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EXHIBIT 4.1
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SYNTHETIC INDUSTRIES, INC.
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$170,000,000
SERIES A AND SERIES B
9 1/4% SENIOR SUBORDINATED NOTES DUE 2007
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INDENTURE
Dated as of February 11, 1997
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.3. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.4. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 2
THE NOTES
SECTION 2.1. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.2. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.3. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.4. Paying Agent to Hold Assets in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.5. Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.6. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.7. Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.8. Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.9. Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.10. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.13. CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.14. Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 2.15. Liquidated Damages Under Registration Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 3
REDEMPTION AND OFFERS TO PURCHASE
SECTION 3.1. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.2. Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.3. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.4. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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SECTION 3.5. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.6. Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.7. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.8. Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.9. Offer to Purchase by Application of Excess Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 4
COVENANTS
SECTION 4.1. Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.2. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.3. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.4. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.6. Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 4.7. Company and Corporate Existence and Maintenance of Properties and Insurance . . . . . . . . . . . . . . 39
SECTION 4.8. Limitation on the Incurrence of Indebtedness and Issuance of Disqualified Stock . . . . . . . . . . . . 40
SECTION 4.9. Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.10. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.11. Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.12. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries . . . . . . . . . . . . . 44
SECTION 4.13. Limitation on Layering Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.14. Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.15. Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.16. Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 5
SUCCESSORS
SECTION 5.1. Limitation on Merger, Consolidation or Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.2. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.2. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.3. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.4. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.5. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 6.6. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.7. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.8. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.9. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE 7
TRUSTEE
SECTION 7.1. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 7.2. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.3. Definitive Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 7.4. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.5. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.6. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.7. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.8. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.9. Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.11. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.2. Legal Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.3. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.4. Conditions to Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 61
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SECTION 8.5. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.6. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.7. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.8. Discharge of Liability on Securities; Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE 9
AMENDMENTS
SECTION 9.1. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.2. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.3. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.4. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.5. Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.6. Trustee to Sign Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 10
SUBORDINATION
SECTION 10.1. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.2. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.3. Default on Designated Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.4. Acceleration of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.5. When Distribution Must be Paid Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.6. Notice by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.7. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.8. Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.9. Subordination May Not be Impaired by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.10. Distribution or Notice to Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.11. Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.12. Authorization to Effect Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 10.13. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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ARTICLE 11
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 11.3. Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.4. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.5. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11.6. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.7. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.8. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.9. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 11.10. No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.11. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.12. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.13. Counterpart Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 11.14. Table of Contents, Headings, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SIGNATURES
EXHIBITS
Exhibit A FORM OF NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES B-1
Exhibit C FORM OF CERTIFICATE TO BE DELIVERED BY ACCREDITED INSTITUTIONS . . . . . . . . . . . . C-1
Exhibit D FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S D-1
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
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310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.8; 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.5
(b) 11.3
(c) 11.3
313(a) 7.6
(b)(1) N.A.
(b)(2) 7.6
(c) 7.6
(d) 7.6
314(a) 4.3; 4.4
(b) N.A.
(c)(1) 11.4
(c)(2) 11.4
(c)(3) N.A.
(d) N.A.
(e) 11.5
(f) N.A.
315(a) 7.1(2)
(b) 7.5
(c) 7.1(1)
(d) 7.1(3)
(e) 6.11
316(a)(last sentence) 2.9
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) N.A.
(b) 6.7
(c) 9.4
317(a)(1) 6.8
(a)(2) 6.9
8
Trust Indenture Indenture
Act Section Section
------------------------- -----------------
(b) 2.4
318(a) 11.1
(b) N.A.
(c) 11.1
N.A. means not applicable
*This Cross-Reference Table is not part of this Indenture.
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INDENTURE, dated as of February 11, 1997, between SYNTHETIC
INDUSTRIES, INC., a Delaware corporation (the "Company"), and UNITED STATES
TRUST COMPANY OF NEW YORK, a New York banking corporation, as trustee
("Trustee").
The Company 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 2007 of the Company (the "Series A
Notes"), and the 9 1/4% Series B Senior Subordinated Notes due 2007 of the
Company (the "Series B Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions
"Acquired Debt" means, with respect to any specified Person: (i)
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided, however, that beneficial ownership of 10% or more of the voting
securities (or the equivalent) of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition (collectively, "dispositions") of any assets (including by way of a
sale/leaseback transaction) other than dispositions of inventory in the
ordinary course of business, (ii) the issuance by any Restricted Subsidiary of
the Company of Equity Interests of such Restricted Subsidiary and (iii) the
disposition by the Company or any of its Restricted Subsidiaries of Equity
Interests of any Subsidiary of the Company, in the case of either clause (i),
(ii) or (iii), whether in a single transaction or a series of related
transactions (a) that have a Fair Market Value in excess of $2.0 million or (b)
for net proceeds in excess of $2.0 million. Notwithstanding the foregoing, the
following will not be deemed to be Asset Sales: (i) a disposition of assets by
a Restricted Subsidiary of the Company to the Company or a Wholly Owned
Subsidiary of the Company that is a Restricted Subsidiary or by the Company to
a Wholly Owned Subsidiary of the Company that is a Restricted Subsidiary, (ii)
an issuance of Equity Interests by a Restricted Subsidiary
10
of the Company to the Company or to a Wholly Owned Subsidiary of the Company
that is a Restricted Subsidiary, (iii) a disposition consisting of a Restricted
Payment permitted by Section 4.9 hereof, (iv) the disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole governed by Section 4.15 hereof and/or Article 5 hereof, and
(v) the sale of equipment by the Company or a Restricted Subsidiary to a
financial institution in connection with the entering into by the Company or
such Restricted Subsidiary of a Capital Lease Obligation with respect to such
equipment provided that (a) such equipment was purchased by the Company or such
Restricted Subsidiary subsequent to the date of the Indenture and within
eighteen months of the incurrence of the Capital Lease Obligation and (b) at
the time such equipment was purchased the Company or such Restricted
Subsidiary, as evidenced by a resolution of its Board of Directors or an
Officers' Certificate, intended to finance such equipment through a
sale/leaseback transaction resulting in the incurrence of a Capital Lease
Obligation.
"Board of Directors" means, as applicable, the Board of Directors
of the Company or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be so required to be capitalized on the balance
sheet in accordance with GAAP.
"Capital Stock" means (i) any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (ii) in the case of a partnership, partnership interests (whether
general or limited), and (iii) any other interest or participation that confers
on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than six months from the date of acquisition, (iii) certificates of
deposit and Eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any domestic commercial
bank having capital and surplus in excess of $500.0 million, (iv) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clauses (ii) and (iii) entered into with any
financial institution meeting the qualifications specified in clause (iii)
above, (v) commercial paper having the highest rating obtainable from Moody's
or S&P and in each case maturing within six months after the date of
acquisition, and (vi) shares of any money market mutual fund, or similar fund,
in each case having assets in excess of $500.0 million, which invests solely in
investments of the types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition, in one or a
series of related transactions, directly or indirectly, of all or substantially
all of the assets of the Company and its Restricted
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11
Subsidiaries to any Person or group (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), (ii) the adoption of a plan relating to the
liquidation or dissolution of the Company, (iii) any Person or group (as
defined above), other than the Partnership, is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a Person shall be deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 50% of the total voting power of the Voting Stock of the Company,
including by way of merger, consolidation or otherwise, or (iv) the first day
on which a majority of the members of the Board of Directors of the Company are
not Continuing Directors.
"Commodity Agreement" means any commodity futures contract,
commodity option or other similar agreement or arrangement entered into by the
Company or any of its Restricted Subsidiaries designed to protect the Company
or any of its Restricted Subsidiaries against fluctuations in the price of
commodities actually used in the ordinary course of business of the Company and
its Restricted Subsidiaries.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period, plus
(i) an amount equal to any extraordinary, non-recurring or unusual loss plus
any net loss realized in connection with an asset sale, to the extent such
losses were deducted or otherwise excluded in computing Consolidated Net
Income, plus (ii) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent such provision
for taxes was deducted or otherwise excluded in computing Consolidated Net
Income, plus (iii) Consolidated Interest Expense of such Person less
consolidated interest income for such period, to the extent such amount was
deducted or otherwise excluded in computing Consolidated Net Income, plus (iv)
depreciation and amortization (including amortization of goodwill, amortization
of deferred debt expense and other intangibles and amortization of deferred
compensation in respect of non-cash compensation but excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-cash
charges (excluding any such non-cash charge to the extent it represents an
accrual of a reserve for cash charges in any future period or amortization of a
prepaid cash expense that was paid in a prior period), of such Person and its
Restricted Subsidiaries for such period, to the extent such depreciation and
amortization were deducted or otherwise excluded in computing Consolidated Net
Income, plus (v) an amount equal to all premiums on prepayments of debt, in
each case, for such period without duplication on a consolidated basis and
determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes, and the
depreciation and amortization and other non-cash charges of, a Restricted
Subsidiary shall be added to Consolidated Net Income to compute Consolidated
Cash Flow only to the extent (and in the same proportion) the Net Income of
such Restricted Subsidiary was included in calculating the Consolidated Net
Income of such Person and only if a corresponding amount would be permitted at
the date of determination to be distributed by dividend to such Person by such
Restricted
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Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the aggregate consolidated interest, whether expensed or
capitalized, paid, accrued or scheduled to be paid or accrued, of such Person
and its Restricted Subsidiaries for such period (including (i) amortization of
original issue discount and deferred financing costs and non-cash interest
payments and accruals, (ii) the interest portion of all deferred payment
obligations, calculated in accordance with the effective interest method and
(iii) the interest component of any payments associated with Capital Lease
Obligations and net payments (if any) pursuant to Hedging Obligations, in each
case, to the extent attributable to such period, but excluding (x) commissions,
discounts and other fees and charges incurred with respect to letters of credit
and bankers' acceptances financing and (y) any interest expense on Indebtedness
of another Person that is Guaranteed by such Person or secured by a Lien on
assets of such Person) determined in accordance with GAAP. Consolidated
Interest Expense of the Company shall not include any prepayment premiums or
amortization of original issue discount or deferred financing costs, to the
extent such amounts are incurred as a result of the prepayment on the date of
this Indenture of any Indebtedness of the Company with the proceeds of the
Notes.
"Consolidated Net Income" means, with respect to any Person for
any period, the aggregate of the Net income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP, adjusted to exclude (only to the extent included and without
duplication) (i) all gains which are extraordinary, unusual or are
non-recurring (including any gain from the sale or other disposition of assets
outside the ordinary course of business or from the issuance or sale of capital
stock), (ii) all gains resulting from currency or hedging transactions, (iii)
the Net Income of any Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition and (iv) the cumulative effect
of a change in accounting principles; provided, that (a) the Net Income of any
Person that is not a Subsidiary or that is accounted for by the equity method
of accounting shall be included only to the extent of the amount of cash
dividends or cash distributions actually paid to the referent Person or a
Wholly Owned Subsidiary thereof that is a Restricted Subsidiary and (b) the Net
Income of any Person that is an Unrestricted Subsidiary shall be included only
to the extent of the amount of cash dividends or cash distributions actually
paid to the referent Person or a Restricted Subsidiary thereof.
"Consolidated Net Worth" means, with respect to any Person as of
any date, the sum of (i) the consolidated equity of the common stockholders of
such Person and its consolidated Restricted Subsidiaries as of such date plus
(ii) the respective amounts reported on such Person's balance sheet as of such
date with respect to any series of preferred stock (other than Disqualified
Stock) that by its terms is not entitled to the payment of dividends unless
such dividends may be declared and paid only out of net earnings in respect of
the year of such declaration and payment, but only to the extent of any cash
received by such Person upon issuance of such preferred stock, less (x) 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 12
months after the acquisition of such business) subsequent to the date of this
Indenture
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13
in the book value of any asset owned by such Person or a consolidated
Subsidiary of such Person, (y) all investments as of such date in
unconsolidated Subsidiaries and in Persons that are not Restricted
Subsidiaries, and (z) all unamortized debt discount and expense and unamortized
deferred charges as of such date, all of the foregoing determined in accordance
with GAAP.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who (i) was a member of
such Board of Directors on the date of this Indenture, or (ii) was nominated
for election or elected to such Board of Directors with the affirmative vote of
a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 11.2 hereof or such other address as to
which the Trustee may give notice to the Company.
"Credit Facility" means the Fourth Amended and Restated Revolving
Credit and Security Agreement, dated as of October 20, 1995, by and among the
Company, the Subsidiaries of the Company set forth therein, the lenders party
thereto and The First National Bank of Boston, as agent, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any of its Restricted Subsidiaries in the ordinary
course of business against fluctuation in the values of the currencies of the
countries (other than the United States) in which the Company or its Restricted
Subsidiaries conduct business.
"Default" means any event that is, or with the passage of time or
the giving of notice, or both, would be, an Event of Default.
"Definitive Notes" means Notes that are in the form of Exhibit A
attached hereto (but without including the text referred to in footnote 1
thereto and the additional schedule referred to therein).
"Depository" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.3 hereof
as the Depository with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depository" shall mean or include such successor.
"Designated Senior Debt" means (i) the Obligations of the Company
with respect to the Credit Facility and (ii) any other Senior Debt of the
Company permitted under this Indenture the principal amount of which at
original issuance is $20.0 million or more (other than Senior Debt that is
comprised of Hedging Obligations owing to a Person that is not a party to the
Credit Facility).
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"Disqualified Stock" means any Capital Stock which, by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable or is convertible or exchangeable for Indebtedness at the option of
the Holder thereof, in whole or in part, on or prior to February 15, 2007;
provided, that any Capital Stock that would not constitute Disqualified Stock
but for provisions thereof giving holders thereof the right to require such
Person to repurchase or redeem such Capital Stock upon the occurrence of an
"asset sale" or "change of control" occurring prior to the Stated Maturity of
the Notes shall not be Disqualified Stock if (i) the "asset sale" or "change of
control" provisions applicable to such Capital Stock are no more favorable to
the holders of such Capital Stock than the provisions in favor of Holders set
forth in Sections 4.14 and 4.15 hereof, as the case may be, (ii) such Capital
Stock specifically provides that such Person will not repurchase or redeem any
such stock pursuant to such provision prior to the Company's repurchase of such
Notes as are required to be repurchased pursuant to Sections 4.14 and 4.15
hereof, and (iii) such Capital Stock is redeemable within 90 days of the "asset
sale" or "change of control" events applicable to such Capital Stock.
"Eligible Inventory" means, with respect to the Company, the
consolidated finished goods, raw materials and work-in-process less any
applicable reserves, each of the foregoing determined in accordance with GAAP.
"Eligible Receivables" means the consolidated trade receivables
of the Company less the allowance for doubtful accounts, each of the foregoing
determined in accordance with GAAP.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"Event of Default" has the meaning set forth in Section 6.1
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Note" means any Series B Note issued in exchange for an
Original Note pursuant to the Exchange Offer or the Private Exchange Offer.
"Exchange Offer" means the offer by the Company to the Holders of
all outstanding Transfer Restricted Securities to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Series B Notes, in an
aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities tendered in such exchange offer by such Holders.
"Exchange Offer Registration Statement" means the registration
statement under the Securities Act relating to the Exchange Offer, including
the related prospectus.
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15
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than the Credit Facility) in existence on the date of this
Indenture, until such amounts are repaid.
"Fair Market Value" means, with respect to any asset, the price
(after taking into account any liabilities relating to such assets) which could
be negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing buyer, neither of which is under pressure or
compulsion to complete the transaction; provided that the Fair Market Value of
any such asset or assets shall be determined by the Board of Directors of the
Company, acting in good faith and by unanimous resolution, and which
determination shall be evidenced by an Officers' Certificate delivered to the
Trustee.
"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the Company or any of its Restricted Subsidiaries incurs, assumes, guarantees
or redeems any Indebtedness (other than revolving credit borrowings) or if the
Company issues or redeems any preferred stock, in each case subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated but prior to the date of the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "Transaction Date"), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma effect to such
incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable reference period. For purposes of making the
computation referred to above, acquisitions (including all mergers and
consolidations), dispositions and discontinuance of operations that have been
made by the Company or any of its Restricted Subsidiaries during the reference
period or subsequent to such reference period and on or prior to the
Transaction Date shall be calculated on a pro forma basis assuming that all
such acquisitions, dispositions and discontinuance of operations had occurred
on the first day of the reference period; provided, however, that Fixed Charges
shall be reduced by amounts attributable to operations that are so disposed of
or discontinued only to the extent that the obligations giving rise to such
Fixed Charges would no longer be obligations contributing to the Company's
Fixed Charges subsequent to the Transaction Date.
"Fixed Charges" means, with respect to any Person for any period,
the sum, without duplication, of (i) Consolidated Interest Expense, (ii)
commissions, discounts and other fees and charges incurred with respect to
letters of credit and bankers' acceptances financing, (iii) any interest
expense on Indebtedness of another Person that is Guaranteed by such Person or
secured by a Lien on assets of such Person, and (iv) the product of (a) all
cash or non-cash dividend payments on any series of preferred stock of any
Restricted Subsidiary of such Person (other than preferred stock of such
Person), times (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 such Person, expressed as a decimal, determined, in
each case, on a consolidated basis and in accordance with GAAP.
"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
-7-
16
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in
effect in the United States on the date of this Indenture.
"Global Note" means a Note that contains the paragraph referred
to in footnote 1 and the additional schedule referred to in the form of Note
attached hereto as Exhibit A.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United States
of America is pledged.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) Interest Rate Agreements, (ii) Currency
Agreements and (iii) Commodity Agreements.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any
indebtedness of such Person, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of such Person prepared in accordance with GAAP, as well
as all indebtedness of others secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person) and, to the extent
not otherwise included, the Guarantee of any Indebtedness of such Person or any
other Person.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchaser" means Bear, ▇▇▇▇▇▇▇ & Co. Inc., as initial
purchaser in the Offering.
"Interest Payment Date" means, with respect to any installment of
interest on the Notes, the date specified in such Note as the fixed date on
which such installment of interest is due and payable.
"Interest Record Date" shall have the meaning set forth in the
form of the Note attached hereto as Exhibit A.
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17
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement entered into by the Company or any of its Restricted
Subsidiaries designed to protect the Company or any of its Restricted
Subsidiaries in the ordinary course of business against fluctuations in
interest rates.
"Investments" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the forms of direct
or indirect loans (including Guarantees), advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities and all
other items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Management Plans" means the Company's 1994 Stock Option Plan and
1996 Stock Option Plan, each as adopted by the Board of Directors.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any sale of assets (including,
without limitation, dispositions pursuant to sale/leaseback transactions), or
(b) the disposition of any securities or the extinguishment of any Indebtedness
of such Person or any of its Restricted Subsidiaries, and (ii) any
extraordinary gain (but not loss), together with any related provision for
taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate amount of consideration
received by the Company or any of its Restricted Subsidiaries in respect of any
Asset Sale in the form of cash or Cash Equivalents, (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment
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18
of Indebtedness secured by a Lien on the asset or assets (including Equity
Interests) the subject of such Asset Sale and any reserve for adjustment in
respect of the sale price of such asset or assets.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any of its Restricted Subsidiaries (a) provides credit support
of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise) or (c) constitutes the lender; (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and (iii) as to which the lenders have been
notified in writing that they will not have any recourse to the stock or assets
of the Company or any of its Restricted Subsidiaries.
"Note Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Notes" means the Exchange Notes and the Original Notes.
"Obligations" means any principal, premium, interest (including
post-petition interest), penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness.
"Offering" means the offering of the Series A Notes pursuant to
the Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum of the
Company, dated February 6, 1997, relating to the Offering.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer or President and the Chief
Financial Officer or chief accounting officer of such Person.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.5 hereof and, to the extent required by the TIA, complies with TIA Section
314. The counsel may be an employee of or counsel to the Company, any of its
Subsidiaries or the Trustee.
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19
"Original Notes" means the Series A Notes initially issued under
this Indenture prior to the issuance of Exchange Notes.
"Partnership" means Synthetic Industries, L.P., a Delaware
limited partnership.
"Permitted Investments" means (i) any Investments in the Company
or in a Wholly Owned Subsidiary of the Company that is a Restricted Subsidiary;
(ii) any Investments in Cash Equivalents; (iii) Investments 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 Wholly Owned Subsidiary of the Company
that is a Restricted Subsidiary or (b) such Person 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 Wholly Owned Subsidiary of
the Company that is a Restricted Subsidiary; (iv) any Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was
made in compliance with Sections 3.9 and 4.14 hereof and (v) any Investment in
an Unrestricted Subsidiary or in an entity in which the Company or any
Restricted Subsidiary has an Equity Interest together with one or more other
Persons, and which is formed after the date of the Indenture for the purpose of
engaging in a business (a) in which the Company or its Restricted Subsidiaries
are engaged on the date of this Indenture or (b) which is related to a business
in which the Company or its Restricted Subsidiaries are engaged on the date of
this Indenture, provided, that, at the date any such Investment is made and
after giving effect thereto, such Investment, together with other such
Investments by the Company and its Restricted Subsidiaries since the date of
the Indenture, does not exceed $15.0 million.
"Permitted Liens" means (i) Liens in favor of the Company; (ii)
Liens securing Senior Debt of the Company that was permitted to be incurred
pursuant to this Indenture; (iii) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Company or any
Restricted Subsidiary of the Company, provided that such Liens were not created
in contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company or such Restricted Subsidiary; (iv) Liens on property existing at the
time of acquisition thereof by the Company or any Restricted Subsidiary of the
Company; provided that such Liens were not created in contemplation of such
acquisition; (v) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (vi) Liens existing on the date of
this Indenture; (vii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made therefor; (viii) Liens imposed by
law, such as mechanics', carriers', warehousemen's, materialmen's, and vendors'
Liens, incurred in good faith in the ordinary course of business with respect
to amounts not yet delinquent or being contested in good faith by appropriate
proceedings if a reserve or other appropriate provisions, if any, as shall be
required by GAAP shall have been made therefor; (ix) zoning restrictions,
easements, licenses, covenants, reservations, restrictions on the use of real
property or minor irregularities of title incident thereto that do not, in the
aggregate, materially detract from the value of the property or the assets of
the Company or impair the use of such property in the operation of the
Company's business; (x) judgment Liens to the extent that such judgments do
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20
not cause or constitute a Default or an Event of Default; (xi) Liens to secure
the payment of all or a part of the purchase price of property or assets
acquired or constructed in the ordinary course of business on or after the date
of this Indenture, provided that (a) such property or assets are used in the
same or similar line of business as the Company was engaged in on the date of
this Indenture, (b) at the time of incurrence of any such Lien, the aggregate
principal amount of the obligations secured by such Lien shall not exceed the
lesser of the cost or fair market value of the assets or property (or portions
thereof) so acquired or constructed, (c) each such Lien shall encumber only the
assets or property (or portions thereof) so acquired or constructed and shall
attach to such property within 120 days of the purchase or construction thereof
and (d) any Indebtedness secured by such Lien shall have been permitted to be
incurred under Section 4.8 hereof; and (xii) precautionary filings of any
financing statement under the Uniform Commercial Code (or equivalent statutes)
of any jurisdiction made in connection with Capital Lease Obligations permitted
to be incurred by Section 4.8 hereof, provided, that such Lien does not violate
clauses (a), (b) and (c) of clause (xi) hereof.
"Person" means any individual, corporation, limited liability
company, general or limited partnership, joint venture, association,
joint-stock company, trust, charitable foundation, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Private Exchange Offer" means a private exchange offer pursuant
to Section 2(a) of the Registration Rights Agreement.
"Public Equity Offering" means a bona fide underwritten sale to
the public of common stock of the Company pursuant to a registration statement
(other than on Form S-8 or any other form relating to securities issuable under
any benefit plan of the Company) that is declared effective by the SEC and
results in aggregate gross proceeds to the Company of at least $15.0 million.
"Purchase Money Obligations" of any Person means any obligations
of such Person or any of its Restricted Subsidiaries to any seller or any other
Person incurred or assumed in connection with the purchase of real or personal
property to be used in the business of such Person or any of its subsidiaries
within 180 days of such incurrence or assumption.
"Registration Rights Agreement" means that certain Registration
Rights Agreement, dated as of the date of this Indenture, between the Company
and the Initial Purchaser, as amended or supplemented from time to time.
"Representative" means the Trustee and any other trustee, agent
or representative of holders of any Senior Debt.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department 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 officers
and also means, with respect to a particular corporate trust matter, any
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21
other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment. With respect to Unrestricted Subsidiaries or Restricted
Subsidiaries, the amount of Restricted Investments shall be calculated as the
greater of (i) the book of value of assets contributed by the Company or a
Restricted Subsidiary or (ii) the Fair Market Value of the assets contributed
by the Company or a Restricted Subsidiary (as certified by a resolution of
independent directors of the Company if Fair Market Value or book value is
greater than $1.0 million).
"Restricted Subsidiary" means (i) any Subsidiary of the Company
in existence on the date of this Indenture, (ii) any Subsidiary of the Company
(other than a Subsidiary that is also a Subsidiary of an Unrestricted
Subsidiary) organized or acquired after the date of this Indenture, unless such
Subsidiary shall have been designated as an Unrestricted Subsidiary by
resolution of the Board of Directors as provided in and in compliance with the
definition of "Unrestricted Subsidiary," and (iii) any Unrestricted Subsidiary
which is designated as a Restricted Subsidiary by the Board of Directors of the
Company; provided that, immediately after giving effect to the designation
referred to in clause (iii), no Default or Event of Default shall have occurred
and be continuing and the Company could incur at least $1.00 of additional
Indebtedness under the first paragraph of Section 4.8 hereof. The Company
shall evidence any such designation to the Trustee by promptly filing with the
Trustee an Officers' Certificate certifying that such designation has been made
and stating that such designation complies with the requirements of the
immediately preceding sentence.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means (i) the Obligations of the Company with
respect to the Credit Facility and (ii) any other Indebtedness permitted to be
incurred by the Company under the terms of this Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides that it
is pari passu with or subordinated in right of payment to the Notes.
Notwithstanding anything to the contrary in the foregoing, Senior Debt shall
not include (v) any obligation of the Company to, in respect of or imposed by
any environmental, landfill, waste management or other regulatory governmental
agency, statute, law or court order, (w) any liability for federal, state,
local or other taxes owed or owing by the Company, (x) any Indebtedness of the
Company to any of the Company's Subsidiaries or other Affiliates, (y) any trade
payables or (z) any Indebtedness that is incurred in violation of this
Indenture on or after the date of this Indenture.
"Series A Notes" means the Company's 9 1/4% Series A Senior
Subordinated Notes due 2007 to be issued pursuant to this Indenture.
"Series B Notes" means the Company's 9 1/4% Series B Senior
Subordinated Notes due 2007 to be issued pursuant to this Indenture in the
Exchange Offer.
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"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 Regulation
is in effect on the date hereof.
"S&P" means Standard & Poor's Rating Group, and its successors.
"Stated Maturity" means, when used with respect to any Note or
any installment of interest thereon, the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable, and when used with respect to any other Indebtedness, means
the date specified in the instrument governing such Indebtedness as the fixed
date on which the principal of such Indebtedness, or any installment of
interest thereon, is due and payable.
"Subsidiary" means, with respect to any Person (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by such Person or one or more of the other Subsidiaries of that Person or a
combination thereof and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Persons or one or
more Subsidiaries of such Person or any combination thereof.
"TIA" means the Trust Indenture Act of 1939, as in effect on the
date this Indenture is qualified under the TIA.
"Transfer Restricted Securities" has the meaning ascribed to the
term "Registrable Securities" in the Registration Rights Agreement.
"Trustee" means the party named as such above until a successor
replaces it in accordance with applicable provisions of this Indenture, and
thereafter means the successor serving hereunder.
"Unrestricted Subsidiary" means, until such time as any of the
following shall be designated as a Restricted Subsidiary of the Company by the
Board of Directors of the Company as provided in and in compliance with the
definition of "Restricted Subsidiary," (i) any Subsidiary of the Company or of
a Restricted Subsidiary of the Company organized or acquired after the date of
this Indenture that is designated concurrently with its organization or
acquisition as an Unrestricted Subsidiary by resolution of the Board of
Directors of the Company, (ii) any Subsidiary of any Unrestricted Subsidiary,
and (iii) any Restricted Subsidiary of the Company that is designated as an
Unrestricted Subsidiary by resolution of the Board of Directors of the Company,
provided that, (a) immediately after giving effect to such designation, no
Default or Event of Default shall have occurred and be continuing, (b) any such
designation shall be deemed, at the election of the Company at the time of such
designation, to be either (but not both) (x) the making of a Restricted Payment
at the time of such designation in an amount equal to the Investment in such
Subsidiary subject to the restrictions contained in Section 4.9 hereof or (y)
the making of an Asset Sale at the time of such designation in an amount equal
to the
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Investment in such Subsidiary subject to the restrictions contained in Sections
3.9 and 4.14 hereof, and (c) such Subsidiary or any of its Subsidiaries does
not own any Capital Stock or Indebtedness of, or own or hold any Lien on any
property of, the Company or any other Subsidiary of the Company that is not a
Subsidiary of the Subsidiary to be so designated. A Person may be designated
as an Unrestricted Subsidiary only if and for so long as such Person (i) has no
Indebtedness other than Non-Recourse Debt; (ii) is a Person with respect to
which neither the Company nor any of its Restricted Subsidiaries has any direct
or indirect obligation (a) to subscribe for additional Equity Interests or (b)
to make any payment to maintain or preserve such Person's financial condition
or to cause such Person to achieve any specified levels of operating results;
and (iii) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries. The Company shall evidence any designation pursuant to clause
(i) or (ii) of the first sentence hereof to the Trustee by filing with the
Trustee within 45 days of such designation an Officers' Certificate certifying
that such designation has been made and, in the case of clause (iii) of the
first sentence hereof, the related election of the Company in respect thereof.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers, general partners or trustees of any Person (irrespective of whether
or not, at the time, Capital Stock of any other class or classes shall have, or
might have, voting power by reason of the happening of any contingency) or,
with respect to a partnership (whether general or limited), any general partner
interest in such partnership.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, 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 payments 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 Subsidiary" of any Person means a Subsidiary of
such Person 80% of the outstanding Capital Stock or other ownership interests
of which (other than directors' qualifying shares) shall be at the time
beneficially owned by such Person (either directly or indirectly through Wholly
Owned Subsidiaries).
SECTION 1.2. Other Definitions
Defined in
Term Section
---- ----------
"Asset Sale Offer" 4.14
"Bankruptcy Law" 6.1
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
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"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.3
"Custodian" 6.1
"Excess Proceeds" 4.14
"incur" 4.8
"Intercompany Indebtedness" 4.8
"Legal Defeasance" 8.2
"Legal Holiday" 11.7
"Offer Amount" 3.9
"Offer Period" 3.9
"Paying Agent" 2.3
"Payment Blockage Notice" 10.3
"Payment Default" 6.1
"Permitted Refinancing" 4.8
"Purchase Date" 3.9
"Registrar" 2.3
"Refinancing Indebtedness" 4.8
"Restricted Payments" 4.9
SECTION 1.3. Incorporation by Reference of Trust Indenture Act
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 of Notes;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company, as obligor, or any
successor obligor upon the Notes.
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 assigned to them.
SECTION 1.4. Rules of Construction
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
or the Exchange Act shall be deemed to include substitute, replacement
or successor sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.1. Form and Dating
The Original Notes and the Trustee's certificate of
authentication relating thereto shall be substantially in the form of Exhibit A
hereto, with such appropriate insertions, substitutions and other variations as
are required or permitted by this Indenture. The Exchange Notes and the
Trustee's certificate of authentication relating thereto shall be substantially
in the form of Exhibit A hereto, with such appropriate insertions,
substitutions and other variations as are required or permitted by this
Indenture; provided, that Exchange Notes issued in the Exchange Offer shall not
bear the legend set forth in Exhibit A hereto as indicated by footnote 2;
provided, further, that Exchange Notes issued in both the Exchange Offer and
the Private Exchange Offer shall not refer to Liquidated Damages and shall not
include paragraph 20 of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by this Indenture, law, stock exchange rule,
depository rule or usage. Any such notation, legend or endorsement shall be
delivered in writing to the Trustee by the Company. Each Note shall be dated
the date of its issuance and show the date of its authentication.
The terms and provisions contained in the Notes, annexed hereto
as Exhibit A hereto, shall constitute, and are hereby expressly made, a part of
this Indenture, and the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
The Original Notes initially will be issued in global form,
substantially in the form of Exhibit A attached hereto (including the text set
forth in footnote 1 thereto and the additional schedule referred to therein)
and may be issued in definitive form, substantially in the form of Exhibit A
hereto (not including the text set forth in footnote 1 thereto and the
additional schedule referred to therein). The Original Notes initially will be
deposited with the Trustee, as Note Custodian. The Global Notes initially shall
be registered in the name of the Depository or the
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nominee of the Depository. A Global Note shall represent such of the
outstanding Notes as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Notes from time to time endorsed
thereon and that the aggregate 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 amount of outstanding Notes
represented thereby shall be made by the Trustee, as Note Custodian, in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
SECTION 2.2. Execution and Authentication
Two Officers of the Company shall sign the Notes for the Company
by manual or facsimile signature. The seal of the Company shall be reproduced
on the Notes and may be in facsimile form.
If an Officer of the Company whose signature is on a Note no
longer holds that office at the time the Note is authenticated, the Note shall
nevertheless be valid.
Only such Notes as shall bear thereon a certificate of
authentication substantially in the form set forth in Exhibit A hereto,
manually executed by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate of
authentication executed by the Trustee upon any Note executed by the Company
shall be conclusive evidence that the Note so authenticated has been duly
authenticated and delivered hereunder.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a request for the
authentication and delivery of such Notes signed by an Officer of the Company,
and the Trustee, in accordance with such request, shall authenticate and
deliver such Notes as provided in this Indenture.
The Trustee shall authenticate (i) Original Notes for original
issue in the aggregate principal amount not to exceed $170,000,000, and (ii)
Exchange Notes issued, either (x) in the Exchange Offer for the Original Notes
pursuant to the Exchange Offer Registration Statement filed with the Commission
from time to time, for issue only in exchange for a like principal amount of
Original Notes or (y) in the Private Exchange Offer, for issue only in exchange
for a like principal amount of Original Notes, in each case, upon written order
of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of Notes to be authenticated and the date
on which the Notes are to be authenticated, whether the Notes are to be
Original Notes or Exchange Notes and whether the Notes are to be Definitive
Notes or Global Notes. Except as contemplated by Section 2.7 hereof, the
aggregate principal amount of Notes outstanding at any time may not exceed
$170,000,000. 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.
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The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such
appointment, 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 right as an Agent to deal with the Company or an Affiliate of the Company.
The Trustee shall not be liable for any act or failure to act of the
authenticating agent to perform any duty either required herein or authorized
herein to be performed by such person in accordance with this Indenture. Each
authenticating agent shall be acceptable to the Company and otherwise comply in
all respects with the eligibility requirements of the Trustee contained in this
Indenture.
SECTION 2.3. Registrar and Paying Agent
The Company shall maintain an office or agency where (a) Notes
may be presented for registration of transfer or for exchange ("Registrar"),
(b) Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Company in respect of the Notes may be
served. 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 agents. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee 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 and shall be
entitled to appropriate compensation in accordance with Section 7.7 hereof.
The Company or any of its Subsidiaries may act as Paying Agent or Registrar,
except that for purposes of payments on the Notes pursuant to Sections 4.14 and
4.15 hereof, neither the Company nor any of its Affiliates may act as Paying
Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the provisions
of the TIA. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company initially appoints The Depository Trust
Company ("DTC") to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and agent for service of notices and demands in
connection with the Notes.
SECTION 2.4. Paying Agent to Hold Assets 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 assets held by the Paying Agent for the
payment of principal of, premium, if any, or interest on, or Liquidated Damages
with respect to, the Notes (whether such assets have been distributed to it by
the Company or any other obligor on the Notes), and will notify the Trustee of
any Default
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by the Company or any other obligor on the Notes in making any such payment.
While any such Default continues, the Trustee may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed. The Company at any time may require a Paying Agent to pay all
assets held by it to the Trustee and account for any assets disbursed. Upon
payment over and accounting to the Trustee, the Paying Agent (if other than the
Company or any of its Subsidiaries) shall have no other liability for the
assets. If either the Company or any of its Subsidiaries 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.
SECTION 2.5. 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
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee as of each Interest
Record 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 Holders, including the aggregate principal amount of
Notes held by each Holder.
SECTION 2.6. Transfer and Exchange
(a) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented to the Registrar with the request to register the transfer
of the Definitive Notes, or to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met; provided, however, that the
Definitive Notes presented or surrendered for registration of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Holder thereof or
by an attorney who is duly authorized in writing to act on behalf
of the Holder; and
(ii) shall, in the case of a Transfer Restricted
Security, be accompanied by the following additional information
and documents, as applicable:
(A) if such Transfer Restricted Securities
are being delivered to the Registrar by a Holder for
registration in the name of such Holder, without transfer,
a certification from such Holder to that effect (in
substantially the form of Exhibit B hereto); or
(B) if such Transfer Restricted Securities
are being transferred (1) to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act)
in a transaction meeting the requirements of Rule 144A
under the Securities Act or (2) pursuant to an exemption
from registration in a transaction meeting the requirements
of Rule 144 under the Securities Act (based upon an Opinion
of Counsel if the Company so requests) or (3)
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pursuant to an effective registration statement under the
Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B hereto); or
(C) if such Transfer Restricted Securities
are being transferred to an institutional "accredited
investor," within the meaning of Rule 501(a)(1), (2), (3)
or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of
the Securities Act (based upon an Opinion of Counsel if the
Company so requests), a certification to that effect from
such Holder (in substantially the form of Exhibit B hereto)
and a certification from the applicable transferee (in
substantially the form of Exhibit C hereto);
(D) if such Transfer Restricted Securities
are being transferred outside the U.S. to a foreign person
pursuant to an exemption from registration in a transaction
meeting the requirements of Regulation S under the
Securities Act (based on an Opinion of Counsel if the
Company so requests), certification to that effect from
such Holder (in substantially the form of Exhibits B and D
hereto); or
(E) if such Transfer Restricted Securities
are being transferred in reliance on another exemption from
the registration requirements of the Securities Act (based
upon an Opinion of Counsel if the Company so requests), a
certification to that effect from such Holder (in
substantially the form of Exhibit B hereto).
(b) Transfer of a Definitive Note for a Beneficial Interest in
a Global Note. A Definitive Note may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set
forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed
or accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder thereof or by an attorney who is duly
authorized in writing to act on behalf of the Holder, together with:
(i) if such Definitive Note is being delivered to the
Trustee by a Holder, without transfer, to enable such Holder to obtain a
beneficial interest in a Global Note, a certification from such Holder
to that effect (in substantially the form of Exhibit B hereto); provided
that such Holder provides a certification that such Holder is otherwise
permitted to hold a beneficial interest in a Global Note;
(ii) if such Definitive Note is a Transfer Restricted
Security and is being transferred, certification, substantially in the
form of Exhibit B hereto, that either (A) such Definitive Note is being
transferred to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in a transaction meeting the requirements
of Rule 144A under the Securities Act, (B) to an institutional
"accredited investor," within the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Securities Act pursuant to a private placement exemption
from the registration requirements of the Securities Act (based upon an
Opinion
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of Counsel if the Company so requests), provided that the Trustee
receives a certification from such transferee (in substantially the form
of Exhibit C hereto), or (C) to a foreign person outside the U.S.
pursuant to an exemption from registration in a transaction meeting the
requirements of Regulation S under the Securities Act (based upon an
Opinion of Counsel if the Company so requests), provided that the
Trustee receives a certification from such transferor (in substantially
the form of Exhibit D hereto); and
(iii) whether or not such Definitive Note is a Transfer
Restricted Security, written instructions directing the Trustee to make,
or directing the Note Custodian to make, an endorsement on the Global
Note to reflect an increase in the aggregate principal amount of the
Notes represented by the Global Note;
then the Trustee shall cancel such Definitive Note in accordance with Section
2.11 hereof and cause, or direct the Note Custodian to cause, in accordance
with the standing instructions and procedures existing between the Depository
and the Note Custodian, the aggregate principal amount of Notes represented by
the Global Note to be increased accordingly. If no Global Notes are then
outstanding, the Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.2 hereof, the Trustee shall authenticate a
new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture and the procedures of
the Depository therefor, which shall include restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act.
(d) Transfer of a Beneficial Interest in a Global Note for a
Definitive Note.
(i) Any Person having a beneficial interest in a Global
Note may upon request exchange such beneficial interest for a Definitive
Note. Upon receipt by the Trustee of written instructions or such other
form of instructions as is customary for the Depository from the
Depository or its nominee on behalf of any Person having a beneficial
interest in a Global Note, and, in the case of a Transfer Restricted
Security, the following additional information and documents (all of
which may be submitted by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the Depository as being
the beneficial owner, a certification from such Person to that
effect (in substantially the form of Exhibit B hereto); or
(B) if such beneficial interest is being
transferred (1) to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in a transaction meeting
the requirements of Rule 144A under the Securities Act or (2)
pursuant to an exemption from registration in a transaction
meeting the requirements of Rule 144 under the Securities Act
(based upon an Opinion of Counsel if the Company so requests) or
(3) pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the
transferor (in substantially the form of Exhibit B hereto); or
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(C) if such beneficial interest is being
transferred to an institutional "accredited investor," within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act pursuant to a private placement exemption from the
registration requirements of the Securities Act (based upon an
Opinion of Counsel if the Company so requests), a certification
to that effect from such transferor (in substantially the form of
Exhibit B hereto) and a certification from the applicable
transferee (in substantially the form of Exhibit C hereto); or
(D) if such beneficial interest is being
transferred outside the U.S. to a foreign person pursuant to an
exemption from registration in a transaction meeting the
requirements of Regulation S under the Securities Act (based upon
an Opinion of Counsel if the Company so requests), certifications
to that effect from such transferor (in substantially the form of
Exhibits B and D hereto); or
(E) if such beneficial interest is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act (based upon an
Opinion of Counsel if the Company so requests), a certification
to that effect from such transferor (in substantially the form of
Exhibit B hereto);
then the Trustee or the Note Custodian, at the direction of the Trustee,
shall, in accordance with the standing instructions and procedures
existing between the Depository and the Note Custodian, cause the
aggregate principal amount of Global Notes to be reduced accordingly
and, following such reduction, the Company shall execute and, upon
receipt of an authentication order in accordance with Section 2.2
hereof, the Trustee shall authenticate and deliver to the transferee a
Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Global Note pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such
Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Note may
not be transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Authentication of Definitive Notes. If at any time:
(i) the Company notifies the Trustee in writing that the
Depository for the Notes is no longer willing or able to act as
Depository for the Global Notes and a successor Depository for the
Global Notes is not appointed by the Company within 90 days after
delivery of such notice; or
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(ii) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Notes under
this Indenture;
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Notes,
will authenticate and deliver Definitive Notes, in an aggregate principal
amount equal to the principal amount of the Global Notes, in exchange for such
Global Notes and registered in such names as the Depository shall instruct the
Trustee or the Company in writing.
(g) Legends.
(i) Except as permitted by the following paragraphs
(iii) and (iv), each Note certificate evidencing the Global Notes and
the Definitive Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the following
form until after the third anniversary of the later of the date of
original issuance of the Note and the last day on which the Company or
any Affiliate of the Company was the owner of such Note (or any
predecessor security):
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY
PERSON EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) WHO IS AN INSTITUTION (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE
WHICH IS THREE YEARS AFTER THE LATER OF THE DATE OF ORIGINAL
ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE ISSUER OR
ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE (THE
"RESALE RESTRICTION TERMINATION DATE") OFFER, SELL OR OTHERWISE
TRANSFER THIS NOTE, EXCEPT (A) TO THE ISSUER, (B) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH THE
RESALE PROVISIONS OF RULE 144A UNDER THE SECURITIES ACT, (C) TO
AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A WRITTEN CERTIFICATION
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE), (D) PURSUANT TO
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THE RESALE LIMITATIONS PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (F) OUTSIDE THE U.S. TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
REGULATION S UNDER THE SECURITIES ACT OR (G) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (BASED, IN THE CASE OF CLAUSES (C), (D), (F)
AND (G) ABOVE, UPON AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO THE ISSUER IF THE ISSUER SO REQUESTS), SUBJECT IN EACH OF THE
FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF
ITS PROPERTY OR THE PROPERTY OF SUCH ACCOUNT BE AT ALL TIMES
WITHIN ITS CONTROL AND TO COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER 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.
THE FOREGOING RESTRICTIONS ON RESALE WILL NOT APPLY SUBSEQUENT TO
THE RESALE RESTRICTION TERMINATION DATE."
(ii) Each Global Note shall also bear the following
legend:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE REFERRED TO
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HEREINAFTER. THIS GLOBAL NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A
SECURITY REGISTERED IN THE NAME OF ANY PERSON OTHER THAN THE DEPOSITORY TRUST
COMPANY OR A NOMINEE THEREOF EXCEPT IN THE CIRCUMSTANCES SET FORTH IN SECTION
2.6 OF THE INDENTURE, AND MAY NOT BE TRANSFERRED, IN WHOLE OR IN PART, EXCEPT
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.6 OF THE INDENTURE.
BENEFICIAL INTEREST IN THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT IN
ACCORDANCE WITH SECTION 2.6 OF THE INDENTURE.
(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Note, the Registrar shall permit
the Holder thereof to exchange such Transfer Restricted Security
for a Definitive Note that does not bear the legend set forth in
clause (i) above and rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted
Security represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set forth in
clause (i) above if all other interests in such Global Note have
been or are concurrently being sold or transferred pursuant to
Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act, but such
Transfer Restricted Security shall continue to be subject to the
provisions of Section 2.6(c) hereof; provided, however, that with
respect to any request for an exchange of a Transfer Restricted
Security that is represented by a Global Note for a Definitive
Note that does not bear a legend set forth in clause (i) above,
which request is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the Registrar that such
request is being made pursuant to Rule 144 (such certification to
be substantially in the form of Exhibit B hereto).
(iv) Notwithstanding the foregoing, upon consummation of
the Exchange Offer, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.2 hereof, the Trustee
shall authenticate Series B Notes in exchange for Series A Notes
accepted for exchange in the Exchange Offer, which Series B Notes shall
not bear the legend set forth in clause (i) above, and the Registrar
shall rescind any restriction on the transfer of such Notes, in each
case unless the Holder of such Series A Notes is either (A) a
broker-dealer, (B) a Person participating in the distribution (within
the meaning of the Securities Act) of the Series A Notes or (C) a Person
who is an affiliate (as defined in Rule 144A) of the Company. The
Company shall identify to the Trustee such Holders of the Notes in a
written certification signed by an Officer of the Company and, absent
certification from the Company to such effect, the Trustee shall assume
that there are no such Holders.
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(v) By its acceptance of any Note bearing the legend set
forth in Section 2.6(g)(i) hereof, each Holder of such a Note
acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in such legend and agrees that it will transfer such Note
only as provided in this Indenture.
(h) Cancellation and/or Adjustment of Global Note. At such
time as all beneficial interests in a Global Note have either been exchanged
for Definitive Notes, redeemed, repurchased or cancelled, such Global Note
shall be returned to or retained and cancelled by the Trustee. At any time
prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced and
an endorsement shall be made on such Global Note, by the Trustee or the Note
Custodian, at the direction of the Trustee to reflect such reduction.
(i) General Provisions with respect to Transfer and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate, pursuant
to the terms of this Indenture, Definitive Notes and Global Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder 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 charges payable upon exchange or
transfer pursuant to Sections 2.10, 3.7, 3.9, 4.14, 4.15 and 9.5
hereof).
(iii) Neither the Company nor the Registrar shall be
required to register the transfer or exchange of any Note selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
(iv) All Definitive Notes and Global Notes issued upon
any registration of transfer or exchange of Definitive Notes or Global
Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefit under this Indenture as the
Definitive Notes or Global Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required to issue, register
the transfer or exchange of Notes during a period beginning at the
opening of 15 days before the day of any selection of Notes for
redemption under Section 3.2 and ending at the close of business on the
day of selection.
(vi) Prior to due presentment for registration of
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 premium, interest and Liquidated Damages, if any, on
such Note, and
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neither the Trustee, any Agent nor the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Definitive Notes and
Global Notes in accordance with the provisions of Section 2.2 hereof.
(viii) Neither the Company nor the Trustee shall be liable
for any delay by the Depository in identifying the beneficial owners of
the Notes and each such Person may conclusively rely on, and shall be
protected in relying on, instructions from the Depository for all
purposes (including with respect to the registration and delivery, and
the respective principal amounts, of any Notes to be issued).
(ix) Members of, or participants in, the Depository shall
have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as the Note Custodian,
or under the Global Note, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (x) prevent the
Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or (y) impair, as between the Depository and
members of, or participants in, the Depository, the operation of
customary practices governing the exercise of the rights of a Holder of
any Note.
SECTION 2.7. Replacement Notes
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the
Trustee, upon the written order of the Company signed by an Officer of the
Company, 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 or any
authenticating agent from any loss which any of them may suffer if a Note is
replaced. The Company and the Trustee may charge for their expenses in
replacing a Note. If after the delivery of such new Note, a bona fide
purchaser of the original Note in lieu of which such new Note was issued
presents for payment such original Note, the Company and the Trustee shall be
entitled to recover such new Note from the person to whom it was delivered or
any transferee thereof, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Company or the Trustee in
connection therewith.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
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SECTION 2.8. Outstanding Notes
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee hereunder, and those described in this Section 2.8 as not outstanding.
Except as set forth in Section 2.9 hereof, a Note does not cease to be
outstanding because either of the Company or an Affiliate of the Company holds
a Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date, money sufficient to pay
all principal, interest, premium and Liquidated Damages, if any, payable on
that date with respect to the Notes (or the portion thereof to be redeemed or
maturing, as the case may be), then on and after that date such Notes (or
portions thereof) shall be deemed to be no longer outstanding and shall cease
to accrue interest.
SECTION 2.9. Treasury Notes
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver, consent or notice,
Notes owned by the Company or any Affiliate of 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,
consent or notice, only Notes which a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded. The Company shall notify
the Trustee, in writing, when the Company or any of its Affiliates repurchases
or otherwise acquires Notes and the aggregate principal amount of such Notes so
repurchased or otherwise acquired.
SECTION 2.10. Temporary Notes
Until Definitive Notes are ready for delivery, the Company may
prepare and the Trustee, upon receipt of the written order of the Company
signed by an Officer of the Company, shall authenticate and deliver temporary
Notes. Temporary Notes shall be substantially in the form of Definitive Notes
but may have variations that the Company and the Trustee consider appropriate
for temporary Notes. Without unreasonable delay, the Company shall prepare and
the Trustee, upon receipt of the written order of the Company signed by an
Officer of the Company, shall authenticate and deliver, definitive Notes in
exchange for temporary Notes.
Until such exchange, Holders of temporary Notes shall be entitled
to all of the rights, benefits and privileges of this Indenture.
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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 shall cancel all Notes surrendered for registration of transfer or
exchange, payment, replacement or cancellation, except as expressly permitted
by this Indenture. The Company may not issue new Notes to replace Notes that
have been redeemed or paid or that have been delivered to the Trustee for
cancellation. All cancelled Notes held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a written
order delivered to the Trustee at the time such cancelled Notes are delivered
to the Trustee, signed by one Officer of the Company, the Company shall direct
that cancelled Notes be returned to it.
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, which date shall be at the
earliest practicable date but in all events at least five Business Days prior
to the payment date, in each case as provided in the Notes and in Section 4.1
hereof. The Company shall, with the consent of the Trustee, fix or cause to be
fixed each such special record date and payment date. At least 15 days before
the special record date, the Company (or the Trustee, in the name of and at the
expense of the Company) shall mail 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 shall use a CUSIP number, and
the Trustee shall use the CUSIP number in notices of redemption or exchange as
a convenience to Holders; provided, however, that no representation is hereby
deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP
number printed in the notice or on the certificates representing the Notes, and
that reliance may be placed only on the other identification numbers printed on
the certificates representing the Notes. The Company will promptly notify the
Trustee of any change in a CUSIP number.
SECTION 2.14. Deposit of Moneys
On each Interest Payment Date and each date on which payments in
respect of the Notes are required to be made pursuant to the terms of this
Indenture, the Company shall, not later than 11:00 a.m., New York City time,
deposit with the Paying Agent in immediately available funds money sufficient
to make any cash payments due on such date in a timely manner which permits the
Paying Agent to remit payment to the Holders on such date.
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SECTION 2.15. Liquidated Damages Under Registration Rights Agreement
Under certain circumstances, the Company shall be obligated to
pay certain Liquidated Damages to the Holders, all as set forth in Section 2 of
the Registration Rights Agreement.
ARTICLE 3
REDEMPTION AND OFFERS TO PURCHASE
SECTION 3.1. Notice to Trustee
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date (unless a
shorter notice period shall be satisfactory to the Trustee or a different
notice period is set forth in Section 3.7 hereof), an Officers' Certificate
setting forth (i) the Section 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.
If the Company is required to make an offer to purchase Notes
pursuant to the provisions of Sections 4.14 or 4.15 hereof, it shall furnish to
the Trustee, at least 30 days before the scheduled purchase date, an Officers'
Certificate setting forth (i) the Section of this Indenture pursuant to which
the offer to purchase shall occur, (ii) the terms of the offer, (iii) the
purchase price, (iv) the principal amount of the Notes to be purchased, and (v)
further setting forth a statement to the effect that (a) the Company or one of
its Restricted Subsidiaries has made an Asset Sale and there are Excess
Proceeds aggregating more than $10.0 million and the amount of such Excess
Proceeds or (b) a Change of Control has occurred, as applicable.
SECTION 3.2. Selection of Notes to Be Redeemed
If less than all of the Notes are to be redeemed at any time, the
Trustee shall, unless otherwise set forth herein, select the Notes to be
redeemed among the Holders of the Notes pro rata, by lot or in accordance with
a method which the Trustee considers to be fair and appropriate (and in such
manner as complies with applicable legal and principal national securities
exchanges requirements, if any). 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 and the Registrar
(if other than the Trustee) 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 them selected shall be in
face amounts of $1,000 or whole multiples of $1,000. Except as provided
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in the preceding sentence, provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption.
In the event the Company is required to make an Asset Sale Offer
pursuant to Section 3.9 and Section 4.14, and the amount of the Net Proceeds
from the Asset Sale is not evenly divisible by $1,000, the Trustee shall
promptly refund to the Company the portion of such Excess Proceeds that is not
necessary to purchase the immediately lesser principal amount of Notes that is
so divisible.
SECTION 3.3. Notice of Redemption
Subject to the provisions of Sections 3.9 and 4.15 hereof, at
least 30 days but not more than 60 days before a redemption date (unless a
different notice period is set forth in Section 3.7 hereof), the Company shall
mail by first class mail a notice of redemption to each Holder of Notes to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price, separately stating the amount of any
accrued and unpaid interest and Liquidated Damages, if any, to be paid
in connection with the redemption;
(3) 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 cancellation of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption
payment together with accrued and unpaid interest and Liquidated
Damages, if any, to the redemption date, interest ceases to accrue on
and after the redemption date on Notes or portions of Notes called for
redemption;
(7) the paragraph of the Notes or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed;
and
(8) 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; and
(9) the aggregate principal amount of Notes being redeemed.
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At the Company's request, the Trustee shall give the notice of
redemption in the name of the Company and at its expense; provided, however,
that the Company shall deliver 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 3.4. Effect of Notice of Redemption
Once notice of redemption is mailed in accordance with Section
3.3 herein, Notes called for redemption become due and payable on the
redemption date at the redemption price stated in such notice. A notice of
redemption may not be conditional.
SECTION 3.5. Deposit of Redemption Price
On or before the redemption date, the Company shall deposit with
the Trustee (to the extent not already held by the Trustee) or with the Paying
Agent money in immediately available funds sufficient to pay the redemption
price, together with accrued and unpaid interest and Liquidated Damages, if
any, to the redemption date on all Notes to be redeemed. The Trustee or the
Paying Agent shall return to the Company any money deposited with the Trustee
or the Paying Agent by the Company in excess of the amount necessary to pay the
redemption price of, and accrued and unpaid interest and Liquidated Damages, if
any, 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 and Liquidated
Damages, if any, shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. Upon surrender of a
Note for redemption in accordance with the notice given pursuant to Section 3.3
hereof, such Note shall be purchased by the Company at the redemption price,
together with accrued and unpaid interest and Liquidated Damages, if any, to
the redemption 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,
premium and Liquidated Damages, if any, from the redemption date until such
principal, premium or Liquidated Damages, if any, is paid, and to the extent
lawful on any interest not paid on such unpaid principal, premium or Liquidated
Damages, if any, in each case at the rate provided in the Notes and in Section
4.1 hereof.
SECTION 3.6. Notes Redeemed in Part
Upon surrender and cancellation of a Note that is redeemed in
part only, 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 surrendered and cancelled original Note.
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SECTION 3.7. Optional Redemption
The Notes are not redeemable at the Company's option prior to
February 15, 2002. Thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on February 15 of the years
indicated below:
Year Percentage
-------- ---------------
2002 . . . . . . . . . . . . . . . . . 104.6250%
2003 . . . . . . . . . . . . . . . . . 103.0834%
2004 . . . . . . . . . . . . . . . . . 101.5417%
2005 and thereafter . . . . . . . . . . 100.0000%
Notwithstanding the foregoing, on or prior to February 15, 2000,
the Company may redeem at any time or from time to time up to 35% of the
aggregate principal amount of the Notes originally issued, at a redemption
price of 109.25% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the redemption date, with
the net proceeds of one or more Public Equity Offerings; provided, that at
least $110.5 million in aggregate principal amount of the Notes remain
outstanding following each such redemption; provided, further, that notice of
such redemption shall be given not later than 45 days, and such redemption
shall occur not earlier than 30 or later than 60 days, after the date of the
closing of any such Public Equity Offering.
SECTION 3.8. Mandatory Redemption
The Company shall not be required to make any mandatory
redemption or sinking fund payments with respect to the Notes. However, as
described in Sections 3.9, 4.14 and 4.15, the Company may be obligated, under
certain circumstances, to make an offer to purchase (i) all outstanding Notes
at a redemption price of 101% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase, upon a Change of Control; and (ii) outstanding Notes with a portion
of the Net Proceeds of Asset Sales at a redemption price of 100% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date of purchase.
SECTION 3.9. Offer to Purchase by Application of Excess Proceeds
Any Asset Sale Offer pursuant to Section 4.14 shall remain open
for at least 30 and not more than 40 days, except to the extent that a longer
period is required by applicable law (the "Offer Period"). On a date within
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 4.14 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer.
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Payment for any Notes so purchased shall be made in the same manner as interest
payments are made.
The Company shall comply with any tender offer rules under the
Exchange Act which may then be applicable, including Rule 14e-1, in connection
with any offer required to be made by the Company to repurchase the Notes as a
result of an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 3.9,
the Company shall comply with the applicable securities laws or regulations and
shall not be deemed to have breached its obligations hereunder by virtue
thereof.
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
and Liquidated Damages, if any, 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 Asset Sale Offer.
Upon the commencement of an Asset Sale 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
Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The
notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.9 and Section 4.14 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price, separately stating
the amount of any accrued and unpaid interest and Liquidated Damages, if
any, and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payments,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
any Asset Sale 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, or transfer by book-entry transfer, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase
Date;
(f) that Holders shall be entitled to withdraw their election
if the Company, the depositary or the Paying Agent, as the case may be,
receives, not later than 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;
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(g) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Trustee shall
select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Trustee so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased); and
(h) that Holders whose Notes are purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer).
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 Asset Sale
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 3.9. The Company, the Depository or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five Business 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 plus accrued and unpaid
interest and Liquidated Damages, if any, and the Company shall promptly issue a
new Note, and the Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not
so accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset Sale
Offer on the Purchase Date.
Other than as specifically provided in this Section 3.9 and
Section 4.14, any purchase pursuant to this Section 3.9 shall be made pursuant
to the provisions of Sections 3.1 through 3.6 hereof.
No repurchase of Notes under this Section 3.9 shall be deemed to
be a redemption of Notes.
ARTICLE 4
COVENANTS
SECTION 4.1. Payment of Notes
The Company shall pay the principal, premium, if any, and
interest, if any, on the Notes on the dates and in the manner provided in the
Notes and in this Indenture. Principal, premium, if any, and interest, if any,
shall be considered paid on the date due if the Paying Agent, other than the
Company or any of its Subsidiaries or Affiliates, holds on or before that date
money deposited by the Company in immediately available funds and designated
for and sufficient to pay all principal, premium and interest, if any, then
due. The Company shall pay all Liquidated Damages, if any, in the same manner
on the dates and in the amounts set forth
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in the Registration Rights Agreement. If any Liquidated Damages become
payable, the Company shall not later than three Business Days prior to the date
that any payment of Liquidated Damages is due (i) deliver an Officers'
Certificate to the Trustee setting forth the amount of Liquidated Damages
payable to Holders and (ii) instruct the Paying Agent to pay such amount of
Liquidated Damages to Holders entitled to receive such Liquidated Damages.
The Company shall pay interest (including post-petition interest
under any Bankruptcy Law) on overdue principal and premium, if any, from time
to time on demand at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; the Company shall
pay interest (including post-petition interest under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to any
applicable grace period) 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
comprised of twelve 30-day months.
SECTION 4.2. 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,
Registrar or co-registrar) where Notes may be surrendered for registration of
transfer or exchange, where Notes may be presented or surrendered for payment
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 obligations to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the office of the Trustee at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ as one such office or agency of the
Company in accordance with Section 2.3.
SECTION 4.3. Reports
(a) Whether or not required by the rules and regulations of the
SEC, so long as any Notes are outstanding, the Company shall furnish to the
Holders of Notes (i) within 45 days following the end of each fiscal quarter
and 90 days following the end of each fiscal year, respectively, all quarterly
and annual financial information that would be required to be contained in a
filing with the SEC on Forms 10-Q and 10-K if the Company were required to
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file such Forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" that describes the financial condition and
results of operations of the Company and its Subsidiaries and, with respect to
the annual information only, a report thereon by the Company's independent
certified public accountants and (ii) all reports that would be required to be
filed with the SEC on Form 8-K if the Company were required to file such
reports. In addition, whether or not required by the rules and regulations of
the SEC, the Company shall file a copy of all such information with the SEC for
public availability (unless the SEC will not accept such filing) and make such
information available to investors or prospective investors who request it in
writing.
(b) Upon qualification of this Indenture under the TIA, the
Company shall also comply with the provisions of TIA Section 314(a).
(c) For so long as any Transfer Restricted Securities remain
outstanding, the Company shall furnish to all Holders or beneficial owners of
Notes and prospective purchasers of the Notes designated by the Holders of
Transfer Restricted Securities, upon their request, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.4. Compliance Certificate
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, but not less often than annually, an
Officers' Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether each of
the Company and its Subsidiaries 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 knowledge each of the
Company and its Subsidiaries has kept, observed, performed and fulfilled each
and every covenant contained in this Indenture, and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
or thereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he may have
knowledge and what action each is taking or proposes to take with respect
thereto).
(b) So long as not contrary to the then current recommendations
of the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.3(a) above shall be
accompanied by a written statement of the Company's independent certified
public accountants (who shall be a firm of established national reputation
reasonably satisfactory to the Trustee) that in making the examination
necessary for certification of such financial statements nothing has come to
their attention which would lead them to believe that either the Company or any
of its Subsidiaries has violated any provisions of Article 4, 5 or 6 of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company will, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of (i) any Default or Event of Default or
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(ii) any event of default under any other mortgage, indenture or instrument
referred to in Section 6.1(5), an Officers' Certificate specifying such
Default, Event of Default or other event of default and what action the Company
is taking or proposes to take with respect thereto.
SECTION 4.5. Taxes
The Company shall, and shall cause its Subsidiaries to, pay or
discharge prior to delinquency all material taxes, assessments, and
governmental levies except as contested in good faith and by appropriate
proceedings and for which adequate reserves, to the extent required under GAAP,
have been taken.
SECTION 4.6. Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully do so)
that it 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, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, 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 4.7. Company and Corporate Existence and Maintenance of Properties and
Insurance
Subject to Section 4.15 and Article 5 hereof, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with their respective
organizational documents (as the same may be amended from time to time) and its
(and its Subsidiaries') rights (charter and statutory), licenses and
franchises; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any Subsidiary, if the Board of Directors of the Company
shall determine in good faith that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its respective
Subsidiaries taken as a whole and that the loss thereof is not adverse in any
material respect to the Holders.
The Company shall, and shall cause each of its Subsidiaries to,
maintain its properties in good working order and condition (subject to
ordinary wear and tear) and make all reasonably necessary repairs, renewals,
replacements, additions and improvements required for it to actively conduct
and carry on its business; provided, however, that nothing in this Section 4.7
shall prevent the Company or any of its Subsidiaries from discontinuing the
operation and maintenance of any of its properties if such discontinuance is,
in the good faith judgment of the Board of Directors or other governing body of
the Company or the Subsidiary concerned, as the case may be, desirable in the
conduct of its businesses and is not adverse in any material respect to the
Holders.
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The Company shall maintain insurance against loss or damage of
the kinds that, in the good faith judgment of the Company, are adequate and
appropriate for the conduct of the business of the Company and its Subsidiaries
in a prudent manner, with reputable insurers or with the government of the
United States of America or an agency or instrumentality thereof, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Company, for companies similarly situated in the
industry.
SECTION 4.8. Limitation on the Incurrence of Indebtedness and Issuance of
Disqualified Stock
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to
(collectively, "incur" and, correlatively, "incurred" and "incurrence") any
Indebtedness (including, without limitation, Acquired Debt) and that the
Company and its Restricted Subsidiaries shall not issue any Disqualified Stock
and will not permit any of their respective Subsidiaries (other than their
Unrestricted Subsidiaries) to issue any shares of preferred stock; provided,
however, that the Company may incur Indebtedness if the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred at the beginning of such four-quarter
period, would have been greater than 2.0 to 1.
The foregoing limitations will not apply to:
(i) Indebtedness incurred by the Company under the Credit
Facility in an aggregate principal amount not to exceed (a) the greater
of (x) $125.0 million at any time outstanding (including any
Indebtedness issued to refinance, refund or replace such Indebtedness)
or (y) $60.0 million plus the sum of 85% of the amount of Eligible
Receivables of the Company and 60% of the amount of Eligible Inventory
of the Company, in each case calculated on a consolidated basis in
accordance with GAAP, at any time outstanding (including any
Indebtedness issued to refinance, refund or replace such Indebtedness),
minus (b) the amount of any such Indebtedness retired with Net Cash
Proceeds from any Asset Sale;
(ii) additional Indebtedness incurred by the Company in respect
of Capital Lease Obligations or Purchase Money Obligations in an
aggregate principal amount not to exceed $15.0 million at any time
outstanding;
(iii) Existing Indebtedness outstanding on the date of this
Indenture;
(iv) Indebtedness represented by the Notes and this Indenture;
(v) Hedging Obligations; provided, that the notional principal
amount of any Interest Rate Agreement does not significantly exceed the
principal amount of the Indebtedness to which such agreement relates;
provided, further, that any Currency
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Agreement does not increase the outstanding loss potential or
liabilities other than as a result of fluctuations in foreign currency
exchange rates;
(vi) Indebtedness of the Company to any of its Wholly Owned
Subsidiaries that is a Restricted Subsidiary, and Indebtedness of any
Wholly Owned Subsidiary of the Company that is a Restricted Subsidiary
to the Company or any of its Wholly Owned Subsidiaries that is a
Restricted Subsidiary (the Indebtedness incurred pursuant to this clause
(vi) being hereinafter referred to as "Intercompany Indebtedness");
provided, that, in the case of Indebtedness of the Company such
obligations shall be unsecured and subordinated in all respects to the
Company's obligations pursuant to the Notes; provided, further, that an
incurrence of Indebtedness shall be deemed to have occurred upon (a) any
sale or other disposition of Intercompany Indebtedness to a Person other
than the Company or any of its Restricted Subsidiaries, (b) any sale or
other disposition of Equity Interests of any Restricted Subsidiary of
the Company which holds Intercompany Indebtedness such that such
Restricted Subsidiary ceases to be a Restricted Subsidiary after such
sale or other disposition, or (c) designation of a Restricted Subsidiary
as an Unrestricted Subsidiary;
(vii) in addition to Indebtedness specified in clauses (i)
through (vi) above and clauses (viii) and (ix) below, additional
Indebtedness in an aggregate principal amount not to exceed $15.0
million at any time outstanding;
(viii) Indebtedness incurred by Synthetic Industries Europe
Limited in an aggregate principal amount not to exceed L.500,000 at any
time outstanding; and
(ix) the incurrence by the Company of Indebtedness issued in
exchange for, or the proceeds of which are used to extend, refinance,
renew, replace, defease or refund Indebtedness incurred pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of
this Section 4.8 or incurred pursuant to clauses (iii) and (iv) of this
Section 4.8 in whole or in part (the "Refinancing Indebtedness");
provided, however, that (A) the aggregate principal amount of such
Refinancing Indebtedness shall not exceed the aggregate principal amount
of Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded; (B) the Refinancing Indebtedness shall have a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (C) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is pari passu with
or subordinated in right of payment to the Notes, the Refinancing
Indebtedness shall be pari passu with or subordinated, as the case may
be, in right of payment to the Notes on terms at least as favorable to
the Holders of Notes as those contained in the documentation governing
the Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded (any such extension, refinancing, renewal, replacement,
defeasance or refunding being referred to as a "Permitted Refinancing").
SECTION 4.9. Limitation on Restricted Payments
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or
make any distribution on account of
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Equity Interests, other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company or dividends or
distributions payable to the Company; (ii) purchase, redeem or otherwise
acquire or retire for value any Equity Interests of the Company or any
Affiliate of the Company (other than any such Equity Interests owned by the
Company or a Wholly Owned Subsidiary of the Company that is a Restricted
Subsidiary); (iii) purchase, redeem, repay, defease or otherwise acquire or
retire for value any Indebtedness that is subordinated in right of payment to
the Notes; or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively referred
to as "Restricted Payments"), unless, at the time of and after giving effect to
such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.8 hereof;
(3) such Restricted Payment (the amount of any such payment, if
other than cash, to be determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a
resolution in an Officers' Certificate delivered to the Trustee),
together with the aggregate of all other Restricted Payments made by the
Company and its Restricted Subsidiaries after the date of this Indenture
(including Restricted Payments permitted by the next succeeding
paragraph other than pursuant to clause (iii) thereof), shall not exceed
the sum of (v) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) commencing with the first full
fiscal quarter after the date of initial issuance of the Notes and
ending on the last day of the Company's most recently ended fiscal
quarter for which internal financial statements are available at the
time of such Restricted Payment (or, if such Consolidated Net Income for
such period is a deficit, 100% of such deficit as a negative number),
plus (w) 100% of the aggregate net cash proceeds received by the Company
from the issue or sale since the date of initial issuance of the Notes
of Equity Interests of the Company or of debt securities of the Company
that have been converted into such Equity Interests (other than Equity
Interests (or convertible debt securities) sold to a Subsidiary of the
Company and other than Disqualified Stock or debt securities that have
been converted into Disqualified Stock), plus (x) the aggregate cash
received by the Company as capital contributions to the Company after
the date of initial issuance of the Notes (other than from a
Subsidiary), plus (y) any cash received by the Company after the date
of initial issuance of the Notes as a dividend or distribution from any
of its Unrestricted Subsidiaries or from the sale of any of its
Unrestricted Subsidiaries less the cost of disposition and taxes, if any
(but in each case excluding any such amounts included in Consolidated
Net Income), plus (z) $5.0 million.
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The foregoing provisions will not prohibit (i) the payment 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; (ii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company, or the defeasance, redemption or
repurchase of subordinated Indebtedness in exchange for, or out of the proceeds
of, the substantially concurrent sale (other than to a Subsidiary of the
Company) of Equity Interests of the Company (other than any Disqualified Stock)
or out of the proceeds of a substantially concurrent cash capital contribution
received by the Company; provided, that the amount of any such proceeds that
are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (w) of the preceding paragraph;
(iii) the repayment, defeasance, redemption or repurchase of subordinated
Indebtedness with the net proceeds from an incurrence of Refinancing
Indebtedness in a Permitted Refinancing; and (iv) the purchase, redemption or
retirement by the Company of shares of its common stock held by an employee or
former employee of the Company or any of its Restricted Subsidiaries issued
under the Management Plans pursuant to the terms of such Management Plans;
provided that (a) the purchase, redemption or retirement results from the
retirement, death or disability (as defined in the relevant Management Plan) of
the employee or former employee, and (b) the amount of any such payments in any
fiscal year does not exceed $1.0 million; provided, however, that at the time
of, and after giving effect to, any Restricted Payment permitted under clauses
(i), (ii), (iii) and (iv), no Default or Event of Default shall have occurred
and be continuing.
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 4.9 were computed, which calculations may
be based upon the Company's latest available financial statements.
SECTION 4.10. Limitation on Liens
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired or on any income or
profits therefrom or assign or convey any right to receive income therefrom,
except Permitted Liens.
SECTION 4.11. Limitation on Transactions with Affiliates
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, sell, lease, license, 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 (i) 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 arms' length transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the
Trustee (a) with respect to any Affiliate Transaction involving aggregate
payments in excess of $1.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and such Affiliate Transaction is approved by a
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majority of the disinterested members of the Board of Directors and (b) with
respect to any Affiliate Transaction involving aggregate payments in excess of
$10.0 million, an opinion as to the fairness to the Company or such Restricted
Subsidiary from a financial point of view issued by an investment banking firm
of national standing with expertise in underwriting non-investment grade debt
securities; provided, however, that (i) any reasonable employment agreement or
stock option agreement entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Restricted Subsidiary, (ii) transactions
between or among the Company and its Wholly Owned Subsidiaries that are
Restricted Subsidiaries, (iii) Restricted Payments, permitted by clauses (i)
and (iv) of the second paragraph of Section 4.9 hereof, (iv) the payment of
reasonable fees to directors of the Company or its Restricted Subsidiaries, and
(v) Affiliate Transactions pursuant to agreements in effect on the date of this
Indenture and described in the Offering Memorandum and renewals and extensions
of such agreements on terms no less favorable to the Holders than the terms of
such original agreements and transactions, in each case, shall not be deemed
Affiliate Transactions.
SECTION 4.12. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (i) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (a) on its
Capital Stock or (b) with respect to any other interest or participation in, or
measured by, its profits, (ii) pay any indebtedness owed to the Company or any
of its Restricted Subsidiaries, (iii) make loans or advances to the Company or
any of its Restricted Subsidiaries or (iv) transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the date of this Indenture, (b) this Indenture and
the Notes, (c) applicable law, (d) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that the Consolidated
Cash Flow of such Person is not taken into account in determining whether such
acquisition was permitted by the terms of this Indenture, (e) customary
nonassignment provisions in leases entered into in the ordinary course of
business and consistent with past practices, (f) Purchase Money Obligations for
property acquired in the ordinary course of business that impose restrictions
of the nature described in clause (iv) above on the property so acquired, or
(g) Refinancing Indebtedness, provided that the restrictions contained in the
agreements governing such Refinancing Indebtedness are no more restrictive with
respect to the provisions set forth in clauses (i), (ii), (iii) and (iv) above
than those contained in the agreements governing the Indebtedness being
refinanced.
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SECTION 4.13. Limitation on Layering Debt
The Company shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt of the Company and senior in any respect in
right of payment to the Notes.
SECTION 4.14. Asset Sales
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any Asset Sale, unless (i) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time
of such Asset Sale at least equal to the Fair Market Value (evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets sold or otherwise disposed of and (ii)
at least 75% of the consideration therefor received by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents; provided,
however, that the amount of (a) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet or in the notes thereto)
of the Company or such Restricted Subsidiary (other than liabilities that are
by their terms subordinated in right of payment to the Notes) that are assumed
by the transferee of any such assets and (b) any notes or other obligations
received by the Company or such Restricted Subsidiary from such transferee that
are immediately converted by the Company or such Restricted Subsidiary into
cash (to the extent of the cash received), shall be deemed to be cash for
purposes of this provision.
Within 360 days after any Asset Sale, the Company may apply the
Net Proceeds from such Asset Sale to (i) permanently reduce Senior Debt, (ii)
permanently reduce Indebtedness of the Restricted Subsidiary that sold
properties or assets in the Asset Sale, or (iii) acquire properties and assets
to replace properties and assets that were the subject of the Asset Sale or
properties and assets that will be used in the same or a similar line of
business as the Company was engaged in on the date of this Indenture. Pending
the final application of any such Net Proceeds, the Company may invest such Net
Proceeds in any manner that is not prohibited by this Indenture. Any Net
Proceeds from the Asset Sale that are not applied as provided in the first
sentence of this paragraph will be deemed to constitute "Excess Proceeds."
When the aggregate cumulative amount of Excess Proceeds exceeds $10.0 million,
the Company shall make an offer to all Holders of Notes (an "Asset Sale Offer")
to purchase the maximum principal amount of Notes that may be purchased out of
the Excess Proceeds (and not solely the amount in excess of $10.0 million), at
an offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages, if any, to the
date of purchase, in accordance with the procedures set forth in this
Indenture. To the extent that the aggregate amount of Notes tendered pursuant
to an Asset Sale Offer is less than the Excess Proceeds, the Company may use
such deficiency for general corporate purposes in any manner provided by this
Indenture. If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes to be purchased on a pro rata basis. Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero. The Asset Sale
Offer must be commenced within 30 days following the Asset Sale that triggers
the Company's obligation to make the Asset Sale Offer and remain open for at
least 30 and not more than 40 days (unless required by applicable law). The
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Company shall 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 Notes
pursuant to an Asset Sale Offer.
SECTION 4.15. Change of Control
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 Liquidated Damages, if any, thereon to the date of purchase
(the "Change of Control Payment"). Notice of a Change of Control Offer shall
be prepared by the Company and shall be mailed by the Company with a copy to
the Trustee or at the option of the Company and at the expense of the Company
by the Trustee within 30 days following a Change of Control to each Holder of
the Notes and such Change of Control Offer must remain open for at least 30 and
not more than 40 days (unless required by applicable law). The notice to each
Holder of the Notes shall state: (1) that the Change of Control Offer is being
made pursuant to this Section 4.15 and that all Notes tendered and not
withdrawn will be accepted for payment; (2) the purchase price, separately
stating the amount of any accrued and unpaid interest and Liquidated Damages,
if any, and the purchase date, which will be no earlier than 30 days nor later
than 60 days from the date such notice is mailed (the "Change of Control
Payment Date"); (3) that any Note not tendered will continue to accrue
interest; (4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest after the Change of Control Payment
Date; (5) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date; (6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holders, the
principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing his election to have such Notes purchased; (7) that
Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered,
which unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof; and (8) the circumstances and material facts
regarding the Change of Control (including but not limited to information with
respect to the historical consolidated financial information of the Company and
pro forma consolidated financial information of the Company after giving effect
to the Change of Control, information regarding the Person or Persons acquiring
control, to the extent reasonably available, and the business plans of such
Person or Persons with respect to the Company, to the extent reasonably
available). The Company shall 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 in connection with a Change of Control.
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On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) 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 (iii) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating
the Notes or portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail to each Holder of Notes so accepted the Change of
Control Payment for such Notes, and the Trustee shall 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. Prior to complying with the provisions of
this Section 4.15, and in any event within 90 days following a Change of
Control, the Company shall either repay all outstanding Senior Debt of the
Company or obtain the requisite consents, if any, under all agreements
governing outstanding Senior Debt of the Company to permit the repurchase of
Notes required by this covenant. The Company shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
Other than as specifically provided in this Section 4.15, any
purchase pursuant to this Section 4.15 shall be made pursuant to the provisions
of Section 3.1 through 3.6 hereof.
SECTION 4.16. Payments for Consent
The Company and its Subsidiaries shall be prohibited from,
directly or indirectly, paying or causing to be paid any consideration, whether
by way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any terms or provisions of
the Notes unless such consideration is offered to be paid or agreed to be paid
to all Holders of the Notes which so consent, waive or agree to amend in the
time frame set forth in solicitation documents relating to such consent, waiver
or agreement.
ARTICLE 5
SUCCESSORS
SECTION 5.1. Limitation on Merger, Consolidation or Sale of Assets
(a) The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another Person or
entity unless (i) the Company is the surviving corporation, or the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the obligations of the
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Company under the Notes and this Indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the Trustee; (iii) immediately before or
immediately after giving effect to such transaction no Default or Event of
Default shall have occurred and be continuing; and (iv) the Company or any
Person formed by or surviving any such consolidation or merger, or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made (a) will have Consolidated Net Worth (immediately after the
transaction but prior to any purchase accounting adjustments resulting from the
transaction) equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction and (b) will, at the time of such
transaction and after giving pro forma effect thereto as if such transaction
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.8 hereof.
(b) The Company shall deliver to the Trustee prior to the
consummation of any proposed transaction subject to the foregoing paragraph (a)
an Officers' Certificate to the foregoing effect and an Opinion of Counsel
stating that the proposed transaction and such supplemental indenture comply
with this Indenture. The Trustee shall be entitled to conclusively rely upon
such Officers' Certificate and Opinion of Counsel.
SECTION 5.2. Successor Person 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 5.1 hereof, the successor
Person formed by such consolidation or into or with which the Company is merged
or to which such sale, assignment, transfer, lease, conveyance 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 to or include instead the successor Person and not the Company), and may
exercise every right and power of the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default
An "Event of Default" occurs if:
(1) the Company defaults in the payment of the principal of or
premium, if any, on any Note when the same becomes due and payable (upon
Stated Maturity, acceleration, optional redemption, required purchase
(whether pursuant to Sections 4.14 or 4.15 or otherwise) or otherwise),
whether or not prohibited by Article 10 hereof; or
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(2) the Company defaults in the payment of an installment of
interest on, or Liquidated Damages, if any, with respect to, any of the
Notes, when the same becomes due and payable, which default continues
for a period of 30 days, whether or not prohibited by Article 10 hereof;
or
(3) the Company fails to comply with the provisions described
under Sections 4.14, 4.15 or Article 5 hereof; or
(4) the Company or any Restricted Subsidiary fails to comply
with any of its covenants or agreements contained in the Notes or this
Indenture (other than a default specified in clause (1), (2) or (3)
above) and such default continues for a period of 30 days after notice
of such default requiring the Company to remedy the same shall have been
given (x) to the Company by the Trustee or (y) to the Company and the
Trustee by Holders of 25% in aggregate principal amount of the Notes
then outstanding; or
(5) a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such Indebtedness
or guarantee now exists, or is created after the date of this Indenture,
which default (a) is caused by failure to pay principal of or premium,
if any, or interest on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness (a "Payment Default") or (b)
results in the acceleration of such Indebtedness prior to its express
maturity and, in each case described in clauses (a) and (b) of this
subsection (5), the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $10.0 million or more; or
(6) the Company or any of its Restricted Subsidiaries fails to
pay one or more final judgments against the Company or any Restricted
Subsidiary in an aggregate amount in excess of $10.0 million, which
judgments are not paid, discharged or stayed for a period of 60 days
from the entry thereof;
(7) the Company or any of its Significant Subsidiaries that are
Restricted Subsidiaries or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary, pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against
it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
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(E) admits in writing its inability to pay debts as the
same become due; or
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company, or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, in an involuntary case or
proceeding,
(B) appoints a Custodian of the Company or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, or for all or substantially
all of its property, or
(C) orders the liquidation of the Company, or any of its
Significant Subsidiaries that are Restricted Subsidiaries or any
group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary,
and, in each case, the order or decree remains unstayed and in effect
for 60 days.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
In the case of any Event of Default pursuant to the provisions of
this Section 6.1 occurring by reason of any willful action (or inaction) taken
(or not taken) by or on behalf of the Company with the intention of avoiding
payment of the premium that the Company would have had to pay if the Company
then had elected to redeem the Notes pursuant to Section 3.7 hereof, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes. If an Event of
Default occurs prior to February 15, 2002, by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the Notes prior to such
date, then the premium specified in the Indenture shall also become immediately
due and payable to the extent permitted by law upon the acceleration of the
Notes.
SECTION 6.2. Acceleration
If an Event of Default (other than an Event of Default specified
in clauses (7) and (8) of Section 6.1) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of
the then outstanding Notes by written notice to the Company and the Trustee may
declare the unpaid principal of, any accrued and unpaid interest on and on all
other Obligations under all the Notes to be due and payable immediately. Upon
such declaration the principal, interest and all other Obligations shall be due
and payable immediately. If an Event of Default specified in clause (7) or (8)
of Section 6.1 occurs, such an amount shall ipso facto become and be
immediately due and payable without any notice,
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declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in principal amount of the then outstanding Notes by written
notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or any other
Obligation that has become due solely because of the acceleration) have been
cured or waived.
SECTION 6.3. Other Remedies
If an Event of Default occurs and is continuing, the Trustee may
and shall at the direction of the Holders of 25% in principal amount of the
then outstanding Notes pursue any available remedy (under this Indenture or
otherwise) to collect the payment of principal, premium, interest or Liquidated
Damages, if any, on the Notes or to enforce the performance of any provision of
the Notes, this Indenture or the Registration Rights Agreement.
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 of Notes 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 6.4. Waiver of Past Defaults
Subject to Sections 2.9, 6.7 and 9.2, Holders of a majority in
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all the Notes waive an existing Default or Event of
Default and its consequences, except a continuing Default or Event of Default
in the payment of the principal, premium, interest or Liquidated Damages, if
any, with respect to any Note held by a non-consenting Holder. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 6.5. Control by Majority
Subject to Section 2.9, the Holders of a majority in principal
amount of the then outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. Subject to Section 7.1, 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 of Notes, or that may involve the Trustee in personal
liability. Subject to the provisions of TIA Section 315, the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction.
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SECTION 6.6. Limitation on Suits
A Holder of Notes may pursue a remedy with respect to this
Indenture or the Notes only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee in its sole discretion
against any loss, liability or expense;
(4) 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
(5) 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 of Notes may not use this Indenture to prejudice the rights of another
Holder of Notes or to obtain a preference or priority over another Holder of
Notes.
SECTION 6.7. Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium, interest, or
Liquidated Damages, if any, with respect to the Notes, on or after the
respective due dates expressed in the Note, 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 6.8. Collection Suit by Trustee
If an Event of Default specified in Section 6.1(1) or (2) 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 for the whole
amount of principal, interest and Liquidated Damages, 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 6.9. 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
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and counsel) and the Holders of Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes), their creditors
or their 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 of Notes 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 of Notes, 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 7.7 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 7.7 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Holders of the
Notes 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 of Notes any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Holder of Notes 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 7.7, 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 of Notes for amounts due and unpaid on the
Notes for principal, premium, interest and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal and interest,
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 of Notes.
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
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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 to
enforce the provisions of Section 6.7 hereof, or a suit by a Holder or Holders
of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.1. Duties of Trustee
(1) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of its own affairs.
(2) Except during the continuance of a Default or an Event of
Default:
(A) The duties of the Trustee shall be determined solely
by the TIA or express provisions of this Indenture and the Trustee need
perform, and be liable for (as set forth herein), only those duties that
are specifically set forth in the TIA or this Indenture and no others,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(B) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(3) 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:
(A) This paragraph does not limit the effect of
paragraph (2) of this Section 7.1.
(B) 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.
(C) 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 6.5.
(4) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (1), (2) and (3) of this Section 7.1.
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(5) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any financial liability in the
performance of any of its duties hereunder, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(6) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.2. Rights of Trustee
(1) The Trustee may conclusively rely and shall be protected in
relying upon any resolution, document, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond or other 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.
(2) 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 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.
(3) The Trustee may act through its agent and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(5) 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.
(6) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture
including, without limitation, the provisions of Section 6.5 hereof, unless
such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities which
may be incurred by it in compliance with such request, order or direction.
SECTION 7.3. Definitive 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 an
Affiliate of the Company with the
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same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.4. 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 hereof, 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 7.5. Notice of Defaults
If a Default or Event of Default occurs and is continuing and if
it is actually known to a Responsible Officer of the Trustee, the Trustee shall
mail to Holders of Notes a notice of the Default or Event of Default within 30
days after it occurs. Except in the case of a Default or Event of Default in
payment on any Note pursuant to Section 6.1(1) or (2), the Trustee may withhold
the notice if it in good faith determines that withholding the notice is in the
interests of Holders of Notes.
SECTION 7.6. Reports by Trustee to Holders
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail to Holders of
Notes 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).
Commencing at the time this Indenture is qualified under the TIA,
a copy of each report at the time of its mailing to Holders of Notes shall be
filed with the SEC and each stock exchange on which the Notes are listed. The
Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange and the Trustee shall comply with TIA Section 313(d).
SECTION 7.7. 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. Except as otherwise expressly provided herein,
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 in accordance with any provision
of this Indenture (including, without limitation, the reasonable compensation,
expenses and disbursements of its counsel and
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of all agents and other persons not regularly in its employ (A) in connection
with the preparation, execution and delivery of this Indenture, any waiver or
consent hereunder, any modification or termination hereof, or any Event of
Default or alleged Event of Default; (B) if an Event of Default occurs, in
connection with such Event of Default and collection, bankruptcy, insolvency
and other enforcement proceedings relating thereto; (C) in connection with the
administration of the Trustee's rights pursuant hereto; or (D) in connection
with any removal of the Trustee pursuant to subsection 7.8 hereof), except such
disbursements, advances and expenses as may be attributable to its negligence
or bad faith.
The Company shall indemnify the Trustee against any and all
losses, liabilities, obligations, damages, penalties, judgments, actions,
suits, proceedings, reasonable costs and expenses (including reasonable fees
and disbursements of counsel) of any kind whatsoever which may be incurred by
the Trustee in connection with any investigative, administrative or judicial
proceeding (whether or not such indemnified party is designated a party to such
proceeding) arising out of or in connection with the acceptance or
administration of its duties under this Indenture; provided, however, that the
Company need not reimburse any expense or indemnify against any loss,
obligation, damage, penalty, judgment, action, suit, proceeding, reasonable
cost or expense (including reasonable fees and disbursements of counsel) of any
kind whatsoever which may be incurred by the Trustee in connection with any
investigative, administrative or judicial proceeding (whether or not such
indemnified party is designated a party to such proceeding) in which it is
determined that the Trustee acted with negligence, bad faith or willful
misconduct. 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. Unless
otherwise set forth herein, 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.
The obligations of the Company under this Section 7.7 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section 7.7,
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 6.1(7) or (8) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. 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.
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The Trustee may resign at any time and be discharged from the
trust hereby created by so notifying the Company by at least 30 days' advance
written notice. 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:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee
or its property; or
(4) 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.
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 of Notes who
has been a Holder of Notes for at least six months fails to comply with Section
7.10, such Holder of Notes may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
The Company shall give or cause to be given notice of each
resignation and each removal of the Trustee to all Holders in the manner
provided herein. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.
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 Holders of Notes. 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 7.7. Notwithstanding replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee. No successor Trustee shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this Article 7.
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SECTION 7.9. 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; provided that such successor is otherwise eligible
hereunder.
SECTION 7.10. Eligibility; Disqualification
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof or territory or of the District of Columbia
authorized under such laws to exercise corporate trustee power, shall be
subject to supervision or examination by Federal, state, territorial or
District of Columbia authority and shall have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition.
If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.10 it shall resign immediately
in the manner and with the effect specified in this Article 7. If the Trustee
has or shall acquire a conflicting interest within the meaning of the TIA, the
Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provision of, the TIA and this
Indenture.
This Indenture shall always have a Trustee who satisfies the
requirements of the TIA, including TIA Sections 310(a)(1) and 310(a)(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 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 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance
The Company may, at the option of the Board of Directors of the
Company, evidenced by a resolution set forth in an Officers' Certificate, at
any time, elect to have either Section 8.2 or 8.3 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article 8.
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SECTION 8.2. Legal Defeasance and Discharge
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 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 8.5 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all their
other obligations under such Notes and this Indenture (and the Trustee,
promptly on demand of and at the expense of the Company, shall execute proper
instruments prepared by the Company acknowledging the same), except for the
following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to
receive solely from the trust fund described in Section 8.4 hereof, and as more
fully set forth in such Section, payments in respect of the principal, premium,
interest and Liquidated Damages, if any, on such Notes when such payments are
due, (b) the Company's obligations with respect to outstanding Notes under
Article 2 and Section 4.2 hereof, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's obligations in connection
therewith and (d) this Article 8. Subject to compliance with this Article 8,
the Company may exercise its option under this Section 8.2 notwithstanding the
prior exercise of its option under Section 8.3 hereof.
SECTION 8.3. Covenant Defeasance
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, be released
from their obligations under the covenants contained in Section 4.3(a), 4.4,
4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 and 4.16 and Article 5
hereof with respect to the outstanding Notes on and after the date the
conditions set forth below 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 Holders (and the
consequences of any thereof) in connection with such covenants, 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
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein or in any other document, and such omission to comply shall not
constitute a Default or Event of Default under Section 6.1 hereof, but, except
as specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
hereof of the option applicable to this Section 8.3 hereof, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections
6.1(3), 6.1(4), 6.1(5) and 6.1(6) and, with respect to any Restricted
Subsidiary that is a Significant Subsidiary, 6.1(7) and 6.1(8) hereof shall not
constitute Events of Default.
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SECTION 8.4. Conditions to Legal Defeasance or Covenant Defeasance
The following shall be the conditions to the application of
either Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance, as applicable:
(a) the Company must irrevocably deposit or cause to be
deposited with the Trustee, in trust, for the benefit of the Holders of
the Notes, cash in United States dollars, non-callable Government
Securities which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash, or a
combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee to pay and discharge, the principal, premium, interest and
Liquidated Damages, if any, on the outstanding Notes on the Stated
Maturity or on the applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.2 hereof, 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;
(c) in the case of an election under Section 8.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Section 6.1(7) or
6.1(8) hereof are concerned, at any time in the period ending on the
91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which
the Company or any of its Restricted Subsidiaries is a party or by which
the Company or any of its Restrictive Subsidiaries is bound;
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(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over any
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.
SECTION 8.5. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions
Subject to Section 8.6 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
8.5, the "Trustee") pursuant to Section 8.4 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, interest and Liquidated Damages, if any, but such money and Government
Securities 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 8.4 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.
SECTION 8.6. Repayment to Company
(a) Anything in this Article 8 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 8.4 hereof which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.4(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.
(b) Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon request in the form
of an Officers' Certificate any money
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held by them for the payment of principal, premium, interest or Liquidated
Damages, if any, that remains unclaimed for two years after such principal,
interest, premium, if any, or Liquidated Damages, if any, became due and
payable, and, thereafter, Holders entitled to the money must look to the
Company for payment of such money as creditors and all liability of the Trustee
and the Paying Agent with respect to such money shall cease.
SECTION 8.7. Reinstatement
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.2 or 8.3 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 8.2 or 8.3 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 8.2 or 8.3 hereof, as the case may; provided 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.
SECTION 8.8. Discharge of Liability on Securities; Defeasance
When (a) (i) the Company delivers to the Trustee all outstanding
Notes for cancellation (other than Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.7 and
Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust) or (ii) all outstanding Notes have
become due and payable, whether at maturity or on a specified redemption date
as a result of the mailing of a notice of redemption pursuant to Article 3
hereof, (b) the Company irrevocably deposits or causes to be deposited with the
Trustee as trust funds in trust solely for that purpose an amount of money
sufficient to pay and discharge at maturity or upon redemption all outstanding
Notes, including interest, premium and Liquidated Damages, if any, thereon, and
the Company pays or causes to be paid all other sums payable hereunder by the
Company, (c) the Company has delivered irrevocable instructions to the Trustee
to apply the deposited money toward the payment of the Notes at maturity or
redemption, as the case may be; and (d) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, stating that all
conditions precedent specified herein relating to the satisfaction and
discharge of this Indenture have been complied with; then this Indenture shall
cease to be of further effect except for (i) the provisions set forth in
Article 2, Sections 4.1, 4.2, 6.7, 7.7, 8.5, 8.6 and 8.7 hereof and (ii) if the
Notes have been called for redemption and the redemption date has not occurred,
the Company's obligation to pay the redemption price on such redemption date.
The Trustee shall acknowledge satisfaction and discharge of this Indenture
promptly on demand of the Company after receipt from the Company of an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company.
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ARTICLE 9
AMENDMENTS
SECTION 9.1. Without Consent of Holders
The Company and the Trustee may amend or supplement this
Indenture or the Notes without the consent of any Holder of Notes:
(1) to cure any ambiguity, defect or inconsistency; provided
that such amendment or supplement does not adversely affect the rights
of any Holder;
(2) to comply with Article 5;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(4) to provide security for the Notes;
(5) to add Guarantees with respect to the Notes;
(6) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Notes; or
(7) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company, accompanied by a resolution of
the Board of Directors of the Company, authorizing the execution of any such
supplemental indenture or amendment, and upon receipt by the Trustee of the
documents described in Section 9.6 hereof required or requested by the Trustee,
the Trustee shall join with the Company in the execution of any supplemental
indenture or amendment authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
supplemental indenture or amendment which affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.2. With Consent of Holders
Except as otherwise provided herein, the Company and the Trustee
may amend or supplement this Indenture or the Notes with the written consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or
exchange offer for the Notes).
Upon the request of the Company, accompanied by a resolution of
the Board of Directors of the Company authorizing the execution of any such
supplemental indenture or
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amendment, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 9.6 hereof, the Trustee
shall join with the Company in the execution of such supplemental indenture or
amendment unless such supplemental indenture or amendment affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed supplemental
indenture or amendment, but it shall be sufficient if such consent approves the
substance thereof.
After a supplemental indenture or amendment under this Section
becomes effective, the Company shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment 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 supplemental indenture,
amendment or waiver. Subject to Sections 6.4 and 6.7 hereof, the Holders of a
majority in principal amount of the Notes then outstanding may waive compliance
in a particular instance by the Company with any provision of this Indenture or
the Notes. However, without the consent of each Holder of Notes affected, an
amendment or waiver under this Section may not (with respect to any Notes held
by a non-consenting Holder of Notes):
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of
interest or Liquidated Damages, if any, including default interest, on
any Note;
(3) reduce the principal of or change the fixed maturity of any
Note or alter the optional or mandatory redemption provisions (other
than provisions relating to the covenants described in Sections 3.9 and
4.14) or reduce the prices at which the Company shall offer to purchase
such Notes pursuant to Sections 3.9, 4.14 or 4.15 hereof;
(4) make any Note payable in money other than that stated in
the Note;
(5) make any change in Section 6.4 or 6.7 hereof or in this
sentence of this Section 9.2;
(6) waive a Default or Event of Default in the payment of
principal of or interest or Liquidated Damages, if any, on, or
redemption payment with respect to, any Note (other than a Default in
the payment of an amount due as a result of an acceleration if the
Holders of Notes rescind such acceleration pursuant to Section 6.2);
(7) waive a redemption payment with respect to any Note; or
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(8) make any change to Article 10 of this Indenture that
adversely affects Holders of Notes.
SECTION 9.3. Compliance with Trust Indenture Act
If at the time of an amendment to this Indenture or the Notes,
this Indenture shall be qualified under the TIA, every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture that
complies with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents
Until a supplemental indenture, an amendment or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation of
the consent is not made on any Note. Subject to the following paragraph, any
such Holder or subsequent Holder may revoke the consent as to such Holder's
Note or portion of such Note by notice to the Trustee or the Company received
before the date specified in any solicitation or waiver. Subject to Section
9.2 hereof, a supplemental indenture, amendment or waiver becomes effective in
accordance with its terms and thereafter binds every Holder of Notes.
The Company may fix a record date for determining which Holders
must consent to such supplemental indenture, amendment or waiver or action
permitted by Section 6.5. If the Company fixes a record date, the record date
shall be fixed at the later of (i) 30 days prior to the first solicitation of
such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 2.5, or (ii) such other
date as the Company shall designate.
SECTION 9.5. Notation on or Exchange of Notes
The Trustee may place an appropriate notation about a
supplemental indenture, amendment or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment or waiver.
SECTION 9.6. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing or refusing to sign
such amendment or supplemental indenture, the Trustee shall be entitled to
receive, if requested, an indemnity reasonably satisfactory to it and to
receive and, subject to Section 7.1, shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of
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Counsel as conclusive evidence that such amendment or supplemental indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith
or therewith, and that it will be valid and binding upon the Company in
accordance with its terms. The Company may not sign an amendment or
supplemental indenture until the Board of Directors of the Company approves it.
ARTICLE 10
SUBORDINATION
SECTION 10.1. Agreement to Subordinate
The Company agrees, and each Holder by accepting a Note agrees,
that the Indebtedness evidenced by, and the payment of principal, premium,
interest and Liquidated Damages, if any, on, the Notes is subordinated in right
of payment, to the extent and in the manner provided in this Article, to the
prior payment in full of all Senior Debt (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt.
SECTION 10.2. Liquidation; Dissolution; Bankruptcy
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, an assignment for the benefit of creditors or any marshaling of the
Company's assets and liabilities, in each such case whether voluntary or
involuntary, domestic or foreign:
(1) the holders of Senior Debt shall be entitled to receive
payment in full in cash or Cash Equivalents of all Obligations due in
respect of such Senior Debt (including interest after the commencement
of any such proceeding in accordance with the terms of the applicable
Senior Debt, whether or not such interest is an allowed claim
enforceable against the debtor in a bankruptcy case under Title 11 of
the United States Code) before Holders shall be entitled to receive any
payment of principal, premium, interest or Liquidated Damages, if any,
on the Notes (including any such payment or other distribution that may
be payable by reason of the payment of any other Indebtedness of the
Company (including, without limitation, the Series B Notes) being
subordinated to the payment of the Notes); and
(2) until all Obligations with respect to Senior Debt are paid
in full in cash or Cash Equivalents, any such distribution to which
Holders would be entitled shall be made to the holders of such Senior
Debt;
except that so long as the Notes are not treated in any case or
proceeding or other event described above as part of the same class of
claims as the Senior Debt or any class of claim on a parity with or
senior to the Senior Debt for any payment or distribution,
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Holders may receive (i) securities that are subordinated, at least to
the same extent as the Notes, to Senior Debt of the Company and to any
securities issued in exchange for such Senior Debt and that are
authorized by an order or decree of a court of competent jurisdiction in
a reorganization proceeding under any applicable bankruptcy, insolvency
or similar law which gives effect to the subordination of the Notes to
Senior Debt and (ii) payments made from the trust described in Article 8
hereof.
SECTION 10.3. Default on Designated Senior Debt
The Company also may not make any payment of principal, premium,
interest and Liquidated Damages, if any, on the Notes upon or in respect of the
Notes whether on account of principal, interest, premiums, Liquidated Damages
or otherwise (other than as set forth in Section 10.2(2) hereof) if: (i) a
default in the payment of the principal, premium, or interest, if any, on any
Designated Senior Debt occurs and is continuing beyond any applicable period of
grace; or (ii) any other default occurs and is continuing with respect to
Designated Senior Debt or would occur as a consequence of such payment that
permits holders of the Designated Senior Debt as to which such default relates
to accelerate its maturity without further notice (except such notice as may be
required to effect such acceleration) or lapse of time and the Trustee receives
a written notice of such default (a "Payment Blockage Notice") from the holders
of any such Designated Senior Debt. No new period of payment blockage may be
commenced within 360 days after the receipt by the Trustee of any prior Payment
Blockage Notice. No non-payment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice.
The Company may and shall resume payment on the Notes: (1) in
the case of a payment default, upon the date on which such default is cured or
waived or otherwise has ceased to exist, and (2) in the case of a non-payment
default, the earlier of the date on which such non-payment default is cured or
waived or otherwise has ceased to exist or 179 days after the date on which the
applicable Payment Blockage Notice is received, unless the maturity of any
Designated Senior Debt has been accelerated and not paid, if this Article
otherwise permits the payment, distribution or acquisition at the time of such
payment or acquisition. Following the expiration of any period during which
the Company is prohibited from making payments on the Notes pursuant to a
Payment Blockage Notice, the Company will be obligated to resume making any and
all required payments in respect of the Notes, including without limitation any
missed payments.
The Company shall give prompt written notice to the Trustee of
any default in the payment of any Senior Debt or any acceleration under any
Senior Debt or under any agreement pursuant to which Senior Debt may have been
issued. Failure to give such notice shall not affect the subordination of the
Notes to the Senior Debt or the application of the other provisions provided in
this Article 10.
SECTION 10.4. Acceleration of Notes
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
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SECTION 10.5. When Distribution Must be Paid Over
In the event that the Trustee receives or is holding, or any
Holder receives, any payment of any principal, premium, interest and Liquidated
Damages, if any, with respect to the Notes at a time when the Trustee or such
Holder, as applicable, has actual knowledge (in the case of the Trustee as
described in Section 10.11 hereof), that such payment is prohibited by Section
10.2 or 10.3 hereof, such payment shall be held by the Trustee or such Holder,
in trust for the benefit of, and shall be paid forthwith over and delivered to,
the holders of Senior Debt as their interests may appear or their
Representative under the indenture or other agreement (if any) pursuant to
which Senior Debt may have been issued, as their respective interests may
appear, for application to the payment of all Obligations with respect to the
Senior Debt remaining unpaid to the extent necessary to pay such Obligations in
full in accordance with their terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and shall not be liable to any
such holders if the Trustee shall pay over or distribute to or on behalf of
Holders or the Company or any other Person money or assets to which any holders
of Senior Debt shall be entitled by virtue of this Article 10, except if such
payment is made as a result of the willful misconduct or gross negligence of
the Trustee.
SECTION 10.6. Notice by Company
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Notes to violate this Article, but failure to
give such notice shall not affect the subordination of the Notes to the Senior
Debt as provided in this Article.
SECTION 10.7. Subrogation
After all Senior Debt is paid in full and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article to holders of Senior
Debt that otherwise would have been made to Holders is not, as between the
Company and Holders, a payment by the Company on the Notes.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article 10 shall
have been applied, pursuant to the provisions of this Article, to the payment
of all amounts payable under the Senior Debt, then and in such case the Holders
shall be entitled to receive from the holders of such Senior Debt at the time
outstanding any payments or distributions received by such holders of such
Senior
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Debt in excess of the amount sufficient to pay all amounts payable under or
in respect of such Senior Debt in full; provided that such payments or
distributions shall be paid first pro rata to Holders that previously paid
amounts then pro rata to all Holders.
SECTION 10.8. Relative Rights
This Article defines the relative rights of Holders and holders
of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal,
premium, interest and Liquidated Damages, if any, on the Notes in
accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than their rights in relation to holders of Senior Debt;
or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or an Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions and
payments otherwise payable to Holders.
If the Company fails because of this Article to pay principal,
premium, interest and Liquidated Damages, if any, on a Note on the due date,
the failure is still a Default or an Event of Default.
SECTION 10.9. Subordination May Not be Impaired by Company
No right of any holder of Senior Debt 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 any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
SECTION 10.10. Distribution or Notice to Representative
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee and the Holders shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt 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
10.
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SECTION 10.11. Rights of Trustee and Paying Agent
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless a Responsible Officer of the Trustee
shall have received at its Corporate Trust Office at least two Business Days
prior to the due date of such payment written notice of facts that would cause
the payment of any principal, premium, interest and Liquidated Damages, if any,
with respect to the Notes to violate this Article. Only the Company or a
Representative may give the notice. Nothing in this Article 10 shall impair
the claims of, or payments to, the Trustee under or pursuant to Section 7.7
hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
SECTION 10.12. Authorization to Effect Subordination
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article 10, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.9 hereof at least 30 days before the expiration of the
time to file such claim, a Representative of Designated Senior Debt is hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.
SECTION 10.13. Payment
A payment with respect to a Note or with respect to principal of
or interest on a Note shall include, without limitation, payment of principal,
premium, interest and Liquidated Damages, if any, on any Note, any payment on
account of any mandatory or optional repurchase or redemption of any Note
(including payments pursuant to Article 3 or Section 4.14 or Section 4.15
hereof) and any payment or recovery on any claim (whether for rescission or
damages and whether based on contract, tort, duty imposed by law, or any other
theory of liability) relating to or arising out of the offer, sale or purchase
of any Note provided that any such payment, other payment or recovery (i) not
prohibited pursuant to this Article 10 at the time actually made shall not be
subject to any recovery by any holder of Senior Debt or Representative therefor
or other Person pursuant to this Article 10 at any time thereafter (unless such
payment is a voluntary prepayment on the Notes made at the time a Default
exists under this Indenture) and (ii) made by or from any Person other than the
Company shall not be subject to any recovery by any holder of Senior Debt or
Representative therefor or other Person pursuant to this Article 10 at any time
thereafter except to the extent such Person recovers any such amount paid from
the Company, whether pursuant to rights of indemnity, rescission or otherwise.
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ARTICLE 11
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts
with a provision of the TIA that is required under the TIA to be a part of and
govern this Indenture, such required provision shall control. If any provision
of this Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the provision of the TIA shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
SECTION 11.2. Notices
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered by hand delivery, by
first-class mail (registered or certified, return receipt requested), by
facsimile or by overnight air courier guaranteeing next day delivery, to the
others' addresses as follows:
If to the Company:
Synthetic Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee by notice to the others may designate
additional or different addresses of subsequent notices or communications.
All notices and communications (other than those sent to Holders
of Notes) shall be deemed to have been duly received: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt is
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confirmed, if sent by facsimile; 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 of Notes shall be mailed
by first-class mail, certified or registered, return receipt requested, to his
address shown on the register kept by the Registrar. Failure to mail a notice
or communication to a Holder of Notes or any defect in it shall not affect its
sufficiency with respect to other Holders of Notes.
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 of
Notes, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 11.3. Communication by Holders with Other Holders
Holders of Notes may communicate pursuant to TIA Section 312(b)
with other Holders of Notes 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). Upon qualification of this
Indenture under the TIA, the Trustee shall otherwise comply with TIA Section
312(b).
SECTION 11.4. 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
(if required by the TIA or this Indenture):
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5 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 complied with;
and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 11.5. 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 include:
(1) statement that the Person making such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with, provided,
however, that with respect to matters of fact, an Opinion of Counsel may
rely upon an Officers' Certificate or a certificate of a public
official.
SECTION 11.6. Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at a
meeting of Holders of Notes. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 11.7. Legal Holidays
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in The City of New York, in the city in which the
Corporate Trust Office of the Trustee is located or at a place of payment are
authorized or obligated 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 for the intervening period.
SECTION 11.8. No Recourse Against Others
(a) No past, present or future director, officer, employee,
agent, or stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation.
Each Holder of Notes, by accepting a Note, waives and releases all such
liability. The waiver and release shall be part of the consideration for the
issuance of the Notes.
(b) Notwithstanding the foregoing, nothing in this provision
shall be construed as a waiver or release of any claims under the federal
securities laws.
SECTION 11.9. Governing Law
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE
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COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE.
SECTION 11.10. No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11. Successors
All agreements of the Company in this Indenture and the Notes
shall bind its successor. All agreements of the Trustee in this Indenture
shall bind its successor.
SECTION 11.12. Severability
In case any one or more of the provisions in this Indenture or in
the Notes shall be held invalid, illegal or unenforceable in any jurisdiction,
in any respect for any reason, the validity, legality and enforceability of any
such provision in every other jurisdiction and in every other respect, and of
the remaining provisions, shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SECTION 11.13. Counterpart Originals
This Indenture may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of them together shall
represent the same agreement.
SECTION 11.14. 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 hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
[signatures on following page]
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SIGNATURES
IN WITNESS WHEREOF, the undersigned have caused this Indenture to
be executed as of the date first above written.
SYNTHETIC INDUSTRIES, INC.
By:
-------------------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
By:
-------------------------------------
Name:
Title:
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EXHIBIT A
FORM OF NOTE
[Face of Note]
SYNTHETIC INDUSTRIES, INC.
9 1/4% SERIES [A/B] SENIOR SUBORDINATED NOTE DUE 2007
No. _________ CUSIP NO. __________
Synthetic Industries, Inc., a Delaware corporation, promises to
pay to __________________________ or registered assigns, the principal sum of
____________________ Dollars on February 15, 2007.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
[Seal]
SYNTHETIC INDUSTRIES, INC.
By:
-------------------------------------
By:
-------------------------------------
Certificate of Authentication:
United States Trust Company of New York, as Trustee,
certifies that this is one of the [Global] Notes
referred to in the within-mentioned Indenture.
By:
-----------------------------------
Authorized Signature
A-1
86
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE REFERRED TO HEREINAFTER. THIS GLOBAL NOTE MAY NOT BE EXCHANGED, IN
WHOLE OR IN PART, FOR A SECURITY REGISTERED IN THE NAME OF ANY PERSON OTHER
THAN THE DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF EXCEPT IN THE
CIRCUMSTANCES SET FORTH IN SECTION 2.6 OF THE INDENTURE, AND MAY NOT BE
TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.6 OF THE INDENTURE. BENEFICIAL INTEREST IN THIS GLOBAL
NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 2.6 OF THE
INDENTURE.](1)
["THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY
PERSON EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) WHO IS AN INSTITUTION (AN "INSTITUTIONAL ACCREDITED
INVESTOR"), OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH THE RULE 904
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO
THE DATE WHICH IS THREE YEARS AFTER THE LATER OF THE DATE OF
ORIGINAL ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE
ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS NOTE
(THE "RESALE RESTRICTION TERMINATION DATE") OFFER, SELL OR
--------------------
(1) This paragraph should be included only if the Note is issued in global
form.
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇ TRANSFER THIS NOTE, EXCEPT (A) TO THE ISSUER, (B) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH THE RESALE PROVISIONS OF RULE
144A UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
WRITTEN CERTIFICATION CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) PURSUANT TO THE RESALE
LIMITATIONS PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (F) OUTSIDE THE U.S. TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE
SECURITIES ACT OR (G) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED, IN THE CASE OF
CLAUSES (C), (D), (F) AND (G) ABOVE, UPON AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER IF THE ISSUER SO REQUESTS), SUBJECT
IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH ACCOUNT BE AT ALL
TIMES WITHIN ITS CONTROL AND TO COMPLIANCE WITH APPLICABLE STATE
SECURITIES LAWS AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE ISSUER 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. THE FOREGOING RESTRICTIONS ON RESALE WILL NOT APPLY
SUBSEQUENT TO THE RESALE RESTRICTION TERMINATION DATE."](2)
--------------------
(2) This paragraph should not be included on Exchange Notes received in an
Exchange Offer.
A-3
88
[Reverse of Note]
SYNTHETIC INDUSTRIES, INC.
9 1/4% SERIES [A/B] SENIOR SUBORDINATED NOTE DUE 2007
1. Interest. Synthetic Industries, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount
of this Note at 9 1/4% per annum from February 11, 1997 until maturity and to
pay Liquidated Damages, if any, payable pursuant to Section 2 of the
Registration Rights Agreement referred to below. The Company will pay interest
and Liquidated Damages, if any, semiannually in arrears on February 15 and
August 15 of each year (each an "Interest Payment Date"), or if any such day is
not a Business Day, on the next succeeding Business Day. Interest on the Notes
will accrue from the most recent Interest Payment Date to which interest has
been paid or, if no interest has been paid, from February 11, 1997; 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 August 15, 1997. 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
equal to 1% per annum in excess of the interest rate then in effect 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
Liquidated Damages (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 comprised of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
Notes (except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the record date
immediately preceding the 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, interest and Liquidated Damages, if any, at
the office or agency of the Company maintained for such purpose within the City
and State of New York, or, at the option of the Company, payment of interest
and Liquidated Damages, if any, may be made by check mailed to the Holders at
their respective addresses set forth in the register of Holders; provided that
payment by wire transfer of immediately available/same day funds will be
required with respect to principal, premium, interest and Liquidated Damages,
if any, on, all Global Notes. 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, the Trustee will
act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-registrar without notice to any Holder. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar, except that for purposes
of payments on the Notes pursuant to Sections 7 and 8 hereof, neither the
Company nor any of its Affiliates may act as Paying Agent.
▇-▇
▇▇
▇. Indenture. The Company issued the Notes under an
Indenture, dated as of February 11, 1997 (the "Indenture"), between the Company
and the Trustee. Capitalized terms herein are used as defined in the Indenture
unless otherwise defined herein. 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 (15 U.S. Code Sections 77aaa-77bbb) as in effect on the
date of the Indenture. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Notes are unsecured senior
subordinated general obligations of the Company limited to $170,000,000
aggregate principal amount (subject to Section 2.7 of the Indenture).
5. Optional Redemption. The Notes are not redeemable at the
Company's option prior to February 15, 2002. Thereafter, the Notes will be
subject to redemption at the option of the Company, in whole or in part, upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the applicable
redemption date, if redeemed during the twelve-month period beginning on
February 15 of the years indicated below:
Year Percentage
---- ----------
2002 . . . . . . . . . . . . . 104.6250%
2003 . . . . . . . . . . . . . 103.0834%
2004 . . . . . . . . . . . . . 101.5417%
2005 and thereafter . . . . . . 100.0000%
Notwithstanding the foregoing, on or prior to February 15, 2000,
the Company may redeem at any time or from time to time up to 35% of the
aggregate principal amount of the Notes originally issued, at a redemption
price of 109.25% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the redemption date, with
the net proceeds of one or more Public Equity Offerings; provided, that at
least $110.5 million in aggregate principal amount of the Notes remain
outstanding following each such redemption; and provided, further, that notice
of such redemption shall be given not later than 45 days and such redemption
shall occur not earlier than 30 days or later than 60 days, after the date of
the closing of any such Public Equity Offering.
6. Notice of Redemption. Subject to the provisions of the
Indenture, notice of redemption will be mailed by first class mail to the
Holder's registered address at least 30 days but not more than 60 days before
the redemption date (unless a different notice period is set forth in Section 5
hereof) to each Holder of Notes to be redeemed. If less than all Notes are to
be redeemed at any time, the Trustee shall, unless otherwise set forth in the
Indenture, select the Notes to be redeemed in multiples of $1,000 pro rata, by
lot or in accordance with a method which the Trustee considers to be fair and
appropriate. On and after the redemption date interest ceases to accrue on
Notes or portions of them called for redemption (unless the Company shall
default in the payment of the redemption price together with accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date).
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7. Change of Control. In the event of a Change of Control of
the Company, 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, at an offer price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Change of Control Payment Date.
8. Asset Sales. In the event of certain Asset Sales, the
Company may be required to make an Asset Sale Offer to purchase the maximum
principal amount of Notes that may be purchased out of Excess Proceeds, at an
offer price in cash equal to 100% of the principal amount of the Notes plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the date
of purchase.
9. Restrictive Covenants. The Indenture imposes certain
limitations on, among other things, the ability of the Company to consolidate
or merge with or into, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, the ability of
the Company or its Restricted Subsidiaries to dispose of certain assets, to
declare or pay dividends or make certain other distributions and payments, to
make certain investments or purchase, redeem, or otherwise acquire or retire
for value Equity Interests, to incur additional Indebtedness or incur Liens and
to enter into certain transactions with Affiliates, all subject to certain
limitations described in the Indenture.
10. Denominations, Transfer, Exchange. The Notes are in
registered form, without coupons, in denominations of $1,000 and integral
multiples thereof. A Holder may transfer or exchange Notes in accordance with
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. Neither the Company nor the Registrar shall be
required to transfer or exchange any Notes selected for redemption. Also, the
Company need not transfer or exchange any Notes for a period of 15 days before
a selection of Notes to be redeemed.
11. Persons Deemed Owners. The registered Holder of a Note may
be treated as the owner of it for all purposes and neither the Company, the
Trustee nor any Agent shall be affected by notice to the contrary.
12. Unclaimed Money. If money for the payment of principal,
premium, interest or Liquidated Damages, if any, remains unclaimed for two
years, the Trustee or Paying Agent will pay the money back to the Company at
its request. After that, all liability of the Trustee and such Paying Agent
with respect to such money shall cease.
13. Amendment, Supplement, Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in principal amount of
the Notes then outstanding (including consents obtained in connection with a
tender offer or exchange offer for the Notes). Holders of a majority in
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all the Notes waive an existing Default or Event of
Default and its consequences, except a continuing Default or Event of Default
in the payment of principal, premium, interest or Liquidated Damages, if any,
with respect to any Note held by a non-consenting Holder.
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Without the consent of any Holder, the Company may amend or supplement the
Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency that does not adversely affect the rights of any Holder or to
provide for uncertificated Notes in addition to or in place of certificated
Notes or to make any change that does not adversely affect the legal rights of
any Holder.
14. Events of Default and Remedies. An Event of Default
generally is: (i) default for 30 days in the payment when due of interest on,
or Liquidated Damages, if any, with respect to, any of the Notes, whether or
not prohibited by the subordination provisions of the Indenture; (ii) default
in payment when due (whether at maturity, upon redemption or repurchase, or
otherwise) of the principal of or premium, if any, on any of the Notes, whether
or not prohibited by the subordination provisions of the Indenture; (iii)
failure by the Company to comply with certain of its agreements in the
Indenture and the Notes; (iv) failure by the Company or any Restricted
Subsidiary for 30 days after notice to comply with any of its covenants or
agreements in the Indenture or the Notes other than those referred to in
clauses (i), (ii) and (iii) above; (v) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the Company
or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee
now exists, or is created after the date of the Indenture, which default (a) is
caused by a failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness (a "Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case described in
clauses (a) and (b) of this subsection (v), the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
under which there has been a Payment Default or the maturity of which has been
so accelerated, aggregates $10.0 million or more; (vi) failure by the Company
or any of its Restricted Subsidiaries to pay final judgments aggregating in
excess of $10.0 million, which judgments are not paid, discharged or stayed for
a period of 60 days after their entry; and (vii) certain events of bankruptcy
or insolvency with respect to the Company or any of its Significant
Subsidiaries that is a Restricted Subsidiary. Subject to certain limitations
in the Indenture, if an 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 of the principal amount of the Notes, accrued and unpaid
interest thereon and all other Obligations thereunder, to be due and payable
immediately, except that in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company, any
Significant Subsidiary that is a Restricted Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes shall become due and payable immediately
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 Notes may direct the Trustee
in its exercise of any trust or power. The Company must furnish an annual
compliance certificate to the Trustee.
15. Trustee Dealings with Company. United States Trust Company
of New York, the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
the Company or its respective Subsidiaries or Affiliates with the same rights
it would have if it were not Trustee.
▇-▇
▇▇
▇▇. No Recourse Against Others. No past, present or future
director, officer, employee, agent or stockholder of the Company, as such,
shall 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 issue of the Notes.
17. Subordination. The payment of principal, premium, interest
and Liquidated Damages, if any, on the Notes will be subordinated in right of
payment, as set forth in the Indenture, to the prior payment in full of all
Senior Debt, whether outstanding on the date of the Indenture or thereafter
incurred, and senior or pari passu in right of payment to, all subordinated
Indebtedness whether outstanding on the date of the Indenture or thereafter
incurred.
18. Authentication. This Note shall not be valid until the
Trustee or an authenticating agent signs the certificate of authentication on
the other side of this Note.
19. 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).
20. Additional Rights of Holders of Transfer Restricted
Securities. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transfer Restricted Securities shall have all the rights
set forth in the Registration Rights Agreement, dated as of the date of the
Indenture (the "Registration Rights Agreement"), between the Company and the
Initial Purchaser.
21. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Note Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes as a convenience to Holder of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
22. Governing Law. This Note and the Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
as applied to contracts made and performed entirely within the State of New
York, without regard to principles of conflicts of law.
23. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture or Registration Rights Agreement.
Requests may be made to: Synthetic Industries, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Financial Officer.
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ASSIGNMENT FORM
To assign this Note, fill in the form below and have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________________________ as agent to
transfer this Note on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Date:
------------------------------------------
Signature Guarantee:
------------------------------------------------------------
NOTICE: Your Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program; (ii) The New York Stock Exchange
Medallion Program; (iii) The Stock Exchange Medallion Program; or (iv) any
other guarantee program acceptable to the Trustee.
In connection with any transfer of this Note the Holder hereof may be required
by the Indenture to deliver to the Trustee and the Registrar a certification
substantially in the form of Exhibit B to the Indenture.
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FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.15 [ ]
If you want to have only part of this Note purchased by the
Company pursuant to Section 4.14 or Section 4.15 of the Indenture, state the
amount (in integral multiples of $1,000):
$
--------------------------------
Date:
------------------------------------------------
Signature:
------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
---------------------------------
NOTICE: Your Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program; (ii) The New York Stock Exchange
Medallion Program; (iii) The Stock Exchange Medallion Program; or (iv) any
other guarantee program acceptable to the Trustee.
SCHEDULE OF EXCHANGES FOR DEFINITIVE NOTES(3)
The following exchanges of a part of this Global Note for Definitive Notes have
been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized officer
Date of Principal Amount of Principal Amount of following such of Trustee or Note
Exchange this Global Note this Global Note decrease (or increase) Custodian
-------- --------------------- --------------------- ---------------------- ------------------
----------------------------------
(3) This schedule should be included only if the Note is issued in global
form.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: 9 1/4% Series [A/B] Senior Subordinated Notes due 2007 of Synthetic
Industries, Inc.
This Certificate relates to $_____ principal amount of Notes held
in (*) _______ book-entry or (*) ______ definitive form by _________________
(the "Transferor").
The Transferor:(*)
[ ] has requested the Registrar by written order to exchange or register the
transfer of a Note or Notes; or
[ ] has requested the Trustee by written order to exchange its Note or Notes
in definitive, registered form for a beneficial interest in a Global
Note held by the Depository equal to the principal amount of Notes it
holds (or the portion thereof indicated above); or
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in a Global Note held by the Depository a Note
or Notes in definitive, registered form equal to its beneficial interest
in such Global Note (or the portion thereof indicated above).
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relative to the above captioned Notes and that the transfer of
this Note does not require registration under the Securities Act (as
defined below) because:*
[ ] Such Note is being acquired for the Transferor's own account without
transfer (in satisfaction of Section 2.6(a)(ii)(A), Section 2.6(b)(i) or
Section 2.6(d)(i)(A) of the Indenture).
[ ] Such Note is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")), in a transaction meeting the requirements of Rule
144A under the Securities Act.
[ ] Such Note is being transferred outside the U.S. to a foreign person
pursuant to an exemption from registration in a transaction meeting the
requirements of Regulation S under the Securities Act (based on an
opinion of counsel if the Company so requests and together with a
certification in substantially the form of Exhibit D to the Indenture).
----------------------------------
(*) Check applicable box.
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[ ] Such Note is being transferred in a transaction meeting the requirements
of Rule 144 under the Securities Act (based on an opinion of counsel if
the Company so requests).
[ ] Such Note is being transferred pursuant to an effective registration
statement under the Securities Act.
[ ] Such Note is being transferred to an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act pursuant to a private placement exemption from the
registration requirements of the Securities Act (based on an opinion of
counsel if the Company so requests together with a certification in
substantially the form of Exhibit C to the Indenture).
[ ] Such Note is being transferred in reliance on and in compliance with
another exemption from the registration requirements of the Securities
Act (based on an opinion of counsel if the Company so requests).
----------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------------
Name:
Title:
Address:
Date:
----------------------------
TO BE COMPLETED BY TRANSFEREE IF SECOND BOX ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: Signed:
------------------------ -----------------------------------------
NOTICE: To be executed by an executive
officer
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EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED BY ACCREDITED INSTITUTIONS
____________ ___, ____
United States Trust Company of New York,
as Registrar
Attn: Corporate Trust Department
Dear Sirs:
In connection with our proposed purchase of $_____ aggregate
principal amount of 9 1/4% Series [A/B] Senior Subordinated Notes due 2007 (the
"Notes") of Synthetic Industries, Inc. (the "Issuer"), a Delaware corporation,
we confirm that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "Securities Act")) purchasing for our own account or for
the account of such an institutional "accredited investor," and we are
acquiring the Notes for investment purposes and not with a view to, or
for offer or sale in connection with, any distribution in violation of
the Securities Act or the laws of any state or other jurisdiction, and
we have such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our investment in
the Notes, and we and any accounts for which we are acting are each able
to bear the economic risk of our or its investment.
2. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the
Indenture relating to the Notes (the "Indenture") and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise transfer
the Notes except in compliance with, such restrictions and conditions of
the Securities Act.
3. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes may not be
offered or sold except as described below. We agree, on our own behalf
and on behalf of any account for which we are purchasing the Notes, and
each subsequent holder of the Notes by its acceptance thereof will
agree, not to offer, sell or otherwise transfer such Notes prior to the
date which is three years after the later of the date of original issue
of such Notes and the last date on which the Issuer or any affiliate of
the Issuer was the owner of such Notes (the "Resale Restriction
Termination Date"), except (A) to the Issuer, (B) in accordance with
Rule 144A under the Securities Act to a "qualified institutional buyer"
(as defined therein) in a transaction meeting the requirements of Rule
144A, (C) to an institutional "accredited investor" (as defined above)
that is purchasing for his own account or for the account of such an
"accredited investor," and that, prior to such transfer, furnishes to
the Trustee (as
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defined in the Indenture) a signed letter, substantially identical to
this letter, containing certain representations and agreements relating
to the restrictions on transfer of the Notes (the form of which letter
can be obtained from the Trustee), (D) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act, if
available, (E) pursuant to an effective registration statement under the
Securities Act, (F) outside the U.S. to a foreign person in a
transaction meeting the requirements of Regulation S under the
Securities Act, or (G) pursuant to any other available exemption from
the registration requirements of the Securities Act (based upon an
opinion of counsel reasonably acceptable to the Issuer if the Issuer so
requests), subject in each of the foregoing cases, to any requirement of
law that the disposition of our property or the property of such
investor account or accounts be at all times within our or their control
and to compliance with applicable securities laws of any state of other
jurisdiction. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date, and we further
agree to provide to any person purchasing any of the Notes from us a
notice advising such purchaser that resales of the Notes are restricted
as stated herein.
4. We understand that, on any proposed offer, sale or other
transfer of any Notes prior to the Resale Restriction Termination Date,
we will be required to furnish to the Trustee and the Issuer such
certifications, legal opinions, and other information as either of them
may reasonably require to confirm that the proposed transaction complies
with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend reflecting the substance of this and
the preceding paragraph.
5. We are acquiring the Notes purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
We acknowledge that you, the Trustee and others 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. We
agree to notify you promptly in writing if any of our representations or
warranties ceases to be accurate and complete.
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THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
----------------------------------------------
(Name of Purchaser)
By:
-------------------------------------
Name:
Title:
Address:
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100
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
__________, _____
United States Trust Company of New York,
as Registrar
Attention: Corporate Trust Department
Ladies and Gentlemen:
In connection with our proposed sale of $__________
aggregate principal amount of 9 1/4% Series [A/B] Senior Subordinated Notes due
2007 (the "Notes") of Synthetic Industries, Inc., a Delaware corporation (the
"Company"), we represent that:
(i) the offer of the Notes was not made to a person
in the United States;
(ii) at the time the buy order was originated, the
transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States;
(iii) no directed selling efforts have been made by us,
any of our affiliates or any person acting on our or their behalf
in the United States in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S, as applicable; and
(iv) the transaction is not part of a plan or scheme
to evade the registration requirements of the U.S. Securities Act
of 1933.
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You and the Company are entitled to rely upon this letter
and you are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
----------------------------------------
[Name of Transferor]
By:
------------------------------------
Name:
Title:
Address:
D-2