EXECUTION COPY
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NCI BUILDING SYSTEMS, INC.
AS ISSUER
THE GUARANTORS
NAMED HEREIN
$125,000,000
9-1/4% SENIOR SUBORDINATED NOTES DUE 2009
INDENTURE
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Dated as of May 5, 1999
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▇▇▇▇▇▇ Trust Company of New York
Trustee
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TABLE OF CONTENTS
PAGE
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..................................................1
SECTION 1.02. Other Definitions...........................................28
SECTION 1.03. TIA Terms...................................................29
SECTION 1.04. Rules of Construction.......................................30
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.............................................30
SECTION 2.02. Execution and Authentication................................32
SECTION 2.03. Registrar and Paying Agent..................................33
SECTION 2.04. Paying Agent to Hold Money in Trust.........................34
SECTION 2.05. Holder Lists................................................34
SECTION 2.06. Transfer and Exchange.......................................34
SECTION 2.07. Replacement Notes...........................................50
SECTION 2.08. Outstanding Notes...........................................51
SECTION 2.09. Treasury Notes..............................................51
SECTION 2.10. Temporary Notes.............................................51
SECTION 2.11. Cancellation................................................52
SECTION 2.12. Defaulted Interest..........................................52
SECTION 2.13. CUSIP Number................................................53
ARTICLE THREE
REDEMPTION AND PREPAYMENT
SECTION 3.01. Notices to Trustee..........................................53
SECTION 3.02. Selection of Notes to Be Redeemed...........................53
SECTION 3.03. Notice of Redemption........................................54
SECTION 3.04. Effect of Notice of Redemption..............................55
SECTION 3.05. Deposit of Redemption Price.................................55
SECTION 3.06. Notes Redeemed in Part......................................55
SECTION 3.07. Optional Redemption.........................................56
SECTION 3.08. Mandatory Redemption........................................56
SECTION 3.09. Offer to Purchase by Application of Excess Proceeds.........57
SECTION 3.10. Change of Control...........................................59
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes............................................61
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SECTION 4.02. Maintenance of Office or Agency.............................61
SECTION 4.03. Reports.....................................................62
SECTION 4.04. Compliance Certificate......................................62
SECTION 4.05. Taxes.......................................................63
SECTION 4.06. Stay, Extension and Usury Laws..............................63
SECTION 4.07. Restricted Payments.........................................64
SECTION 4.08. Restrictions on Distributions from Restricted Subsidiaries..68
SECTION 4.09. Limitation on Additional Indebtedness.......................69
SECTION 4.10. Asset Sales.................................................69
SECTION 4.11. Transactions with Affiliates................................72
SECTION 4.12. Liens.......................................................74
SECTION 4.13. Corporate Existence.........................................75
SECTION 4.14 Limitation on Issuances and Sales of Capital Stock..........75
SECTION 4.15. Limitation on Layering......................................76
SECTION 4.16. Additional Subsidiary Guarantees............................76
ARTICLE FIVE
SUCCESSORS
SECTION 5.01. Merger, Consolidation, or Sale of Assets....................77
SECTION 5.02. Successor Corporation Substituted...........................78
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default...........................................78
SECTION 6.02. Acceleration................................................80
SECTION 6.03. Other Remedies..............................................80
SECTION 6.04. Waiver of Past Defaults.....................................81
SECTION 6.05. Control by Majority.........................................81
SECTION 6.06. Limitation on Suits.........................................81
SECTION 6.07. Rights of Holders to Receive Payment........................82
SECTION 6.08. Collection Suit by Trustee..................................82
SECTION 6.09. Trustee May File Proofs of Claim............................82
SECTION 6.10. Priorities..................................................83
SECTION 6.11. Undertaking for Costs.......................................84
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee...........................................84
SECTION 7.02. Rights of Trustee...........................................85
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SECTION 7.03. Individual Rights of Trustee................................86
SECTION 7.04. Trustee's Disclaimer........................................86
SECTION 7.05. Notice of Defaults..........................................86
SECTION 7.06. Reports by Trustee to Holders...............................87
SECTION 7.07. Compensation and Indemnity..................................87
SECTION 7.08. Replacement of Trustee......................................88
SECTION 7.09. Successor Trustee by Merger, etc............................89
SECTION 7.10. Eligibility; Disqualification...............................89
SECTION 7.11. Preferential Collection of Claims Against Company...........90
ARTICLE EIGHT
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant Defeasance....90
SECTION 8.02. Legal Defeasance and Discharge..............................90
SECTION 8.03. Covenant Defeasance.........................................91
SECTION 8.04. Conditions to Legal or Covenant Defeasance..................91
SECTION 8.05. Deposited Money and Government Securities to Be Held
in Trust; Other Miscellaneous Provisions....................93
SECTION 8.06. Repayment to Company........................................94
SECTION 8.07. Reinstatement...............................................94
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. Without Consent of Holders..................................95
SECTION 9.02. With Consent of Holders.....................................95
SECTION 9.03. Compliance with Trust Indenture Act.........................97
SECTION 9.04. Revocation and Effect of Consents...........................97
SECTION 9.05. Notation on or Exchange of Notes............................97
SECTION 9.06. Trustee to Sign Amendments, etc.............................97
ARTICLE TEN
SUBSIDIARY GUARANTEES
SECTION 10.01. Subsidiary Guarantee........................................98
SECTION 10.02. Agreement to Subordinate....................................99
SECTION 10.03. Limitation on Liability of Subsidiary Guarantors............99
SECTION 10.04. Liquidation; Dissolution; Bankruptcy.......................100
SECTION 10.05. Subsidiary Guarantors Not to Make Payments with
Respect to Guarantees in Certain Circumstances.............101
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SECTION 10.06. When Distribution Must Be Paid Over........................102
SECTION 10.07. Subrogation................................................103
SECTION 10.08. Subordination May Not Be Impaired by.......................103
SECTION 10.09. Distribution or Notice to Representative...................103
SECTION 10.10. Rights of Trustee and Paying Agent.........................103
SECTION 10.11. Officers' Certificate......................................104
SECTION 10.12. Obligation of Subsidiary Guarantors Unconditional..........105
SECTION 10.13. Article Ten Not To Prevent Events of Default...............105
SECTION 10.14. Execution and Delivery of Guarantee........................106
SECTION 10.15. Subsidiary Guarantors May Consolidate, Etc.,...............106
SECTION 10.16. Releases Following Sale of Assets, Etc.....................107
ARTICLE ELEVEN
SUBORDINATION
SECTION 11.01. Agreement to Subordinate...................................108
SECTION 11.02. Liquidation; Dissolution; Bankruptcy.......................108
SECTION 11.03 Notes in Certain Circumstances.............................109
SECTION 11.04. Acceleration of Notes......................................111
SECTION 11.05. When Distribution Must Be Paid Over........................111
SECTION 11.06. Notice by Company..........................................111
SECTION 11.07. Subrogation................................................111
SECTION 11.08. Subordination May Not Be Impaired by Company...............112
SECTION 11.09. Distribution or Notice to Representative...................112
SECTION 11.10. Rights of Trustee and Paying Agent.........................112
SECTION 11.11. Officers' Certificate......................................113
SECTION 11.12. Obligation of Company Unconditional........................113
SECTION 11.13. Article Eleven Not To Prevent Events of Default............114
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls...............................114
SECTION 12.02. Notices....................................................114
SECTION 12.03. Communication by Holders with Other Holders................116
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.........116
SECTION 12.05. Statements Required in Certificate or Opinion..............116
SECTION 12.06. Rules by Trustee and Agents................................117
SECTION 12.07. No Personal Liability of Directors, Officers, Employees
and Stockholders...........................................117
SECTION 12.08. Governing Law..............................................117
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SECTION 12.09. No Adverse Interpretation of Other Agreements..............118
SECTION 12.10. Successors.................................................118
SECTION 12.11. Severability...............................................118
SECTION 12.12. Counterpart Originals......................................118
SECTION 12.13. Table of Contents, Headings, etc...........................118
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EXHIBITS
Exhibit A-1 Form of Note
Exhibit A-2 Form of Regulation S Temporary Global Note
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D-1 Form of Certificate of Acquiring Institutional Accredited Investor
Exhibit D-2 Form of Certificate of Acquiring Affiliate Accredited Investor
Exhibit E Form of Senior Subordinated Subsidiary Guarantee
Exhibit F Form of Supplemental Indenture
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SCHEDULES
Schedule I Affiliate Transactions pursuant to agreements entered into or in
effect on the Issue Date
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INDENTURE dated as of May 5, 1999 among NCI Building Systems,
Inc., a Delaware corporation (the "COMPANY"), the subsidiary guarantors named
herein (the "SUBSIDIARY GUARANTORS") and ▇▇▇▇▇▇ Trust Company of New York
(the "TRUSTEE").
The Company, the Subsidiary Guarantors and the Trustee agree
as follows for the benefit of each other and for the equal and ratable
benefit of the Holders of the 9-1/4% Series A Senior Subordinated Notes due
2009 (the "SERIES A NOTES"), the 9-1/4% Series B Senior Subordinated Notes
due 2009 issued in the Exchange Offer and any Private Exchange (the "SERIES B
NOTES") and any Additional Notes (and any related Exchange Notes and Private
Exchange Notes) (together with the Series A Notes and the Series B Notes, the
"NOTES"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A GLOBAL NOTE" means a global note in the form of Exhibit
A-1 hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"ACQUIRED INDEBTEDNESS" means (a) with respect to any Person
that becomes a Restricted Subsidiary after the date of this Indenture,
Indebtedness of such Person and its Subsidiaries existing at the time such
Person becomes a Restricted Subsidiary that was not incurred in connection
with, or in contemplation of, such Person becoming a Restricted Subsidiary
and (b) with respect to the Company or any of its Restricted Subsidiaries,
any Indebtedness of a Person (other than the Company or a Restricted
Subsidiary) existing at the time such Person is merged with or into the
Company or a Restricted Subsidiary, or Indebtedness assumed by the Company or
any of its Restricted Subsidiaries in connection with the acquisition of an
asset or assets from another Person, which Indebtedness was not, in any case,
incurred by such other Person in connection with, or in contemplation of,
such merger or acquisition.
"ADDITIONAL NOTES" means Notes issued under this Indenture
subsequent to the date of this Indenture in accordance with Sections 2.02 and
4.09 hereof.
"AFFILIATE" of any Person means any Person (i) which directly
or indirectly controls or is controlled by, or is under direct or indirect
common control with, the referent
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Person, (ii) which beneficially owns or holds, directly or indirectly, 10% or
more of any class of the Voting Stock of the referent Person, (iii) of which
10% or more of the Voting Stock is beneficially owned or held, directly or
indirectly, by the referent Person or (iv) with respect to an individual, any
immediate family member of such Person. For purposes of this definition,
control of a Person shall mean the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise.
"AFFILIATE ACCREDITED INVESTOR" means a natural person who is
a director or executive officer of the Company that at the time has an
individual net worth or joint net worth with his or her spouse that exceeds
$1,000,000 or had individual income in excess of $200,000 in each of the two
most recent years or joint income with his or her spouse in excess of
$300,000 in each of those years and has a reasonable expectation of reaching
the same income level in the current year.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer
or exchange.
"ASSET SALE" means any sale, issuance, conveyance, transfer,
lease, assignment or other disposition to any Person other than the Company
or any of its Restricted Subsidiaries (including by means of a Sale and
Leaseback Transaction or a merger or consolidation) (collectively, for
purposes of this definition, a "transfer"), directly or indirectly, in one
transaction or a series of related transactions, of (a) any Capital Stock of
any Subsidiary or (b) any other properties or assets of the Company or any of
its Subsidiaries. For purposes of this definition, the term "Asset Sale"
shall not include: (i) transfers of cash, Cash Equivalents, defaulted
accounts receivable , inventory or other properties or assets in the ordinary
course of business (other than in connection with a Receivables Facility);
(ii) transfers of properties or assets (including Capital Stock) that are
governed by, and made in accordance with, the provisions described Section
5.01 hereof; (iii) transfers of properties or assets to a Subsidiary,
including an Unrestricted Subsidiary, and a transfer of assets that
constitutes a Restricted Investment, in each case if permitted under Section
4.07 hereof; (iv) transfers of damaged, worn-out or obsolete equipment or
assets that, in the Company's reasonable judgment, are no longer used or
useful in the business of the Company or its Subsidiaries; PROVIDED that the
proceeds thereof are used to purchase replacement or similar assets for use
in the business of the Company and its Subsidiaries; (v) any transfer or
series of related transfers that, but for this clause (v), would be Asset
Sales, if after giving effect to such transfers, the aggregate Fair Market
Value of the properties or assets transferred in such transaction or any such
series of related transactions does not exceed $1,000,000; (vi) a Sale and
Leaseback Transaction with
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respect to the Company's home office building being constructed in Houston,
Texas, PROVIDED (a) the Attributable Indebtedness with respect to such Sale
and Leaseback Transaction does not exceed a principal amount of $5.5 million
and is otherwise permitted to be incurred under this Indenture, and (b) the
gross cash proceeds of that Sale and Leaseback Transaction are at least equal
to the Fair Market Value of the asset subject thereto; or (vii) a
contribution, transfer or other disposition of Receivables in connection with
a Qualifying Receivables Facility.
"ATTRIBUTABLE INDEBTEDNESS," when used with respect to any
Sale and Leaseback Transaction, means, as at the time of determination, the
present value (discounted at a rate equivalent to the Company's then-current
weighted average cost of funds for borrowed money as at the time of
determination, compounded on a semi-annual basis) of the total obligations of
the lessee for rental payments during the remaining term of the lease
included in any such Sale and Leaseback Transaction.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors of the
Company or any authorized committee of the Board of Directors.
"BOARD RESOLUTION" means a duly adopted resolution of the
Board of Directors and delivered to the Trustee.
"BSM" means Building Systems de Mexico, S.A. de C.V., a
Mexican stock corporation.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITALIZED LEASE" means a lease required to be capitalized
for financial reporting purposes in accordance with GAAP.
"CAPITAL STOCK" of any Person means (i) any and all shares or
other equity interests (including common stock, Preferred Stock and
partnership interests) in such Person and (ii) all rights to purchase,
warrants or options (whether or not currently exercisable), participations or
other equivalents of or interests in (however designated) such shares or
other interests in such Person.
"CAPITALIZED LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under a Capitalized
Lease, and the amount of such obligation shall be the capitalized amount
thereof determined in accordance with GAAP.
"CASH EQUIVALENTS" means (i) marketable obligations with a
maturity of 180
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days or less issued or directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in support
thereof); (ii) demand and time deposits and certificates of deposit or
acceptances with a maturity of 180 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500 million; (iii) commercial
paper maturing no more than 180 days from the date of creation thereof issued
by a corporation that is not the Company or an Affiliate of the Company, and
is organized under the laws of any State of the United States of America or
the District of Columbia and rated at least A-l by S&P or at least P-l by
▇▇▇▇▇'▇; (iv) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clause (i) above entered
into with any commercial bank meeting the specifications of clause (ii)
above; and (v) investments in money market or other mutual funds
substantially all of whose assets comprise securities of the types described
in clauses (i) through (iv) above.
"CEDEL" means Cedel Bank, S.A.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (i) any Person or group (as such term is used in Section 13(d)(3)
of the Exchange Act) is or becomes the beneficial owner (as defined in Rule
13d-3 of the Exchange Act), directly or indirectly, of Voting Stock
representing more than 50% of the voting power of the Voting Stock of the
Company, (ii) the Company consolidates with, or merges with or into, another
Person or sells, assigns, conveys, transfers, leases or otherwise disposes of
all or substantially all of the Company's assets or the assets of Company and
its Subsidiaries taken as a whole to any Person, or any Person consolidates
with, or merges with or into, the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is converted
into or exchanged for cash, securities or other property, other than any such
transaction where the outstanding Voting Stock of the Company is converted
into or exchanged for Voting Stock (other than Disqualified Capital Stock) of
the surviving or transferee corporation and the beneficial owners of the
Voting Stock of the Company immediately prior to such transaction own,
directly or indirectly, not less than a majority of the Voting Stock of the
surviving corporation (including the Company) or transferee corporation
immediately after such transaction, or (iii) during any consecutive two-year
period, individuals who at the beginning of such period constituted the Board
of Directors (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the Company
was approved by a vote of two-thirds of the directors then still in office
who were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors then in office.
"COMMISSION" means the U.S. Securities and Exchange Commission.
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"COMMON EQUITY" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, control, vote or
otherwise participate in the selection of the governing body, partners,
managers or others that controls the management and policies of such Person.
"CONSOLIDATED AMORTIZATION EXPENSE" for any period means the
amortization expense of the Company and its Restricted Subsidiaries for such
period (to the extent included in the computation of Consolidated Net
Income), determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED CASH FLOW" for any period means, without
duplication, the sum of the amounts for such period of (i) Consolidated Net
Income PLUS (ii) in each case to the extent deducted in determining
Consolidated Net Income, (A) Consolidated Income Tax Expense, (B)
Consolidated Amortization Expense (but only to the extent not included in
Consolidated Interest Expense), (C) Consolidated Depreciation Expense, (D)
Consolidated Interest Expense and (E) all other non-cash items reducing the
Consolidated Net Income (including any charge on account of contributions to
employee benefit plans made in Common Equity of the Company, but excluding
any non-cash charge that results in an accrual of a reserve for cash charges
in any future period) for such period, in each case determined on a
consolidated basis in accordance with GAAP and MINUS (iii) the aggregate
amount of all non-cash items, determined on a consolidated basis, to the
extent such items increased Consolidated Net Income for such period.
"CONSOLIDATED DEPRECIATION EXPENSE" for any period means the
depreciation expense of the Company and its Restricted Subsidiaries for such
period (to the extent included in the computation of Consolidated Net
Income), determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INCOME TAX EXPENSE" for any period means the
provision for taxes based on income and profits of the Company and its
Restricted Subsidiaries to the extent such income or profits were included in
computing Consolidated Net Income for such period.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, with respect to
any determination date, the ratio of (a) Consolidated Cash Flow for the four
full fiscal quarters immediately preceding the determination date for which
financial statements are publicly available (for any determination, the
"REFERENCE PERIOD"), to (b) Consolidated Interest Expense for such Reference
Period. In making such computations, (i) Consolidated Cash Flow and
Consolidated Interest Expense shall be calculated on a pro forma basis
assuming that (A) the Indebtedness to be incurred or the Disqualified Capital
Stock or Preferred Stock to be issued (and all other Indebtedness incurred or
Disqualified Capital Stock or Preferred Stock issued after the first day of
such Reference Period referred to in Section 4.09 hereof through and
including the date of
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determination), and (if applicable) the application of the net proceeds
therefrom (and from any other such Indebtedness, Disqualified Capital Stock
or Preferred Stock), including the refinancing of other Indebtedness, had
been incurred or issued on the first day of such Reference Period and, in the
case of Acquired Indebtedness, on the assumption that the related transaction
(whether by means of purchase, merger or otherwise) also had occurred on such
date with the appropriate adjustments with respect to such acquisition being
included in such pro forma calculation and (B) any acquisition or disposition
by the Company or any Restricted Subsidiary of any properties or assets
outside the ordinary course of business or any repayment of any principal
amount of any Indebtedness of the Company or any Restricted Subsidiary prior
to the stated maturity thereof, in either case since the first day of such
Reference Period through and including the date of determination, had been
consummated on such first day of such Reference Period (and, in the case of
any such acquisition, Consolidated Cash Flow shall be calculated without
regard to clause (ii) of the proviso in the "Consolidated Net Income"
definition); (ii) the Consolidated Interest Expense attributable to interest
on any Indebtedness required to be computed on a pro forma basis in
accordance with Section 4.09 hereof 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 the Company, a fixed or floating rate of
interest, shall be computed by applying, at the option of the Company, either
the fixed or floating rate; (iii) the Consolidated Interest Expense
attributable to interest on any Indebtedness under a revolving credit
facility required to be computed on a pro forma basis in accordance with
Section 4.09 hereof shall be computed based upon the average daily balance of
such Indebtedness during the applicable period; PROVIDED that such average
daily balance shall be reduced by the amount of any repayment of Indebtedness
under a revolving credit facility during the applicable period, to the extent
such repayment permanently reduced the commitments or amounts available to be
reborrowed under such facility below the amount of such average daily balance
during the applicable period; (iv) notwithstanding the foregoing clauses (ii)
and (iii), interest on Indebtedness determined on a floating rate basis, to
the extent such interest is covered by agreements relating to Hedging
Obligations, shall be deemed to have accrued at the rate per annum resulting
after giving effect to the operation of such agreements; and (v) if after the
first day of the applicable Reference Period and before the date of
determination, the Company has permanently retired any Indebtedness out of
the net proceeds of the issuance and sale of shares of Capital Stock (other
than Disqualified Capital Stock) of the Company within 30 days of such
issuance and sale, Consolidated Interest Expense shall be calculated on a pro
forma basis as if such Indebtedness had been retired on the first day of such
period.
"CONSOLIDATED INTEREST EXPENSE" for any period means the sum,
without duplication, of the total interest expense of the Company and its
Restricted Subsidiaries for such period, determined on a consolidated basis
in accordance with GAAP and including without
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duplication, (i) imputed interest on Capitalized Lease Obligations and
Attributable Indebtedness, (ii) commissions, discounts and other fees and
charges owed with respect to letters of credit securing financial
obligations, bankers' acceptance financing and Receivables financings, (iii)
the net costs associated with Hedging Obligations, (iv) amortization of other
financing fees and expenses, (v) the interest portion of any deferred payment
obligations, (vi) amortization of debt discount or premium, if any, (vii) all
other non-cash interest expense, (viii) capitalized interest, (ix) the
product of (a) all cash dividend payments (and non-cash dividend payments in
the case of a Restricted Subsidiary) on any series of Preferred Stock of the
Company or any Restricted Subsidiary, MULTIPLIED BY (b) a fraction, the
numerator of which is one and the denominator of which is one MINUS the then
current combined federal, state and local statutory tax rate of the Company
and its Restricted Subsidiaries, expressed as a decimal, (x) all interest
payable with respect to discontinued operations, and (xi) all interest on any
Indebtedness of any other Person Guaranteed by the Company or any Restricted
Subsidiary, provided that Consolidated Interest Expense shall not include the
write-off of debt issuance costs or debt discount or premium in connection
with an early retirement of debt.
"CONSOLIDATED NET INCOME" for any period means the net income
(or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; PROVIDED that
there shall be excluded from such net income (to the extent otherwise
included therein), without duplication: (i) the net income (or loss) of any
Person (other than a Restricted Subsidiary) in which any Person other than
the Company and its Restricted Subsidiaries has an ownership interest, except
to the extent that cash in an amount equal to any such income has actually
been received by the Company or any of its Wholly-Owned Restricted
Subsidiaries during such period; (ii) except to the extent includible in the
Consolidated Net Income pursuant to the foregoing clause (i), the net income
(or loss) of any Person that accrued prior to the date that (a) such Person
becomes a Restricted Subsidiary or is merged into or consolidated with the
Company or any Restricted Subsidiary or (b) the assets of such Person are
acquired by the Company or any Restricted Subsidiary; (iii) the net income of
any Restricted Subsidiary during such period to the extent that the
declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of that income is not permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary during
such period; (iv) any gain (or loss), together with any related provisions
for taxes on any such gain (or the tax effect of any such loss), realized
during such period by the Company or any Restricted Subsidiary upon (a) the
acquisition of any securities, or the extinguishment of any Indebtedness, of
the Company or any Restricted Subsidiary or (b) any Asset Sale by the Company
or any of its Restricted Subsidiaries, (v) any extraordinary gain (or
extraordinary loss), together with any related provision for taxes on any
such extraordinary gain (or the tax effect of any such extraordinary loss),
realized by the Company or any Restricted Subsidiary during such period; and
(vi) in the case of a successor to the Company by consolidation,
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merger or transfer of its assets, any income (or loss) of the successor prior
to such merger, consolidation or transfer of assets.
"CONSOLIDATED NET WORTH" means, with respect to any Person as
of any date, the consolidated stockholders' equity of such Person, determined
on a consolidated basis in accordance with GAAP, less (without duplication)
(i) any amounts thereof attributable to Disqualified Stock of such Person or
its Subsidiaries and (ii) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of tangible assets of a going
concern business made within twelve months after the acquisition of such
business) subsequent to the date of this Indenture in the book value of any
asset owned by such Person or a Subsidiary of such Person.
"CONSOLIDATED TANGIBLE ASSETS" means, with respect to any
Person, the total assets of such Person and its Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP as of the end of
the most recent fiscal quarter of such Person for which financial statements
are publicly available, less (without duplication) the sum of: (i) all
intangible assets (including patents, trademarks, copyrights, goodwill,
organizational expenses and similar intangible items), and (ii) all
Investments in Persons that are not Restricted Subsidiaries (except Cash
Equivalents).
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the
address of the Trustee specified in Section 12.02 hereof or such other
address as to which the Trustee may give notice to the Company.
"COVERAGE RATIO INCURRENCE CONDITION" would be met at any
specified time only if the Company (or its Successor, as the case may be)
would be able to incur $1.00 of additional Indebtedness at such specified
time pursuant to the Consolidated Interest Coverage Ratio test set forth in
clause (ii) of Section 4.09 hereof.
"CREDIT AGREEMENT" means the Credit Agreement dated as of
March 25, 1998 by and among the Company, as Borrower, NationsBank, N.A.
(formerly known as NationsBank of Texas, N.A.), as Administrative Agent,
certain financial institutions as Arrangers, Syndication Agents and
Documentation Agent, and the Lenders named therein, together with any
security documents, and guarantees in connection therewith and any additional
guarantees executed by the Subsidiary Guarantors, as any of the foregoing may
be subsequently amended, restated, refinanced, or replaced from time to time.
"CREDIT FACILITIES" means, with respect to the Company or any
Subsidiary Guarantor, one or more credit facilities with banks or other
institutional lenders providing for revolving loans, term loans, Receivables
financing (including through the sale of Receivables to such lenders or to
special purpose entities formed to borrow from or issue securities to such
-9-
lenders against such Receivables) or letters of credit.
"DEFAULT" means (i) any Event of Default or (ii) any event,
act or condition that, after notice or the passage of time or both would be,
an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof,
in the form of Exhibit A-1 hereto except that such Note shall not bear the
Global Note Legend and shall not have the "Schedule of Exchanges of
Interests" attached thereto.
"DEPOSITARY" means the Person specified in Section 2.03 hereof
as the Depositary with respect to the Global Notes, and any and all
successors thereto appointed as Depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) Indebtedness under
the Credit Agreement (whether incurred pursuant to the definition of
Permitted Indebtedness or pursuant to clause (ii) of Section 4.09 hereof and
(ii) any other Indebtedness constituting Senior Indebtedness or Subsidiary
Guarantor Senior Indebtedness that at the date of determination, has an
aggregate principal amount outstanding of at least $25.0 million and that is
specifically designated by the Company or the Subsidiary Guarantor, in the
instrument creating or evidencing such Senior Indebtedness or Subsidiary
Guarantor Senior Indebtedness or in an Officers' Certificate delivered to the
Trustee, as "Designated Senior Indebtedness."
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock of such
Person or any of its Subsidiaries that, by its terms, by the terms of any
agreement related thereto or by the terms of any security into which it is
convertible, puttable or exchangeable, is, or upon the happening of any event
or the passage of time would be, required to be redeemed or repurchased by
such Person or any of its Subsidiaries, whether or not at the option of the
holder thereof, or matures or is mandatorily redeemable, pursuant to a
sinking find obligation or otherwise, in whole or in part, on or prior to the
final maturity date of the Notes; PROVIDED, HOWEVER, that any class of
Capital Stock of such Person that, by its terms, authorizes such Person to
satisfy in full its obligations with respect to the payment of dividends or
upon maturity, redemption (pursuant to a sinking fund or otherwise) or
repurchase thereof or otherwise by the delivery of Capital Stock that is not
Disqualified Capital Stock, and that is not convertible, puttable or
exchangeable for Disqualified Capital Stock or Indebtedness, shall not be
deemed to be Disqualified Capital Stock so long as such Person satisfies its
obligations with respect thereto solely by the delivery of Capital Stock that
is not Disqualified Capital Stock.
"DISTRIBUTION COMPLIANCE PERIOD" means the 40-day distribution
compliance period as defined in Regulation S.
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"DOMESTIC SUBSIDIARY" means any Subsidiary other than a
Foreign Subsidiary.
"EQUITY OFFERING" means an offering or sale of Capital Stock
(other than Disqualified Capital Stock) of the Company pursuant to a
registration statement filed with the Commission in accordance with the
Securities Act or pursuant to an exemption from the registration requirements
thereof.
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator for the Euroclear system.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934,
as amended.
"EXCHANGE NOTES" means the Series B Notes issued in the
Exchange Offer pursuant to Section 2.06(f)(i) hereof.
"EXCHANGE OFFER" has the meaning set forth in the Registration
Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set
forth in the Registration Rights Agreement.
"EXISTING JOINT VENTURE INVESTMENTS" means the Investments of
the Company and its Restricted Subsidiaries in Midwest Metal Coating LLC, a
Delaware limited liability company, BSM, Metallic de Mexico, S.A. de C.V., a
Mexican stock corporation, and DOUBLECOTE L.L.C., a Delaware limited
liability company, to the extent in existence on the Issue Date or required
to be made following the Issue Date pursuant to legally binding commitments
in effect on the Issue Date. The aggregate amount of all Existing Joint
Venture Investments existing or committed on the Issue Date equals
approximately $38.1 million.
"FAIR MARKET VALUE" of any asset or items means the fair
market value of such asset or items as determined in good faith by the Board
of Directors and evidenced by a Board Resolution.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Company that
is not incorporated or organized in the United States or in any State thereof
and substantially all of the assets of which are located outside of the
United States or that conducts substantially all of its business outside of
the United States.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a
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significant segment of the accounting profession of the United States, as in
effect on the Issue Date.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued
under this Indenture.
"GLOBAL NOTES" means, individually and collectively, each of
the Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"GOVERNMENT SECURITIES" means direct obligations of, or
obligations guaranteed by, the United States of America, and the payment for
which the United States pledges its full faith and credit.
"GUARANTEE" means a direct or indirect guarantee by any Person
of any Indebtedness of any other Person and includes any obligation, direct
or indirect, contingent or otherwise, of such Person: (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise); or (ii) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness of
the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part). "Guarantee," when used as a verb, and
"Guaranteed" have correlative meanings.
"HEDGING OBLIGATIONS" of any Person means the obligations of
such Person pursuant to (i) any interest rate swap agreement, interest rate
collar agreement or other similar agreement or arrangement designed to
protect such Person against fluctuations in interest rates, (ii) agreements
or arrangements designed to protect such Person against fluctuations in
foreign currency exchange rates in the conduct of its operations, or (iii)
any forward contract, commodity swap agreement, commodity option agreement or
other similar agreement or arrangement designed to protect such Person
against fluctuations in commodity prices, in each case, entered into in the
ordinary course of business for BONA FIDE hedging purposes and not for the
purpose of speculation.
"HOLDER" means a Person in whose name a Note is registered.
"IAI GLOBAL NOTE" means the Global Note in the form of Exhibit
A-1 hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the
Depositary or its nominee that will be issued in a
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denomination equal to the outstanding principal amount of the Notes sold to
Institutional Accredited Investors.
"INCUR" means, with respect to any Indebtedness or Obligation,
incur, create, issue, assume, Guarantee or otherwise become directly or,
indirectly liable, contingently or otherwise, with respect to such
Indebtedness or Obligation; PROVIDED that (i) the Indebtedness of a Person
existing at the time such Person became a Restricted Subsidiary shall be
deemed to have been incurred by such Restricted Subsidiary and (ii) neither
the accrual of interest nor the accretion of accreted value shall be deemed
to be an incurrence of Indebtedness.
"INDEBTEDNESS" of any Person at any date means, without
duplication: (i) all liabilities, contingent or otherwise, of such Person
for borrowed money (whether or not the recourse of the lender is to the whole
of the assets of such person or only to a portion thereof); (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments; (iii) all obligations of such Person in respect of
letters of credit or other similar instruments (or reimbursement obligations
with respect thereto); (iv) all obligations of such Person to pay the
deferred and unpaid purchase price of property or services, except trade
payables and accrued expenses incurred by such Person in the ordinary course
of business in connection with obtaining goods, materials or services, which
payable is not overdue by more than 60 days according to the original terms
of sale unless such payable is being contested in good faith; (v) the maximum
fixed redemption or repurchase price of all Disqualified Capital Stock of
such Person; (vi) all Capitalized Lease Obligations of such Person; (vii) all
Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person; (viii) all Indebtedness
of others Guaranteed by such Person to the extent of such Guarantee; PROVIDED
that Indebtedness of the Company or its Subsidiaries that is Guaranteed by
the Company or the Company's Subsidiaries shall only be counted once in the
calculation of the amount of Indebtedness of the Company and its Subsidiaries
on a consolidated basis; (ix) all Attributable Indebtedness; and (x) to the
extent not otherwise included in this definition, Hedging Obligations of such
Person. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as
described above, the maximum liability of such Person for any such contingent
obligations at such date and, in the case of clause (vii), the lesser of (A)
the Fair Market Value of any asset subject to a Lien securing the
Indebtedness of others on the date that the Lien attaches and (B) the amount
of the Indebtedness secured. For purposes of the preceding sentence, the
"maximum fixed redemption or repurchase price" of any Disqualified Capital
Stock that does not have a fixed redemption or repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as
if such Disqualified Capital Stock were purchased or redeemed 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 Disqualified Capital Stock (or any equity security for which it
may be ex-
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changed or convened), such Fair Market Value shall be determined in good
faith by the Board of Directors of such Person, which determination shall be
evidenced by a Board Resolution. "Indebtedness" shall include with respect
to any Receivables Facility under which the purchaser has recourse to such
Person or any Restricted Subsidiary of such Person, the sum of (a) the
aggregate uncollected balances of Accounts Receivable (as defined in the
definition of "Receivables") transferred ("TRANSFERRED RECEIVABLES") in such
Receivables Facility plus (b) the aggregate amount of all collections of
Transferred Receivables theretofore received by such Person or a Subsidiary
of such Person but not yet remitted to the purchaser, net of all reserves or
holdbacks retained by or for the benefit of the purchaser and net of any
interest retained by such Person and reasonable costs and expenses (including
fees and commissions and taxes other than income taxes) incurred by such
Person in connection therewith and not payable to any Affiliate of such
Person.
"INDENTURE" means this Indenture, as amended or supplemented
from time to time.
"INDEPENDENT DIRECTOR" means a director of the Company who (i)
is in fact independent with respect to the transaction at issue; (ii) does
not have any direct financial interest or any material indirect financial
interest in the Company or any of its Subsidiaries, or in any Affiliate of
the Company or any of its Subsidiaries (other than as a result of holding
securities of the Company); and (iii) has not and whose Affiliates have not,
at any time during the twelve months prior to the taking of any action
hereunder, directly or indirectly, received, or entered into any
understanding or agreement to receive, any compensation, payment or other
benefit, of any type or form, from the Company or any of its Affiliates,
other than customary directors' fees for serving on the Board of Directors or
the board of directors of any Affiliate and reimbursement of out-of-pocket
expenses for attendance at the Company's or Affiliate's board and board
committee meetings.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal
or investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Board of Directors, qualified to perform the task
for which it has been engaged and disinterested and independent with respect
to the Company and its Affiliates.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"INITIAL PURCHASER" means any of Warburg Dillon Read LLC,
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, Bear, ▇▇▇▇▇▇▇ & Co. Inc. and First
Union Capital Markets.
"INSOLVENCY OR LIQUIDATION PROCEEDING" means, with respect to
any Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, in-
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solvency, receivership or similar proceeding with respect to such Person,
whether voluntary or involuntary.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act that is not also a QIB.
"INVESTMENTS" of any Person means (i) all direct or indirect
investments by such Person in any other Person in the form of loans, advances
or capital contributions (excluding commission, travel and similar advances
to Officers and employees made in the ordinary course of business) or other
credit extensions constituting Indebtedness of such other Person, and any
Guarantee of Indebtedness of any other Person, (ii) all purchases (or other
acquisitions for consideration) by such Person of Indebtedness, Capital Stock
or other securities of any other Person and (iii) all other items that would
be classified as investments (including purchases of assets outside the
ordinary course of business) on a balance sheet of such Person prepared in
accordance with GAAP. Except as otherwise expressly specified herein, the
amount of any Investment (other than an Investment made in cash) shall be the
Fair Market Value thereof on the date such Investment is made. If the
Company or any Subsidiary sells or otherwise disposes of any Capital Stock of
any direct or indirect Subsidiary such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary, the Company shall
be deemed to have made an Investment on the date of any such sale or other
disposition equal to the Fair Market Value of the Capital Stock of and all
other Investments in such Subsidiary not sold or disposed of, which amount
shall be determined by the Board of Directors.
"ISSUE DATE" means the date on which the initial $125.0
million in Notes are issued.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue on such payment for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be
prepared by the Company and sent to all Holders for use by such Holders in
connection with the Exchange Offer.
"LIEN" means, with respect to any asset or property, any
mortgage, deed of trust, lien (statutory or other), pledge, lease, easement,
restriction, covenant, charge, security interest or other encumbrance of any
kind or nature in respect of such asset or property,
-15-
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, and any
lease in the nature thereof (including mortgages or liens that are or would
be deemed to exist on property subject to leases in effect on January 31,
1999 which mortgages or liens are or under GAAP should be recorded as Capital
Leases), any option or other agreement to sell, and any filing of, or
agreement to give, any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction (other than cautionary filings
in respect of operating leases).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., and its
successors.
"NET AVAILABLE PROCEEDS" means, with respect to any Asset
Sale, the proceeds thereof in the form of cash or Cash Equivalents including
payments in respect of deferred payment obligations when received in the form
of cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Company or any Restricted Subsidiary),
net of (i) brokerage commissions and other fees and expenses (including fees
and expenses of legal counsel, accountants and investment banks) related to
such Asset Sale, (ii) provisions for all taxes payable as a result of such
Asset Sale (after taking into account any available tax credits or deductions
and any tax sharing arrangements), (iii) amounts required to be paid to any
Person (other than the Company or any Restricted Subsidiary) owning a
beneficial interest in the properties or assets subject to the Asset Sale or
having a Lien therein and (iv) appropriate amounts to be provided by the
Company or any Restricted Subsidiary, as the case may be, as a reserve
required in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as the
case may be, after such Asset Sale, including pensions 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; PROVIDED, HOWEVER, that any amounts remaining after adjustments,
revaluations or liquidations of such reserves shall constitute Net Available
Proceeds.
"NON-RECOURSE PURCHASE MONEY INDEBTEDNESS" means Indebtedness
of the Company or any of its Restricted Subsidiaries incurred to finance the
purchase of any assets of the Company or any of its Subsidiaries within 90
days of such purchase, (a) to the extent the amount of Indebtedness
thereunder does not exceed 100% of the purchase cost of such assets, (b) to
the extent the purchase cost of such assets is or should be included in
"additions to property, plant and equipment" in accordance with GAAP, and (c)
to the extent that the lenders thereunder expressly agree in the related
documentation that such Indebtedness is non-recourse to the Company and its
Restricted Subsidiaries and their respective assets, other than the assets so
purchased.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
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"NOTES" has the meaning assigned to it in the preamble to this
Indenture.
"OBLIGATION" means any principal, interest (including, in the
case of Senior Indebtedness or Subsidiary Guarantor Senior Indebtedness,
interest accruing subsequent to the filing of a petition in bankruptcy or
insolvency at the rate specified in the document relating to such
Indebtedness, whether or not such interest is an allowed claim permitted to
be enforced against the obligor under applicable law), penalties, fees,
indemnification, reimbursements, costs, expenses, damages and other
liabilities payable under the documentation governing any Indebtedness.
"OFFERING" means the offering of the Notes by the Company.
"OFFERING MEMORANDUM" means the offering memorandum relating
to the issuance by the Company of the Series A Notes dated April 30, 1999.
"OFFICER" means any of the following of the Company: the
Chairman of the Board of Directors, the Chief Executive Officer, the Chief
Financial Officer, the President, any Vice President, the Treasurer or the
Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers.
"OPINION OF COUNSEL" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of
Section 12.05 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of the
Company that ranks PARI PASSU with the Notes.
"PARTICIPANT" means, with respect to the Depositary, Euroclear
or Cedel, a Person who has an account with the Depositary, Euroclear or
Cedel, respectively (and, with respect to The Depository Trust Company, shall
include Euroclear and Cedel).
"PARTICIPATING BROKER-DEALER" has the meaning set forth in the
Registration Rights Agreement.
"PAYMENT RESTRICTION" with respect to a Subsidiary of any
Person, means any encumbrance, restriction or limitation, whether by
operation of the terms of its charter or by reason of any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation, on the ability of (i) such Subsidiary to (a) pay dividends or
make other distributions on its Capital Stock or make payments on any
obligation, liability or Indebtedness owed to such Person or any other
Subsidiary of such Person, (b) make loans or advances to such
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Person or any other Subsidiary of such Person, (c) Guarantee any Indebtedness
of the Company or any Restricted Subsidiary, or (d) transfer any of its
properties or assets to such Person or any other Subsidiary of such Person
(other than customary restrictions on transfers of property subject to a Lien
permitted under this Indenture) or (ii) such Person or any other Subsidiary
of such Person to receive or retain any such dividends, distributions or
payments, loans or advances, Guarantees or transfer of properties or assets.
"PERMITTED INDEBTEDNESS" means any of the following:
(i) Indebtedness of the Company and any Subsidiary
Guarantor under Credit Facilities in an aggregate principal amount (or face
amount, in the case of letters of credit) at any time outstanding not to
exceed the sum of (a) $200.0 million, less the amount thereof that has been
repaid (or the amount of any permanent commitment reduction) under Section
4.10 hereof, and (b) the greater of (x) $240.0 million, less the amount
thereof that has been repaid (or the amount of any permanent commitment
reduction) under Section 4.10 hereof, and (y) the sum of 80% of the book
value of the accounts receivable and 50% of inventory of the Company and its
Restricted Subsidiaries, calculated on a consolidated basis and in accordance
with GAAP;
(ii) Indebtedness under the Notes (other than any Additional
Notes), the Subsidiary Guarantees and this Indenture;
(iii) Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date and described in the Offering
Memorandum (other than Indebtedness referred to in clauses (i) and (ii)
above, and after giving effect to the intended use of proceeds of the Notes);
(iv) Indebtedness under Hedging Obligations; PROVIDED that
(1) such Hedging Obligations are related to payment obligations on Permitted
Indebtedness or Indebtedness otherwise permitted by Section 4.09 hereof, and
(2) the notional principal amount of such Hedging Obligations at the time
incurred does not exceed the principal amount of such Indebtedness to which
such Hedging Obligations relate;
(v) Indebtedness of the Company to a Subsidiary Guarantor
and Indebtedness of any Subsidiary Guarantor to the Company or any other
Subsidiary Guarantor; PROVIDED, HOWEVER, that upon either (1) the subsequent
issuance (other than directors' qualifying shares), sale, transfer or other
disposition of any Capital Stock or any other event which results in any such
Subsidiary Guarantor ceasing to be a Subsidiary Guarantor or (2) the transfer
or other disposition of any such Indebtedness (except to the Company or a
Subsidiary Guarantor), the provisions of this clause (v) shall no longer be
applicable to such Indebtedness and such Indebtedness shall be deemed, in
each case, to be incurred and shall be treated as an in-
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▇▇▇▇▇▇▇▇ for purposes of Section 4.09 hereof at the time the Subsidiary
Guarantor in question ceased to be a Subsidiary Guarantor or the time such
transfer or other disposition occurred;
(vi) Guarantees by Subsidiary Guarantors of Indebtedness of
the Company permitted to be incurred by clause (ii) of Section 4.09 hereof;
(vii) Indebtedness in respect of bid, performance or surety
bonds issued for the account of the Company in the ordinary course of
business, including Guarantees or obligations of the Company with respect to
letters of credit supporting such bid, performance or surety obligations (in
each case other than for an obligation for money borrowed);
(viii) Indebtedness incurred by the Company or any Restricted
Subsidiary in respect of (a) Non-Recourse Purchase Money Indebtedness, or (b)
other purchase money Indebtedness (including Capitalized Leases) incurred for
the purpose of financing all or any part of the purchase price of property,
plant or equipment used in the business of the Company or such Restricted
Subsidiary within 90 days of such purchase, PROVIDED the aggregate principal
amount of such Indebtedness under this clause (b) does not exceed $10.0
million at any time outstanding;
(ix) Refinancing Indebtedness with respect to Indebtedness
incurred pursuant to clause (ii), (iii) or (viii) above; and
(x) Indebtedness of the Company and the Subsidiary
Guarantors, other than Indebtedness incurred pursuant to the foregoing
clauses of this definition, with an aggregate principal face or stated amount
(as applicable) at any time outstanding for all such Indebtedness incurred
pursuant to this clause not in excess of $10.0 million.
"PERMITTED JUNIOR SECURITIES" means (i) capital stock of the
Company (other than Disqualified Capital Stock), (ii) securities of the
Company, any Subsidiary Guarantor or any other corporation authorized by an
order or decree giving effect, and stating in such order or decree that
effect is given, to the subordination of the Notes or Subsidiary Guarantee to
the Senior Indebtedness or Subsidiary Guarantor Senior Indebtedness, and made
by a court of competent jurisdiction in a reorganization proceeding under any
applicable bankruptcy, insolvency or other similar law, or (iii) any
securities of the Company or any Subsidiary Guarantor provided for by a plan
of reorganization or readjustment that are subordinated in right of payment
to all Senior Indebtedness or Subsidiary Guarantor Senior Indebtedness, as
the case may be, that may at the time be outstanding to substantially the
same extent as, or to a greater extent than, the Notes or Subsidiary
Guarantee are subordinated to Senior Indebtedness or Subsidiary Guarantor
Senior Indebtedness.
"PERMITTED SALE OR ISSUANCE" means (i) any sale by the Company
of Capital
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Stock of a Restricted Subsidiary or (ii) any issuance by a Restricted
Subsidiary of its Capital Stock, in each case in a single transaction or
series of substantially contemporaneous related transactions, PROVIDED that
(a) immediately following such sale or issuance, the Company and its
Restricted Subsidiaries own, in the aggregate, no more than 10% of any class
of Capital Stock of such former Subsidiary, and (b) the remaining ownership
interest in such former Subsidiary shall be deemed to be the making of a
Restricted Investment in the amount set forth in the definition of
"Investment" and the Company and its Restricted Subsidiaries is able to make
such Restricted Investment at the time of such sale or issuance under Section
4.07 hereof.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity
of any kind.
"PLAN OF LIQUIDATION" with respect to any Person, means a plan
that provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise): (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety
or substantially as an entirety; and (ii) the distribution of all or
substantially all of the proceeds of such sale, lease, conveyance or other
disposition of all or substantially all of the remaining assets of such
Person to holders of Capital Stock of such Person.
"POST-PETITION INTEREST" means, with respect to any
Indebtedness of any Person, all interest accrued or accruing on such
Indebtedness after the commencement of any Insolvency or Liquidation
Proceeding against such Person in accordance with and at the contract rate
(including, without limitation, any rate applicable upon default) specified
in the agreement or instrument creating, evidencing or governing such
Indebtedness, whether or not, pursuant to applicable law or otherwise, the
claim for such interest is allowed as a claim in such Insolvency or
Liquidation Proceeding.
"PREFERRED STOCK" means, with respect to any Person, any and
all preferred or preference stock or other equity interests (however
designated) of such Person whether now outstanding or issued after the Issue
Date.
"PRIVATE EXCHANGE" means an offer by the Company, pursuant to
the Registration Rights Agreement, to issue and deliver to certain
purchasers, in exchange for the Notes issued on the Issue Date and held by
such purchasers as part of their initial distribution, or otherwise not
eligible to be exchanged in the Exchange Offer, a like aggregate principal
amount of Private Exchange Notes.
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"PRIVATE EXCHANGE NOTES" means the Series B Notes of the
Company issued in exchange for Series A Notes issued on the Issue Date
pursuant to Section 2.06(f)(ii) in connection with a Private Exchange
pursuant to the Registration Rights Agreement.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in
Section 2.06(g)(i) to be placed on all Notes issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"QUALIFYING JOINT VENTURE INVESTMENT" means (i) any Existing
Joint Venture Investment or (ii) any Restricted Investment made after the
Issue Date into a joint venture, or a Subsidiary that is not a Subsidiary
Guarantor, engaged in a Related Business, PROVIDED the amount of such
Investment, when made, reduced the amount available for subsequent Restricted
Payments under clause (iii) of the first paragraph of Section 4.07 hereof.
"QUALIFYING RECEIVABLES FACILITY" means any Receivables
Facility, PROVIDED that (a) consideration in an amount at least equal to the
Fair Market Value of the Receivables sold in such facility is received,
directly or indirectly, by the Company or any of its Restricted Subsidiaries,
and (b) all the net cash proceeds of such facility are remitted to the
Company or any Restricted Subsidiary.
"RECEIVABLES" means, collectively, (a) the Indebtedness and
other obligations owed to the Company or any of its Subsidiaries (before
giving effect to any sale or transfer thereof pursuant to a Receivables
Facility), whether constituting an account, chattel paper, an instrument, a
document or general intangible, arising in connection with the sale of goods
and/or services by the Company or such Subsidiary, including the obligation
to pay any late fees, interest or other finance charges with respect thereto
(each referred to in this definition as an "Account Receivable"), (b) all of
the Company's or such Subsidiary's interest in the goods (including returned
goods), if any, the sale of which gave rise to any Account Receivable, and
all insurance contracts with respect thereto, (c) all other security
interests or Liens and property subject thereto from time to time, if any,
purporting to secure payment of any Account Receivable, together with all
financing statements and security agreements describing any collateral
securing such Account Receivable, (d) all Guarantees, insurance and other
agreements or arrangements of whatever character from time to time supporting
or securing payment of any Account Receivable, (e) all contracts, invoices,
books and records of any kind related to any Account Receivable, (f) all cash
collections in respect of, and cash proceeds of, any of the foregoing and any
and all lockboxes, lockbox accounts, collection accounts, concentration
accounts and similar accounts in or into which such collections and cash
proceeds are now or hereafter deposited, collected or concentrated, and (g)
all proceeds of any of the foregoing.
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"RECEIVABLES FACILITY" means, with respect to any Person, any
Receivables securitization or factoring program pursuant to which such Person
receives proceeds pursuant to a sale, pledge or other encumbrance of its
Receivables. A Receivables Facility involving the sale, pledge or other
encumbrance of Receivables of, and the direct or indirect receipt of the
proceeds thereof by, the Company or any Restricted Subsidiary thereof shall
constitute a Receivables Facility of the Company and/or its Restricted
Subsidiaries whether or not as part of such securitization or factoring
program such Receivables are initially contributed or otherwise transferred
to an Unrestricted Subsidiary of the Company (and then resold or encumbered
by such Unrestricted Subsidiary).
"RECEIVABLES SUBSIDIARY" means any Subsidiary created
primarily to purchase or finance the Receivables of the Company and/or its
Subsidiaries pursuant to a Receivables Facility, so long as (i) no portion of
the Indebtedness or any other obligation (contingent or otherwise) of such
Subsidiary (a) is Guaranteed by the Company or any Restricted Subsidiary, (b)
is recourse to the Company or any Restricted Subsidiary or (c) subjects any
property or asset of the Company or any Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to the satisfaction thereof and (ii)
no default or event of default with respect to any Indebtedness of such
Subsidiary would permit any holder of any Indebtedness of the Company or any
Restricted Subsidiary (other than the Notes) to declare such Indebtedness of
the Company or any Restricted Subsidiary due and payable prior to its
maturity. If, at any time, such Receivables Subsidiary would fail to meet the
foregoing requirements as a Receivables Subsidiary, it shall thereafter cease
to be a Receivables Subsidiary for purposes of this Indenture and any
Indebtedness of such Receivables Subsidiary shall be deemed to be incurred by
a Subsidiary of the Company as of such date (and, if such Indebtedness is not
permitted to be incurred as of such date under Section 4.09 hereof, the
Company shall be in default of such Section).
"REFINANCING INDEBTEDNESS" means Indebtedness of the Company
or a Restricted Subsidiary issued in exchange for, or the proceeds from the
issuance and sale or disbursement of which are used substantially
concurrently to repay, redeem, refund, refinance, discharge or otherwise
retire for value, in whole or in part (collectively, "repay"), or
constituting an amendment, modification or supplement to or a deferral or
renewal of (collectively, an "amendment"), any Indebtedness of the Company or
any Restricted Subsidiary (the "REFINANCED INDEBTEDNESS") in a principal
amount not in excess of the principal amount of the Refinanced Indebtedness
so repaid or amended (or, if such Refinancing Indebtedness refinances
Indebtedness under a revolving credit facility or other agreement providing a
commitment for subsequent borrowings, with a maximum commitment not to exceed
the maximum commitment under such revolving credit facility or other
agreement); PROVIDED that: (i) the Refinancing Indebtedness is the
obligation of the same Person as that of the Refinanced Indebtedness, (ii) if
the Refinanced Indebtedness was subordinated to or PARI PASSU with the Note
In-
-22-
debtedness or the Subsidiary Guarantee Indebtedness, as the case may be,
then such Refinancing Indebtedness, by its terms, is expressly PARI PASSU
with (in the case of Refinanced Indebtedness that was PARI PASSU with) or
subordinate in right of payment to (in the case of Refinanced Indebtedness
that was subordinated to) the Note Indebtedness or the Subsidiary Guarantee
Indebtedness, as the case may be, at least to the same extent as the
Refinanced Indebtedness; (iii) the Refinancing Indebtedness is scheduled to
mature either (a) no earlier than the Refinanced Indebtedness being repaid or
amended or (b) after the maturity date of the Notes; (iv) the portion, if
any, of the Refinancing Indebtedness that is scheduled to mature on or prior
to the maturity date of the Notes has a Weighted Average Life to Maturity at
the time such Refinancing Indebtedness is incurred that is equal to or
greater than the Weighted Average Life to Maturity of the portion of the
Refinanced Indebtedness being repaid that is scheduled to mature on or prior
to the maturity date of the Notes; and (v) the Refinancing Indebtedness is
secured only to the extent, if at all, and by the assets, that the Refinanced
Indebtedness being repaid or amended is secured.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company, the Subsidiary
Guarantors and the Initial Purchasers, as such agreement may be amended,
modified or supplemented from time to time, and, with respect to any Additional
Notes, one or more registration rights agreements among the Company, the
Subsidiary Guarantors and the other parties thereto, as such agreement(s) may be
amended, modified or supplemented from time to time, relating to rights given by
the Company to the purchasers of Additional Notes to register such Additional
Notes under the Securities Act.
"REGULATION S" means Regulation S promulgated under the
Securities Act.
"REGULATION S GLOBAL NOTE" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"REGULATION S PERMANENT GLOBAL NOTE" means a permanent global
Note in the form of Exhibit A-1 hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Distribution Compliance Period.
"REGULATION S TEMPORARY GLOBAL NOTE" means a temporary Global
Note in the form of Exhibit A-2 hereto bearing the Private Placement Legend and
the Regulation S Temporary Note Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903 of Regulation S.
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"REGULATION S TEMPORARY NOTE LEGEND" means the legend set forth
in Section 2.06(g)(iii) hereof which is required to be placed on all Regulation
S Temporary Global Notes issued under this Indenture.
"RELATED BUSINESS" means any business or industry in which the
Company and its Subsidiaries operate on the Issue Date, or that is reasonably
related or complementary to the business of the Company and its Subsidiaries as
such business exists on the Issue Date.
"RELATED BUSINESS INVESTMENT" means any Investment directly by
the Company or its Subsidiaries in any Related Business.
"REPRESENTATIVE" means the indenture trustee or other trustee,
agent or representative for an issue of Senior Indebtedness.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any officer within the Corporate Trust Office of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED DEBT PAYMENT" means any prepayment, purchase,
redemption, defeasance (including Covenant Defeasance or Legal Defeasance) or
other acquisition or retirement for value, directly or indirectly, by the
Company or a Restricted Subsidiary, prior to the scheduled maturity or prior to
any scheduled repayment of principal or sinking fund payment, as the case may
be, in respect of Subordinated Indebtedness.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
"RESTRICTED INVESTMENT" means any Investment by the Company or
any Restricted Subsidiary, except (i) an Investment in Cash Equivalents, (ii) an
Investment in a Subsidiary Guarantor, and (iii) an Investment by the Company or
any Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (a) such Person becomes a Subsidiary Guarantor or (b) such Person, in
one transaction or a series of substantially concurrent related transactions, is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Subsidiary Guarantor.
"RESTRICTED PAYMENT" means with respect to any Person: (i) the
declaration or
-24-
payment of any dividend (other than a dividend declared by a Wholly-Owned
Restricted Subsidiary to holders of its Common Equity) or the making of any
other payment or distribution of cash, securities or other property or assets
in respect of such Person's Capital Stock (except that a dividend payable
solely in Capital Stock (other than Disqualified Capital Stock) of such
Person shall not constitute a Restricted Payment); (ii) any payment on
account of the purchase, redemption, retirement or other acquisition for
value of such Person's Capital Stock (or, in the case of the Company, the
Capital Stock of any Subsidiary Guarantor or, in the case of any Restricted
Subsidiary, the Capital Stock of the Company or any Subsidiary Guarantor) or
any other payment or distribution made in respect of any such Capital Stock,
either directly or indirectly (other than a payment solely in Capital Stock
that is not Disqualified Capital Stock); (iii) any Restricted Investment; or
(iv) any Restricted Debt Payment.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"S&P" means Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"SALE AND LEASEBACK TRANSACTIONS" means with respect to any
Person an arrangement with any bank, insurance company or other lender or
investor or to which such lender or investor is a party, providing for the
leasing by such Person of any property or asset of such Person which has been or
is being sold or transferred by such Person to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
on the security of such property or asset.
"SECRETARY'S CERTIFICATE" means a certificate signed by the
Secretary of the Company.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as
amended.
"SENIOR INDEBTEDNESS" means all Indebtedness and other
Obligations specified below payable directly or indirectly by the Company,
whether outstanding on the Issue Date
-25-
or thereafter created, incurred or assumed by the Company: (i) the principal
of and interest on and all other Obligations under the Credit Agreement
(including all loans, letters of credit and unpaid drawings with respect
thereto and other extensions of credit under the Credit Agreement, and all
expenses, fees, reimbursements, indemnities and other amounts owing pursuant
to the Credit Agreement), (ii) amounts payable in respect of any Hedging
Obligations with respect to Senior Indebtedness, and (iii) all other
Indebtedness of the Company referred to in clauses (i), (ii), (iii), (iv),
(vi) and (vii) of the definition of "Indebtedness" and all Guarantees of the
Company of any such Indebtedness, in each case to the extent not prohibited
by Section 4.09 hereof, provided such Indebtedness is not expressly PARI
PASSU with, or subordinated to, the Notes. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness will not include (a) any
Indebtedness which by the express terms of the agreement or instrument
creating, evidencing or governing the same is junior or subordinate in right
of payment to any item of Senior Indebtedness, (b) any trade payable or
accrued expense arising from the purchase of goods or materials or for
services obtained in the ordinary course of business, (c) Indebtedness
incurred (but only to the extent incurred) in violation of this Indenture as
in effect at the time of the respective incurrence, (d) any Indebtedness of
the Company, when incurred, was without recourse to the Company, (e) any
Indebtedness to any employee of the Company or any of its respective
Subsidiaries, (f) any Indebtedness of the Company to any of its Subsidiaries
or Affiliates of the Company (including any of their respective officers or
directors) or (g) any liability for taxes owed or owing by the Company.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as set forth in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company that
would be a "Significant Subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act as such Registration
is in effect on the Issue Date.
"SPECIAL INTEREST" means Special Interest as set forth in the
Registration Rights Agreement.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company or
any Restricted Subsidiary that is subordinated in right of payment to the Notes
or the Subsidiary Guarantees, respectively.
"SUBSIDIARY" of any Person means (i) any corporation of which at
least a majority of the aggregate voting power of all classes of the Common
Equity is owned by such Person directly or through one or more other
Subsidiaries of such Person and (ii) any entity other than a corporation in
which such Person, directly or indirectly, owns at least a majority of the
Common Equity of such entity. Unless otherwise specified, "Subsidiary" means a
Subsidiary of the Company.
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"SUBSIDIARY GUARANTEES" mean the guarantees endorsed on the Notes
by the Subsidiary Guarantors.
"SUBSIDIARY GUARANTOR SENIOR INDEBTEDNESS" means all Indebtedness
and other Obligations specified below payable directly or indirectly by any
Subsidiary Guarantor, whether outstanding on the Issue Date or thereafter
created, incurred or assumed by such Subsidiary Guarantor: (i) the Guarantees
by any Subsidiary Guarantor of principal of and interest on and all other
Obligations under the Credit Agreement (including all loans, letters of credit
and unpaid drawings with respect thereto and other extensions of credit under
the Credit Agreement, and all expenses, fees, reimbursements, indemnities and
other amounts owing pursuant to the Credit Agreement), (ii) amounts payable in
respect of any Hedging Obligations with respect to Subsidiary Guarantor Senior
Indebtedness, and (iii) all other Indebtedness of a Subsidiary Guarantor
referred to in clauses (i), (ii), (iii), (iv), (vi) and (vii) of the definition
of "Indebtedness" and all Guarantees of any such Indebtedness of the Company or
any Subsidiary Guarantor, in each case to the extent not prohibited by Section
4.09 hereof, provided such Indebtedness is not expressly PARI PASSU with, or
subordinated to, the Notes. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness will not include (a) any Indebtedness which by
the express terms of the agreement or instrument creating, evidencing or
governing the same is junior or subordinate in right of payment to any item of
Subsidiary Guarantor Senior Indebtedness, (b) any trade payable or accrued
expense arising from the purchase of goods or materials or for services obtained
in the ordinary course of business, (c) Indebtedness incurred (but only to the
extent incurred) in violation of this Indenture as in effect at the time of the
respective incurrence, (d) any Indebtedness of a Subsidiary Guarantor that, when
incurred, was without recourse to such Subsidiary Guarantor, (e) any
Indebtedness to any employee of a Subsidiary Guarantor or the Company or any of
its respective Subsidiaries, (f) any Indebtedness of a Subsidiary Guarantor to
the Company or any of its Subsidiaries or Affiliates (including any of their
respective officers or directors) or (g) any liability for taxes owed or owing
by the Subsidiary Guarantor.
"SUBSIDIARY GUARANTORS" means each Restricted Subsidiary of the
Company on the Issue Date, and each other Person who is required to become a
Subsidiary Guarantor by the terms of this Indenture after the Issue Date (or
whom the Company otherwise causes to become a Subsidiary Guarantor).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"TRANSFER RESTRICTED SECURITIES" has the meaning set forth in the
Offering Memorandum.
"TRUSTEE" means the party named as such above until a successor
replaces it in
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accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a permanent global Note in the
form of Exhibit A-1 attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests" attached thereto, and that is
deposited with or on behalf of and registered in the name of the Depositary,
representing a series of Notes that do not bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary that at the
time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below and (ii) any Subsidiary of an
Unrestricted Subsidiary. Initially, BSM is designated an Unrestricted
Subsidiary. The Board of Directors may designate any Restricted Subsidiary to
be an Unrestricted Subsidiary, and any such designation shall be deemed to be a
Restricted Investment at the time of and immediately upon such designation by
the Company and its Restricted Subsidiaries in the amount of the Consolidated
Net Worth of such designated Subsidiary and its consolidated Subsidiaries at
such time; PROVIDED that such designation shall be permitted only if (A) the
Company and its Restricted Subsidiaries would be able to make the Restricted
Investment deemed made pursuant to such designation at such time, (B) no portion
of the Indebtedness or any other obligation (contingent or otherwise) of such
Subsidiary (x) is Guaranteed by the Company or any Restricted Subsidiary, (y) is
recourse to the Company or any Restricted Subsidiary or (z) subjects any
property or asset of the Company or any Restricted Subsidiary, directly or
indirectly, contingently or otherwise, to the satisfaction thereof and (C) no
default or event of default with respect to any Indebtedness of such Subsidiary
would permit any holder of any Indebtedness of the Company or any Restricted
Subsidiary (other than the Notes) to declare such Indebtedness of the Company or
any Restricted Subsidiary due and payable prior to its maturity. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary, and any such designation shall be deemed to be an incurrence by the
Company and its Subsidiaries of the Indebtedness (if any) of such Subsidiary so
designated for purposes of Section 4.09 hereof as of the date of such
designation; PROVIDED that such designation shall be permitted only if
immediately after giving effect to such designation and the incurrence of any
such additional Indebtedness deemed to have been incurred thereby (x) the
Company would meet the Coverage Ratio Incurrence Condition and (y) no Default
shall be continuing. Any such designation by the Board of Directors described
in the two preceding sentences shall be evidenced to the Trustee by the filing
with the Trustee of a certified copy of the Board Resolution giving effect to
such designation and an Officer's Certificate certifying that such designation
complied with the foregoing conditions and setting forth the underlying
calculations of such certificate. If, at any time
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after being designated as such, any Unrestricted Subsidiary fails to meet any
of the requirements of the proviso of the second sentence of this definition,
it shall thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture, such Subsidiary shall be deemed to have been acquired on such
date and any Indebtedness or Preferred Stock of and Investments made by such
Subsidiary shall be deemed to be incurred or acquired by a Restricted
Subsidiary as of such date (and, if such Indebtedness, Preferred Stock or
Investments are not permitted to be incurred, issued or acquired as of such
date under Sections 4.07, 4.08, 4.09 or 4.14 hereof, as applicable, the
Company shall be in default of such Sections).
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"VOTING STOCK" with respect to any Person, means securities of
any class of Capital Stock of such Person entitling the holders thereof (whether
at all times or only so long as no senior class of stock or other relevant
equity interest has voting power by reason of any contingency) to vote in the
election of members of the board of directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" when applied to any
Indebtedness at any date, means the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means a Restricted
Subsidiary of which 100% of the Capital Stock (except for directors' qualifying
shares or certain minority interests owned by other Persons solely due to local
law requirements that there be more than one stockholder, but which interest is
not in excess of what is required for such purpose) is owned directly by the
Company or through one or more Wholly-Owned Restricted Subsidiaries.
SECTION 1.02. OTHER DEFINITIONS.
"AFFILIATE TRANSACTION"........................ 4.11
"AUTHENTICATION ORDER"......................... 2.02
"CHANGE OF CONTROL OFFER"...................... 3.10
"CHANGE OF CONTROL PURCHASE PRICE.............. 3.10
"COVENANT DEFEASANCE".......................... 8.03
"EVENT OF DEFAULT"............................. 6.01
"EXCESS PROCEEDS".............................. 4.10
"LEGAL DEFEASANCE"............................. 8.02
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"NET PROCEEDS DEFICIENCY"...................... 4.10
"NET PROCEEDS OFFER"........................... 3.09
"NON-PAYMENT DEFAULT".......................... 11.03
"NOTE INDEBTEDNESS"............................ 11.01
"OFFER AMOUNT"................................. 3.09
"OFFER PERIOD"................................. 3.09
"OFFERED PRICE"................................ 4.10
"PARI PASSU INDEBTEDNESS PRICE"................ 4.10
"PAYING AGENT"................................. 2.03
"PAYMENT AMOUNT"............................... 4.10
"PAYMENT BLOCKAGE NOTICE"...................... 11.03
"PAYMENT BLOCKAGE PERIOD"...................... 11.03
"PAYMENT DEFAULT".............................. 11.03
"PURCHASE DATE"................................ 3.09
"REGISTRAR".................................... 2.03
"SERIES A NOTES"............................... Preamble
"SERIES B NOTES"............................... Preamble
"SUBSIDIARY GUARANTEE INDEBTEDNESS............. 10.02
"SUCCESSOR".................................... 5.01
SECTION 1.03. TIA TERMS.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
and
"OBLIGOR" on the Notes and the Guarantees means the Company and
the Subsidiary Guarantors, respectively, and any successor obligor upon the
Notes and the Guarantees, respectively.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so
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assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive and "including" is not limiting;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) all references to "interest" include Special Interest,
whether or not stated; and
(7) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time unless the context
otherwise requires.
ARTICLE TWO
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company, the
Subsidiary Guarantors 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 Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture
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shall govern and be controlling.
(b) GLOBAL NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A-1 or A 2 attached hereto (including the
Global Note Legend thereon and the "Schedule of Exchanges of Interests" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A-1 attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests" attached thereto) and may or
may not have the Private Placement Legend thereon, as provided elsewhere in this
Indenture. Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the Paying
Agent, at the direction of the Trustee, in accordance with instructions given by
the Holder thereof as required by Section 2.06 hereof.
(c) TEMPORARY GLOBAL NOTE. Notes offered and sold in
reliance on Regulation S shall be issued initially in the form of the
Regulation S Temporary Global Note, which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the Depositary, and registered
in the name of the Depositary or the nominee of the Depositary for the accounts
of designated agents holding on behalf of Euroclear or Cedel Bank, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Distribution Compliance Period shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Cedel Bank certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Note (except to the extent
of any beneficial owners thereof who acquired an interest therein during the
Distribution Compliance Period pursuant to another exemption from registration
under the Securities Act and who will take delivery of a beneficial ownership
interest in a 144A Global Note or an IAI Global Note bearing a Private Placement
Legend, all as contemplated by Section 2.06(a)(ii) hereof), and (ii) an
Officers' Certificate from the Company. Following the termination of the
Distribution Compliance Period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests in
Regulation S Permanent Global Notes pursuant to the Applicable Procedures.
Simultaneously with the authentication of Regulation S Permanent Global Notes,
the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate
principal amount of the Regulation S Temporary Global Note and the Regulation S
Permanent Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary or its
nominee,
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as the case may be, in connection with transfers of interest as hereinafter
provided.
(d) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Cedel Bank" and "Customer Handbook" of Cedel Bank shall be applicable to
transfers of beneficial interests in the Regulation S Temporary Global Note and
the Regulation S Permanent Global Notes that are held by Participants through
Euroclear or Cedel Bank.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The seal of the Company, if any, shall be reproduced on
the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon written order of the Company signed by an
Officer of the Company (an "AUTHENTICATION ORDER"), authenticate (i) Series A
Notes for original issue on the date of this Indenture in an aggregate principal
amount equal to $125,000,000, (ii) Exchange Notes and Private Exchange Notes in
an aggregate principal amount equal to $125,000,000, and (iii) after the date of
this Indenture, Additional Notes (and Exchange Notes and Private Exchange Notes
in an aggregate principal amount equal to the principal amount of Additional
Notes so issued) issued by the Company having identical terms and conditions to
the Notes offered hereby, subject to compliance with Section 4.09 hereof (such
Additional Notes to be substantially in the form of Exhibit A-1 or Exhibit A-2,
as the case may be). Any Additional Notes will be part of the same issue as the
Notes offered on the date of this Indenture and will vote on all matters as one
class with the Notes offered on the date of this Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or
Affiliates of the Company.
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In the event that the Company shall issue and the Trustee shall
authenticate any Notes issued under this Indenture subsequent to the Issue Date
pursuant to this Section 2.02, the Company shall use its best efforts to obtain
the same "CUSIP" number for such Notes as is printed on the Notes outstanding at
such time; PROVIDED, HOWEVER, that if any series of Notes issued under this
Indenture subsequent to the Issue Date is determined, pursuant to an Opinion of
Counsel of the Company in a form reasonably satisfactory to the Trustee to be a
different class of security than the Notes outstanding at such time for federal
income tax purposes, the Company may obtain a "CUSIP" number for such Notes that
is different than the "CUSIP" number printed on the Notes then outstanding.
Notwithstanding the foregoing, all Notes issued under this Indenture shall vote
and consent together on all matters as one class and no series of Notes will
have the right to vote or consent as a separate class on any matter.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity
as Registrar or Paying Agent, the Trustee shall act as such. The Company or any
of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and with respect to the Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Special Interest, if any, or interest on the
Notes, and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee,
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the Paying Agent (if other than the Company or a Subsidiary of the Company)
shall have no further liability for the money. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it
as Paying Agent. Upon any Insolvency or Liquidation Proceedings relating to
the Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders and the
Company shall otherwise comply with TIA Section 312(a).
SECTION 0.06. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Regulation S Temporary Global Note
be exchanged by the Company for Definitive Notes prior to (x) the expiration of
the Distribution Compliance Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities
Act. Upon the occurrence of either of the preceding events in (i) or (ii) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated
and delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a); however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b),(c) or (f) hereof.
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(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL NOTES. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Notes also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest
in the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided,
however, that prior to the expiration of the Distribution Compliance
Period, transfers of beneficial interests in the Temporary Regulation S
Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than the Initial Purchasers.)
Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL NOTES. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such
increase or (B) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above; provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial interests in
the Regulation S Temporary Global Note prior to (x) the expiration of
the Distribution Compliance Period and (y) the receipt by the Registrar
of any certificates required pursuant to Rule 903 under the Securities
Act. Upon consummation of an
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Exchange Offer by the Company in accordance with Section 2.06(f)
hereof, the requirements of this Section 2.06(b)(ii) shall be
deemed to have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global
Notes. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Note or the Regulation S Permanent Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form
of a beneficial interest in the IAI Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications and certificates and Opinion
of Counsel required by item (3) thereof, if applicable.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED
GLOBAL NOTE. A beneficial interest in any Restricted Global Note may be
exchanged by any Holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of
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the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such holder
in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar or the Company so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or
(D) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
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(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR
DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Restricted
Definitive Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor or an Affiliate
Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(c) thereof,
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the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall authenticate
and deliver to the Person designated in the instructions a Definitive
Note in the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c) shall be registered in such name or names and in
such authorized denomination or denominations as the Holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note pursuant
to this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial
interest in the Regulation S Temporary Global Note may not be exchanged
for a Definitive Note or transferred to a Person who takes delivery
thereof in the form of a Definitive Note prior to (x) the expiration of
the Distribution Compliance Period and (y) the receipt by the Registrar
of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the
Securities Act, except in the case of a transfer pursuant to an
exemption from the registration requirements of the Securities Act other
than Rule 903 or Rule 904.
(ii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to
a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not
(1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Reg-
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istration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit C hereto, including
the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Note that does not
bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar or the Company so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED DEFINITIVE NOTES. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest
to a Person who takes delivery thereof in the form of a Definitive Note,
then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(iii) shall be registered in such name or names and
in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iii)
shall not bear the Private Placement Legend.
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(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement under
the Securities Act, a certificate to
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the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of
clause (A) above, the appropriate Restricted Global Note, in the case of
clause (B) above, the 144A Global Note, in the case of clause (c) above,
the Regulation S Global Note, and in all other cases, the IAI Global
Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest
in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial interest
in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
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and, in each such case set forth in this subparagraph (D), if the
Registrar or the Company so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note at any time. Upon receipt of a request for such an exchange
or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraph (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR
DEFINITIVE NOTES. Upon request by a Holder of Definitive Notes and such
Holder's compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive Notes. Prior
to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Registrar the Definitive Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant
to the following provisions of this Section 2.06(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Definitive Note if the Registrar receives the following:
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(A) if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. Any Restricted Definitive Note may be exchanged by the Holder
thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration
Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in
item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof
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in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar or the Company so requests, an Opinion of Counsel in
form reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER.
(i) Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate (A) one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for
acceptance by Persons that certify in the applicable Letters of
Transmittal that (1) they are not broker-dealers, (2) they are not
participating in a distribution of the Exchange Notes and (3) they are
not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (B) Unrestricted Definitive Notes in
an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the Exchange Offer
to Persons that make the certifications referred to in (1), (2) and (3)
of the foregoing clause (A). Concurrently with the issuance of such
Notes, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Notes to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to
the Persons designated by the Holders of Definitive Notes so accepted
Unrestricted Definitive Notes in the appropriate principal amount.
(ii) Upon the occurrence of a Private Exchange in accordance
with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate (A) one or more Restricted Global Notes
in an aggregate principal amount equal to the
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principal amount of the beneficial interests in the Restricted Global
Notes tendered for acceptance by Persons who requested such Private
Exchange pursuant to the Registration Rights Agreement and (B)
Restricted Definitive Notes in an aggregate principal amount equal to
the principal amount of the Restricted Definitive Notes tendered for
acceptance by Persons who requested such Private Exchange pursuant to
the Registration Rights Agreement. Concurrently with the issuance of
such Notes, the Trustee shall cause the aggregate principal amount of
the applicable Restricted Global Notes so tendered for acceptance to
be reduced accordingly.
(g) LEGENDS. The following legends shall appear on the face
of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below,
each Global Note and each Definitive Note (and all Notes issued
in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED BY THIS CERTIFICATE WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE U.S. SECURITIES ACT OF 1933, AND THE SECURITY EVIDENCED
BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF REGISTRATION OR AN APPLICABLE EXEMPTION
FROM THE SECURITIES ACT. EACH PURCHASER OF THE SECURITY EVIDENCED BY
THIS CERTIFICATE (1) BY ITS ACQUISITION OF THE SECURITY REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THE SECURITY EVIDENCED BY THIS CERTIFICATE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (C) IT IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR")
THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
AN INSTITUTIONAL ACCREDITED INVESTOR OR (D) IS AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(a)(4) AND EITHER RULE 501(a)(5) OR (6)
UNDER THE SECURITIES ACT WHO IS ACQUIRING THE SECURITY
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FOR HIS OWN ACCOUNT (AN "AFFILIATE ACCREDITED INVESTOR") AND (2) IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR
ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE ISSUER THAT
(X) THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
(1) (A) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, IF AVAILABLE, (C) OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT
A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES
ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING AT
LEAST $100,000 OF NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN
INSTITUTIONAL ACCREDITED INVESTOR (AND BASED UPON AN OPINION OF COUNSEL
IF THE COMPANY SO REQUESTS) OR (E) TO AN AFFILIATE ACCREDITED INVESTOR
WHO IS PURCHASING NOTES FOR HIS OWN ACCOUNT (AND BASED UPON AN OPINION
OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES OR (3) UNDER AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(Y) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE SECURITY, EVIDENCED BY THIS CERTIFICATE OF
THE RESALE RESTRICTIONS DESCRIBED IN (X) ABOVE. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
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TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f)(i)
to this Section 2.06 (and all Notes issued in exchange therefor
or substitution thereof) shall not bear the Private Placement
Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF
THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF NCI BUILDING
SYSTEMS, INC."
(iii) REGULATION S TEMPORARY GLOBAL NOTE LEGEND. The Regulation
S Temporary Global Note shall bear a legend in substantially the
following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY
GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall
be returned to or retained and canceled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial inter-
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est in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction
of the Trustee to reflect such reduction; and if the beneficial interest is
being exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note, such other
Global Note shall be increased accordingly and an endorsement shall be made
on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 3.09, 3.10, 4.10, and 9.05
hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part or (c) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
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(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or the
Company or if the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, then, in the absence of notice to the
Company that the Note has been acquired by a protected purchaser, the Company
shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced. The Company may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Note does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Note; however, Notes held by the
Company or a Subsidiary of the Company shall not be deemed to be outstanding
for purposes of Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstand-
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ing unless the Trustee receives proof satisfactory to it that the replaced
Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary of
the Company or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on
and after that date such Notes shall be deemed to be no longer outstanding
and shall cease to accrue interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company,
shall be considered as though not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of certificated Notes but may have variations that
the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate Definitive Notes in
exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall hold and dispose of canceled Notes (subject to the record retention
requirement of the Exchange Act) in accordance with its document retention
policies in effect from time to time, unless the Company shall direct that
canceled Notes shall be returned to it. The Com-
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pany may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Company shall notify
the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment. The Company shall
fix or cause to be fixed each such special record date and payment date,
PROVIDED that no such special record date shall be less than 10 days prior to
the related payment date for such defaulted interest. At least 15 days
before the special record date, the Company (or, upon the written request of
the Company, the Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
SECTION 2.13. CUSIP NUMBER.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the appropriate CUSIP number(s) shall be included in all
notices of redemption or exchange as a convenience to Holders; PROVIDED that
any such notice may state that no representation is made by the Trustee as to
the correctness or accuracy of any CUSIP number(s) printed in the notice or
on the Notes, and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company shall promptly
notify the Trustee of any change in the CUSIP number.
ARTICLE THREE
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption date,
an Officers' Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii)
the principal amount of Notes to be redeemed and (iv) the redemption price.
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SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a PRO RATA basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate.
In the event of partial redemption by lot, the particular Notes to be
redeemed shall be selected, unless otherwise provided herein, not less than
30 nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples
of $1,000 except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall
mail or cause to be mailed, by first class mail, a notice of redemption to
each Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
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(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that
the Company shall have delivered to the Trustee, at least 45 days prior to
the redemption date, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
SECTION 3.07. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable
on the redemption date at the redemption price. A notice of redemption may
not be conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to
pay the redemption price of and accrued interest on all Notes to be redeemed
on that date. The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of,
and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue
on the Notes or the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to
the Person in whose name such Note was registered at the close of business on
such record date. If any Note called for redemption shall not be so paid
upon surrender for redemption because of the failure of the Company to comply
with the preceding paragraph, interest shall be paid on the unpaid principal,
from the redemption date until such principal is paid, and to the extent
lawful on any interest not paid on such unpaid principal, in each case at the
rate provided in the Notes and in Section 4.01 hereof.
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SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense
of the Company a new Note equal in principal amount to the unredeemed portion
of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) The Notes may not be redeemed prior to May 1, 2004, but
will be redeemable at the option of the Company, in whole or in part, at any
time on or after May 1, 2004, at the redemption prices (expressed as
percentages of principal amount) set forth below, together with accrued and
unpaid interest thereon, including Special Interest, if any, to the
redemption date, if redeemed during the 12-month period beginning May 1 of
the years indicated:
YEAR OPTIONAL REDEMPTION PRICE
---- -------------------------
2004........................... 104.625%
2005........................... 103.083%
2006........................... 101.542%
2007 and thereafter............ 100.000%
(b) Notwithstanding the foregoing, at any time prior to
May 1, 2002, the Company may redeem up to 35% of the sum of (i) the initial
aggregate principal amount of the Notes and (ii) the initial aggregate
principal amount of any Additional Notes with the net cash proceeds of one or
more Equity Offerings at a redemption price equal to 109.250% of the
principal amount thereof, plus accrued and unpaid interest thereon (including
Special Interest), if any, to the redemption date; PROVIDED that (a) 65% of
the sum of (i) the initial aggregate principal amount of Notes issued on the
Issue Date and (ii) the initial aggregate principal amount of any Additional
Notes remains outstanding immediately after the occurrence of such redemption
and (b) such redemption occurs within 90 days of the date of the closing of
any such Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
payments with respect to the Notes.
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SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS
PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an offer to all Holders to purchase
Notes (a "NET PROCEEDS OFFER"), it shall follow the procedures specified
below.
The Net Proceeds Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "OFFER PERIOD"). No
later than five Business Days after the termination of the Offer Period (the
"PURCHASE DATE"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 hereof (the "OFFER AMOUNT")
or, if less than the Offer Amount has been tendered, all Notes tendered in
response to the Net Proceeds Offer. Payment for any Notes so purchased shall
be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at
the close of business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the Net Proceeds Offer.
Upon the commencement of a Net Proceeds Offer, the Company
shall send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Net Proceeds Offer. The Net Proceeds Offer shall be made to
all Holders. The notice, which shall govern the terms of the Net Proceeds
Offer, shall state:
(i) that the Net Proceeds Offer is being made pursuant to
this Section 3.09 and Section 4.10 hereof and the length of time the Net
Proceeds Offer shall remain open;
(j) the Offer Amount, the purchase price and the Purchase
Date;
(k) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(l) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest after the Purchase Date;
(m) that Holders electing to have a Note purchased pursuant
to a Net Pro-
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ceeds Offer may only elect to have all of such Note purchased and may
not elect to have only a portion of such Note purchased;
(n) that Holders electing to have a Note purchased pursuant
to any Net Proceeds Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, to a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(o) that Holders shall be entitled to withdraw their election
if the Paying Agent receives, not later two Business Days prior to the
expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note
purchased;
(p) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall
select the Notes to be purchased on a PRO RATA basis (with such
adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(q) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, PROVIDED, HOWEVER, that each Note
purchased and each new Note issued shall be in an original principal
amount of $1,000 or integral multiples thereof.
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a PRO RATA basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Net Proceeds Offer, or if less than the Offer Amount has been tendered,
all Notes tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The Company, the
Depositary or the Paying Agent, as the case may be, shall promptly (but in
any case not later than five days after the Purchase Date) mail or deliver to
each tendering Holder an amount equal to the purchase price of the Notes
tendered by such Holder and accepted by the Company for purchase, and the
Trustee shall authenticate and mail or deliver (or cause to be transferred by
book entry) a new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered, PROVIDED, HOWEVER, that each
Note purchased and each new Note issued shall be in an original principal
amount of $1,000 or integral multiples thereof. Any Note not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof.
The Company will publicly announce the results of the Net Proceeds Offer on
the Purchase Date.
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Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.10 CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder
of Notes will have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "CHANGE OF CONTROL OFFER") at an
offer price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Special Interest thereon, if any, to the
date of purchase (the "CHANGE OF CONTROL PAYMENT"). Within ten days following
any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Notes on the date specified in such
notice, which date shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the "CHANGE OF CONTROL PAYMENT DATE").
The notice to the Holders shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Change of
Control Offer. Such notice shall state:
(i) that the Change of Control Offer is being made pursuant
to this Section 4.10 and that all Notes tendered and not withdrawn shall
be accepted for payment;
(ii) the amount of the Change of Control Payment and the
Change of Control Payment Date;
(iii) that any Note not tendered shall continue to accrue
interest;
(iv) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date;
(v) that Holders electing to have a Note purchased pursuant
to a Change of Control Offer shall be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day prior to the Change of Control Payment Date;
(vi) that Holders shall be entitled to withdraw their election
if the Paying Agent receives, not later than the second Business Day
prior to the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Notes the Holder delivered for purchase and
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a statement that such Holder is withdrawing his election to have such
Notes purchased;
(vii) that Holders whose Notes are purchased only in part shall
be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered, PROVIDED, HOWEVER, that each Note
purchased and each new Note issued shall be in an original principal
amount of $1,000 or integral multiples thereof; and
(viii) the circumstances and relevant facts regarding such
Change of Control.
(b) On the Change of Control Payment Date, the Company
will, to the extent lawful, (1) accept for payment all Notes or portions
thereof properly tendered pursuant to the Change of Control Offer, (2)
deposit with the Paying Agent an amount equal to the Change of Control
Payment in respect of all Notes or portions thereof so tendered and (3)
deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating the aggregate principal amount
of Notes or portions thereof being purchased by the Company. The Paying Agent
will promptly mail to each Holder of Notes so tendered the Change of Control
Payment for such Notes, and the Company will issue and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; PROVIDED that each such new Note will be in
a principal amount of $1,000 or an integral multiple thereof. The Company
will publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
(c) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of the Notes as a result of a Change of
Control.
(d) Notwithstanding the above, the Company is not required
to make a Change of Control Offer upon a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and otherwise
in compliance with the requirements set forth in this Indenture applicable to
a Change of Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the
due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
interest then due. The Company shall pay all Special Interest, if any, in the
same manner on the dates and in the amounts set forth in the Registration
Rights Agreement.
The Company shall pay interest (including Post-Petition
Interest in any proceeding under any Bankruptcy Law) on overdue principal at
the rate equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; it shall pay interest (including
Post-Petition Interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee
or an Affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Company shall give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and
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of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
SECTION 4.03. REPORTS.
Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company and the
Subsidiary Guarantors will file with the Commission, to the extent such
filings are accepted by the Commission, and will furnish to the Holders all
quarterly and annual reports and other information, documents and reports
that would be required to be filed with the Commission pursuant to Section 13
of the Exchange Act if the Company and the Subsidiary Guarantors were
required to file under such section. In addition, the Company and the
Subsidiary Guarantors will make such information available to prospective
purchasers of the Notes, securities analysts and broker-dealers who request
it in writing. The Company and the Subsidiary Guarantors have agreed that,
for so long as any Notes remain outstanding, they will furnish to the Holders
and to prospective purchasers of Notes designated by the holders of Transfer
Restricted Securities and to broker-dealers, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(r) The Company and each Subsidiary Guarantor (to the
extent that such Subsidiary Guarantors are so required under the TIA) shall
deliver to the Trustee, within 90 days after the end of each fiscal year, an
Officers' Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events
of Default of which he or she may have knowledge and what action the Company
is taking or proposes to take with respect thereto) and that to the best of
his or her knowledge no event has occurred and remains in existence by reason
of which payments on account of the principal of or interest, if any, on the
Notes is prohibited or if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with respect
thereto.
(s) So long as not contrary to the then current
recommendations of the
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American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied
by a written statement of the Company's independent public accountants (who
shall be a firm of established national reputation) that in making the
examination necessary for certification of such financial statements, nothing
has come to their attention that would lead them to believe that the Company
has violated any provisions of Article Four or Article Five hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of
any such violation.
(t) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming
aware of any Default or Event of Default, an Officers' Certificate specifying
such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments,
and governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment would not
have a material adverse effect on Holders.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company and each of the Subsidiary Guarantors covenant (to
the extent that they may lawfully do so) that they shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and the Company and each of the Subsidiary Guarantors (to
the extent that they may lawfully do so) hereby expressly waive all benefit
or advantage of any such law, and covenants that they shall not, by resort to
any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every
such power as though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company will not and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment (except
as permitted below) if at the time of such Restricted Payment:
(i) a Default or Event of Default shall have occurred and be
continuing or
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shall occur as a consequence thereof;
(ii) the Company would be unable to meet the Coverage Ratio
Incurrence Condition; or
(iii) the amount of such Restricted Payment, when added to the
aggregate amount of all other Restricted Payments made after the Issue
Date, exceeds the sum of
(A) 50% of the Company's Consolidated Net Income
(taken as one accounting period) from November 1, 1998 to the end
of the Company's most recently ended fiscal quarter for which
financial statements are publicly available at the time of such
Restricted Payment (or, if such aggregate Consolidated Net Income
shall be a deficit, minus 100% of such aggregate deficit), PLUS
(B) the net cash proceeds from the issuance and sale
(other than to a Subsidiary of the Company) after the Issue Date
of (1) the Company's Capital Stock that is not Disqualified
Capital Stock or (2) debt securities of the Company that have
been converted into the Company's Capital Stock that is not
Disqualified Capital Stock and that is not then held by a
Subsidiary of the Company, PLUS
(C) to the extent that any Restricted Investment that
was made after the Issue Date (other than an Existing Joint
Venture Investment) is sold for cash or otherwise liquidated or
repaid for cash, the sum of (x) cash realized from such sale,
liquidation or repayment of such Restricted Investment (less the
cost of disposition, if any) up to (and not to exceed) the amount
of such Restricted Investment at the time it was made (net of
prior reductions), PLUS (y) 50% of the excess, if any, of the
cash realized from such sale, liquidation or repayment (less the
cost of disposition, if any) over the amount of such Restricted
Investment at the time it was made (net of prior reductions),
PLUS
(D) when an Unrestricted Subsidiary is designated a
Restricted Subsidiary of the Company in accordance with the
definition of "Unrestricted Subsidiary" and becomes a Subsidiary
Guarantor, the sum of (x) the Fair Market Value of all
Investments in such Subsidiary Guarantor immediately following
such designation, up to (and not to exceed) the aggregate amount
of such Investments at the time they were made (to the extent
such Investments reduced the amount available for subsequent
Restricted Payments under this clause (iii) and were not
previously repaid or otherwise reduced), PLUS (y) 50% of the
excess, if any, of such Fair Market Value over the amount of such
Investments at
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the time they were made (to the extent such Investments reduced
the amount available for subsequent Restricted Payments under
this clause (iii) and were not previously repaid or reduced),
PLUS
(E) $7.5 million,
PROVIDED that any amounts that increase the amount available
for Restricted Payments under any subpart of this clause (iii) shall not
duplicatively increase amounts available for Restricted Payments under any
other subpart of this clause (iii) or for Restricted Investments under the
next paragraph.
The foregoing provisions will not prohibit:
(1) the payment by the Company or any Restricted Subsidiary
of any dividend within 60 days after the date of declaration thereof, if
at said date of declaration such payment would have complied with the
provisions of this Indenture;
(2) the redemption, repurchase, retirement or other
acquisition of any Capital Stock of the Company or any Restricted
Subsidiary in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to a Subsidiary of the Company) of other
Capital Stock of the Company (other than any Disqualified Capital
Stock);
(3) the defeasance, redemption, repurchase or other
retirement of Subordinated Indebtedness of the Company or any Restricted
Subsidiary in exchange for, or out of the proceeds of, the substantially
concurrent issue and sale of Capital Stock of the Company (other than
(x) Disqualified Capital Stock, (y) Capital Stock sold to a Subsidiary
of the Company and (z) Capital Stock purchased with the proceeds of
loans from the Company or any of its Subsidiaries);
(4) the defeasance, redemption, repurchase or other
retirement of Subordinated Indebtedness in exchange for, or out of the
proceeds of, the substantially concurrent issue and sale of Refinancing
Indebtedness permitted to be incurred under Section 4.09 hereof and the
other terms of this Indenture;
(5) the making of a Related Business Investment in joint
ventures or Subsidiaries that are not Subsidiary Guarantors in exchange
for or out of the proceeds of the substantially concurrent issue and
sale of Capital Stock of the Company (other than (x) Disqualified
Capital Stock, (y) Capital Stock sold to a Subsidiary of the Company and
(z) Capital Stock purchased with the proceeds of loans from the Company
or any of its Subsidiaries);
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(6) the making of (a) Related Business Investments in joint
ventures or Subsidiaries that are not Subsidiary Guarantors in an
aggregate amount not to exceed the aggregate amount realized in cash by
the Company or any of the Subsidiary Guarantors after the Issue Date in
respect of (or the Fair Market Value of any Investment (other than an
Investment in Debt incurred in connection with or in anticipation of
such transaction) in a joint venture engaged in any Related Business
received by the Company or any Subsidiary Guarantor in exchange for) a
Qualifying Joint Venture Investment, less the cost of disposition, if
any, when such Investments are sold for cash or otherwise liquidated or
repaid for cash (or exchanged for such Investment), but in each case
only to the extent the Company elects not to take such amounts into
account for purpose of calculating amounts available for Restricted
Payments under clause (iii) of the immediately preceding paragraph, and
(b) Existing Joint Venture Investments;
(7) the purchase, redemption, acquisition, cancellation or
other retirement for value of shares of Capital Stock of the Company
held by Officers, directors or employees or former Officers, directors
or employees (or their transferees, estates or beneficiaries under their
estates), upon death, disability, retirement, severance or termination
of employment or service or pursuant to any agreement under which such
shares of Capital Stock or related rights were issued; PROVIDED that the
aggregate cash consideration paid for all such purchases, redemptions,
acquisitions, cancellations or other retirements of such shares of
Capital Stock (a) during any calendar year does not exceed $2.5 million
(with unused amounts in any calendar year being usable in all subsequent
calendar years) and (b) during the period from the Issue Date through
the maturity date of the Notes does not exceed $7.5 million;
(8) payments to holders of Common Equity of the Company (a)
in lieu of the issuance of fractional shares of Common Equity, (b) to
redeem or repurchase stock purchase or similar rights issued as a
shareholder rights device and (c) to repurchase shares of Common Equity
of the Company from holders who hold less than 100 shares in each
instance;
(9) any Investments in a Receivables Subsidiary in connection
with a Qualifying Receivables Facility;
(10) the prepayment, purchase, redemption, defeasance or other
acquisition or retirement of Subordinated Indebtedness (other than
Subordinated Indebtedness held by Affiliates of the Company) upon a
Change of Control or Asset Sale to the extent required by the agreement
governing such Subordinated Indebtedness, but only (x) if the Company
shall have complied with Section 3.09, 3.10 or 4.10 hereof, as the case
may be, and repurchased all Notes tendered pursuant to the offer
required by such Sections prior to prepaying or otherwise acquiring or
retiring such Subordinated In-
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debtedness, (y) in the case of an Asset Sale, to the extent of the
Excess Proceeds remaining after the offer to Holders and Pari Passu
Indebtedness required by Section 3.09 and 4.10 hereof is consummated
and (z) within 60 days of the date such offer is consummated; or
(11) Related Business Investments the aggregate amount of
which (excluding the amount of any Existing Joint Venture Investments),
together with the amount of all other Restricted Investments made
pursuant to this clause (11) after the Issue Date (including the initial
amount of any such Restricted Investments subsequently taken into
account for purposes of clause (6)(a) above), does not exceed
$12.5 million at any time outstanding;
PROVIDED that, in the case of any Restricted Payment pursuant
to any of the foregoing clauses (3) through (11), no Default or Event of
Default shall have occurred and be continuing or occur as a consequence of
the actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding
paragraph (other than the Restricted Payments referred to in clauses (2),
(3), (4) and (5) thereof) shall be included once in calculating whether the
conditions of clause (iii) of the second preceding paragraph have been met
with respect to any subsequent Restricted Payments. If an issuance of
Capital Stock of the Company is applied to make a Restricted Payment pursuant
to clause (2), (3) or (5) above, then, in calculating whether the conditions
of clause (iii) of the second preceding paragraph have been met with respect
to any subsequent Restricted Payments, the proceeds of any such issuance
shall be included under such clause (iii) only to the extent such proceeds
are not applied as so described in this sentence. For purposes of
determining compliance with this Section 4.07, in the event that a
transaction meets the criteria of more than one of the types of Restricted
Payments described in the clauses of the immediately preceding paragraph or
any clause of the definition of "Restricted Payment," the Company, in its
sole discretion, shall classify such transaction and only be required to
include the amount and type of such transaction in one of such clauses.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment is permitted and setting forth the basis upon which
the calculations required by this Section 4.07 were computed, which
calculations shall be based upon the Company's latest available financial
statements.
SECTION 4.08. RESTRICTIONS ON DISTRIBUTIONS FROM RESTRICTED
SUBSIDIARIES.
The Company will not, and will not permit any of its
Restricted Subsidiaries
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to, create or otherwise cause or suffer to exist or become effective any
consensual Payment Restriction with respect to any of its Restricted
Subsidiaries, except for:
(a) any such Payment Restriction in effect on the Issue
Date under the Credit Agreement or any similar Payment Restriction under any
other Credit Facility (whether or not in effect on the Issue Date) or any
amendment, restatement, renewal, replacement or refinancing of any of the
foregoing; PROVIDED that such similar Payment Restrictions are not, taken as
a whole, more restrictive than the Payment Restrictions in effect on the
Issue Date under the Credit Agreement;
(b) any such Payment Restriction under any agreement
evidencing any Acquired Indebtedness that was permitted to be incurred
pursuant to this Indenture in effect at the time of such incurrence and not
created in contemplation of such event; PROVIDED that such Payment
Restriction only applies to assets that were subject to such restriction and
encumbrances prior to the acquisition of such assets by the Company or its
Subsidiaries;
(c) any such Payment Restriction arising in connection with
Refinancing Indebtedness; PROVIDED that any such Payment Restrictions that
arise under such Refinancing Indebtedness are not, taken as a whole, more
restrictive than those under the agreement creating or evidencing the
Indebtedness being refunded or refinanced;
(d) any Payment Restriction created pursuant to an asset
purchase agreement, stock sale agreement or similar instrument pursuant to
which a bona-fide Asset Sale is to be consummated, the proceeds of which are
applied as provided in this Indenture, so long as such restriction or
encumbrance shall apply only to the assets subject to such Asset Sale and
shall be effective only for a period from the execution and delivery of such
agreement or instrument through the earlier of the consummation of such Asset
Sale or the termination of such agreement or instrument;
(e) customary nonassignment provisions of any lease
governing any leasehold interest of the Company or any Restricted Subsidiary;
(f) any Payment Restriction existing under or by reason of
applicable law;
(g) any Payment Restriction imposed pursuant to an
agreement that has been entered into for the sale of all or substantially all
of the Capital Stock of a Restricted Subsidiary; and
(h) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the type referred to
in clause (d) of the definition of "Payment Restriction."
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SECTION 4.09. LIMITATION ON ADDITIONAL INDEBTEDNESS
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness); PROVIDED that (i) the Company and its
Restricted Subsidiaries may incur Permitted Indebtedness and (ii) the Company
may incur additional Indebtedness if, after giving effect thereto, the
Company's Consolidated Interest Coverage Ratio on the date thereof would be
at least 2.0 to 1, determined on a PRO FORMA basis as if the incurrence of
such additional Indebtedness, and the application of the net proceeds
therefrom, had occurred at the beginning of the four-quarter period used to
calculate the Company's Consolidated Interest Coverage Ratio.
SECTION 4.10. ASSET SALES.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate any Asset Sale unless:
(i) the Company or such Restricted Subsidiary receives
consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the assets included in such Asset Sale (evidenced by the
delivery by the Company to the Trustee of an Officers' Certificate
certifying that such Asset Sale complies with this clause (i));
(ii) immediately before and immediately giving effect to such
Asset Sale, no Default or Event of Default shall have occurred and be
continuing, and
(iii) all of the consideration received by the Company or such
Restricted Subsidiary therefor is in the form of cash paid at the
closing thereof, PROVIDED that the Company shall be permitted to receive
property and securities other than cash so long as the aggregate Fair
Market Value of all such property and securities received in Asset Sales
and held by the Company and its Restricted Subsidiaries at any one time
(exclusive of amounts, property, assets or Investments referred to in
paragraph (b) below) does not exceed 5% of Consolidated Tangible Assets.
(b) The (x) amount (without duplication) of any Indebtedness
(other than Subordinated Indebtedness) of the Company or such Restricted
Subsidiary that is expressly assumed by the transferee in such Asset Sale and
with respect to which the Company or such Restricted Subsidiary, as the case may
be, is unconditionally released by the holder of such Indebtedness, (y) amount
of any Cash Equivalents, or other notes, securities or items of property
received from such transferee that are within 30 days converted by the Company
or such Restricted Subsidiary to cash (to the extent of the cash actually so
received), and (z) the Fair Market Value of any property or assets of any
Related Business (or any Investment in a joint venture engaged in any such
Related Business, other than an Investment in Indebtedness in-
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curred in connection with or in anticipation of such transaction) received by
the Company or any Restricted Subsidiary in exchange for similar property or
assets (or a joint venture Investment in a Person holding any such similar
property or assets) and to be used in any Related Business of the Company or
such Restricted Subsidiary, shall be deemed to be cash for purposes of clause
(iii) of paragraph (a) above (but not Net Available Proceeds for purposes of
paragraph (c) below) and, in the case of clause (x) above, shall also be
deemed to constitute a repayment of, and a permanent reduction in, the amount
of such Indebtedness (or any commitment) for purposes of the following
paragraph (c). If at any time any non-cash consideration received by the
Company or any Restricted Subsidiary of the Company, as the case may be, in
connection with any Asset Sale is repaid or converted into or sold or
otherwise disposed of for cash (other than interest received with respect to
any such non-cash consideration), then the date of such repayment, conversion
or disposition shall be deemed to constitute the date of an Asset Sale
hereunder and the Net Available Proceeds thereof shall be applied in
accordance with this Section.
(c) If the Company or any Restricted Subsidiary engages in
an Asset Sale, the Company or such Restricted Subsidiary shall, no later than
one year after such Asset Sale,
(i) apply all or any of the Net Available Proceeds therefrom
to repay amounts outstanding under the Credit Agreement or any other
Senior Indebtedness; PROVIDED, in each case, that the related loan
commitment (if any) is thereby permanently reduced by the amount of such
Indebtedness so repaid and/or
(ii) invest (or enter into a legally binding agreement to
invest) all or any part of the Net Available Proceeds thereof in the
purchase of fixed assets to be used by the Company and its Restricted
Subsidiaries in a Related Business (together with any short-term assets
incidental thereto), or the making of a Related Business Investment,
PROVIDED, HOWEVER, that in the case of any such legally binding
agreement to invest proceeds of an Asset Sale, such Investment is made
no later than one year after such agreement is entered into.
The amount of such Net Available Proceeds not applied or invested
as provided in this paragraph (c) will constitute "EXCESS PROCEEDS."
(d) When the aggregate amount of Excess Proceeds equals or
exceeds $10.0 million, the Company will be required to make an offer to
purchase, from all holders of the Notes and, if applicable, prepay, purchase or
redeem (or make an offer to do so) any Pari Passu Indebtedness of the Company
the provisions of which require the Company to prepay, purchase or redeem such
Indebtedness with the proceeds from any Asset Sales (or offer to do so), in an
aggregate principal amount of Notes and such Pari Passu Indebtedness equal to
the amount of such Excess Proceeds as follows:
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(i) The Company will (1) make a Net Proceeds Offer to all
Holders in accordance with the procedures set forth in Section 3.09
hereof, and (2) prepay, purchase or redeem (or make an offer to do so)
any such other Pari Passu Indebtedness, PRO RATA in proportion to the
respective principal amounts of the Notes and such other Indebtedness
required to be prepaid, purchased or redeemed or tendered for, the
maximum principal amount (expressed as a multiple of $1,000) of Notes
and Pari Passu Indebtedness that may be purchased, prepaid or redeemed
out of the amount (the "PAYMENT AMOUNT") of such Excess Proceeds.
(ii) The offer price for the Notes will be payable in cash in
an amount equal to 100% of the principal amount of the Notes tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest
(including Special Interest) thereon, if any, to the date such Net
Proceeds Offer is consummated (the "OFFERED PRICE"), in accordance with
the procedures set forth in this Indenture and the prepayment,
redemption, purchase or offer price for such Pari Passu Indebtedness
(the "PARI PASSU INDEBTEDNESS PRICE") shall be as set forth in the
related documentation governing such Indebtedness. To the extent that
the sum of the aggregate Offered Price of Notes tendered pursuant to a
Net Proceeds Offer and the aggregate Pari Passu Indebtedness Price paid
to the holders of such Pari Passu Indebtedness is less than the Payment
Amount relating thereto (such shortfall constituting a "NET PROCEEDS
DEFICIENCY"), the Company may use such Net Proceeds Deficiency, or a
portion thereof, for general corporate purposes, subject to the
limitations of Section 4.07 hereof.
(iii) If the aggregate Offered Price of Notes validly tendered
and not withdrawn by holders thereof exceeds the PRO RATA portion of the
Payment Amount allocable to the Notes, Notes to be purchased will be
selected on a PRO RATA basis.
(iv) Upon completion of such Net Proceeds Offer in accordance
with the foregoing provisions, the amount of Excess Proceeds with
respect to which such Net Proceeds Offer was made shall be deemed to be
zero.
The Company will not permit any Restricted Subsidiary to enter
into or suffer to exist any agreement that would place any restriction of any
kind (other than pursuant to law or regulation) on the ability of the Company to
make a Net Proceeds Offer following any Asset Sale. The Company will comply
with applicable tender offer rules, including the requirements of Rule 14e-1
under the Exchange Act and any other applicable laws and regulations in the
event that an Asset Sale occurs and the Company is required to purchase Notes as
described above.
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SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, in one transaction or a
series of related transactions, sell, lease, transfer or otherwise dispose of
any of its properties or assets to, or purchase any property or assets from
or enter into any contract, agreement, understanding, loan, advance or
Guarantee with, or for the benefit of, any Affiliate (each of the foregoing,
an "AFFILIATE TRANSACTION"), unless:
(a) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or
such Restricted Subsidiary with an unrelated Person; and
(b) the Company delivers to the Trustee:
(i) with respect to any Affiliate Transaction (or series of
related transactions) involving aggregate payments in excess of
$5.0 million, an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and a Secretary's Certificate
which sets forth and authenticates a Board Resolution that has been
adopted by a vote of a majority of the Independent Directors approving
such Affiliate Transaction or, if at the time fewer than three
Independent Directors are then in office, a Secretary's Certificate
which sets forth and authenticates a Board Resolution that has been
adopted unanimously by the Board of Directors; and
(ii) with respect to any Affiliate Transaction (or series of
related transactions) involving aggregate payments of $10.0 million or
more, the certificates described in the preceding clause (a) and an
opinion as to the fairness to the Company or such Restricted Subsidiary
from a financial point of view issued by an Independent Financial
Advisor;
PROVIDED, HOWEVER, that the following shall not be deemed to be
Affiliate Transactions:
(1) transactions exclusively between or among (1) the Company
and one or more Restricted Subsidiaries or (2) Restricted Subsidiaries;
PROVIDED, in each case, that no Affiliate of the Company (other than
another Restricted Subsidiary) owns Capital Stock of any such Restricted
Subsidiary;
(2) transactions between the Company or any Restricted
Subsidiary and any qualified employee stock ownership plan established
for the benefit of the Company's employees, or the establishment or
maintenance of any such plan;
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(3) reasonable director, Officer and employee compensation
and other benefits (including retirement, health and other benefit
plans), and indemnification arrangements, in each case approved by a
majority of the Independent Directors on the Board of Directors;
(4) Restricted Payments permitted by Section 4.07 hereof
(other than Investments covered by clause (1) above or clause (8)
below);
(5) the pledge of Capital Stock of Unrestricted Subsidiaries
to support the Indebtedness thereof;
(6) the entering into of a tax sharing agreement, or payments
pursuant thereto, between the Company and/or one or more Subsidiaries,
on the one hand, and any other Person with which the Company or such
Subsidiaries are required or permitted to file a consolidated tax return
or with which the Company or such Subsidiaries are part of a
consolidated group for tax purposes, on the other hand, which payments
by the Company and its Restricted Subsidiaries are not in excess of the
tax liabilities that would have been payable by them on a stand-alone
basis;
(7) commission, travel and similar advances to Officers and
employees made in the ordinary course of business and on customary
terms;
(8) transactions exclusively between (1) the Company or any
Restricted Subsidiary and (2) any joint venture or a Subsidiary;
PROVIDED, in each case, that no Affiliate of the Company (other than a
Restricted Subsidiary) owns Capital Stock of any such joint venture or
Subsidiary;
(9) the purchase of structural bolts from Southwest Bolt,
Inc. on terms that are no less favorable to the Company or the relevant
Restricted Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted Subsidiary with
an unrelated Person; and
(10) transactions pursuant to agreements entered into or in
effect on the Issue Date and described on Schedule I to this Indenture,
including amendments, renewals and extensions thereof entered into after
the Issue Date, PROVIDED that the terms of any such amendment, renewal
or extension are not, in the aggregate, less favorable to the Company or
such Restricted Subsidiary than the terms of such agreement prior to
such amendment, renewal or extension.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, di-
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rectly or indirectly, incur or permit to exist any Lien of any nature
whatsoever on any property of the Company or any Restricted Subsidiary
(including Capital Stock of a Restricted Subsidiary), whether owned at the
Issue Date or thereafter acquired, which secures Indebtedness that is not
Senior Indebtedness or secures trade payables, unless contemporaneously
therewith effective provision is made to secure the Notes equally and ratably
with (or if such Lien secures Indebtedness that is subordinated to the Notes,
prior to) such Indebtedness or trade payables so long as such Indebtedness or
trade payables are secured by a Lien.
The foregoing restrictions shall not apply to:
(i) Liens existing on the Issue Date securing Indebtedness
outstanding on the Issue Date;
(ii) Liens in favor of the Company or a Subsidiary Guarantor;
(iii) Liens to secure Non-Recourse Purchase Money Indebtedness
referred to in clause (viii) of the definition of "Permitted
Indebtedness," provided such Liens are limited to the assets acquired
with the proceeds of such Indebtedness;
(iv) Liens securing Acquired Indebtedness permitted to be
incurred under this Indenture; PROVIDED that the Liens do not extend to
property or assets not subject to such Lien at the time of acquisition
(other than improvements thereon);
(v) Liens on property of a Person existing at the time such
Person is acquired or merged with or into or consolidated with the
Company or any such Restricted Subsidiary (and not created in
anticipation or contemplation thereof);
(vi) Liens to secure Refinancing Indebtedness of Indebtedness
secured by Liens referred to in the foregoing clauses (i), (iii),
(iv) and (v); PROVIDED that in each case such Liens do not extend to any
additional property or assets (other than improvements thereon);
(vii) any Lien securing the payment of workers' compensation or
other insurance;
(viii) good faith deposits in connection with tenders,
leases or contracts (other than contracts for the payment of money) or
to secure public or statutory obligations, or in lieu of surety or
appeal bonds with respect to matters not yet finally determined and
being contested in good faith by appropriate proceedings;
(ix) Liens on Receivables to reflect sales of Receivables to
and by a Receivables Subsidiary pursuant to a Receivables Facility; or
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(x) Liens arising by operation of law in favor of mechanics,
materialmen, laborers, employees or suppliers (including under Article 2
of the Uniform Commercial Code), incurred in the ordinary course of
business for sums which are not yet delinquent or are being contested in
good faith by appropriate proceedings.
SECTION 4.13 CORPORATE EXISTENCE.
Subject to Article Five hereof, the Company shall do or cause
to be done all things necessary to preserve and keep in full force and effect
(i) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of it
or any such Subsidiary and (ii) the rights (charter and statutory), licenses
and franchises of it and its Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the Company's business and
that of its Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
SECTION 4.14 LIMITATION ON ISSUANCES AND SALES OF CAPITAL
STOCK IN RESTRICTED SUBSIDIARIES
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, sell or issue any shares of Capital
Stock of any Restricted Subsidiary (including options, warrants or other
rights to purchase shares of such Capital Stock) except (i) to the Company or
a Wholly-Owned Restricted Subsidiary, (ii) subject to compliance with Section
4.10 hereof, a Permitted Sale or Issuance, or (iii) to the extent such shares
represent directors' qualifying shares or shares required by applicable law
to be held by a Person other than the Company or a Wholly-Owned Restricted
Subsidiary. The proceeds of any sale or issuance of Capital Stock permitted
hereunder and referred to in clauses (ii) or (iii) above will be treated as
Net Available Proceeds and must be applied in a manner consistent with the
provisions of Section 4.10 hereof, to the extent such transaction constitutes
an Asset Sale.
The Company will not permit any of its Restricted Subsidiaries
to issue any Preferred Stock (other than to the Company or a Wholly-Owned
Restricted Subsidiary) or permit any Person (other than the Company or a
Wholly-Owned Restricted Subsidiary) to own or hold any interest in any
Preferred Stock of any such Subsidiary unless such Restricted Subsidiary
would be permitted to incur (i) Permitted Indebtedness under clause (x) of
the definition thereof in an aggregate principal amount equal to the
aggregate liquidation value of such Preferred Stock or (ii) other
Indebtedness under clause (ii) of Section 4.09 hereof.
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SECTION 4.15. LIMITATION ON LAYERING.
The Company will not incur, directly or indirectly, any
Indebtedness that is subordinate or junior in ranking in right of payment to
its Senior Indebtedness unless such Indebtedness by its terms is PARI PASSU
with or is expressly subordinated in right of payment to the Notes. In
addition, each Subsidiary Guarantor will not incur, directly or indirectly,
any Indebtedness that is subordinate or junior in ranking in right of payment
to its Subsidiary Guarantor Senior Indebtedness unless such Indebtedness by
its terms is PARI PASSU with or is expressly subordinated in right of payment
to the Subsidiary Guarantees.
SECTION 4.16. ADDITIONAL SUBSIDIARY GUARANTEES.
If the Company or any of its Subsidiaries shall acquire or
create another Subsidiary (other than (x) a Foreign Subsidiary that has not
Guaranteed any Indebtedness of the Company or any of the Subsidiary
Guarantors or (y) a Subsidiary that has been designated as an Unrestricted
Subsidiary), then such newly acquired or created Subsidiary will be required
to execute a supplemental indenture substantially in the form attached hereto
as Exhibit F and a Subsidiary Guarantee, in accordance with Article Ten
hereof.
Upon execution of any such supplemental indenture providing
for a Subsidiary Guarantee, the relevant Subsidiary will deliver to the
Trustee an Opinion of Counsel (including opinions of local counsel in the
relevant jurisdictions) relating to such Subsidiary, the authorization and
enforceability of such Subsidiary Guarantee in accordance with the terms
hereof, subject to the effect of applicable bankruptcy, insolvency or similar
laws affecting creditors rights generally and equitable principles of general
applicability, and the other matters covered by the opinions rendered with
respect to the initial Subsidiary Guarantors and their respective Subsidiary
Guarantees on the Issue Date, in each case substantially similar in scope and
form to such opinions rendered on the Issue Date.
ARTICLE FIVE
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company will not, in a single transaction or a series of
related transactions, (a) consolidate or merge with or into (other than a
merger with a Wholly-Owned Restricted Subsidiary solely for the purpose of
changing the Company's jurisdiction of incorporation to another State of the
United States or the District of Columbia), or sell, lease, transfer, convey
or otherwise dispose of or assign all or substantially all of the assets of
the Company
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or the Company and its Subsidiaries (taken as a whole), or assign any of its
obligations under the Notes and this Indenture, to any Person or (b) adopt a
Plan of Liquidation unless, in either case:
(i) the Person formed by or surviving such consolidation or
merger (if other than the Company) or to which such sale, lease, conveyance
or other disposition or assignment shall be made (or, in the case of a Plan
of Liquidation, any Person to which assets are transferred) (collectively,
the "SUCCESSOR"), is a corporation organized and existing under the laws of
any State of the United States of America or the District of Columbia, and
the Successor assumes by supplemental indenture in a form satisfactory to the
Trustee all of the obligations of the Company under the Notes, this Indenture
and the Registration Rights Agreement;
(ii) immediately prior to and immediately after giving
effect to such transaction and the assumption of the obligations as set forth
in clause (i) above and the incurrence of any Indebtedness to be incurred in
connection therewith, no Default or Event of Default shall have occurred and
be continuing;
(iii) immediately after and giving effect to such transaction
and the assumption of the obligations set forth in clause (i) above and the
incurrence of any Indebtedness to be incurred in connection therewith, and
the use of any net proceeds therefrom on a pro forma basis, (1) the
Consolidated Net Worth of the Company or the Successor, as the case may be,
would be at least equal to the Consolidated Net Worth of the Company
immediately prior to such transaction and (2) the Company or the Successor,
as the case may be, could meet the Coverage Ratio Incurrence Condition; and
(iv) each Subsidiary Guarantor, unless it is the other party
to the transactions described above, shall have by amendment to its Guarantee
confirmed that its Guarantee of the Notes shall apply to the obligations of
the Company or the Successor under the Notes and this Indenture.
For purposes of this Section, any Indebtedness of the
Successor which was not Indebtedness of the Company immediately prior to the
transaction shall be deemed to have been incurred in connection with such
transaction.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all
of the assets of the Company in accordance with Section 5.01 hereof, the
Successor formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance
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or other disposition is made shall succeed to, and be substituted for (so
that from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture referring
to the "Company" shall refer instead to the Successor and not to the
Company), and may exercise every right and power of the Company under this
Indenture with the same effect as if such successor had been named as the
Company herein; PROVIDED, HOWEVER, that the predecessor Company shall not be
relieved from the obligation to pay the principal of and interest on the
Notes except in the case of a sale of all of the Company's assets that meets
the requirements of Section 5.01 hereof.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "EVENT OF DEFAULT"
(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 and whether or not by operation of
Section 10.05 or 11.05 hereof):
(i) failure by the Company to pay interest (including
Special Interest) on any of the Notes when it becomes due and payable and the
continuance of any such failure for 30 days;
(ii) failure by the Company to pay the principal or premium,
if any, on any of the Notes when it becomes due and payable, whether at
stated maturity, upon redemption, upon repurchase, upon acceleration or
otherwise;
(iii) failure by the Company to comply with Sections 3.09,
3.10, 4.10, and 5.01 hereof, respectively;
(iv) failure by the Company to comply with any other
covenant in this Indenture and continuance of such failure for 30 days after
notice of such failure has been given to the Company by the Trustee or by the
Holders of at least 25% of the aggregate principal amount of the Notes then
outstanding;
(v) failure by either the Company or any of its Restricted
Subsidiaries to make any payment when due after the expiration of any
applicable grace period, in respect of any Indebtedness of the Company or any
of such Subsidiaries, or the acceleration of the ma-
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turity of such Indebtedness by the holders thereof because of a default,
PROVIDED that the aggregate amount unpaid or accelerated, for all such
Indebtedness under this clause (v), equals $20.0 million or more;
(vi) one or more judgments or orders that exceed $20.0
million in the aggregate (net of amounts covered by insurance or bonded) for
the payment of money have been entered by a court or courts of competent
jurisdiction against the Company or any Subsidiary of the Company and such
judgment or judgments have not been satisfied, stayed, annulled or rescinded
within 60 days of being entered;
(vii) the Company or any of its Significant Subsidiaries:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it
in an involuntary case,
(3) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(4) makes a general assignment for the benefit of its
creditors, or
(5) generally is not paying its debts as they become due; or
(viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(1) is for relief against the Company or any of its
Significant Subsidiaries;
(2) appoints a custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of the property
of the Company or any of its Significant Subsidiaries; or
(3) orders the liquidation of the Company or any of its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days.
(ix) except as permitted by Section 10.16 hereof, any
Subsidiary Guarantee of any Significant Subsidiary ceases to be in full force
and effect or any Subsidiary Guarantor repudiates its obligations under any
Subsidiary Guarantee.
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SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default
specified in clause (vii) or (viii) of Section 6.01 hereof), has occurred and
is continuing, the Trustee, by written notice to the Company, or the Holders
of at least 25% in aggregate principal amount of the Notes then outstanding
by written notice to the Company and the Trustee may declare all amounts
owing under the Notes to be due and payable immediately. Upon such
declaration of acceleration, the aggregate principal of, premium, if any, and
interest on the outstanding Notes shall immediately become due and payable.
If an Event of Default specified in clause (vii) or (viii) of Section 6.01
hereof occurs, all outstanding Notes shall become due and payable without any
further action or notice.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium,
if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes by notice to the Trustee may on behalf
of the Holders of all of the Notes waive an existing Default or Event of
Default and its consequences hereunder, except (i) a continuing Default or
Event of Default in the payment of the principal of, premium, interest and
Special Interest, if any, on the Notes (including in connection with an offer
to purchase), or (ii) any Default or Event of Default in respect of a
provision that under Article Nine hereof cannot be waived without the consent
of each Holder affected thereby. 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 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy
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available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture that the Trustee determines may be unduly prejudicial
to the rights of other Holders or that may involve the Trustee in personal
liability.
SECTION 6.06. LIMITATION ON SUITS.
Holders may not enforce this Indenture or the Notes except as
provided in this Indenture. A Holder may pursue a remedy with respect to
this Indenture or the Notes only if:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue
the remedy;
(c) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal, premium and Special Interest, if
any, and interest on the Note, on or after the respective due dates expressed in
the Note (including in connection with an offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as Trustee of an express trust against the Company or any
Subsidiary Guarantor for the whole amount of prin-
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cipal of, premium, interest and Special Interest, if any, remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes, including any Subsidiary
Guarantor), its creditors or its property and shall be entitled and empowered
to collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof
out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of,
any and all distributions, dividends, money, securities and other properties
that the Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, interest and Special Interest, if any, ratably,
without preference or priority of
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any kind, according to the amounts due and payable on the Notes for
principal, premium, interest and Special Interest, if any, respectively;
and
THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If 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, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed
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therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) 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
(iii) 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 received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under
this Indenture at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or
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any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within
the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(f) Except in connection with compliance with TIA Sections
310 and 311, the Trustee shall only be charged with knowledge of Responsible
Officers.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as Trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and
7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Company's use of the proceeds from the
Notes or any money paid to the Company or upon the Company's direction under
any provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of
the Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders a notice of
the Default or Event of Default
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within 90 days after it occurs. The Trustee may withhold from the Holders
notice of any continuing Default (except any Default in payment of principal
of, premium, if any, or interest on the Notes) if the Trustee determines that
withholding such notice is in the Holders' interest.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse
the Trustee promptly upon request for all reasonable disbursements, advances
and expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith. The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without
its consent, which consent shall not be unreasonably withheld.
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The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal
and interest on particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(vii) or (viii) hereof occurs, the
expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under applicable Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under
applicable Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
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If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10,
such Holder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to the Holders. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, PROVIDED all
sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall
be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States
of America or of any state thereof that is authorized under such laws to
exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has, or is a direct or
indirect wholly-owned subsidiary of a bank holding company that has, a
combined capital and surplus of at least $100.0 million as set forth in its
most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject
to TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship
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listed in TIA Section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE EIGHT
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at the option of the Board of Directors
evidenced by Board Resolutions set forth in an Officers' Certificate, at any
time, elect to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article Eight.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"LEGAL DEFEASANCE"). For this purpose, Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in (i) below, and to have satisfied
all its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for (i) the obligations of the
Company under Sections 2.03, 2.04, 2.06 and 2.07, (ii) the rights, powers,
trusts, duties and immunities of the Trustee and the Company's obligations in
connection therewith and (iii) the Legal Defeasance provisions of this
Indenture. Subject to compliance with this Article Eight, the Company may
exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under Sections 3.09, 3.10, 4.03, 4.05, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.14, 4.15 and 5.01(iii) hereof with respect to the
out-
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standing Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of the Holders (and the consequences of
any thereof) in connection with such Sections, but shall continue to be
deemed "outstanding" for all other purposes hereunder (it being understood
that such Notes shall not be deemed outstanding for accounting purposes).
For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant 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 6.01 hereof, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
(i) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the written opinion of a nationally
recognized firm of independent public accountants delivered to the
Trustee, to pay the principal of, premium, if any, and interest and
Special Interest, if any, on the outstanding Notes on the stated
maturity or on the applicable redemption date, as the case may be, and
the Company must specify whether the Notes are being defeased to
maturity or to a particular redemption date;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming 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 Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
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 Legal Defeasance had not occurred;
(iii) in the case of Covenant Defeasance, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the
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Trustee confirming that the Holders of the outstanding Notes 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;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the effective
date of such defeasance;
(v) such Legal Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound;
(vi) the Company must have delivered to the Trustee, at or
prior to the effective date of such defeasance an Opinion of Counsel to
the effect that at the effective date of such defeasance, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(vii) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that funds deposited under (i) above
(1) will not violate the Investment Company Act of 1940 and (2) subject
to customary qualifications, (a) will not be subject to the effect of
Section 547 of the United States Bankruptcy Code and (b) after the 91st
day following the deposit, will not be part of any "estate" formed by
the bankruptcy or reorganization of the Company or any Subsidiary
Guarantor or subject to the "automatic stay" under the United States
Bankruptcy Code or, in the case of Covenant Defeasance, will be subject
to a first priority Lien in favor of the Trustee for the benefit of the
Holders;
(viii) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company or any Subsidiary Guarantor with the intent of defeating,
hindering, delaying or defrauding creditors of the Company or any
Subsidiary Guarantor or others; and
(ix) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to
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the Legal Defeasance or the Covenant Defeasance have been complied
with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
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 cash or
non-callable Government Securities deposited pursuant to Section 8.04 hereof
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
the outstanding Notes.
Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the request of the Company any money or non-callable Government
Securities held by it as provided in Section 8.04 hereof which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee (which
may be the opinion delivered under Section 8.04(a) hereof), are in excess of
the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of,
premium, if any, or interest on any Note and remaining unclaimed for two
years after such principal, and premium, if any, or interest has become due
and payable shall be paid to the Company on its request or (if then held by
the Company) shall be discharged from such trust; and the Holder of such Note
shall thereafter, as a secured creditor, look only to the Company for payment
thereof, unless an abandoned property law designates another Person, 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 pub-
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lished once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with
Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time
as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; PROVIDED,
HOWEVER, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section 9.02 of this Indenture, the Company,
the Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture, the Guarantees of the Notes or the Notes without the consent of
any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's
obligations to Holders in the case of a merger or acquisition pursuant
to Section 5.01 hereof;
(d) to make any change that would not adversely affect the
rights hereunder of any Holder;
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(e) to allow any Subsidiary to execute a supplemental
indenture and/or a Subsidiary Guarantee with respect to the Notes
pursuant to Article Ten hereof; and
(f) to release any Subsidiary Guarantor from any of its
obligations under its Subsidiary Guarantee pursuant to Article Ten
hereof.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Except as provided below in this Section 9.02, the Company,
the Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture (including Sections 3.09, 3.10 and 4.10 hereof), the Guarantees of
the Notes and the Notes with the consent of the Holders of at least a
majority in principal amount of the Notes (including Additional Notes, if
any) then outstanding voting as a single class (including consents obtained
in connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default
or Event of Default (other than a Default or Event of Default in the payment
of the principal of, premium, if any, or interest on the Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture, the Guarantees of the Notes
or the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including Additional Notes,
if any) voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes),
PROVIDED that:
(A) no such modification or amendment may, without the
consent of the Holders of 75% in aggregate principal amount of such
series of Notes then outstanding, amend or modify the obligation of the
Company under Section 3.10 hereof or in the obligations of the Company
to make a Net Proceeds Offer or the definitions related thereto under
Sections 3.09 and 4.10 hereof that could adversely affect the rights of
any Holder; and
(B) without the consent of each Holder affected, an amendment
or waiver under this Section 9.02 may not (with respect to any Notes
held by a non-consenting Holder): (i) extend the maturity of any Note;
(ii) reduce the amount, extend the due date or otherwise affect the
terms of any scheduled payment of interest (including Special Interest)
on or principal of the Notes; (iii) except as permitted by (A) above,
reduce any premium payable upon optional redemption or acceleration of
the Notes, change the date on which any Notes are subject to redemption
or otherwise alter the provisions with respect to the redemption of the
Notes; (iv) make any Note payable in money or currency other than that
stated in the Notes; (v) take any action that would subordinate the
Notes or the Subsidiary Guarantees to any other Indebtedness of the
Company or any of its Subsidiaries, respectively, except as provided
under Article 11 hereof, or otherwise affect the ranking of the Notes or
the Subsidiary Guarantees;
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(vi) reduce the percentage of Holders necessary to consent to an
amendment, supplement or waiver to this Indenture or the Notes; (vii)
impair the rights of Holders to receive payments of principal of or
premium, if any, or interest (including Special Interest) on the
Notes; (viii) release any Subsidiary Guarantor from any of its
obligations under its Subsidiary Guarantee or this Indenture, except
as permitted by Section 10.16 hereof; or (ix) make any change in the
foregoing amendment and waiver provisions.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or a portion of a Note that evidences the same
debt as the consenting Holder, even if notation of the consent is not made on
any Note. However, any such Holder or subsequent Holder may revoke the
consent if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon
receipt of an Authentication Order, authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
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SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article Nine if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Company may not sign an amendment or supplemental indenture
until the Board of Directors approves it. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive and (subject
to Section 7.01 hereof) shall be fully protected in relying upon, in addition
to the documents required by Section 11.04 hereof, an Officer's Certificate
and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture.
ARTICLE TEN
SUBSIDIARY GUARANTEES
SECTION 10.01. SUBSIDIARY GUARANTEE.
Subject to this Article Ten, each of the Subsidiary Guarantors
hereby, jointly and severally, unconditionally Guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that: (a) the principal of and interest, including Special
Interest, on the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes (including Special Interest),
if any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in
case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that same will 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 any performance so guaranteed for whatever
reason, the Subsidiary Guarantors shall be jointly and severally obligated to
pay the same immediately. Each Subsidiary Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
The Subsidiary Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
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otherwise constitute a legal or equitable discharge or defense of a
Subsidiary Guarantor. Each Subsidiary Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands whatsoever and
covenant that this Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Subsidiary Guarantors or any
custodian, trustee, liquidator or other similar official acting in relation
to the Company or the Subsidiary Guarantors, any amount paid by either to the
Trustee or such Holder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
Each Subsidiary Guarantor agrees that it shall not be entitled
to any right of subrogation in relation to the Holders in respect of any
obligations Guaranteed hereby until payment in full of all obligations
Guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between
the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee,
on the other hand, (x) the maturity of the obligations Guaranteed hereby may
be accelerated as provided in Article Six hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations Guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations
as provided in Article Six hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Subsidiary Guarantors
for the purpose of this Guarantee. The Subsidiary Guarantors shall have the
right to seek contribution from any non-paying Subsidiary Guarantor of the
Notes so long as the exercise of such right does not impair the rights of the
Holders under this Guarantee.
SECTION 10.02. AGREEMENT TO SUBORDINATE.
The payment by any Subsidiary Guarantor of principal of, and
premium, if any, and interest (including Special Interest) on the Notes under
its Subsidiary Guarantee (collectively, the "SUBSIDIARY GUARANTEE
INDEBTEDNESS"), will be subordinated to the prior payment in full in cash of
the principal of, and premium, if any, and accrued and unpaid interest on,
and all other amounts owing in respect of, all existing and future Subsidiary
Guarantor Senior Indebtedness.
SECTION 10.03. LIMITATION ON LIABILITY OF SUBSIDIARY GUARANTORS.
Each Subsidiary Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Guarantee of the Notes of such Subsidiary Guarantor not constitute a fraudulent
transfer or conveyance for purposes of
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Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to
any Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and the Subsidiary Guarantors hereby irrevocably agree that if the
obligations of any Subsidiary Guarantor hereunder otherwise would be subject
to avoidance under any such law, taking into consideration such Subsidiary
Guarantor's (i) rights of reimbursement and indemnity from the Company with
respect to amounts paid by such Subsidiary Guarantor, (ii) rights of
subrogation to the rights of the Holders (including pursuant to Section
10.07), and (iii) rights of contribution from each other Subsidiary Guarantor
(including pursuant to Section 10.01), then such obligations hereby are
reduced to the largest amount that would make them not subject to such
avoidance. Any Person asserting that any Subsidiary Guarantor's obligations
are so avoidable shall have the burden (including the burden of production
and of persuasion) of proving (a) that, without giving effect to this Section
10.03, such Subsidiary Guarantor's obligations hereunder would be avoidable
and (b) the extent to which such obligations are reduced by operation of this
Section 10.03.
SECTION 10.04. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of any Subsidiary Guarantor
of assets of any kind or character of such Subsidiary Guarantor in a total or
partial liquidation or dissolution of such Subsidiary Guarantor or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to such Subsidiary Guarantor, whether voluntary or involuntary
(including any assignment for the benefit of creditors and proceedings for
marshaling of assets and liabilities of such Subsidiary Guarantor):
(1) the holders of Subsidiary Guarantor Senior Indebtedness
then outstanding will be entitled to payment in full in cash (including
interest accruing subsequent to the filing of a petition for bankruptcy
or insolvency at the rate specified in the document relating to the
applicable Subsidiary Guarantor Senior Indebtedness, whether or not such
interest is an allowed claim enforceable against such Subsidiary
Guarantor under applicable law) before the Holders are entitled to
receive any payment (other than payments made from a trust previously
established pursuant to Article Eight hereof) on or with respect to the
Subsidiary Guarantee Indebtedness; and
(2) until the holders of all Subsidiary Guarantor Senior
Indebtedness receive payment in full, any distribution to which the
Holders would be entitled will be made to the holders of the Subsidiary
Guarantor Senior Indebtedness.
Regardless of anything to the contrary herein, nothing shall
prevent (a) any payment by the Trustee to the Holders of amounts deposited with
it pursuant to Article Eight or (b) any payment by the Trustee or the Paying
Agent as permitted by Section 10.10 hereof. Nothing contained in this Article
Ten will limit the right of the Trustee or the Holders to take
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action to accelerate the maturity of the Notes pursuant to Section 6.02
hereof, to receive or retain Permitted Junior Securities or to pursue any
rights or remedies hereunder.
SECTION 10.05. SUBSIDIARY GUARANTORS NOT TO MAKE PAYMENTS WITH
RESPECT TO GUARANTEES IN CERTAIN CIRCUMSTANCES.
Upon the occurrence of any default beyond the applicable grace
period in the payment of any principal of or interest on or other amounts due
on any Designated Senior Indebtedness of any Subsidiary Guarantor (a "PAYMENT
DEFAULT"), no payment of any kind or character shall be made by such
Subsidiary Guarantor (or by any other Person on its or their behalf) with
respect to the Subsidiary Guarantee Indebtedness unless and until (i) such
Payment Default shall have been cured or waived in accordance with the
instruments governing such Indebtedness or shall have ceased to exist, (ii)
such Designated Senior Indebtedness has been discharged or paid in full in
cash in accordance with the instruments governing such Indebtedness or (iii)
the benefits of this sentence have been waived by the holders of such
Designated Senior Indebtedness or their Representative immediately after
which the Company must resume making any and all required payments, including
missed payments, in respect of its obligations under the Notes.
Upon (1) the occurrence and continuance of an event of default
(other than a Payment Default) relating to Designated Senior Indebtedness, as
such event of default is defined therein or in the instrument or agreement
under which it is outstanding, which event of default, pursuant to the
instruments governing such Designated Senior Indebtedness, entitles the
holders (or a specified portion of the holders) of such Designated Senior
Indebtedness or their Representatives to immediately accelerate without
further notice (except such notice as may be required to effect such
acceleration) the maturity of such Designated Senior Indebtedness (a
"NON-PAYMENT DEFAULT") and (2) the receipt by the Trustee and the Company
from the trustee or other Representative of holders of such Designated Senior
Indebtedness of written notice (a "PAYMENT BLOCKAGE NOTICE") of such
occurrence, no payment is permitted to be made by any Subsidiary Guarantor
(or by any other Person on its or their behalf) in respect of the Subsidiary
Guarantee Indebtedness for a period (a "PAYMENT BLOCKAGE PERIOD") commencing
on the date of receipt by the Trustee of such notice and ending on the
earliest to occur of the following events (subject to any blockage of
payments that may then be in effect due to a Payment Default on Designated
Senior Indebtedness): (w) such Non-payment Default has been cured or waived
or has ceased to exist; (x) a period of 179 consecutive days, commencing on
the date such Payment Blockage Notice is received by the Trustee, has
elapsed; (y) such Payment Blockage Period has been terminated by written
notice to the Trustee from the trustee or other Representative of holders of
such Designated Senior Indebtedness, whether or not such Non-payment Default
has been cured or waived or has ceased to exist; and (z) such Designated
Senior Indebtedness has been discharged or paid in full in cash, immediately
after which, in the case of clause (w), (x), (y) or (z), the Subsidiary
Guarantor must
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resume making any and all required payments, including missed payments, in
respect of its obligations under the Notes. Notwithstanding the foregoing,
(i) not more than one Payment Blockage Period may be commenced in any period
of 365 consecutive days and (ii) no default or event of default with respect
to the Designated Senior Indebtedness of the Subsidiary Guarantor that was
the subject of a Payment Blockage Notice which existed or was continuing on
the date of the giving of any Payment Blockage Notice shall be or serve as
the basis for the giving of a subsequent Payment Blockage Notice whether or
not within a period of 365 consecutive days unless such default or event of
default shall have been cured or waived for a period of at least 90
consecutive days after such date.
Regardless of anything to the contrary herein, nothing shall
prevent (a) any payment by the Trustee to the Holders of amounts deposited
with it pursuant to Article Eight or (b) any payment by the Trustee or the
Paying Agent as permitted by Section 10.10 hereof. Nothing contained in this
Article Ten will limit the right of the Trustee or the Holders to take action
to accelerate the maturity of the Notes pursuant to Section 6.02 hereof, to
receive or retain Permitted Junior Securities or to pursue any rights or
remedies hereunder.
SECTION 10.06. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that any payment or distribution of assets of any
Subsidiary Guarantor, whether in cash, property or securities, shall be
received by the Trustee or the Holders at a time when such payment or
distribution is prohibited by Section 10.04 or 10.05 hereof, such payment or
distribution shall be segregated from other funds or assets and held in trust
for the benefit of the holders of Subsidiary Guarantor Senior Indebtedness of
such Subsidiary Guarantor and shall be paid or delivered by the Trustee or
such Holders, as the case may be, to the holders of the Subsidiary Guarantor
Senior Indebtedness of such Subsidiary Guarantor remaining unpaid or
unprovided for or their Representative or Representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing
any of such Subsidiary Guarantor Senior Indebtedness of such Subsidiary
Guarantor may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Subsidiary Guarantor Senior Indebtedness
of such Subsidiary Guarantor held or represented for application to the
payment of all Subsidiary Guarantor Senior Indebtedness of such Subsidiary
Guarantor remaining unpaid, to the extent necessary to pay or to provide for
the payment in full in cash of all such Subsidiary Guarantor Senior
Indebtedness after giving effect to any concurrent payment or distribution to
the holders of such Subsidiary Guarantor Senior Indebtedness.
SECTION 10.07. SUBROGATION.
After, but not before, all Subsidiary Guarantor Senior
Indebtedness is paid in full in cash and until the Notes are paid in full,
Holders shall be subrogated to the rights of
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holders of Subsidiary Guarantor Senior Indebtedness to receive distributions
applicable to Subsidiary Guarantor Senior Indebtedness to the extent that
distributions otherwise payable to the Holders have been applied to the
payment of Subsidiary Guarantor Senior Indebtedness. A distribution made
under this Article to holders of Subsidiary Guarantor Senior Indebtedness
which otherwise would have been made to Holders is not, as between any
Subsidiary Guarantor and Holders, a payment by any Subsidiary Guarantor on
Subsidiary Guarantor Senior Indebtedness.
SECTION 10.08. SUBORDINATION MAY NOT BE IMPAIRED BY
SUBSIDIARY GUARANTORS.
No right of any holder of Subsidiary Guarantor Senior
Indebtedness to enforce the subordination of the indebtedness evidenced by
the Notes and the Guarantees of the Notes shall be impaired by any act or
failure to act by any Subsidiary Guarantor or by its or their failure to
comply with this Indenture.
SECTION 10.09. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Subsidiary Guarantor Senior Indebtedness, the distribution may be
made and the notice given to their Representatives.
SECTION 10.10. RIGHTS OF TRUSTEE AND PAYING AGENT.
The Trustee or Paying Agent may continue to make payments on
the Notes and the related Guarantees of the Notes until it receives written
notice of facts that would cause a payment of principal of or interest on the
Notes and the Guarantees of the Notes to violate this Article. Only a
Subsidiary Guarantor, a Representative or a holder of an issue of Subsidiary
Guarantor Senior Indebtedness that has no Representative may give the notice.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a person representing himself to be a holder of
Subsidiary Guarantor Senior Indebtedness (or a Representative on behalf of
such holder) to establish that such notice has been given by a holder of
Subsidiary Guarantor Senior Indebtedness or a Representative on behalf of any
such holder. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person who is a
holder of Subsidiary Guarantor Senior Indebtedness to participate in any
payment or distribution pursuant to this Article, the Trustee may request
such person to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Subsidiary Guarantor Senior Indebtedness held by such
person, the extent to which such person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
person under this Article, and if such evidence is not furnished the
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Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment or until such time as
the Trustee shall be otherwise satisfied as to the right of such person to
receive such payment.
The Trustee in its individual or any other capacity may hold
Subsidiary Guarantor Senior Indebtedness with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Subsidiary Guarantor Senior Indebtedness and shall not be
liable to any such holder if it shall mistakenly pay over or distribute to
Holders, any Subsidiary Guarantor or any other person money or assets to
which any holders of Subsidiary Guarantor Senior Indebtedness shall be
entitled by virtue of this Article or otherwise.
SECTION 10.11. OFFICERS' CERTIFICATE.
If there occurs an event referred to in Section 10.04 or
10.05, the relevant Subsidiary Guarantor shall promptly give to the Trustee
an Officers' Certificate (on which the Trustee may conclusively rely)
identifying all holders of Subsidiary Guarantor Senior Indebtedness or their
Representatives and the principal amount of Subsidiary Guarantor Senior
Indebtedness then outstanding held by each such holder and stating the
reasons why such Officers' Certificate is being delivered to the Trustee.
SECTION 10.12. OBLIGATION OF SUBSIDIARY GUARANTORS
UNCONDITIONAL.
Nothing contained in this Article Ten or elsewhere in this
Indenture, in any Note or in any Guarantee of a Note is intended to or shall
impair, as between the Subsidiary Guarantors, their respective creditors
other than holders of Subsidiary Guarantor Senior Indebtedness and the
Holders, the obligation of the Subsidiary Guarantors, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Notes as and when the same shall become due and payable in accordance with
the terms of the Guarantees with respect to the Notes, or is intended to or
shall affect the relative rights of the Holders and creditors of the
Subsidiary Guarantors other than the holders of the Subsidiary Guarantor
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee
or the Holder of any Note from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Ten of the holders of Subsidiary Guarantor Senior
Indebtedness in respect of cash, property or securities of the Subsidiary
Guarantors received upon the exercise of any such remedy. Upon any
distribution of assets of any Subsidiary Guarantor referred to in this
Article Ten, the Trustee, subject to the provisions of Sections 7.01 and
7.02, and the Holders shall be entitled to rely upon any order
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or decree by any court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, or a
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or the Holders, for the purpose of ascertaining
the persons entitled to participate in such distribution, the holders of the
Subsidiary Guarantor Senior Indebtedness and other indebtedness of the
Subsidiary Guarantors, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Ten. Nothing contained in this Article Ten or elsewhee in
this Indenture, in any Note or in any Guarantee of any Note is intended to or
shall affect the obligation of the Subsidiary Guarantors to make, or prevent
the Subsidiary Guarantors from making, at any time except during the pendency
of any dissolution, winding up, liquidation or reorganization proceeding, and
except during the continuance of any default specified in Section 10.05 (not
cured or waived), payments at any time of the principal or of interest on the
Notes.
SECTION 10.13. ARTICLE TEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment of principal of or interest on
the Notes by reason of any provision of this Article shall not be construed
as preventing the occurrence of an Event of Default under Section 6.01.
SECTION 10.14. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee of the Notes set forth in Section
10.01, each Subsidiary Guarantor hereby agrees that a notation of such
Guarantee substantially in the form included in Exhibit E shall be endorsed
by an Officer of such Subsidiary Guarantor, as applicable, on each Note
authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Subsidiary Guarantor by its respective President
or one of its respective Vice Presidents.
Each Subsidiary Guarantor hereby agrees that its Guarantee of
the Notes set forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Guarantee.
If an Officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of the Subsidiary Guarantors.
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In the event that the Company creates or acquires any new
Subsidiaries subsequent to the date of this Indenture, if required by Section
4.16 hereof, the Company shall cause such Subsidiaries to execute
supplemental indentures to this Indenture and Guarantees of the Notes in
accordance with Section 4.16 hereof and this Article Ten, to the extent
applicable.
SECTION 10.15. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC.,
ON CERTAIN TERMS.
No Subsidiary Guarantor may consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the surviving Person)
another Person whether or not affiliated with such Subsidiary Guarantor
unless:
(a) subject to Section 10.16 hereof, the Person formed by
or surviving any such consolidation or merger (if other than such
Subsidiary Guarantor) assumes all the obligations of such Subsidiary
Guarantor, pursuant to a supplemental indenture, in form and substance
reasonably satisfactory to the Trustee, under the Notes, this
Indenture and the Registration Rights Agreement on the terms set forth
herein or therein;
(b) immediately after giving effect to such transaction, no
Default exists; and
(c) immediately after giving effect to such transaction, the
Coverage Ratio Incurrence Condition would be met.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of the Notes, this
Indenture and the Registration Rights Agreement to be performed by the
Subsidiary Guarantor, such successor Person shall succeed to and be
substituted for the Subsidiary Guarantor with the same effect as if it had
been named herein as a Subsidiary Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Guarantees to be endorsed upon all
of the Notes issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee. All the Guarantees so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Guarantees theretofore and thereafter issued in accordance
with the terms of this Indenture as though all of such Guarantees had been
issued at the date of the execution hereof.
Except as set forth in Articles Four and Five hereof, and
notwithstanding clause (a) above, nothing contained in this Indenture or in any
of the Notes shall prevent any
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consolidation or merger of a Subsidiary Guarantor with or into the Company or
another Subsidiary Guarantor, or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or another Subsidiary Guarantor.
SECTION 10.16. RELEASES FOLLOWING SALE OF ASSETS, ETC.
In the event of a sale or other disposition of all of the
assets of any Subsidiary Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the Capital Stock of any
Subsidiary Guarantor then held by the Company and its Restricted
Subsidiaries, then such Subsidiary Guarantor will be released and relieved of
any obligations under its Subsidiary Guarantee; PROVIDED that the Net Cash
Proceeds of such sale or other disposition are applied in accordance with
Section 4.10 hereof. In addition, any Subsidiary Guarantor that is
designated as an Unrestricted Subsidiary or that otherwise ceases to be a
Subsidiary, in each case in accordance with the provisions of this Indenture,
will be released from its Subsidiary Guarantee upon effectiveness of such
designation or when it first ceases to be a Subsidiary, as the case may be.
Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale, other
disposition or designation was made by the Company in accordance with the
applicable provisions of this Indenture, including without limitation Section
4.10 hereof, the Trustee shall execute any documents reasonably required in
order to evidence the release of any Subsidiary Guarantor from its
obligations under its Guarantee.
Any Subsidiary Guarantor not released from its obligations
under its Guarantee shall remain liable for the full amount of principal of
and interest on the Notes and for the other obligations of any Subsidiary
Guarantor under this Indenture as provided in this Article Ten.
ARTICLE ELEVEN
SUBORDINATION
SECTION 11.01. AGREEMENT TO SUBORDINATE.
The payment by the Company of principal of, and premium, if
any, and interest (including Special Interest) on the Notes (collectively,
the "NOTE INDEBTEDNESS"), will be subordinated to the prior payment in full
in cash of the principal of, and premium, if any, and accrued and unpaid
interest on, and all other amounts owing in respect of, all existing and
future
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Senior Indebtedness.
Money and securities held in trust pursuant to Article Eight
are not subject to the subordination provisions of this Article Eleven.
SECTION 11.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company of assets of
any kind or character of the Company in a total or partial liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company, whether voluntary
or involuntary (including any assignment for the benefit of creditors and
proceedings for marshaling of assets and liabilities of the Company):
(1) the holders of Senior Indebtedness then outstanding will
be entitled to payment in full in cash (including interest accruing
subsequent to the filing of a petition for bankruptcy or insolvency at
the rate specified in the document relating to the applicable Senior
Indebtedness, whether or not such interest is an allowed claim
enforceable against the Company under applicable law) before the Holders
are entitled to receive any payment (other than payments made from a
trust previously established pursuant to Article Eight hereof) on or
with respect to the Note Indebtedness; and
(2) until the holders of all Senior Indebtedness receive
payment in full, any distribution to which the Holders would be entitled
will be made to the holders of the Senior Indebtedness.
Regardless of anything to the contrary herein, nothing shall
prevent (a) any payment by the Trustee to the Holders of amounts deposited
with it pursuant to Article Eight or (b) any payment by the Trustee or the
Paying Agent as permitted by Section 11.10 hereof. Nothing contained in this
Article Eleven will limit the right of the Trustee or the Holders to take
action to accelerate the maturity of the Notes pursuant to Section 6.02
hereof, to receive or retain Permitted Junior Securities or to pursue any
rights or remedies hereunder.
SECTION 11.03. COMPANY NOT TO MAKE PAYMENTS WITH RESPECT TO
NOTES IN CERTAIN CIRCUMSTANCES.
Upon the occurrence of any default beyond the applicable grace
period in the payment of any principal of or interest on or other amounts due
on any Designated Senior Indebtedness of the Company (a "PAYMENT DEFAULT"),
no payment of any kind or character shall be made by the Company (or by any
other Person on its behalf) with respect to the Note Indebtedness unless and
until (i) such Payment Default shall have been cured or waived in accordance
with the instruments governing such Indebtedness or shall have ceased to
exist,
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(ii) such Designated Senior Indebtedness has been discharged or paid in full
in cash in accordance with the instruments governing such Indebtedness or
(iii) the benefits of this sentence have been waived by the holders of such
Designated Senior Indebtedness or their Representative immediately after
which the Company must resume making any and all required payments, including
missed payments, in respect of its obligations under the Notes.
Upon (1) the occurrence and continuance of an event of default
(other than a Payment Default) relating to Designated Senior Indebtedness, as
such event of default is defined therein or in the instrument or agreement
under which it is outstanding, which event of default, pursuant to the
instruments governing such Designated Senior Indebtedness, entitles the
holders (or a specified portion of the holders) of such Designated Senior
Indebtedness or their Representatives to immediately accelerate without
further notice (except such notice as may be required to effect such
acceleration) the maturity of such Designated Senior Indebtedness (a
"NON-PAYMENT DEFAULT") and (2) the receipt by the Trustee and the Company
from the trustee or other Representative of holders of such Designated Senior
Indebtedness of written notice (a "PAYMENT BLOCKAGE NOTICE") of such
occurrence, no payment is permitted to be made by the Company (or by any
other Person on its behalf) in respect of the Note Indebtedness for a period
(a "PAYMENT BLOCKAGE PERIOD") commencing on the date of receipt by the
Trustee of such notice and ending on the earliest to occur of the following
events (subject to any blockage of payments that may then be in effect due to
a Payment Default on Designated Senior Indebtedness): (w) such Non-payment
Default has been cured or waived or has ceased to exist; (x) a period of 179
consecutive days, commencing on the date such Payment Blockage Notice is
received by the Trustee, has elapsed; (y) such Payment Blockage Period has
been terminated by written notice to the Trustee from the trustee or other
Representative of holders of such Designated Senior Indebtedness, whether or
not such Non-payment Default has been cured or waived or has ceased to exist;
and (z) such Designated Senior Indebtedness has been discharged or paid in
full in cash, immediately after which, in the case of clause (w), (x), (y) or
(z), the Company must resume making any and all required payments, including
missed payments, in respect of its obligations under the Notes.
Notwithstanding the foregoing, (i) not more than one Payment Blockage Period
may be commenced in any period of 365 consecutive days and (ii) no default or
event of default with respect to the Designated Senior Indebtedness of the
Company that was the subject of a Payment Blockage Notice which existed or
was continuing on the date of the giving of any Payment Blockage Notice shall
be or serve as the basis for the giving of a subsequent Payment Blockage
Notice whether or not within a period of 365 consecutive days unless such
default or event of default shall have been cured or waived for a period of
at least 90 consecutive days after such date.
Regardless of anything to the contrary herein, nothing shall
prevent (a) any payment by the Trustee to the Holders of amounts deposited
with it pursuant to Article Eight or (b) any payment by the Trustee or the
Paying Agent as permitted by Section 11.10 hereof.
-107-
Nothing contained in this Article Eleven will limit the right of the Trustee
or the Holders to take action to accelerate the maturity of the Notes
pursuant to Section 6.02 hereof, to receive or retain Permitted Junior
Securities or to pursue any rights or remedies hereunder.
Nothing contained in this Article Eleven will limit the right
of the Trustee or the Holders to take any action to accelerate the maturity
of the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder.
SECTION 11.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of
the acceleration.
SECTION 11.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that any payment or distribution of assets of the
Company, whether in cash, property or securities, shall be received by the
Trustee or the Holders at a time when such payment or distribution is
prohibited by Section 11.02 or 11.03 hereof, such payment or distribution
shall be segregated from other funds or assets and held in trust for the
benefit of the holders of Senior Indebtedness of the Company and shall be
paid or delivered by the Trustee or such Holders, as the case may be, to the
holders of the Senior Indebtedness of the Company remaining unpaid or
unprovided for or their Representative or Representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing
any of such Senior Indebtedness of the Company may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness of the Company held or represented by each, for application to
the payment of all Senior Indebtedness of the Company remaining unpaid, to
the extent necessary to pay or to provide for the payment in full in cash of
all such Senior Indebtedness after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
SECTION 11.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying
Agent in writing of any facts known to the Company that would cause a payment
of principal of or interest on Notes to violate this Article, but failure to
give such notice shall not affect the subordination of the Notes to the
Senior Indebtedness provided in this Article.
SECTION 11.07. SUBROGATION.
After, but not before, all Senior Indebtedness is paid in full
in cash and until the Notes are paid in full, Holders shall be subrogated to
the rights of holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that distri-
-108-
butions otherwise payable to the Holders have been applied to the payment of
Senior Indebtedness. A distribution made under this Article to holders of
Senior Indebtedness which otherwise would have been made to Holders is not,
as between the Company and Holders, a payment by the Company on Senior
Indebtedness.
SECTION 11.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Indebtedness to enforce the
subordination of the indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or by its failure to comply with
this Indenture.
SECTION 11.09. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness, the distribution may be made and the notice
given to their Representatives.
SECTION 11.10. RIGHTS OF TRUSTEE AND PAYING AGENT.
The Trustee or Paying Agent may continue to make payments on
the Notes until it receives written notice of facts that would cause a
payment of principal of or interest on the Notes to violate this Article.
Only the Company, a Representative or a holder of an issue of Senior
Indebtedness that has no Representative may give the notice.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a Representative on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness or a
Representative on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to
the right of any Person who is a holder of Senior Indebtedness to participate
in any payment or distribution pursuant to this Article, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment or until such time as the Trustee shall be
otherwise satisfied as to the right of such Person to receive such payment.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of
-109-
Senior Indebtedness and shall not be liable to any such holder if it shall
mistakenly pay over or distribute to Holders or the Company or any other
Person money or assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article or otherwise.
SECTION 11.11. OFFICERS' CERTIFICATE.
If there occurs an event referred to in Section 11.02 or
11.03, the Company shall promptly give to the Trustee an Officers'
Certificate (on which the Trustee may conclusively rely) identifying all
holders of Senior Indebtedness or their Representatives and the principal
amount of Senior Indebtedness then outstanding held by each such holder and
stating the reasons why such Officers' Certificate is being delivered to the
Trustee.
SECTION 11.12. OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article Eleven or elsewhere in this
Indenture or in any Note is intended to or shall impair, as between the
Company, its creditors other than holders of Senior Indebtedness and the
Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of and interest on the Notes as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors
of the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article
Eleven of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Upon any distribution of assets of the Company referred to in this Article
Eleven, the Trustee, subject to the provisions of Sections 7.01 and 7.02, and
the Holders shall be entitled to rely upon any order or decree by any court
of competent jurisdiction in which such dissolution, winding up, liquidation
or reorganization proceedings are pending, or a certificate of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or the Holders, for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Eleven. Nothing contained in this
Article Eleven or elsewhere in this Indenture or in any Note is intended to
or shall affect the obligation of the Company to make, or prevent the Company
from making, at any time except during the pendency of any dissolution,
winding up, liquidation or reorganzation proceeding, and except during the
continuance of any default specified in Section 11.03 (not cured or waived),
payments at any time of the principal or of interest on the Notes.
-110-
SECTION 11.13. ARTICLE ELEVEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment of principal of or interest on
the Notes by reason of any provision of this Article shall not be construed
as preventing the occurrence of an Event of Default under Section 6.01.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 12.02. NOTICES.
Any notice or communication by the Company, any Subsidiary
Guarantor or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others' address
If to the Company and/or any Subsidiary Guarantor:
NCI Building Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
Gardere & ▇▇▇▇▇, L.L.P.
3000 Thanksgiving Town
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Reference: NCI Building Systems, #061908
If to the Trustee:
-111-
▇▇▇▇▇▇ Trust Company of New York
Wall Street Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company, any Subsidiary Guarantor or the Trustee, by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also
be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
-112-
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions
of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(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 such Person, he or
she has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or such
Subsidiary Guarantor under the Notes, the Guarantees of
-113-
the Notes, this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Notes.
SECTION 12.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of
any other Person. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.
SECTION 12.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 12.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes 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 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of this
Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
[SIGNATURES ON FOLLOWING PAGE]
-114-
SIGNATURES
Dated as of May 5, 1999
NCI BUILDING SYSTEMS, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
NCI OPERATING CORP., a Nevada
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
NCI HOLDING CORP., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
A&S BUILDING SYSTEMS, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
corporation, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
-115-
NCI BUILDING SYSTEMS, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
corporation, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
METAL BUILDING COMPONENTS, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
corporation, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
METAL COATERS OPERATING, L.P., a
Texas limited partnership
By: NCI Operating Corp., a Nevada
corporation, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
METAL BUILDING COMPONENTS
HOLDING, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
-116-
METAL COATERS HOLDING, INC., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
METAL COATERS OF CALIFORNIA, INC., a
Texas corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ TRUST COMPANY OF NEW YORK
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A-1
(FACE OF NOTE)
==============================================================================
CUSIP/CINS ________________
9-1/4% Series Senior Subordinated Notes due 2009
No. ____ $_______________
NCI BUILDING SYSTEMS, INC.
promises to pay to _________________, or registered assigns, the principal sum
of $_____________, or such other amount as is set forth on the Schedule of
Exchanges of Interests on the reverse side of this Security, on ______________,
2009.
Interest Payment Dates: and
Record Dates: and
Dated: , 1999
NCI BUILDING SYSTEMS, INC.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
(SEAL)
This is one of the Notes referred
to in the within-mentioned Indenture:
▇▇▇▇▇▇ Trust Company of New York,
as Trustee
By:
---------------------------------
==============================================================================
A-1-1
(BACK OF NOTE)
9-1/4% SENIOR SUBORDINATED NOTES DUE 2009
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED BY THIS CERTIFICATE WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S.
SECURITIES ACT OF 1933, AND THE SECURITY EVIDENCED BY THIS CERTIFICATE MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION OR AN APPLICABLE EXEMPTION FROM THE SECURITIES ACT. EACH PURCHASER
OF THE SECURITY EVIDENCED BY THIS CERTIFICATE (1) BY ITS ACQUISITION OF THE
SECURITY REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THE SECURITY EVIDENCED BY THIS CERTIFICATE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (C) IT IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN
INSTITUTIONAL ACCREDITED INVESTOR OR (D) IS AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF RULE 501(a)(4) AND EITHER RULE 501(a)(5) OR (6) UNDER THE SECURITIES
ACT WHO IS ACQUIRING THE SECURITY FOR HIS OWN ACCOUNT (AN "AFFILIATE ACCREDITED
INVESTOR") AND (2) IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE
SECURITY EVIDENCED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE ISSUER THAT
(X) THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (A)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (B) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, (C) OUTSIDE
THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS
PURCHASING AT LEAST $100,000 OF NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
AN INSTITUTIONAL ACCREDITED INVESTOR (AND BASED UPON AN OPINION OF COUNSEL IF
THE COMPANY SO REQUESTS) OR (E) TO AN AFFILIATE ACCREDITED INVESTOR WHO IS
PURCHASING NOTES FOR HIS OWN ACCOUNT (AND BASED UPON AN OPINION
A-1-2
OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES OR (3) UNDER AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (Y) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY, EVIDENCED BY THIS CERTIFICATE OF THE RESALE RESTRICTIONS
DESCRIBED IN (X) ABOVE. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE
PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF NCI BUILDING SYSTEMS,
INC.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. NCI Building Systems, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at 9-1/4% per annum from May 1, 1999 until maturity, and shall pay the
Special Interest payable pursuant to Section 5 of the Registration Rights
Agreement referred to below if the circumstances therein described shall occur.
The Company will pay interest and Special Interest, if any, semi-annually on May
1 and November 1 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each an "INTEREST PAYMENT DATE"). Interest on the
Notes will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; PROVIDED that if there
is no existing Default in the payment of
A-1-3
interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; PROVIDED,
FURTHER, that the first Interest Payment Date shall be November 1, 1999. The
Company shall pay interest (including Post-Petition Interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1% per annum in excess of
the rate then in effect; it shall pay interest (including Post-Petition
Interest in any proceeding under any Bankruptcy Law) on overdue installments
of interest and Special Interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) and Special Interest, if any, to the Persons
who are registered Holders at the close of business on April 15 and October 15
of each year, even if such Notes are canceled after such record date and on or
before the subsequent Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium and Special Interest, if any, and interest at the
office or agency of the Company maintained for such purpose within or without
the City and State of New York, or, at the option of the Company, payment of
interest and Special Interest may be made by check mailed to the Holders at
their addresses set forth in the register of Holders, and provided that payment
by wire transfer of immediately available funds will be required with respect to
principal of and interest, premium and Special Interest, if any, on, all Global
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, ▇▇▇▇▇▇ Trust
Company of New York, the Trustee under the Indenture, will act as Paying Agent
and Registrar. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company or any of its Subsidiaries may act in any
such capacity.
4. INDENTURE. The Company issued the Notes under an
Indenture dated as of May 5, 1999 ("INDENTURE") among the Company, certain
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. The Notes are obligations of the
Company, of which a principal amount of $125.0 million was issued on the date of
the Indenture. After the date of the Indenture, Additional Notes may be issued
from time to time subject to the limitations set
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forth in Section 4.09 of the Indenture.
5. SUBORDINATION. The Notes are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash of all Senior Indebtedness of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. The Guarantees in respect of the Notes will be
subordinated in right of payment, in the manner and to the extent set forth in
the Indenture, to the prior payment in full in cash of all Subsidiary Guarantor
Senior Indebtedness of each Subsidiary Guarantor, whether outstanding on the
date of the Indenture or thereafter created, incurred, assumed or guaranteed.
Each Holder by its acceptance hereof agrees to be bound by such provisions and
authorizes and expressly directs the Trustee, on its behalf, to take such action
as may be necessary or appropriate to effectuate the subordination provided for
in the Indenture and appoints the Trustee its attorney-in-fact for such
purposes.
6. OPTIONAL REDEMPTION.
(a) The Notes may not be redeemed prior to May 1, 2004, but will
be redeemable at the option of the Company, in whole or in part, at any time on
or after
May 1, 2004, at the redemption prices (expressed as percentages of principal
amount) set forth below, together with accrued and unpaid interest thereon,
including Special Interest, if any, to the redemption date, if redeemed during
the 12-month period beginning May 1 of the years indicated:
YEAR OPTIONAL REDEMPTION PRICE
---- -------------------------
2004............................ 104.625%
2005............................ 103.083%
2006............................ 101.542%
2007 and thereafter............. 100.000%
(b) Notwithstanding the foregoing, at any time prior to May 1,
2002, the Company may redeem up to 35% of the sum of (i) the initial aggregate
principal amount of the Notes and (ii) the initial aggregate principal amount of
any Additional Notes with the net cash proceeds of one or more Equity Offerings
at a redemption price equal to 109.250% of the principal amount thereof, plus
accrued and unpaid interest thereon (including Special Interest), if any, to the
redemption date; PROVIDED that (a) 65% of the sum of (i) the initial aggregate
principal amount of Notes issued on the Issue Date and (ii) the initial
aggregate principal amount of any Additional Notes remains outstanding
immediately after the occurrence of such redemption and (b) such redemption
occurs within 90 days of the date of the closing of any such Equity Offering.
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7. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
payments with respect to the Notes.
8. REPURCHASE AT OPTION OF HOLDER.
Sections 3.09, 3.10 and 4.10 of the Indenture provide that, after
certain Asset Sales and upon the occurrence of a Change of Control, and subject
to further limitations contained therein, the Company will make an offer to
purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
9. NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the redemption date to
each Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes
or portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form in denominations of $1,000 and integral multiples of $1,000.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Guarantees of the Notes or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the then outstanding Notes and Additional Notes, if any,
voting as a single class and any existing default or compliance with any
provision of the Indenture, the Guarantees of the Notes or the Notes may be
waived with the consent of the Holders of a majority in principal amount of the
then outstanding Notes and Additional Notes, if any, voting as a single class.
Without the consent of any Holder, the Indenture, the Guarantees of the Notes or
the Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's
A-1-6
or a Subsidiary Guarantor's obligations to Holders in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the legal rights
under the Indenture of any such Holder, to comply with the requirements of
the Commission in order to effect or maintain the qualification of the
Indenture under the TIA, to provide for the issuance of Additional Notes in
accordance with the limitations set forth in the Indenture or to allow any
Subsidiary Guarantor to execute a supplemental indenture to the Indenture
and/or a Guarantee with respect to the Notes.
13. DEFAULTS AND REMEDIES. Each of the following constitutes
an "EVENT OF DEFAULT" (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 and whether or not by
operation of Section 10.05 or 11.05 of the Indenture): (i) failure by the
Company to pay interest (including Special Interest) on any of the Notes when it
becomes due and payable and the continuance of any such failure for 30 days;
(ii) failure by the Company to pay the principal or premium, if any, on any of
the Notes when it becomes due and payable, whether at stated maturity, upon
redemption, upon repurchase, upon acceleration or otherwise; (iii) failure by
the Company to comply with Sections 3.09, 3.10, 4.10, and 5.01 of the Indenture,
respectively; (iv) failure by the Company to comply with any other covenant in
the Indenture and continuance of such failure for 30 days after notice of such
failure has been given to the Company by the Trustee or by the Holders of at
least 25% of the aggregate principal amount of the Notes then outstanding;
(v) failure by either the Company or any of its Restricted Subsidiaries to make
any payment when due after the expiration of any applicable grace period, in
respect of any Indebtedness of the Company or any of such Subsidiaries, or the
acceleration of the maturity of such Indebtedness by the holders thereof because
of a default, PROVIDED that the aggregate amount unpaid or accelerated, for all
such Indebtedness under this clause (v), equals $20.0 million or more; (vi) one
or more judgments or orders that exceed $20.0 million in the aggregate (net of
amounts covered by insurance or bonded) for the payment of money have been
entered by a court or courts of competent jurisdiction against the Company or
any Subsidiary of the Company and such judgment or judgments have not been
satisfied, stayed, annulled or rescinded within 60 days of being entered;
(vii) the Company or any of its Significant Subsidiaries: (1) commences a
voluntary case, (2) consents to the entry of an order for relief against it in
an involuntary case, (3) consents to the appointment of a custodian of it or for
all or substantially all of its property, (4) makes a general assignment for the
benefit of its creditors, or (5) generally is not paying its debts as they
become due; or (viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (1) is for relief against the Company or
any of its Significant Subsidiaries; (2) appoints a custodian of the Company or
any of its Significant Subsidiaries or for all or substantially all of the
property of the Company or any of its Significant Subsidiaries; or (3) orders
the liquidation of the Company or any of its Significant Subsidiaries; and the
order or decree remains unstayed and in effect for 60 consecutive days.
(ix) except as permitted by Section 10.16 hereof, any Subsidiary Guarantee of
any Significant Subsidiary ceases to be in full force and effect or any
A-1-7
Subsidiary Guarantor repudiates its obligations under any Subsidiary Guarantee.
If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable. Notwithstanding the foregoing,
in the case of an Event of Default arising from the events of bankruptcy or
insolvency described in clauses (vii) or (viii) of the preceding paragraph, all
outstanding Notes will become due and payable without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding, by notice to the Trustee may on
behalf of the Holders of all of the Notes, waive any existing Default or Event
of Default and its consequences under the Indenture except a continuing Default
or Event of Default in the payment of interest on, or the principal of, the
Notes. The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or any Affiliate of the Company with the
same rights it would have if it were not Trustee. However, in the event that
the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the SEC for permission to continue as Trustee or
resign. Any Agent may do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 of the Indenture.
15. NO RECOURSE AGAINST OTHERS. A director, Officer,
employee, incorporator or stockholder, of the Company, as such, shall not have
any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
16. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
A-1-8
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes (other than Affiliate Accredited Investors and their
transferees) shall have all the rights set forth in the Registration Rights
Agreement dated as of the Issue Date, among the Company, the Subsidiary
Guarantors and the Initial Purchasers (the "REGISTRATION RIGHTS AGREEMENT").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
NCI Building Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
A-1-9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: ____________
Your Signature: ___________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee: ______________________________________
A-1-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 3.10 or 4.10 of the Indenture, check the box below:
/ / Section 3.10 / / Section 4.10
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 3.10 or Section 4.10 of the Indenture, state the
amount you elect to have purchased: $________
Date: _____________ Your Signature: ______________________________
(Sign exactly as your name appears on the Note)
Tax Identification No: _______________________
Signature Guarantee: _______________________________
A-1-11
SCHEDULE OF EXCHANGES OF INTERESTS
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of decrease Amount of increase of this Global Note Signature of
in Principal in Principal following such authorized officer
Amount of this Amount of this decrease (or of Trustee or
Date of Exchange Global Note Global Note increase) Paying Agent
---------------- ------------------- ---------------- --------- ------------
A-1-12
[EXHIBIT A-2]
(FACE OF REGULATION S TEMPORARY GLOBAL NOTE)
================================================================================
CUSIP/CINS ________________
9-1/4% Series _ Senior Subordinated Notes due 2009
No. ____ $_______________
NCI BUILDING SYSTEMS, INC.
promises to pay to _________________, or registered assigns, the principal
sum of $_____________, or such other amount as is set forth on the Schedule
of Exchanges of Interests on the reverse side of this Security, on
______________, 2009.
Interest Payment Dates: and
Record Dates: and
Dated: , 1999
NCI BUILDING SYSTEMS, INC.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
(SEAL)
This is one of the Notes referred
to in the within-mentioned Indenture:
▇▇▇▇▇▇ Trust Company of New York,
as Trustee
By:
-------------------------------------
================================================================================
A-2-1
(BACK OF REGULATION S TEMPORARY GLOBAL NOTE)
9-1/4% SENIOR SUBORDINATED NOTES DUE 2009
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE
AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED BY THIS CERTIFICATE WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5
OF THE U.S. SECURITIES ACT OF 1933, AND THE SECURITY EVIDENCED BY THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF REGISTRATION OR AN APPLICABLE EXEMPTION FROM THE SECURITIES ACT.
EACH PURCHASER OF THE SECURITY EVIDENCED BY THIS CERTIFICATE (1) BY ITS
ACQUISITION OF THE SECURITY REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED BY THIS
CERTIFICATE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (C) IT IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR") THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR OR (D) IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(4) AND EITHER RULE
501(a)(5) OR (6) UNDER THE SECURITIES ACT WHO IS ACQUIRING THE SECURITY FOR
HIS OWN ACCOUNT (AN "AFFILIATE ACCREDITED INVESTOR") AND (2) IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR ANOTHER EXEMPTION
UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED BY THIS
CERTIFICATE AGREES FOR THE BENEFIT OF THE ISSUER THAT (X) THIS SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (A) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, IF AVAILABLE, (C) OUTSIDE THE UNITED STATES TO A
PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE
A-2-2
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT IS
PURCHASING AT LEAST $100,000 OF NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF AN INSTITUTIONAL ACCREDITED INVESTOR (AND BASED UPON AN OPINION OF COUNSEL
IF THE COMPANY SO REQUESTS) OR (E) TO AN AFFILIATE ACCREDITED INVESTOR WHO
IS PURCHASING NOTES FOR HIS OWN ACCOUNT (AND BASED UPON AN OPINION OF COUNSEL
IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR
(3) UNDER AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (Y) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY, EVIDENCED BY THIS CERTIFICATE OF THE RESALE RESTRICTIONS DESCRIBED
IN (X) ABOVE. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. NCI Building Systems, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Note at 9-1/4% per annum from May 1, 1999 until maturity, and shall
pay the Special Interest payable pursuant to Section 5 of the Registration
Rights Agreement referred to below if the circumstances therein described
shall occur. The Company will pay interest and Special Interest, if any,
semi-annually on May 1 and November 1 of each year, or if any such day is not
a Business Day, on the next succeeding Business Day (each an "INTEREST
PAYMENT DATE"). Interest on the Notes will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the
date of issuance; PROVIDED that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date;
PROVIDED, FURTHER, that the first Interest Payment Date shall be November 1,
1999. The Company shall pay interest (including Post-Petition Interest in
any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand at a rate that is 1% per annum in excess of
the rate then in effect; it shall pay
A-2-3
interest (including Post-Petition Interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Special Interest
(without regard to any applicable grace periods) from time to time on demand
at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Note is exchanged for
one or more Regulation S Permanent Global Notes, the Holder hereof shall not
be entitled to receive payments of interest hereon; until so exchanged in
full, this Regulation S Temporary Global Note shall in all other respects be
entitled to the same benefits as other Senior Subordinated Notes under the
Indenture.
2. METHOD OF PAYMENT. The Company will pay interest on
the Notes (except defaulted interest) and Special Interest, if any, to the
Persons who are registered Holders at the close of business on April 15 and
October 15 of each year, even if such Notes are canceled after such record
date and on or before the subsequent Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes will be payable as to principal, premium and Special Interest, if
any, and interest at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option
of the Company, payment of interest and Special Interest may be made by check
mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest, premium and
Special Interest, if any, on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, ▇▇▇▇▇▇ Trust
Company of New York, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries may act
in any such capacity.
4. INDENTURE . The Company issued the Notes under an
Indenture dated as of May 5, 1999 ("INDENTURE") among the Company, certain
Guarantors and the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are obligations of the Company, of which a principal amount of
$125.0 million was issued on the date of the Indenture. After the date of
the Indenture, Additional Notes may be issued from time to time subject to
the limitations set
A-2-4
forth in Section 4.09 of the Indenture.
5. SUBORDINATION. The Notes are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash of all Senior Indebtedness of the Company,
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. The Guarantees in respect of the Notes will
be subordinated in right of payment, in the manner and to the extent set
forth in the Indenture, to the prior payment in full in cash of all
Subsidiary Guarantor Senior Indebtedness of each Subsidiary Guarantor,
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. Each Holder by its acceptance hereof agrees
to be bound by such provisions and authorizes and expressly directs the
Trustee, on its behalf, to take such action as may be necessary or
appropriate to effectuate the subordination provided for in the Indenture and
appoints the Trustee its attorney-in-fact for such purposes.
6. OPTIONAL REDEMPTION.
(a) The Notes may not be redeemed prior to May 1, 2004, but
will be redeemable at the option of the Company, in whole or in part, at any
time on or after May 1, 2004, at the redemption prices (expressed as
percentages of principal amount) set forth below, together with accrued and
unpaid interest thereon, including Special Interest, if any, to the
redemption date, if redeemed during the 12-month period beginning May 1 of
the years indicated:
YEAR OPTIONAL REDEMPTION PRICE
---- -------------------------
2004......................... 104.625%
2005......................... 103.083%
2006......................... 101.542%
2007 and thereafter.......... 100.000%
(b) Notwithstanding the foregoing, at any time prior to May 1,
2002, the Company may redeem up to 35% of the sum of (i) the initial
aggregate principal amount of the Notes and (ii) the initial aggregate
principal amount of any Additional Notes with the net cash proceeds of one or
more Equity Offerings at a redemption price equal to 109.250% of the
principal amount thereof, plus accrued and unpaid interest thereon (including
Special Interest), if any, to the redemption date; PROVIDED that (a) 65% of
the sum of (i) the initial aggregate principal amount of Notes issued on the
Issue Date and (ii) the initial aggregate principal amount of any Additional
Notes remains outstanding immediately after the occurrence of such redemption
and (b) such redemption occurs within 90 days of the date of the closing of
any such Equity Offering.
A-2-5
7. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
payments with respect to the Notes.
8. REPURCHASE AT OPTION OF HOLDER.
Sections 3.09, 3.10 and 4.10 of the Indenture provide that,
after certain Asset Sales and upon the occurrence of a Change of Control, and
subject to further limitations contained therein, the Company will make an
offer to purchase certain amounts of the Notes in accordance with the
procedures set forth in the Indenture.
9. NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered address.
Notes in denominations larger than $1,000 may be redeemed in part but only in
whole multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form in denominations of $1,000 and integral multiples of $1,000.
The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Company need not exchange
or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding Interest
Payment Date.
This Regulation S Temporary Global Note is exchangeable in
whole or in part for one or more Global Notes only (i) on or after the
termination of the 40-day Distribution Compliance Period (as defined in
Regulation S) and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 2 of the Indenture.
Upon exchange of this Regulation S Temporary Global Note for one or more
Global Notes, the Trustee shall cancel this Regulation S Temporary Global
Note.
11. PERSONS DEEMED OWNERS. The registered Holder may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Guarantees of the Notes or the Notes may be
amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding
A-2-6
Notes and Additional Notes, if any, voting as a single class and any existing
default or compliance with any provision of the Indenture, the Guarantees of
the Notes or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes and Additional
Notes, if any, voting as a single class. Without the consent of any Holder,
the Indenture, the Guarantees of the Notes or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's or a Subsidiary Guarantor's
obligations to Holders in case of a merger or consolidation, to make any
change that would provide any additional rights or benefits to the Holders or
that does not adversely affect the legal rights under the Indenture of any
such Holder, to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the TIA, to
provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture or to allow any Subsidiary Guarantor
to execute a supplemental indenture to the Indenture and/or a Guarantee with
respect to the Notes.
13. DEFAULTS AND REMEDIES. Each of the following
constitutes an "EVENT OF DEFAULT" (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 and
whether or not by operation of Section 10.05 or 11.05 of the Indenture): (i)
failure by the Company to pay interest (including Special Interest) on any of
the Notes when it becomes due and payable and the continuance of any such
failure for 30 days; (ii) failure by the Company to pay the principal or
premium, if any, on any of the Notes when it becomes due and payable, whether
at stated maturity, upon redemption, upon repurchase, upon acceleration or
otherwise; (iii) failure by the Company to comply with Sections 3.09, 3.10,
4.10, and 5.01 of the Indenture, respectively; (iv) failure by the Company to
comply with any other covenant in the Indenture and continuance of such
failure for 30 days after notice of such failure has been given to the
Company by the Trustee or by the Holders of at least 25% of the aggregate
principal amount of the Notes then outstanding; (v) failure by either the
Company or any of its Restricted Subsidiaries to make any payment when due
after the expiration of any applicable grace period, in respect of any
Indebtedness of the Company or any of such Subsidiaries, or the acceleration
of the maturity of such Indebtedness by the holders thereof because of a
default, PROVIDED that the aggregate amount unpaid or accelerated, for all
such Indebtedness under this clause (v), equals $20.0 million or more; (vi)
one or more judgments or orders that exceed $20.0 million in the aggregate
(net of amounts covered by insurance or bonded) for the payment of money have
been entered by a court or courts of competent jurisdiction against the
Company or any Subsidiary of the Company and such judgment or judgments have
not been satisfied, stayed, annulled or rescinded within 60 days of being
entered; (vii) the Company or any of its Significant Subsidiaries: (1)
commences a voluntary case, (2) consents to the entry of an order for relief
against it in an involuntary case, (3) consents to the appointment of a
custodian of it or for all or substantially all of its property, (4) makes a
general assignment for the benefit of its creditors, or (5) generally is not
paying its debts as they become due; or (viii)
A-2-7
a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (1) is for relief against the Company or any of its
Significant Subsidiaries; (2) appoints a custodian of the Company or any of
its Significant Subsidiaries or for all or substantially all of the property
of the Company or any of its Significant Subsidiaries; or (3) orders the
liquidation of the Company or any of its Significant Subsidiaries; and the
order or decree remains unstayed and in effect for 60 consecutive days. (ix)
except as permitted by Section 10.16 hereof, any Subsidiary Guarantee of any
Significant Subsidiary ceases to be in full force and effect or any
Subsidiary Guarantor repudiates its obligations under any Subsidiary
Guarantee.
If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding
Notes may declare all the Notes to be due and payable. Notwithstanding the
foregoing, in the case of an Event of Default arising from the events of
bankruptcy or insolvency described in clauses (vii) or (viii) of the
preceding paragraph, all outstanding Notes will become due and payable
without further action or notice. Holders may not enforce the Indenture or
the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of any continuing Default
or Event of Default (except a Default or Event of Default relating to the
payment of principal or interest) if it determines that withholding notice is
in their interest. The Holders of a majority in aggregate principal amount
of the Notes then outstanding, by notice to the Trustee may on behalf of the
Holders of all of the Notes, waive any existing Default or Event of Default
and its consequences under the Indenture except a continuing Default or Event
of Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee
a statement specifying such Default or Event of Default.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or any Affiliate of the Company with the
same rights it would have if it were not Trustee. However, in the event that
the Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the SEC for permission to continue as Trustee or
resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11 of the Indenture.
15. NO RECOURSE AGAINST OTHERS. A director, Officer,
employee, incorporator or stockholder, of the Company, as such, shall not
have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
A-2-8
16. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES
AND RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to
Holders under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes (other than Affiliate Accredited Investors and
their transferees) shall have all the rights set forth in the Registration
Rights Agreement dated as of the Issue Date, among the Company, the
Subsidiary Guarantors and the Initial Purchasers (the "REGISTRATION RIGHTS
AGREEMENT").
19. CUSIP NUMBERS. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures,
the Company have caused CUSIP numbers to be printed on the Notes and the
Trustee may use CUSIP numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed
thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
NCI Building Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
A-2-9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: Your Signature:
---------------- --------------------------
(Sign exactly as your name
appears on the face of
this Note)
Signature Guarantee
----------------------------------------
A-2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 3.10 or 4.10 of the Indenture, check the box
below:
/ / Section 3.10 / / Section 4.10
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 3.10 or Section 4.10 of the Indenture, state the
amount you elect to have purchased: $________
--------------------------------------------------------------------------------
Date: Your Signature:
--------------------- ------------------------------------
(Sign exactly as your name appears
on the Note)
Tax Identification No:
-----------------------------
Signature Guarantee
----------------------------------------
A-2-11
SCHEDULE OF EXCHANGES OF INTERESTS
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a
part of another Global Note or Definitive Note for an interest in this Global
Note, have been made:
Principal Amount
Amount of de- Amount of increase of this Global Note Signature of
crease in in Principal following such authorized officer
Principal Amount Amount of decrease (or of Trustee or
Date of Exchange of this Global Note this Global Note increase) Paying Agent
---------------- ------------------- ------------------ ------------------- ------------------
A-2-12
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
NCI Building Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Trust Company of New York
Wall Street Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: NCI Building Systems, Inc.
9-1/4% SENIOR SUBORDINATED NOTES DUE 2009
Reference is hereby made to the Indenture, dated May 5, 1999 (the
"INDENTURE"), between NCI Building Systems, Inc. (the "COMPANY") and ▇▇▇▇▇▇
Trust Company of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
______________ (the "TRANSFEROR") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interest (the
"TRANSFER"), to __________ (the "TRANSFEREE"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "QUALIFIED INSTITUTIONAL BUYER" within
the meaning of Rule 144A in a transaction meeting the requirements of Rule
144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject
B-1
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE TEMPORARY REGULATION S GLOBAL NOTE, THE REGULATION S GLOBAL NOTE OR A
DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities
Act and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United
States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or
(y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any
Person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States, (ii) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act and, (iii) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities
Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act
and any applicable blue sky securities laws of any state of the United
States, and accordingly the Transferor hereby further certifies that (check
one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
Subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited In-
B-2
vestor or an Affiliate Accredited Investor and pursuant to an exemption from
the registration requirements of the Securities Act other than Rule 144A,
Rule 144 or Rule 904, and the Transferor hereby further certifies that it has
not engaged in any general solicitation within the meaning of Regulation D
under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note
or Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D-1 or D-2, as appropriate, to the
Indenture and (2) if such Transfer is in respect of a principal amount of
Notes at the time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the IAI Global
Note and/or the Definitive Notes and in the Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes and/or
in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions
on transfer contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and/or in the Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
B-3
Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Notes or Restricted Definitive Notes and/or in the
Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
---------------------------------------
[Name of Transferor]
By:
------------------------------------
Name:
Title:
Dated:
----------------------------
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
CHECK ONE OF (a) OR (b)
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP __________), or
(ii) / / Regulation S Global Note (CUSIP __________), or
(iii) / / IAI Global Note (CUSIP __________); or
(b) / / a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
CHECK ONE
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP __________), or
(ii) / / Regulation S Global Note (CUSIP __________), or
(iii) / / IAI Global Note (CUSIP __________); or
(iv) / / Unrestricted Global Note (CUSIP __________); or
(b) / / a Restricted Definitive Note; or
(c) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ Building Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Trust Company of New York
Wall Street Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: NCI Building Systems, Inc.
9-1/4% Senior Subordinated Notes due 2009
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of May 5, 1999
(the "INDENTURE"), between NCI Building Systems, Inc. (the "COMPANY") and
▇▇▇▇▇▇ Trust Company of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
____________ (the "OWNER") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interest (the "EXCHANGE"). In connection
with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
C-1
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note
for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant
to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest
is being acquired in compliance with any applicable blue sky securities laws
of any state of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note
is being acquired in compliance with any applicable blue sky securities laws
of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the
Owner's own account without transfer. Upon consummation of the proposed
Exchange in
C-2
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest
in the [CHECK ONE] __ 144A Global Note, __ Regulation S Global Note, __ IAI
Global Note with an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant
to and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Note and in the Indenture and the Securities Act.
C-3
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
---------------------------------------
[Name of Owner]
By:
------------------------------------
Name:
Title:
Dated:
----------------------------
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
NCI Building Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Trust Company of New York
Wall Street Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: NCI Building Systems, Inc.
9-1/4% Senior Subordinated Notes due 2009
Reference is hereby made to the Indenture, dated as of May 5,
1999 (the "INDENTURE"), between NCI Building Systems, Inc. (the "COMPANY") and
▇▇▇▇▇▇ Trust Company of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
1. We are an "accredited investor" within the meaning of
Rules 501(a)(1), (2), (3), or (7) under the Securities Act of 1933 (the
"SECURITIES ACT") or an entity in which all of the equity owners are accredited
investors within the meaning of Rules 501(a)(1), (2), (3), or (7) under the
Securities Act (an "Institutional Accredited Investor");
2. any purchase of Notes by us will be for our own account
or for the account of one or more Institutional Accredited Investors;
3. if we purchase any Notes, we will acquire Notes having a
minimum purchase price of at least $100,000 for our own account and for each
separate account for which we are acting;
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4. we have sufficient knowledge and experience in financial
and business matters that we are capable of evaluating the merits and risks of
purchasing Notes;
5. we are not acquiring Notes with a view to any
distribution of the Notes in a transaction that would violate the Securities Act
or the securities laws of any State of the United States or any other applicable
jurisdiction; provided that the disposition of our property and the property of
any accounts for which we are acting as fiduciary shall remain at all times
within our control; and
6. we acknowledge that we have had access to financial and
other information, and have been afforded the opportunity to ask questions of
representatives of the Company and receive answers thereto, as we deem necessary
in connection with our decision to purchase Notes.
We understand that the Notes are being offered in a transaction
not involving any public offering within the meaning of the Securities Act and
that the Notes have not been registered under the Securities Act, and we agree,
on our own behalf and on behalf of any accounts for which we acquire any Notes,
that the Notes may be offered, resold, pledged or otherwise transferred only (1)
to a person whom we reasonably believe to be a qualified institutional buyer (as
defined in Rule 144A under the Securities Act), in a transaction meeting the
requirements of Rule 144, outside the United States in a transaction meeting the
requirements of Rule 903 or 904 under the Securities Act, or in compliance with
another exemption from the registration requirements of the Securities Act
(based on opinion of counsel if the Company so requests), (2) to the Company or
(3) under an effective registration statement, and, in each case, in compliance
with any applicable securities laws of any State of the United States or any
other applicable jurisdiction. We understand that the registrar will not be
required to accept for registration of transfer any Notes, except upon
presentation of evidence satisfactory to the Company that the foregoing
restrictions on transfer have been complied with. We further understand that
the Notes purchased by us may be in the form of definitive physical certificates
and that the certificates will bear a legend reflecting the substance of this
paragraph.
We acknowledge that the Company and others will rely upon our
confirmations, acknowledgments and agreements in this letter, and we agree to
notify the Company promptly in writing if any of those representations or
warranties cease to be accurate and complete.
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.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE
STATE OF NEW YORK.
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--------------------------------------
(Name of Purchaser)
By:-----------------------------------
Name:---------------------------------
Title:--------------------------------
Address:------------------------------
--------------------------------------
--------------------------------------
Dated: ---------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE FROM
ACQUIRING AFFILIATE ACCREDITED INVESTOR
NCI Building Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Trust Company of New York
Wall Street Plaza
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: NCI Building Systems, Inc.
9-1/4% Senior Subordinated Notes due 2009
Reference is hereby made to the Indenture, dated as of May 5, 1999 (the
"INDENTURE"), between NCI Building Systems, Inc. (the "COMPANY") and ▇▇▇▇▇▇
Trust Company of New York, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with my proposed purchase of $____ aggregate principal
amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
I confirm that:
1. I am a natural person who is a director or executive officer of
the Company and, at this time, I have an individual net worth or joint net worth
with my spouse that exceeds $1,000,000 or had individual income in excess of
$200,000 in each of the two most recent years or joint income with my spouse in
excess of $300,000 in each of those years and have a reasonable expectation of
reaching the same income level in the current year (an "Affiliate Accredited
Investor");
2. any purchase of Notes by me will be only for my own account,
3. I have sufficient knowledge and experience in financial and
business matters that I am capable of evaluating the merits and risks of
purchasing Notes;
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4. I am not acquiring Notes with a view to any distribution of the
Notes in a transaction that would violate the Securities Act or the securities
laws of any State of the United States or any other applicable jurisdiction; and
5. I have had access to financial and other information, and have
been afforded the opportunity to ask questions of representatives of NCI and
receive answers thereto, as I deem necessary in connection with my decision to
purchase Notes.
I understand that the Notes are being offered in a transaction not
involving any public offering within the meaning of the Securities Act and that
the Notes have not been registered under the Securities Act, and I agree, on my
own behalf that the Notes may be offered, resold, pledged or otherwise
transferred only (1) to a person whom I reasonably believe to be a qualified
institutional buyer (as defined in Rule 144A under the Securities Act), in a
transaction meeting the requirements of Rule 144A, in a transaction meeting the
requirements of Rule 144, outside the United States in a transaction meeting the
requirements of Rule 903 or 904 under the Securities Act, or in compliance with
another exemption from the registration requirements of the Securities Act (and
based upon an opinion of counsel if the Company so requests), (2) to the Company
or (3) under an effective registration statement, and, in each case, in
compliance with any applicable securities laws of any State of the United States
or any other applicable jurisdiction. I understand that the registrar will not
be required to accept for registration of transfer any Notes, except upon
presentation of evidence satisfactory to the Company that the foregoing
restrictions on transfer have been complied with. I further understand that the
Notes purchased by me will be in the form of definitive physical certificates
and that the certificates will bear a legend reflecting the substance of this
paragraph.
I understand that the person from whom or which I propose to purchase
Notes (or one or more of his or its transferors), on behalf of his or its
estate, heirs, representatives, legatees, transfers and assigns, has agreed to
forego and has waived any and all rights to exchange the Notes that I propose to
purchase for identical Notes in an exchange transaction registered under the
Securities Act, and any and all rights to have the resale of those Notes by me
registered under the Securities Act. I agree to be bound by such waiver and
forbearance agreement, and understand that neither I nor my estate, heirs,
representatives, legatees, transfers and assigns shall have any right to
register the Notes I propose to purchase or to exchange those Notes for
registered Notes.
I acknowledge that the Company and others will rely upon my
confirmations, acknowledgments and agreements in this letter, and I agree to
notify the Company promptly in writing if any of those representations or
warranties cease to be accurate and complete.
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THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE
STATE OF NEW YORK.
INDIVIDUAL PURCHASER
--------------------------------------
(Print Name of Purchaser)
--------------------------------------
(Signature of Purchaser)
Title at NCI:-------------------------
Address:------------------------------
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--------------------------------------
Social Security Number:
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D-2-3
EXHIBIT E
FORM OF NOTATION OF SENIOR SUBORDINATED GUARANTEE
GUARANTEE
9-1/4% Senior Subordinated Notes due 2009
of NCI Building Systems, Inc.
For value received, each Subsidiary Guarantor (which term
includes any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, on a senior subordinated basis, to the extent set
forth in the Indenture and subject to the provisions in the Indenture dated as
of May 5, 1999 (the "INDENTURE") among NCI Building Systems, Inc., the
Subsidiary Guarantors listed on the signature pages thereto and ▇▇▇▇▇▇ Trust
Company of New York, as trustee (the "TRUSTEE"), (a) the due and punctual
payment of the principal of, premium, if any, and interest on the Notes (as
defined in the Indenture), whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal 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 or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will 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 each Subsidiary
Guarantor to the Holders and to the Trustee pursuant to the Guarantee of the
Notes and the Indenture are expressly subordinated and subject in right of
payment to the prior payment in full of all Subsidiary Guarantor Senior
Indebtedness of such Subsidiary Guarantor, to the extent and in the manner
provided in Article Ten of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee. Each Holder, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such
purpose; PROVIDED, HOWEVER, that the Indebtedness evidenced by this Guarantee
shall cease to be so subordinated and subject in right of payment upon any
defeasance of this Note in accordance with the provisions of the Indenture.
E-1
NCI OPERATING CORP., a Nevada
corporation
By:-----------------------------------
Name:
Title:
NCI HOLDING CORP., a Delaware
corporation
By:-----------------------------------
Name:
Title:
A&S BUILDING SYSTEMS, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
corporation, its General Partner
By:-----------------------------------
Name:
Title:
NCI BUILDING SYSTEMS, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
corporation, its General Partner
By:-----------------------------------
Name:
Title:
E-2
METAL BUILDING COMPONENTS, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
corporation, its General Partner
By:-----------------------------------
Name:
Title:
METAL COATERS OPERATING, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
corporation, its General Partner
By:-----------------------------------
Name:
Title:
METAL BUILDING COMPONENTS HOLDING, INC.,
a Delaware corporation
By:-----------------------------------
Name:
Title:
METAL COATERS HOLDING, INC., a Delaware
corporation
By:-----------------------------------
Name:
Title:
E-3
METAL COATERS OF CALIFORNIA, INC., a
Texas corporation
By:-----------------------------------
Name:
Title:
▇▇▇▇▇▇ TRUST COMPANY OF NEW YORK, as
Trustee
By:-----------------------------------
Name:
Title:
E-4
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as
of ________________, among __________________ (the "SUBSIDIARY GUARANTOR"), a
subsidiary of NCI Building Systems, Inc., a Delaware corporation (the
"COMPANY"), the Company, the other Subsidiary Guarantors (as defined in the
Indenture referred to herein) and ▇▇▇▇▇▇ Trust Company of New York, as trustee
under the indenture referred to herein (the "TRUSTEE").
W I T N E S S E T H :
WHEREAS, the Company and the other Subsidiary Guarantors have
heretofore executed and delivered to the Trustee an indenture (the "INDENTURE"),
dated as May 5, 1999 providing for the issuance of 9-1/4% Senior Subordinated
Notes due 2009 (the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances
the Subsidiary Guarantor shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Subsidiary Guarantor shall unconditionally
guarantee, on a senior subordinated basis, all of the Company's Obligations
under the Notes and the Indenture on the terms and conditions set forth herein
(the "GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee
is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Subsidiary Guarantor and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Subsidiary Guarantor hereby
agrees as follows:
(a) Along with all Subsidiary Guarantors named in the
Indenture, to jointly and severally Guarantee to each
Holder of Notes authenticated and delivered by the
Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability
of the Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be
promptly paid
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in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the
Notes, if any, if lawful, and all other obligations
of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms
hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other
obligations, that same will 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 any performance so guaranteed for
whatever reason, the Subsidiary Guarantors shall be
jointly and severally obligated to pay the same
immediately.
(b) The Subsidiary Guarantor will constitute a Subsidiary
Guarantor for all purposes of the Indenture, Registration
Rights Agreement and the Offering Memorandum, and will
comply with and be bound by the provisions of the
Indenture, the Registration Rights Agreement and the
Offering Memorandum applicable to the Subsidiary
Guarantors at all times after the date hereof, in each
case until released from the Guarantee pursuant to
Section 10.16 of the Indenture.
3. REPRESENTATIONS AND WARRANTIES. The undersigned
Subsidiary Guarantor hereby represents and warrants as follows:
(a) The undersigned has been duly organized, is validly
existing and in good standing (or the functional
equivalent to the concept of good standing for
non-corporate entities) under the laws of its
jurisdiction of organization and has all requisite power
and authority, and all necessary authorizations,
approvals, orders, licenses, certificates and permits of
and from regulatory or governmental officials, bodies and
tribunals, except where the failure to obtain such
authorizations, approvals, orders, licenses, certificates
and permits would not reasonably be expected to have a
Material Adverse Effect (as defined herein), to (A) carry
on its business as it is currently being conducted and
(B) own, lease, license and operate its respective
properties in accordance with its business as currently
conducted. The undersigned is duly qualified and in good
standing (or the functional equivalent to the concept of
good standing for non-corporate entities) as a foreign
organization authorized to do business in each
jurisdiction in which the nature of its business or its
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ownership or leasing of property requires such
qualification, except where the failure to be so
qualified would not, either individually or in the
aggregate, result in a Material Adverse Effect. A
"Material Adverse Effect" means any material adverse
effect on the business, condition (financial or other),
properties, results of operations or prospects of the
Company and the Subsidiary Guarantors (including the
undersigned) taken as a whole.
(b) The undersigned has all requisite power and authority to
execute, deliver and perform all of its obligations under
this Supplemental Indenture or the Indenture, to the
extent the undersigned becomes or is deemed to be a party
thereto.
(c) The execution, delivery and performance by the
undersigned of this Supplemental Indenture, or the
Indenture to the extent the undersigned becomes or is
deemed to be a party thereto, does not or will not
violate, conflict with or constitute a breach of any of
the terms or provisions of, or constitute a Default under
(or an event that with notice or the lapse of time, or
both, would constitute a Event of Default), or require
consent under, or result in the creation or imposition of
a lien, charge or encumbrance on any property or assets
of the undersigned or an acceleration of any indebtedness
of the undersigned pursuant to, (i) the charter, bylaws
or other constituent documents of the undersigned, (ii)
any law, statute, rule or regulation applicable to the
undersigned or its respective assets or properties or
(iii) any judgment, order or decree of any domestic or
foreign court or governmental agency or authority being
applicable to or having jurisdiction over the undersigned
or its respective assets or properties. No consents or
waivers from any other person or entity are required for
the execution, delivery and performance of this
Supplemental Indenture other than such consents and
waivers as have been obtained.
(d) This Supplemental Indenture and each other relevant
document to which the undersigned is, will become or is
or will be deemed a party in connection with the
Indenture have been duly and validly authorized, executed
and delivered by the undersigned.
(e) This Supplemental Indenture constitutes the legal, valid
and binding obligation of the undersigned, enforceable
against the undersigned in accordance with its terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the
enforcement of creditors'
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rights generally and by general principles of equity and
the discretion of the court before which any proceedings
therefor may be brought.
4. EXECUTION AND DELIVERY. Each Subsidiary Guarantor agrees
that the Subsidiary Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
6. COUNTERPARTS. The parties may sign any number of copies
of this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Subsidiary Guarantor and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated: ------------
NCI BUILDING SYSTEMS, INC., a Delaware
corporation
By:-----------------------------------
Name:
Title:
NCI OPERATING CORP., a Nevada
corporation
By:-----------------------------------
Name:
Title:
NCI HOLDING CORP., a Delaware
corporation
By:-----------------------------------
Name:
Title:
A&S BUILDING SYSTEMS, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
Corporation, its General Partner
By:-----------------------------------
Name:
Title:
NCI BUILDING SYSTEMS, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
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Corporation, its General Partner
By:-----------------------------------
Name:
Title:
METAL BUILDING COMPONENTS, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
Corporation, its General Partner
By:-----------------------------------
Name:
Title:
METAL COATERS OPERATING, L.P., a Texas
limited partnership
By: NCI Operating Corp., a Nevada
Corporation, its General Partner
By:-----------------------------------
Name:
Title:
METAL BUILDING COMPONENTS HOLDING, INC.,
a Delaware corporation
By:-----------------------------------
Name:
Title:
METAL COATERS HOLDING, INC., a Delaware
corporation
By:-----------------------------------
Name:
F-6
Title:
METAL COATERS OF CALIFORNIA, INC., a
Texas corporation
By:-----------------------------------
Name:
Title:
▇▇▇▇▇▇ Trust Company of New York, as
Trustee
By:-----------------------------------
Name:
Title:
F-7
SCHEDULE I
AFFILIATE TRANSACTIONS PURSUANT TO AGREEMENTS ENTERED INTO
OR IN EFFECT ON THE ISSUE DATE
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None.
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