90 calendar days. If an Event of Default occurs and is continuing, the
Company shall, at the request of the Holder hereof, exchange all or part of this
Global Security for one or more Certificated Securities; provided that the
principal amount of each of such Certificated Securities and this Global
Security, after such exchange, shall be $1,000 or an integral multiple thereof.
Whenever this Global Security is exchanged as a whole for one or more
Certificated Securities, it shall be surrendered by the Holder to the Trustee
for cancellation. Whenever this Global Security is exchanged in part for one or
more Certificated Securities, it shall be surrendered by the Holder to the
Trustee and the Trustee shall make the appropriate notations thereon pursuant to
Section 3.5 of the Indenture. All Certificated Securities issued in exchange for
this Global Security or any portion hereof shall be registered in such names as
the Depositary shall instruct the Trustee. Interests in this Global Security may
not be exchanged for Certificated Securities other than as provided in this
paragraph.
12. Denominations.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof of principal amount.
13. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its request unless an abandoned property law designates another Person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment unless such abandoned property law designates
another Person.
14. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations for
the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
C-9
15. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in principal amount of the Outstanding Securities and (ii) any
past Default and its consequences may be waived with the written consent of the
Holders of at least a majority in principal amount of the Outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Company and the Trustee may amend
Indenture or the Securities (i) to evidence the succession of another Person to
the Company and the assumption by such successor of the covenants of the company
under the Indenture and contained in the Securities; (ii) to add additional
covenants or to surrender rights and powers conferred on the Company; (iii) to
add any additional Events of Default; (iv) to provide for uncertificated
Securities in addition to or in place of Certificated Securities; (v) to
evidence and provide for the acceptance of appointment under the Indenture of a
successor Trustee; (vi) to secure the Securities; (vii) to cure any ambiguity in
the Indenture, to correct or supplement any provision in the Indenture which may
be inconsistent with any other provision therein or to add any other provisions
with respect to matters or questions arising under the Indenture, provided that
such actions shall not adversely affect the interests of the Holders in any
material respect; or (viii) to comply with the requirements of the SEC in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Securities, subject to certain
limitations, may declare all the Securities to be immediately due and payable.
Certain events of bankruptcy or insolvency are Events of Default and shall
result in the Securities being immediately due and payable upon the occurrence
of such Events of Default without any further act of the Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power under
the Indenture. The Holders of a majority in principal amount of the outstanding
Securities, by written notice to the Company and the Trustee, may rescind any
declaration of acceleration and its consequences if the rescission would not
conflict with any judgment or decree, and if all Events of Default have been
cured or waived except nonpayment of principal and interest that has become due
solely because of the acceleration.
17. Individual Rights of Trustee.
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee or any Paying Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee, Paying Agent or Registrar, as the case may be, under the Indenture.
18. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, solely by reason of its status as
a director, officer, employee, incorporator or stockholder of the Company. By
accepting a Security, each Holder waives and releases all such liability (but
only such liability) as part of the consideration for issuance of such Security
to such Holder.
C-10
19. Governing Law.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security.
Requests may be made to:
Buckeye Technologies Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
C-11
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security shall be $200,000,000. The
following decreases/ increases in the principal amount of this Security have
been made:
Total Principal
Amount
Date of Decrease in Increase in Following Such
Decrease/ Principal Principal Decrease/ Notation Made by or
Increase Amount Amount Increase on Behalf of Trustee
C-12
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF TRANSFEREE
_____________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Security, together with all right, title and interest herein, and does
hereby irrevocably constitute and appoint ______________________ Attorney to
transfer this Security on the Security Register, with full power of
substitution.
________________________________________________________________________________
Dated: _______________
_____________________________________ ________________________________
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
C-13
OPTION OF HOLDER TO ELECT PURCHASE
(Check as appropriate)
[ ] In connection with the Change of Control Offer made pursuant to Section
10.16 of the Indenture, the undersigned hereby elects to have [ ]
$__________ ($1,000 in principal amount or an integral multiple thereof) of
this Security repurchased by the Company. The undersigned hereby directs
the Trustee or Paying Agent to pay it or ___________ an amount in cash
equal to 101% with respect to the principal amount indicated in the
preceding sentence or the principal amount indicated in the preceding
sentences, as the case may be, plus accrued and unpaid interest thereon, if
any, to the Change of Control Payment Date.
[ ] In connection with the Asset Sale Offer made pursuant to Section 10.15 of
the Indenture, the undersigned hereby elects to have [ ] $_________ ($1,000
in principal amount or an integral multiple thereof) of this Security
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or ______________ an amount in cash equal to 100%
with respect to the principal amount indicated in the preceding sentence,
plus accrued and unpaid interest thereon, if any, to the Asset Sale Payment
Date.
Dated: ____________________
________________________________________ ________________________________
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
C-14
EXHIBIT D
Form of Face of Exchange Securities
Form of Reverse of Exchange Securities
E-1
EXHIBIT D
FORM OF EXCHANGE CERTIFICATED SECURITY
BUCKEYE TECHNOLOGIES INC.
No. __ CUSIP No. ____
8 1/2% SENIOR NOTES DUE 2013
Buckeye Technologies Inc., a Delaware corporation, for value received,
hereby promises to pay to CEDE & CO., or its registered assigns, $[ ], on
October 1, 2013.
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.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purposes.
IN WITNESS WHEREOF, the Company has caused this Security to be fully
executed.
Dated:
BUCKEYE TECHNOLOGIES INC.
By: _________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
___________________________________________
The Bank of New York, as Trustee, certifies
that this is one of the Securities referred
to in the Indenture.
By: __________________________________________
Authorized Signatory
D-2
REVERSE SIDE OF FORM OF EXCHANGE CERTIFICATED SECURITY
BUCKEYE TECHNOLOGIES INC.
CERTIFICATED SECURITY
REPRESENTING 8 1/2% SENIOR NOTES DUE 2013
1. Indenture.
This Security is one of a duly authorized issue of debt securities of the
Company (as defined below) designated as its "8 1/2% Senior Notes due 2013"
(herein called the "Securities"), issued under an indenture dated as of
September 22, 2003 (as amended or supplemented from time to time, the
"Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee," which term includes any successor Trustee under the Indenture), to
which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and each Holder of Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The summary of the
terms of this Security contained herein does not purport to be complete and is
qualified by reference to the Indenture. All terms used in this Security which
are not defined herein shall have the same meanings assigned to them in the
Indenture.
The Indenture imposes certain limitations on the ability of the Company to,
among other things, make certain Investments and Restricted Payments, pay
dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by its
Subsidiaries, enter into or permit certain transactions with Affiliates, create
or incur Liens, and make Asset Sales. The Indenture also imposes limitations on
the ability of the Company to consolidate or merge with or into any other Person
or permit any other Person to merge with or into the Company, or sell, convey,
assign, transfer, lease or otherwise dispose of all or substantially all of the
Property of the Company to any other Person and on the ability of the Company's
Subsidiaries to issue Capital Stock.
2. Principal and Interest.
Buckeye Technologies Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture, being herein called the
"Company"), promises to pay $[ ] to the Holder hereof on October 1, 2013.
The Company shall pay interest at a rate of 8 1/2%, per annum, from
September 22, 2003 or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually on April 1 and
October 1 of each year, commencing on April 1, 2004, in cash, to the Holder
hereof until the principal amount hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Security (or the Security in
exchange or substitution for which this Security was issued) is registered at
the close of business on the Regular Record Date for interest payable on such
Interest Payment Date. The Regular Record Date for any interest payment is the
close of business on March 15 or September 15, as the case may be, whether or
not a Business Day, immediately preceding the Interest Payment Date on which
such interest is payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") shall forthwith cease to be payable to the
Holder on such Regular Record Date and shall be paid as provided in Section 3.7
of the Indenture. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Each payment of interest in respect of an Interest Payment Date will
include interest accrued through the day before such Interest Payment Date. If
an Interest Payment Date falls on a day that is not a Business Day, the interest
payment to be made on such Interest Payment Date will be made on the next
D-3
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
3. Additional Interest.
The Holder of this Security is entitled to the benefits of the Registration
Rights Agreement. Subject to compliance by the Holder with Sections 2(e) and
3(b)(iv) of the Registration Rights Agreement, if (i) on or prior to the 90th
day following the Issue Date (or, if such 90th day is not a Business Day, the
next succeeding Business Day), neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement has been filed with the SEC, (ii) on or
prior to the 180th day following the Issue Date (or, if such 180th day is not a
Business Day, the next succeeding Business Day), neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been declared
effective, (iii) on or prior to the 30th Business Day after the Exchange Offer
Registration Statement is declared effective, the Registered Exchange Offer has
not been consummated, (iv) the Company is otherwise required to file a Shelf
Registration Statement and the Shelf Registration Statement is not filed within
90 days after the date on which a request has been made or the Company is
otherwise required to so file the Shelf Registration Statement in accordance
with the terms of the Registration Rights Agreement or such Shelf Registration
Statement has not been declared effective within 180 days after the date on
which such a request has been made or the Company is otherwise required to so
file the Shelf Registration Statement in accordance with the terms of the
Registration Rights Agreement the time period provided for in the Registration
Rights Agreement, or (v) after either the Exchange Offer Registration Statement
or the Shelf Registration Statement has been declared effective, such
registration statement ceases to be effective or usable (subject to exceptions
set forth in the Registration Rights Agreement) in connection with resales of
Securities or Exchange Securities in connection with and during the periods
specified in the Registration Rights Agreement (each such event referred to in
clauses (i) through (v) a "Registration Default"), then, as liquidated damages,
additional interest (the "Additional Interest") will accrue on the Securities
and the Exchange Securities (in addition to the stated interest on the
Securities and the Exchange Securities) from and including the date on which any
such Registration Default shall occur but excluding the date on which all
Registration Defaults have been cured. Additional Interest will accrue at an
initial rate of 0.25% per annum during the 90-day period immediately following
the occurrence of such registration default and will increase by 0.25% per annum
at the end of each subsequent 90-day period, but in no event will such rate
exceed 0.75% per annum.
Except as expressly provided in this paragraph 3, Additional Interest shall
be treated as interest and any date on which Additional Interest is due and
payable shall be treated as an Interest Payment Date, for all purposes under
this Security and the Indenture.
4. Method of Payment.
The Company, through the Paying Agent, shall pay interest on this Security
to the registered Holder of this Security, as provided above. The Holder must
surrender this Security to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States of America
that at the time of payment is legal tender for payment of all debts public and
private. Principal and interest will be payable at the office of the Paying
Agent but, at the option of the Company, interest may be paid by check mailed to
the registered Holders at their registered addresses.
5. Transfer Agent, Paying Agent and Registrar.
Initially, The Bank of New York will act as Transfer Agent, Paying Agent
and Registrar under the Indenture. The Company may, upon written notice to the
Paying Agent and Trustee, appoint and
D-4
change any Transfer Agent, Paying Agent or Registrar. The Company or any of its
subsidiaries may act as Transfer Agent, Paying Agent or Registrar.
6. Optional Redemption.
On or after October 1, 2008, the Securities will be subject to redemption
at the option of the Company, in whole or in part, upon not less than 30
calendar days, nor more than 60 calendar days' notice, at the prices (expressed
as percentages of principal amounts) set forth below, plus accrued and unpaid
interest thereon (if any) at the applicable Redemption Date, if redeemed during
the twelve-month period beginning October 1 of the years indicated below:
Year Percentage
2008.............................. 104.250%
2009.............................. 102.833%
2010.............................. 101.417%
2011 and thereafter............... 100.000%
Notwithstanding the foregoing, at any time prior to October 1, 2006, the
Company may redeem up to 35% of the aggregate principal amounts of Securities
with the net proceeds of one or more Equity Offerings of the Company at a
redemption price equal to 108.50% of the aggregate principal amount thereof, on
the date of redemption. However, after giving effect to any such redemption, at
least 65% of the aggregate principal amount of the Securities originally issued
must remain outstanding and such redemption must occur within 60 days following
the closing of each such Equity Offering.
7. Notice of Redemption.
At least 30 calendar days but not more than 60 calendar days before a
Redemption Date, the Company shall send a notice of redemption, first-class
mail, postage prepaid, to Holders of Securities to be redeemed at the addresses
of such Holders as they appear in the Security Register.
If less than all of the Securities are to be redeemed at any time, the
Securities to be redeemed will be chosen by the Trustee in accordance with the
Indenture. If any Security is redeemed subsequent to a Record Date with respect
to any Interest Payment Date specified above and on or prior to such Interest
Payment Date, then any accrued interest will be paid on such Interest Payment
Date to the Holder of the Security on such Record Date. If money in an amount
sufficient to pay the Redemption Price of all Securities (or portions thereof)
to be redeemed on the Redemption Date is deposited with the Paying Agent on or
before the applicable Redemption Date and certain other conditions are
satisfied, interest on the Securities to be redeemed on the applicable
Redemption Date will cease to accrue.
The Securities are not subject to any sinking fund.
8. Repurchase at the Option of Holders upon Change of Control.
Upon the occurrence of a Change of Control, each Holder of Securities shall
have the right to require the Company to purchase such Holder's Securities, in
whole, or in part in a principal amount that is an integral multiple of $1,000,
pursuant to a Change of Control Offer, at a purchase price in cash equal to 101%
of the aggregate principal amount thereof on any Change of Control Purchase
Date, plus accrued and unpaid interest, if any, to the Change of Control
Purchase Date.
D-5
Within 30 calendar days following any Change of Control, the Company shall
send, or cause to be sent, by first-class mail, postage prepaid, a notice
regarding the Change of Control Offer to each Holder of Securities. The Holder
of this Security may elect to have this Security or a portion hereof in an
authorized denomination purchased by completing the form entitled "Option of
Holder to Require Purchase" appearing below and tendering this Security pursuant
to the Change of Control Offer. Unless the Company defaults in the payment of
the Change of Control Purchase Price with respect thereto, all Securities or
portions thereof accepted for payment pursuant to the Change of Control Offer
will cease to accrue interest from and after the Change of Control Purchase
Date.
9. Repurchase at the Option of Holders upon Asset Sale.
If at any time the aggregate amount of Excess Proceeds calculated as of
such date exceeds $15 million, the Company shall, within 30 days of the date the
amount of Excess Proceeds exceeds $15 million, use such Excess Proceeds to make
an offer to purchase (an "Asset Sale Offer") on a pro rata basis, from all
holders, outstanding Securities, at a purchase price (the "Offered Purchase
Price") in cash equal to 100% of the principal amount thereof, plus, in each
case, accrued and unpaid interest, if any, to the purchase date, in accordance
with the procedures set forth in the relevant indenture. Upon completion of an
Asset Sale Offer (including payment of the Offered Purchase Price), any surplus
Excess Proceeds that were the subject of such offer shall cease to be Excess
Proceeds, and the Company may then use such amounts for general corporate
purposes.
Within 30 calendar days of the date the amount of Excess Proceeds equals or
exceeds $15 million, the Company shall send, or cause to be sent, by first-class
mail, postage prepaid, a notice regarding the Asset Sale Offer to each Holder of
Securities. The Holder of this Security may elect to have this Security or a
portion hereof in an authorized denomination purchased by completing the form
entitled "Option of Holder to Require Purchase" appearing below and tendering
this Security pursuant to the Asset Sale Offer. Unless the Company defaults in
the payment of the Offer Purchase Price with respect thereto, all Securities or
portions thereof selected for payment pursuant to the Asset Sale Offer will
cease accrue interest from and after the Offer Date.
10. Transfer and Exchange.
A Holder may transfer a Security upon the surrender of such Security for
registration of transfer. No such transfer shall be effected until, and such
transferee shall succeed to the rights of a Holder only upon, final acceptance
and registration of this transfer in the Security Register by the Registrar.
When Securities are presented to the Registrar with a request to register the
transfer of, or to exchange, such Securities, the Registrar shall register the
transfer or make such exchange as requested if its requirements for such
transactions and any applicable requirements hereunder are satisfied.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer of Securities.
11. Denominations.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof of principal amount.
D-6
12. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its request unless an abandoned property law designates another Person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment unless such abandoned property law designates
another Person.
13. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations for
the payment of principal and interest on the Securities to redemption or
maturity, as the case may be.
14. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in principal amount of the Outstanding Securities and (ii) any
past Default and its consequences may be waived with the written consent of the
Holders of at least a majority in principal amount of the Outstanding
Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Holder of Securities, the Company and the Trustee may amend
Indenture or the Securities (i) to evidence the succession of another Person to
the Company and the assumption by such successor of the covenants of the company
under the Indenture and contained in the Securities; (ii) to add additional
covenants or to surrender rights and powers conferred on the Company; (iii) to
add any additional Events of Default; (iv) to provide for uncertificated
Securities in addition to or in place of Certificated Securities; (v) to
evidence and provide for the acceptance of appointment under the Indenture of a
successor Trustee; (vi) to secure the Securities; (vii) to cure any ambiguity in
the Indenture, to correct or supplement any provision in the Indenture which may
be inconsistent with any other provision therein or to add any other provisions
with respect to matters or questions arising under the Indenture, provided that
such actions shall not adversely affect the interests of the Holders in any
material respect; or (viii) to comply with the requirements of the SEC in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Securities, subject to certain
limitations, may declare all the Securities to be immediately due and payable.
Certain events of bankruptcy or insolvency are Events of Default and shall
result in the Securities being immediately due and payable upon the occurrence
of such Events of Default without any further act of the Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power under
the Indenture. The Holders of a majority in principal amount of the outstanding
Securities, by written notice to the Company and the Trustee, may rescind any
declaration of acceleration and its consequences if the rescission would not
conflict with any judgment or decree, and if all Events of Default have been
cured or waived except nonpayment of principal and interest that has become due
solely because of the acceleration.
D-7
16. Individual Rights of Trustee.
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee or any Paying Agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee, Paying Agent or Registrar, as the case may be, under the Indenture.
17. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, solely by reason of its status as
a director, officer, employee, incorporator or stockholder of the Company. By
accepting a Security, each Holder waives and releases all such liability (but
only such liability) as part of the consideration for issuance of such Security
to such Holder.
18. Governing Law.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder of Securities upon written request
and without charge to the Holder a copy of the Indenture which has in it the
text of this Security. Requests may be made to:
Buckeye Technologies Inc.
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Security)
FOR VALUE RECEIVED _____________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER TAX IDENTIFYING NUMBER OF TRANSFEREE
______________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Security, together with all right, title and interest herein, and does
hereby irrevocably constitute and appoint ______________________ Attorney to
transfer this Security on the Security Register, with full power of
substitution.
________________________________________________________________________________
Dated: ________________
_________________________________________ ________________________________
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
D-9
OPTION OF HOLDER TO ELECT PURCHASE
(Check as appropriate)
[ ] In connection with the Change of Control Offer made pursuant to Section
10.16 of the Indenture, the undersigned hereby elects to have [ ]
$__________ ($1,000 in principal amount or an integral multiple thereof) of
this Security repurchased by the Company. The undersigned hereby directs
the Trustee or Paying Agent to pay it or ___________ an amount in cash
equal to 101% with respect to the principal amount indicated in the
preceding sentence or the principal amount indicated in the preceding
sentences, as the case may be, plus accrued and unpaid interest thereon, if
any, to the Change of Control Payment Date.
[ ] In connection with the Asset Sale Offer made pursuant to Section 10.15 of
the Indenture, the undersigned hereby elects to have [ ] $_________ ($1,000
in principal amount or an integral multiple thereof) of this Security
repurchased by the Company. The undersigned hereby directs the Trustee or
Paying Agent to pay it or ______________ an amount in cash equal to 100%
with respect to the principal amount indicated in the preceding sentence,
plus accrued and unpaid interest thereon, if any, to the Asset Sale Payment
Date.
Dated: _______________
______________________________________ ________________________________
Signature of Holder Signature Guaranteed:
Commercial Bank or Trust Company
Or Member Firm of the New York
Stock Exchange, Inc.
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
D-10
EXHIBIT E
FORM OF GUARANTEE
Each of the undersigned (the "Guarantors") hereby jointly and severally
unconditionally guarantees, to the extent set forth in the Indenture dated as of
September 22, 2003, by and between Buckeye Technologies Inc., as issuer, the
Guarantors and The Bank of New York, as Trustee, (the "Indenture"), and subject
to the provisions of the Indenture, (a) the due and punctual payment of the
principal of, and premium, if any, and interest on the of Securities, when and
as the same shall become due and payable, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on overdue principal of,
and premium and, to the extent permitted by law, interest, and the due and
punctual performance of all other obligations of the Company to the Holders of
the of Securities or the Trustee, all in accordance with the terms set forth in
Article Twelve of the Indenture and (b) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, that the
same shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise.
The obligations of the Guarantors to the Holders of the Securities of and
to the Trustee pursuant to this Guarantee and the Indenture are expressly set
forth in Article Twelve of the Indenture and reference is hereby made to the
Indenture for the precise terms and limitations of this Guarantee. The validity
and enforceability of any Guarantee shall not be affected by the fact that it is
not affixed to any particular Security.
This Guarantee has been executed and issued pursuant to the requirements of
the Indenture.
[Signatures on Following Pages]
E-1
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to be
signed by a duly authorized officer.
The Guarantors:
Buckeye Florida Corporation
By: ___________________________
Name:
Title:
BFOL 2 Inc.
By: ____________________________
Name:
Title:
BFC 2 Inc.
By: ____________________________
Name:
Title:
BFOL 3 LLC
By: BFC 2 Inc., its Managing
Member
By: ____________________________
Name:
Title:
BFC 3 LLC
By: BFOL 2 Inc., its Managing
Member
By: ____________________________
Name:
Title:
E-2
Buckeye Florida, Limited Partnership
By: Buckeye Florida Corporation, its
General Partner
By: _______________________________
Name:
Title:
Buckeye Lumberton Inc.
By: _______________________________
Name:
Title:
Buckeye Mt. ▇▇▇▇▇ LLC
By: Buckeye Lumberton Inc., its
sole member
By: ________________________________
Name:
Title:
BKI Lending Inc.
By: _______________________________
Name:
Title:
BKI Holding Corporation
By: _______________________________
Name:
Title:
BKI Asset Management Corporation
By: _______________________________
Name:
Title:
E-3
BKI Finance Corporation
By: _______________________________
Name:
Title:
BKI International Inc.
By: _______________________________
Name:
Title:
Buckeye Technologies Canada Inc.
By: _______________________________
Name:
Title:
Merfin Systems, Inc.
By: _______________________________
Name:
Title:
E-4
EXHIBIT F
[FORM OF]
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: Buckeye Technologies Inc. (the "Company")
8 1/2% Senior Notes due 2013 (the "Securities")
This Certificate relates to $_______ principal amount of Securities held in
the form of* ___ a beneficial interest in a Global Security or* _______
Certificated Securities by ______ (the "Transferor").
The Transferor:
|_| has requested by written order that the Registrar deliver in exchange
for its beneficial interest in the Global Security held by the Depository a
Certificated Security or Certificated Securities in definitive, registered form
of authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
|_| has requested by written order that the Registrar exchange or register
the transfer of a Certificated Security or Certificated Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 3.5 of such Indenture, and that the
transfer of the Notes does not require registration under the Securities Act of
1933, as amended (the "Securities Act"), because*:
|_| Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 3.5 of the Indenture).
|_| Such Security is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act), in reliance on Rule 144A.
|_| Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Securities Act) which delivers a certificate to the Trustee in the
form of Exhibit G to the Indenture. [If a transfer of less than $250,000
aggregate principal amount of Securities, an Opinion of Counsel to the effect
that such transfer complies with the Securities Act accompanies this
certification, if requested by the Issuers.]
|_| Such Security is being transferred in reliance on Regulation S under
the Securities Act and a transfer certificate for Regulation S transfers in the
form of Exhibit H to the Indenture accompanies this certification.
|_| Such Security is being transferred in reliance on Rule 144 under the
Securities Act.
|_| Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act other
than Rule 144A or Rule 144 under the Securities Act to a person other than an
institutional "accredited investor." [An Opinion of Counsel, satisfactory to the
Issuers, to the effect that such transfer does not require registration under
the Securities Act accompanies this certification.]
F-1
[INSERT NAME OF TRANSFEROR]
By: _______________________
[Authorized Signatory]
Date: ____________________
*Check applicable box.
F-2
EXHIBIT G
Form of Transferee Letter of Representation
The Bank of New York
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Attention: Corporate Trust Administration
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $________ principal
amount of the 8 1/2% Senior Notes due 2013 of Buckeye Technologies Inc. (the
"Company") and any guarantee thereof (the "Securities"). Upon transfer, the
Securities would be registered in the name of the new beneficial owner as
follows:
Name: _____________________________________________
Address: __________________________________________
Taxpayer ID Number: _______________________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the "Securities
Act")) purchasing Securities for our own account or for the account of such an
institutional "accredited investor" and we are acquiring the Securities not with
a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of our investment in the Securities and we invest in or purchase securities
similar to the Securities in the normal course of our business. We and any
accounts for which we are acting are each able to bear the economic risk of our
or its investment.
2. We acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such questions of
representatives of the Company and receive answers thereto, as we deem
necessary.
3. We understand that the Securities have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities that we will not prior to the
date (the "Resale Restriction Termination Date") that is two years after the
later of the original issuance 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) offer, sell or otherwise transfer such Securities except
(a) to The Company or any subsidiary of The Company, (b) inside the United
States to a "qualified institutional buyer" in compliance with Rule 144A under
the Securities Act (c) inside the United States to an "institutional accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act
that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to the Trustee a signed letter substantially in the form of
this letter (d) outside the United States in an offshore transaction in
compliance with Rule 904 under the Securities Act (e) pursuant to any other
available exemption
G-1
from the registration requirements of the Securities Act or (f) pursuant to an
effective registration statement under the Securities Act. We acknowledge 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 applicable
Securities pursuant to clause (c) or (e) above to require the delivery of an
opinion of counsel, certification and/or other information satisfactory to the
Company and the Trustee.
We understand that the Trustee will not be required to accept for
registration of transfer any Securities acquired by us, except upon presentation
of evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that any
Securities purchased by us will be in the form of definitive physical
certificates and that such certificates will bear a legend reflecting the
substance of paragraph 3 of this letter. We further agree to provide to any
person acquiring any of the Securities from us a notice advising such person
that transfers of such Securities are restricted as stated herein and that
certificates representing such Securities will bear a legend to that effect.
We represent that the Company and the Trustee and others are entitled to
rely upon the truth and accuracy of our acknowledgments, representations and
agreements set forth herein, and we agree to notify you promptly in writing if
any of our acknowledgments, representations or agreements herein cease to be
accurate and complete. You are also irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as fiduciary agent.
As used herein, the terms "offshore transaction," "United States" and "U.S.
person" have the respective meanings given to them in Regulation S under the
Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Dated: __________ TRANSFEREE:
By: ______________________________
G-2
EXHIBIT H
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
_______________, ____
The Bank of New York
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Attention: Corporate Trust Administration
Re: Buckeye Technologies Inc. 8 1/2% Senior Notes due 2013 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
H-1
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By: _____________________________
H-2