EXHIBIT 4.1
EXECUTION COPY
▇▇▇▇▇▇, INC.,
As Issuer
$450,000,000
13% SENIOR SUBORDINATED NOTES DUE 2009
_____________________________________
INDENTURE
Dated as of August 19, 1999
_____________________________________
_____________________________________
United States Trust Company of New York,
As Trustee
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE 1
SECTION 1.01. DEFINITIONS. 1
SECTION 1.02. OTHER DEFINITIONS. 19
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. 19
SECTION 1.04. RULES OF CONSTRUCTION. 19
ARTICLE 2. THE NOTES 20
SECTION 2.01. FORM AND DATING. 20
SECTION 2.02. EXECUTION AND AUTHENTICATION. 21
SECTION 2.03. REGISTRAR AND PAYING AGENT. 21
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. 22
SECTION 2.05. HOLDER LISTS. 22
SECTION 2.06. TRANSFER AND EXCHANGE. 22
SECTION 2.07. REPLACEMENT NOTES. 32
SECTION 2.08. OUTSTANDING NOTES. 33
SECTION 2.09. TREASURY NOTES. 33
SECTION 2.10. TEMPORARY NOTES. 33
SECTION 2.11. CANCELLATION. 33
SECTION 2.12. DEFAULTED INTEREST. 33
SECTION 2.13. CUSIP NUMBERS. 34
ARTICLE 3. REDEMPTION AND PREPAYMENT 34
SECTION 3.01. NOTICES TO TRUSTEE. 34
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. 34
SECTION 3.03. NOTICE OF REDEMPTION. 35
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. 35
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. 35
SECTION 3.06. NOTES REDEEMED IN PART. 36
SECTION 3.07. OPTIONAL REDEMPTION. 36
SECTION 3.08. MANDATORY REDEMPTION. 36
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS. 36
ARTICLE 4. COVENANTS 38
SECTION 4.01. PAYMENT OF NOTES. 38
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. 38
SECTION 4.03. REPORTS. 38
SECTION 4.04. COMPLIANCE CERTIFICATE. 39
SECTION 4.05. TAXES. 39
SECTION 4.06. SALE AND LEASEBACK TRANSACTIONS. 39
SECTION 4.07. RESTRICTED PAYMENTS. 40
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. 42
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED
STOCK. 43
SECTION 4.10. ASSET SALES. 45
SECTION 4.11. TRANSACTIONS WITH AFFILIATES. 46
SECTION 4.12. LIENS. 47
SECTION 4.13. ADDITIONAL GUARANTEES. 47
SECTION 4.14. CORPORATE EXISTENCE. 47
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL. 48
SECTION 4.16. NO SENIOR SUBORDINATED DEBT. 49
SECTION 4.17. PAYMENTS FOR CONSENT. 49
SECTION 4.18. BUSINESS ACTIVITIES. 49
ARTICLE 5. SUCCESSORS 49
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS. 49
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. 50
ARTICLE 6. DEFAULTS AND REMEDIES 51
SECTION 6.01. EVENTS OF DEFAULT. 51
SECTION 6.02. ACCELERATION. 52
SECTION 6.03. OTHER REMEDIES. 53
SECTION 6.04. WAIVER OF PAST DEFAULTS. 53
SECTION 6.05. CONTROL BY MAJORITY. 53
SECTION 6.06. LIMITATION ON SUITS. 53
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT. 54
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. 54
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. 54
SECTION 6.10. PRIORITIES. 54
SECTION 6.11. UNDERTAKING FOR COSTS. 55
ARTICLE 7. TRUSTEE 55
SECTION 7.01. DUTIES OF TRUSTEE. 55
SECTION 7.02. RIGHTS OF TRUSTEE. 56
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. 57
SECTION 7.04. TRUSTEE'S DISCLAIMERS. 57
SECTION 7.05. NOTICE OF DEFAULTS. 57
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES. 57
SECTION 7.07. COMPENSATION AND INDEMNITY. 57
SECTION 7.08. REPLACEMENT OF TRUSTEE. 58
SECTION 7.09. 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 59
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE. 59
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE. 59
SECTION 8.03. COVENANT DEFEASANCE. 60
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. 60
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. 61
SECTION 8.06. REPAYMENT TO COMPANY. 61
SECTION 8.07. REINSTATEMENT. 62
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER 62
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES. 62
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES. 63
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. 64
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS. 64
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. 64
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. 64
ARTICLE 10. SUBORDINATION 65
SECTION 10.01. AGREEMENT TO SUBORDINATE. 65
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY. 65
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT. 65
SECTION 10.04. ACCELERATION OF SECURITIES. 66
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER. 66
SECTION 10.06. NOTICE BY COMPANY 66
SECTION 10.07. SUBROGATION. 66
SECTION 10.08. RELATIVE RIGHTS. 67
SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. 67
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. 67
SECTION 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT. 67
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION. 68
SECTION 10.13. AMENDMENTS. 68
ARTICLE 11. GUARANTEES 68
SECTION 11.01. GUARANTEES. 68
SECTION 11.02. SUBORDINATION OF GUARANTEE. 69
SECTION 11.03. EXECUTION AND DELIVERY OF GUARANTEE. 69
SECTION 11.04. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. 69
SECTION 11.05. RELEASES OF GUARANTEES. 70
SECTION 11.06. LIMITATION ON GUARANTOR LIABILITY; CONTRIBUTION. 70
ARTICLE 12. MISCELLANEOUS 71
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. 71
SECTION 12.02. NOTICES. 71
SECTION 12.03. COMMUNICATIONS BY HOLDERS OF NOTES WITH OTHER
HOLDERS OF NOTES. 72
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. 72
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. 72
SECTION 12.06. RULE BY TRUSTEE AND AGENTS. 72
SECTION 12.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS. 73
SECTION 12.08. GOVERNING LAW. 73
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. 73
SECTION 12.10. SUCCESSORS. 73
SECTION 12.11. SEVERABILITY. 73
SECTION 12.12. COUNTERPART ORIGINALS. 73
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC. 73
EXHIBITS
EXHIBIT A1 FORM OF NOTE
EXHIBIT A2 FORM OF TEMPORARY REGULATION S NOTES
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE FROM ACQUIRING ACCREDITED INVESTORS
EXHIBIT E FORM OF NOTATION OF SENIOR SUBORDINATED NOTE RELATING
TO GUARANTEE
EXHIBIT F FORM OF SUPPLEMENTAL INDENTURE
Cross-Reference Table*
Trust Indenture Act Section Indenture Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 12.03
(c) 12.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06;12.02
(d) 7.06
314(a) 4.03;12.02
(b) N.A.
(c)(1) 12.04
(c)(2) 12.04
(c)(3) N.A.
(d) N.A.
(e) 12.05
(f) N.A.
315(a) 7.01
(b) 7.05, 12.02
(c) 7.01
(d) 7.01
(e) 6.11
316(a)(last sentence) 2.09
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 2.12
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 12.01
(b) N.A.
(c) 12.01
N.A. means not applicable.
----------------------
* This Cross-Reference Table is not part of the Indenture.
This INDENTURE dated as of August 19, 1999, is among
▇▇▇▇▇▇, Inc., a Delaware corporation ("▇▇▇▇▇▇" or the "Company"),
▇▇▇▇▇▇ International, Inc., a Delaware corporation ("▇▇▇▇▇▇
International"), and BI Holdings Corp., a Delaware corporation,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Company, a Delaware corporation, BI, L.L.C., a
Delaware limited liability company, ▇▇▇▇▇▇ Development Corp., a
Delaware corporation, Omark Properties, Inc., an Oregon
corporation, 4520 Corp., Inc., a Delaware corporation, Gear
Products, Inc., an Oklahoma corporation, ▇▇▇▇▇ Industries, Inc.,
a Kansas corporation, ▇▇▇▇▇▇▇▇▇ Manufacturing Corporation, a
Delaware corporation, Federal Cartridge Company, a Minnesota
corporation, ▇▇▇▇▇▇▇ Outdoor Corporation, a Delaware corporation,
Mocenplaza Development Corp., a Delaware corporation and CTR
Manufacturing, Inc., a North Carolina corporation (collectively,
the "Guarantors"), and United States Trust Company of New York, a
bank and trust company organized under the New York Banking Law,
as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the 13% Senior Subordinated
Notes due 2009 (the "Initial Notes") and the 13% Senior
Subordinated Notes due 2009 (the "Exchange Notes" and, together
with the Initial Notes and any Additional Notes, the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means the global note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with and registered in the name of
the Depositary or its nominee that will be issued in a
denomination equal to the outstanding principal amount of the
Notes sold in reliance on Rule 144A.
"1998 Indenture" means the Indenture dated as of June
18, 1998 among the Company, ▇▇▇▇▇▇ International and LaSalle
National Bank, as trustee, pursuant to which the Existing Notes
were originally issued.
"Acquired Debt" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary
of such specified Person, whether or not such Indebtedness is
incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of such
specified Person; and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Additional Assets" means (i) any property or assets
(other than Capital Stock, Indebtedness or rights to receive
payments over a period greater than 180 days) that are used by or
useful to ▇▇▇▇▇▇ International or a Restricted Subsidiary of
▇▇▇▇▇▇ International in a Permitted Business; or (ii) the Capital
Stock of a Person that either is already at the time a Restricted
Subsidiary of ▇▇▇▇▇▇ International or becomes a Restricted
Subsidiary of ▇▇▇▇▇▇ International as a result of the acquisition
of such Capital Stock by ▇▇▇▇▇▇ International or another
Restricted Subsidiary of ▇▇▇▇▇▇ International.
"Additional Interest" has the meaning ascribed thereto
in Section 5 of the Registration Rights Agreement.
"Additional Notes" means up to $125,000,000 in
aggregate principal amount of Notes (other than the Initial Notes
or Exchange Notes) issued under this Indenture in accordance with
Sections 2.02 and 4.09 hereof.
"Adjusted Net Assets" of a Guarantor at any date means
the lesser of the amount by which (i) the fair value of the
property of such Guarantor exceeds the total amount of
liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but
excluding liabilities under its Guarantee, of such Guarantor at
such date and (ii) the present fair salable value of the assets
of such Guarantor at such date exceeds the amount that will be
required to pay the probable liability of such Guarantor on its
debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving
effect to any collection from any Subsidiary of such Guarantor in
respect of the obligations of such Subsidiary under such
Guarantee), excluding debt in respect of such Guarantee, as they
become absolute and matured.
"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," 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 that beneficial ownership of 10% or more of the Voting
Stock of such Person shall be deemed to be control. For purposes
of this definition, the terms "controlling," "controlled by" and
"under common control with" shall have correlative meanings.
"Agent" means any Registrar, Paying Agent or co-
registrar.
"Applicable Procedures" means, with respect to any
transfer or exchange of or for beneficial interests in any Global
Note, the rules and procedures of the Depositary, Euroclear and
Cedelbank that apply to such transfer or exchange.
"Asset Disposition" means the sale, lease, conveyance
or other disposition of any assets or rights (including by way of
a sale and leaseback) of ▇▇▇▇▇▇ International or any of its
Restricted Subsidiaries in one or more related transactions.
"Asset Sale" means (i) the sale, lease, conveyance or
other disposition of any assets or rights (including by way of a
sale and leaseback); provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of
▇▇▇▇▇▇ International and its Restricted Subsidiaries taken as a
whole shall be governed by Section 4.15 hereof and/or Section
5.01 hereof and not by Section 4.10 hereof, and (ii) the
issuance of Equity Interests in any of ▇▇▇▇▇▇ International's
Restricted Subsidiaries or the sale of Equity Interests in any of
such Restricted Subsidiaries. Notwithstanding the foregoing, the
following items shall not be deemed to be Asset Sales: (i) any
single transaction or series of related transactions that (A)
involves assets having a fair market value of less than
$2,000,000 or (B) results in net proceeds to ▇▇▇▇▇▇ International
and its Restricted Subsidiaries of less than $2,000,000; (ii) a
transfer of assets by ▇▇▇▇▇▇ International to one of its
Restricted Subsidiaries or by a Restricted Subsidiary of ▇▇▇▇▇▇
International to ▇▇▇▇▇▇ International or to another Restricted
Subsidiary of ▇▇▇▇▇▇ International; (iii) an issuance of Equity
Interests by a Restricted Subsidiary of ▇▇▇▇▇▇ International to
▇▇▇▇▇▇ International or to another Restricted Subsidiary of
▇▇▇▇▇▇ International; (iv) the sale, lease or other disposition
of equipment, inventory, accounts receivable or other assets in
the ordinary course of business; (v) the sale or other
disposition of cash or Cash Equivalents; (vi) the sale,
conveyance or other transfer of accounts receivable and related
assets customarily transferred in an asset securitization
transaction involving accounts receivable to a Receivables
Subsidiary or by a Receivables Subsidiary, in connection with a
Qualified Receivables Transaction; and (vii) foreclosures on
assets; and (viii) a Restricted Payment permitted by or a
Permitted Investment that is not prohibited by Section 4.07
hereof.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present
value of the obligation of the lessee for net rental payments
during the remaining term of the lease included in such sale and
leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be
extended. The present value shall be calculated using a discount
rate equal to the rate of interest borne by the Notes, compounded
annually.
"Bankruptcy Law" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such
term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except
that in calculating the beneficial ownership of any particular
"person" (as that term is used in Section 13(d)(3) of the
Exchange Act), that "person" shall be deemed to have beneficial
ownership of all securities that the "person" has the right to
acquire by conversion or exercise of other securities, whether
the right is currently exercisable or is exercisable only upon
the occurrence of a subsequent condition. The terms "Beneficially
Owns" and "Beneficially Owned" shall have a corresponding
meaning.
"Board of Directors" means: (i) with respect to a
corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of the board;
(ii) with respect to a partnership, the board of directors of the
general partner of the partnership; and (iii) with respect to any
other Person, the board or committee of such Person serving a
similar function.
"Board Resolution" means, with respect to any Person, a
copy of a resolution certified by the Secretary or Assistant
Secretary of such Person to have been duly adopted by the Board
of Directors of such Person and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"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 required
to be capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means: (i) in the case of a
corporation, corporate stock; (ii) in the case of an association
or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated)
of corporate stock; (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether
general or limited); and (iv) 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 (provided that the full faith and credit
of the United States is pledged in support thereof) having
maturities of not more than one year from the date of
acquisition; (iii) certificates of deposit and eurodollar time
deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits, in each case, with any
lender party to any Credit Facility or with any domestic
commercial bank having capital and surplus in excess of
$500,000,000; (iv) repurchase obligations of any lender party to
any Credit Facility or of any commercial bank satisfying the
requirements of clause (iii) of this definition, having a term of
not more than 90 days with respect to securities issued or fully
guaranteed or insured by the United States government; (v)
commercial paper of a domestic issuer rated at least P-2 by
▇▇▇▇▇'▇ or A-2 by S&P, or carrying an equivalent rating by a
nationally recognized rating agency if both of ▇▇▇▇▇'▇ and S&P
cease publishing ratings of investments; (vi) securities with
maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state,
commonwealth territory, political subdivision, taxing authority
or foreign government (as the case may be) are rated at least A
by S&P or A by ▇▇▇▇▇'▇; (vii) securities with maturities of one
year or less from the date of acquisition backed by standby
letters of credit issued by any lender party to any Credit
Facility or any commercial bank satisfying the requirements of
clause (iii) of this definition; (viii) in the case of Foreign
Subsidiaries operating in Europe, available cash invested in
interest bearing accounts, certificates of deposit and eurodollar
time deposits with maturities of one year or less from the date
of acquisition and overnight bank deposits, in each case, with
any commercial bank having a class of debt securities rated at
least A- by S&P or A-3 by ▇▇▇▇▇'▇; (ix) in the case of Foreign
Subsidiaries operating in Brazil, available cash invested in (A)
interest bearing accounts and certificates of deposit with
maturities of one year or less from the date of acquisition and
overnight bank deposits, in each case, with any Brazilian
commercial bank having a class of debt securities rated at least
B+ by S&P or B-1 by ▇▇▇▇▇'▇ or (B) export notes in U.S. dollars
issued by a Brazilian commercial bank with maturities of 90 days
or less from the date of acquisition; provided that if export
notes are not available, available cash may be invested in
certificates of deposit issued by a Brazilian commercial bank
with maturities of one year or less from the date of acquisition
and denominated in Brazilian reals swapped for U.S. dollars
pursuant to an agreement related to Hedging Obligations to
protect against currency devaluation; provided, further, that the
aggregate principal amount of available cash invested pursuant to
this clause (ix) at any time outstanding shall not exceed
$10,000,000; or (x) money market funds at least 95% of the assets
of which constitute Cash Equivalents of the kinds described in
clauses (i) through (vii) of this definition.
"Cedelbank" means Cedelbank, societe anonyme.
"Change of Control" means the occurrence of any of the
following: (i) the direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of
all or substantially all of the properties or assets of ▇▇▇▇▇▇
International and its Restricted Subsidiaries taken as a whole to
any "person" (as such term is used in Section 13(d)(3) of the
Exchange Act) other than the Principal or its Related Parties,
except for a transaction (A) in which the transferee becomes the
obligor in respect of the Notes; and (B) following which the
transferee is a Domestic Subsidiary and a Wholly Owned Subsidiary
of the transferor; (ii) the adoption of a plan relating to the
liquidation or dissolution of ▇▇▇▇▇▇ International, other than a
plan solely relating to the liquidation or dissolution of the
Company into ▇▇▇▇▇▇ International; (iii) the consummation of any
transaction (including any merger or consolidation) the result of
which is that any "person" (as defined above), other than the
Principal and its Related Parties, becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the Voting Stock of
▇▇▇▇▇▇ International, measured by voting power rather than number
of shares; (iv) the first day on which a majority of the members
of the Board of Directors of ▇▇▇▇▇▇ International are not
Continuing Directors; or (v) the consolidation or merger of
▇▇▇▇▇▇ International with or into, any Person, or the
consolidation or merger of any Person with or into, ▇▇▇▇▇▇
International, pursuant to a transaction in which any of the
outstanding Voting Stock of ▇▇▇▇▇▇ International or the other
Person is converted into or exchanged for cash, securities or
other property, other than any transaction where the Voting Stock
of ▇▇▇▇▇▇ International outstanding immediately prior to that
transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee
Person constituting at least a majority of the outstanding shares
of the Voting Stock of the surviving or transferee Person
(immediately after giving effect to the issuance). For the
purpose of this definition, any transfer of any equity of an
entity that was formed for the purpose of acquiring Voting Stock
of ▇▇▇▇▇▇ International will be deemed to be a transfer of equity
interest in ▇▇▇▇▇▇ International.
"Commission" means the Securities and Exchange
Commission.
"Consolidated Cash Flow" means, with respect to any
specified Person for any period, the Consolidated Net Income of
such Person for such period plus: (i) an amount equal to any
extraordinary loss plus any net loss realized by such Person or
any of its Restricted Subsidiaries in connection with an Asset
Sale (to the extent such losses were deducted in computing such
Person's 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 that such provision
for taxes was deducted in computing such Person's Consolidated
Net Income; plus (iii) consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether
paid or accrued and without duplication, and whether or not
capitalized (including amortization of debt issuance costs and
original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings,
and net of the effect of all payments made or received pursuant
to Hedging Obligations), to the extent that any such expense was
deducted in computing such Person's Consolidated Net Income; plus
(iv) all one-time fees, costs, expenses (including cash
compensation payments), in each case incurred by ▇▇▇▇▇▇
International and its Restricted Subsidiaries (A) in connection
with the Recapitalization of ▇▇▇▇▇▇ International and (B)
incurred in connection with or resulting from any other merger,
consolidation, recapitalization or acquisition occurring after
the Issue Date; plus (v) depreciation, amortization (including
amortization of goodwill and other intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any non-cash
expense to the extent that it represents an accrual of or reserve
for cash expenses 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 that such depreciation, amortization and other non-cash
expenses were deducted in computing such Person's Consolidated
Net Income; minus (vi) non-cash items increasing such
Consolidated Net Income for such period, other than the accrual
of revenue in the ordinary course of business, in each case, on a
consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes
based on the income or profits of, and the depreciation and
amortization and other non-cash expenses of, a Subsidiary of
▇▇▇▇▇▇ International shall be added to Consolidated Net Income to
compute Consolidated Cash Flow of ▇▇▇▇▇▇ International only to
the extent that a corresponding amount would be permitted at the
date of determination to be directly or indirectly dividended to
▇▇▇▇▇▇ International by such Subsidiary without prior
governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable
to such Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any
specified 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;
provided that: (i) the Net Income (but not loss) of any Person
that is not the specified Person or a Restricted Subsidiary or
that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Restricted
Subsidiary of such Person; (ii) the Net Income of any Restricted
Subsidiary shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by such
Restricted Subsidiary of such Net Income is not at the date of
determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary
or its stockholders; (iii) the Net Income of any Person acquired
in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded; and (iv) the
cumulative effect of a change in accounting principles shall be
excluded.
Notwithstanding the foregoing, for the purposes of
Section 4.07 hereof only, there shall be excluded from
Consolidated Net Income any repurchases, repayments or
redemptions of Investments, proceeds realized on the sale of the
Investments or return of capital to ▇▇▇▇▇▇ International or a
Restricted Subsidiary of ▇▇▇▇▇▇ International to the extent such
repurchases, repayments, redemptions, proceeds or returns
increase the amount of Restricted Payments permitted under such
Section 4.07 pursuant to clause (c)(iii) thereof.
"Continuing Director" means, as of any date of
determination, any member of the Board of Directors of the
Company or ▇▇▇▇▇▇ International, as applicable, who (i) was a
member of such Board of Directors on the Issue Date hereof; or
(ii) was nominated for election or elected to such Board of
Directors of the Company or ▇▇▇▇▇▇ International, as applicable,
with the approval 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
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Mail Stop HQ ▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as to which the
Trustee may give notice to the Company.
"Credit Facilities" means one or more debt facilities
(including the New Credit Facilities) or commercial paper
facilities, in each case with banks or other institutional
lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables
to such lenders or to special entities formed to borrow from such
lenders against such receivables) or letters of credit, in each
case as amended, restated, modified, supplemented, renewed,
refunded, refinanced, restructured, replaced, repaid or extended
in whole or in part from time to time.
"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 Note" means a certificated Note registered
in the name of the Holder thereof and issued in accordance with
Article 2 hereof, substantially in the form of Exhibit A1 hereto,
except that such Note shall not bear the Global Note Legend and
shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable
or issued in whole or in part in global form, the Person
specified in Section 2.03 hereof as the Depositary 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, "Depositary" shall mean or include
such successor.
"Designated Noncash Consideration" means the fair
market value of noncash consideration received by ▇▇▇▇▇▇
International or one of its Restricted Subsidiaries in connection
with an Asset Sale that is so designated as Designated Noncash
Consideration pursuant to an Officers' Certificate, setting forth
the basis of such valuation, less the amount of cash or Cash
Equivalents received in connection with a sale of the Designated
Noncash Consideration.
"Designated Senior Debt" means (i) any Indebtedness
under the New Credit Facilities and (ii) any other Senior Debt
permitted under this Indenture the principal amount of which is
$25,000,000 or more and that has been designated by the Company
as a "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by
its terms (or by the terms of any security into which it is
convertible, or for which it is exchangeable, in each case at the
option of the holder thereof), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the
option of the Holder thereof, in whole or in part, on or prior to
the date that is 91 days after the date on which the Notes
mature. Notwithstanding the preceding sentence, any Capital Stock
that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company or ▇▇▇▇▇▇
International, as applicable, to repurchase such Capital Stock
upon the occurrence of a Change of Control or an Asset Sale shall
not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company or ▇▇▇▇▇▇ International, as
applicable, may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07 hereof.
"Distribution Compliance Period" means the 40-day
distribution compliance period as defined in Regulation S.
"Domestic Subsidiary" means any Subsidiary of ▇▇▇▇▇▇
International that was formed under the laws of the United States
or any state thereof or the District of Columbia.
"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).
"Equity Offering" means any public or private offering
of Capital Stock (excluding Disqualified Stock) of the Company or
▇▇▇▇▇▇ International, other than any private sales to an
Affiliate of the Company or ▇▇▇▇▇▇ International.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exchange Notes" means the Notes, together with the
related Guarantees, issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of ▇▇▇▇▇▇
and its Subsidiaries (other than Indebtedness under the New
Credit Facilities) in existence on the Issue Date, until such
amounts are repaid.
"Existing Notes" means the $150,000,000 original
aggregate principal amount of 7% Senior Notes due 2005 of ▇▇▇▇▇▇
issued under the 1998 Indenture.
"Fixed Charges" means, with respect to any specified
Person or any of its Restricted Subsidiaries for any period, the
sum, without duplication, of (i) the consolidated interest
expense of such Person and its Restricted Subsidiaries for such
period, when first paid or accrued and without duplication
(including amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed
interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of
letter of credit or bankers' acceptance financings, and net of
the effect of all payments made or received pursuant to Hedging
Obligations); plus (ii) the consolidated interest of such Person
and its Restricted Subsidiaries that was capitalized during such
period; plus (iii) any interest expense on Indebtedness of
another Person that is guaranteed by such Person or one of its
Restricted Subsidiaries or secured by a Lien on assets of such
Person or one of its Restricted Subsidiaries (whether or not such
Guarantee or Lien is called upon); plus (iv) the product of (A)
all dividends, whether paid or accrued, whether or not in cash,
on any series of Preferred Stock of such Person or any of its
Restricted Subsidiaries, other than dividends on Equity Interests
payable solely in Equity Interests of the Company (other than
Disqualified Stock) or to the Company or a Restricted Subsidiary
of the Company, 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, in each case, on a consolidated
basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means with respect to any
specified Person and its Restricted Subsidiaries for any period,
the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of
such Person and its Restricted Subsidiaries for that period;
provided, however, that: (i) if (x) ▇▇▇▇▇▇ International or any
of its Restricted Subsidiaries has issued, assumed, guaranteed,
incurred or otherwise becomes directly or indirectly liable,
contingently or otherwise, for ("incurred") any Indebtedness, (y)
▇▇▇▇▇▇ International or the Company has issued any Disqualified
Stock, or (z) any of their respective Subsidiaries has issued any
Preferred Stock, in each case, since the beginning of such period
that remains outstanding, or if the transaction giving rise to
the need to calculate the Fixed Charge Coverage Ratio is an
incurrence of Indebtedness or an issuance of Disqualified Stock
or Preferred Stock, or any combination of the above, Consolidated
Cash Flow and Fixed Charges for such period shall be calculated
after giving effect on a pro forma basis to such Indebtedness,
Disqualified Stock or Preferred Stock as if such Indebtedness,
Disqualified Stock or Preferred Stock had been incurred or issued
on the first day of such period and the discharge or redemption
of any other Indebtedness, Disqualified Stock or Preferred Stock
repaid, repurchased, redeemed, defeased or otherwise discharged
with the proceeds of that new Indebtedness, Disqualified Stock or
Preferred Stock as if such discharge or redemption had occurred
on the first day of such period; (ii) if ▇▇▇▇▇▇ International or
any of its Restricted Subsidiaries has repaid, repurchased,
redeemed, defeased or otherwise discharged any Indebtedness,
Disqualified Stock or Preferred Stock since the beginning of such
period or if any Indebtedness, Disqualified Stock or Preferred
Stock is to be repaid, repurchased, redeemed, defeased or
otherwise discharged (in each case other than Indebtedness
incurred under any revolving credit facility unless such
Indebtedness has been permanently repaid and has not been
replaced) on the date of the transaction giving rise to the need
to calculate the Fixed Charge Coverage Ratio, Consolidated Cash
Flow and Fixed Charges for such period shall be calculated on a
pro forma basis as if such discharge or redemption had occurred
on the first day of such period and as if ▇▇▇▇▇▇ International or
such Restricted Subsidiary of ▇▇▇▇▇▇ International has not earned
the interest income actually earned during such period in respect
of cash or Cash Equivalents used to repay, repurchase, redeem,
defease or otherwise discharge such Indebtedness, Disqualified
Stock or Preferred Stock; (iii) if since the beginning of such
period ▇▇▇▇▇▇ International or any Restricted Subsidiary of
▇▇▇▇▇▇ International shall have made any Asset Disposition, the
Consolidated Cash Flow for such period shall be reduced by an
amount equal to the Consolidated Cash Flow (if positive) directly
attributable to the assets which are the subject of such Asset
Disposition for such period, or increased by an amount equal to
the Consolidated Cash Flow (if negative), directly attributable
thereto for such period and Fixed Charges for such period shall
be reduced by an amount equal to the Fixed Charges directly
attributable to any Indebtedness, Disqualified Stock or Preferred
Stock of ▇▇▇▇▇▇ International or any Restricted Subsidiary of
▇▇▇▇▇▇ International repaid, repurchased, redeemed, defeased or
otherwise discharged with respect to ▇▇▇▇▇▇ International and its
continuing Restricted Subsidiaries in connection with the Asset
Disposition for such period (or, if the Capital Stock of any
Restricted Subsidiary of ▇▇▇▇▇▇ International is sold, the Fixed
Charges for such period directly attributable to the Indebtedness
of such Restricted Subsidiary of ▇▇▇▇▇▇ International to the
extent ▇▇▇▇▇▇ International and its continuing Restricted
Subsidiaries are no longer liable for the Indebtedness after that
sale); (iv) if since the beginning of such period ▇▇▇▇▇▇
International or any Restricted Subsidiary of ▇▇▇▇▇▇
International (by merger, consolidation or otherwise) shall have
made an Investment in any Restricted Subsidiary of ▇▇▇▇▇▇
International (or such Person which becomes a Restricted
Subsidiary of ▇▇▇▇▇▇ International) or an acquisition of assets,
including any acquisition of assets occurring in connection with
a transaction requiring a calculation to be made hereunder, which
constitutes all or substantially all of an operating unit of a
business, Consolidated Cash Flow and Fixed Charges for such
period shall be calculated after giving pro forma effect thereto
(including the incurrence of any Indebtedness or the issuance of
any Disqualified Stock or Preferred Stock) as if such Investment
or acquisition occurred on the first day of such period; and (v)
if since the beginning of such period such Person (that
subsequently became a Restricted Subsidiary of ▇▇▇▇▇▇
International, or was merged or consolidated with or into ▇▇▇▇▇▇
International or any Restricted Subsidiary of ▇▇▇▇▇▇
International, since the beginning of such period) shall have
made any Asset Disposition, any Investment or acquisition of
assets that would have required an adjustment pursuant to clause
(iii) or (iv) above if made by ▇▇▇▇▇▇ International or a
Restricted Subsidiary of ▇▇▇▇▇▇ International, during such
period, Consolidated Cash Flow and Fixed Charges for such period
shall be calculated after giving pro forma effect thereto as if
such Asset Disposition, Investment or acquisition occurred on the
first day of such period.
For purposes of this definition, whenever pro forma
effect is to be given to an acquisition of assets, including
through merger, consolidated or otherwise, the amount of income
or earnings relating thereto and the amount of Fixed Charges
associated with any Indebtedness incurred or Disqualified Stock
or Preferred Stock issued in connection therewith, the pro forma
calculations shall be determined in good faith by a responsible
financial or accounting Officer of ▇▇▇▇▇▇ International in
accordance with Regulation S-X of the Securities Act, but without
giving effect to clause (iii) of the proviso set forth in the
definition of Consolidated Net Income. If any Indebtedness,
Disqualified Stock or Preferred Stock bears a floating rate of
interest or dividends and is being given pro forma effect, such
interest or dividends shall be calculated as if the rate in
effect on the date of determination had been the applicable rate
for the entire period (taking into account any agreement related
to Hedging Obligations applicable to the Indebtedness,
Disqualified Stock or Preferred Stock if the agreement related to
Hedging Obligations has a remaining term in excess of 12 months).
"Foreign Subsidiary" means a Restricted Subsidiary that
is not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of
the accounting profession, which are in effect on the Issue Date.
"Global Notes" means, individually and collectively,
each of the Restricted Global Notes and the Unrestricted Global
Notes, substantially in the form of Exhibits A1 or A2 hereto
issued in accordance with Article 2 hereof.
"Global Note Legend" means the legend set forth in
Section 2.06(g)(ii) hereof to be placed on all Global Notes
issued under this Indenture.
"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 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 by way of a pledge of assets or through letters of
credit or reimbursement agreements in respect thereof, of all or
any part of any Indebtedness.
"Guarantee" means the Guarantee of the Notes by each of
the Guarantors pursuant to Article 11 hereof and in the form of
Notation on Senior Subordinated Note Relating to Guarantee
attached as Exhibit E hereto and any additional Guarantee of the
Notes to be executed by any Restricted Subsidiary of ▇▇▇▇▇▇
International pursuant to Section 4.13 hereof.
"Guarantors" means each of (i) ▇▇▇▇▇▇ International;
(ii) BI Holdings Corp., a Delaware corporation; ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Company, a Delaware corporation; BI, L.L.C., a Delaware limited
liability company; ▇▇▇▇▇▇ Development Corp., a Delaware
corporation; Omark Properties, Inc., an Oregon corporation; 4520
Corp., Inc., a Delaware corporation; Gear Products, Inc., an
Oklahoma corporation; ▇▇▇▇▇ Industries, Inc., a Kansas
corporation; ▇▇▇▇▇▇▇▇▇ Manufacturing Corporation, a Delaware
corporation; Federal Cartridge Company, a Minnesota corporation;
▇▇▇▇▇▇▇ Outdoor Corporation, a Delaware corporation; Mocenplaza
Development Corp., a Delaware corporation; and CTR Manufacturing,
Inc., a North Carolina corporation; and (iii) any other
Subsidiary of ▇▇▇▇▇▇ International that executes a Guarantee in
accordance with the provisions of this Indenture; and their
respective successors.
"Hedging Obligations" means, with respect to any
specified Person, the obligations of such Person under (i)
interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; (ii) foreign exchange contracts
and currency swap agreements; and (iii) other agreements or
arrangements entered into in the ordinary course of business and
designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"Holder" means a Person in whose name a Note is
registered.
"Indebtedness" means, with respect to any specified
Person, any indebtedness of such Person, whether or not
contingent, (i) in respect of borrowed money; (ii) evidenced by
bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof); (iii) in
respect of banker's acceptances; (iv) representing Capital Lease
Obligations; (v) in respect of all obligations of such Person
issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations
of such Person under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of
business); or (vi) representing any Hedging Obligations, if and
to the extent any of the preceding items (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.
In addition, the term "Indebtedness" includes all Indebtedness of
others secured by a Lien on any asset of such Person (whether or
not such Indebtedness is assumed by such Person), the amount of
such obligation being deemed to be the lesser of the value of
such property or assets and the amount of the obligation so
secured. The term "Indebtedness" also includes, to the extent not
otherwise included, the guarantee by such Person of any
Indebtedness of any other Person, but excluding from the
definition of "Indebtedness," any of the foregoing that
constitutes (A) an accrued expense, (B) trade payables and (C)
Obligations in respect of workers' compensation, pensions and
retiree health care, in each case to the extent not overdue for
more than 90 days. Notwithstanding the foregoing, the term
"Indebtedness" will also exclude customary earn-out arrangements
entered into in connection with the purchase by ▇▇▇▇▇▇
International or any Restricted Subsidiary of ▇▇▇▇▇▇
International of any business pursuant to which the seller may
become entitled to additional consideration depending on the
performance or such business; provided, however, that at the time
the arrangement is entered into the amount of that consideration
is contingent upon future events (other than the lapse of time)
and, to the extent that consideration thereafter becomes a fixed
amount payable by ▇▇▇▇▇▇ International or a Restricted Subsidiary
of ▇▇▇▇▇▇ International, the amount is paid within 30 days
thereafter.
The amount of any Indebtedness outstanding as of any
date shall be (i) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and (ii) the
principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other
Indebtedness.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Indirect Participant" means a Person who holds a
beneficial interest in a Global Note through a Participant.
"Initial Notes" means $325,000,000 in aggregate
principal amount of Notes issued under this Indenture on the date
hereof.
"Institutional Accredited Investor" means an
institution that is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act.
"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 or other obligations), advances or capital
contributions (excluding (x) commission, travel and similar
advances to officers and employees made in the ordinary course of
business and (y) advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance
sheet of the lender) or other similar extensions of credit,
purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with
all items that are or would be classified as investments on a
balance sheet prepared in accordance with GAAP. If ▇▇▇▇▇▇
International or any Restricted Subsidiary of ▇▇▇▇▇▇
International sells or otherwise disposes of any Equity Interests
of any direct or indirect Restricted Subsidiary of ▇▇▇▇▇▇
International such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of
▇▇▇▇▇▇ International, ▇▇▇▇▇▇ International shall be deemed to
have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity
Interests of such Restricted Subsidiary not sold or disposed of
in an amount determined as provided in the penultimate paragraph
of Section 4.07 hereof.
"Issue Date" means the date on which the notes are
originally issued.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in The City of New York or at a place
of payment are authorized by law, regulation or executive order
to remain closed. If a payment date is a Legal Holiday at a place
of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
"Lehman Accredited Investor" means each of the officers
or directors of ▇▇▇▇▇▇ Brothers Inc. or its affiliates that is an
"accredited investor" as defined in Rule 501(a)(5) or (6) under
the Securities Act and his or her spouse, if applicable, that
will take delivery of a Note in the form of a Restricted
Definitive Note..
"▇▇▇▇▇▇ Brothers Merchant Banking Partners" means
▇▇▇▇▇▇ Merchant Banking Partners II L.P. and its affiliated co-
investors.
"Letter of Transmittal" means the letter of transmittal
to be prepared by the Company and sent to all Holders of the
Initial Notes for use by such Holders in connection with the
Exchange Offer.
"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.
"Marketable Securities" means, with respect to any
Asset Sale, any readily marketable equity securities that are
(i) traded on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market; and (ii) issued by a
corporation having a total equity market capitalization of not
less than $250,000,000; provided that the excess of: (A) the
aggregate amount of securities of any one such corporation held
by ▇▇▇▇▇▇ International and any of its Restricted Subsidiaries
over (B) ten times the average daily trading volume of the
securities during the 20 immediately preceding trading days will
be deemed not to be Marketable Securities; in each case as
determined on the date of the contract relating to such Asset
Sale.
"Merger Agreement" means the Agreement and Plan of
Merger and Recapitalization dated as of April 18, 1999 between
▇▇▇▇▇▇ International and Red Dog Acquisition whereby ▇▇▇▇▇▇
International will merge with Red Dog Acquisition at the Issue
Date with ▇▇▇▇▇▇ International surviving the merger and retaining
its name.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any
successor to its rating agency business.
"Net Income" means, with respect to any specified
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 (and
loss), together with any related provision for taxes on such gain
(loss), realized in connection with: (A) any Asset Sale
(including dispositions pursuant to sale and leaseback
transactions); or (B) the disposition of any securities by such
Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries; and (ii) any extraordinary gain (and
loss), together with any related provision for taxes on such
extraordinary gain (and loss).
"Net Proceeds" means the aggregate cash proceeds
received by ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries (i) in respect of any issuance or sale of any
Capital Stock and (ii) in respect of any Asset Sale (including in
each case any cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or
otherwise and proceeds from the sale or other disposition of any
securities received as consideration, but only as and when
received, but excluding any other consideration received in the
form of an assumption by the acquiring Person of Indebtedness or
other obligations relating to such properties or assets or
received in any other noncash form), in each case net of: (A)
all legal, title and recording tax expenses, commissions and
other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued and as
a liability under GAAP, as a consequence of such Asset Sale,
after taking into account any available tax credits or deductions
and any tax sharing arrangements; (B) all distributions and other
payments required to be made to minority interest holders in
Restricted Subsidiaries as a result of such Asset Sale; (C) all
direct costs, including all legal, accounting and investment
banking fees, and sales commissions, and any relocation expenses
incurred as a result; and (D) amounts required to be applied to
the repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such Asset Sale and any reserve
for adjustment in respect of the sale price of such asset or
assets established in accordance with GAAP.
"New Credit Facilities" means the credit agreement,
dated as of the Issue Date, by and among the Company as borrower,
▇▇▇▇▇▇ International, ▇▇▇▇▇▇ Brothers Inc., as advisor, lead
arranger and book manager, ▇▇▇▇▇▇ Commercial Paper Inc. as
syndication agent, Bank of America, N.A. as administrative agent
and the several banks and other financial institutions or
entities from time to time parties thereto, as syndication agent,
providing for up to $400,000,000 of term loan borrowings and up
to $100,000,000 of revolving credit borrowings, including any
related notes, collateral documents, letters of credit and
related documentation, and guarantees and any appendices,
exhibits, or schedules to any of the foregoing (as the same may
be in effect from time to time), in each case, as any or all of
such agreements may be amended, restated, modified or
supplemented from time to time, or renewed, refunded, refinanced,
restructured, replaced, repaid or extended from time to time
(whether with the original agents and lenders or other agents and
lenders or otherwise, and whether provided under the original
credit agreement or one or more other credit agreements or
otherwise).
"Non-Recourse Debt" means Indebtedness: (i) as to
which neither ▇▇▇▇▇▇ International nor any of its Restricted
Subsidiaries (A) provides credit support of any kind (including
any undertaking, agreement or instrument that would constitute
Indebtedness) other than a pledge of the Equity Interests of any
Unrestricted Subsidiaries, (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 (other than the
Notes) of ▇▇▇▇▇▇ International 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) the incurrence of which will not
result in any recourse to the stock or assets of ▇▇▇▇▇▇
International or any of its Restricted Subsidiaries other than to
Equity Interests of Unrestricted Subsidiaries pledged for the
benefit of lenders to those Unrestricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S.
Person.
"Note Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, premium, if any,
interest (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization, whether or not
a claim for post-filing interest is allowed in such proceeding),
penalties, fees, indemnifications, guarantees, reimbursements,
damages and other liabilities payable under the documentation
governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum of
the Company dated August 16, 1999 with respect to the Notes.
"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, any Assistant Secretary or any Vice-President of
such Person.
"Officers' Certificate" means a certificate signed on
behalf of ▇▇▇▇▇▇ International or the Company by two Officers of
▇▇▇▇▇▇ International or the Company, as the case may be, one of
whom must be the principal executive officer, the principal
financial officer or such other officer authorized by ▇▇▇▇▇▇
International or the Company, as the case may be, that meets the
requirements of Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal
counsel who is reasonably acceptable to the Trustee, that meets
the requirements of Section 12.05 hereof. The counsel may be an
employee of or counsel to ▇▇▇▇▇▇ International or the Company,
any Subsidiary of ▇▇▇▇▇▇ International or the Company or the
Trustee.
"Participant" means, with respect to DTC, Euroclear or
Cedelbank, a Person who has an account with DTC, Euroclear or
Cedelbank, respectively (and, with respect to DTC, shall include
Euroclear and Cedelbank).
"Permitted Business" means the businesses conducted (or
proposed to be conducted, including activities referred to as
being contemplated by ▇▇▇▇▇▇ International, as described or
referred to in this Offering Memorandum) by ▇▇▇▇▇▇ International
and its Restricted Subsidiaries as of the Issue Date and any and
all other businesses that in the good faith judgment of the Board
of Directors of ▇▇▇▇▇▇ International are reasonably related,
ancillary or complementary businesses, including (i) reasonably
related extensions or expansions thereof and (ii) businesses that
employ reasonably comparable manufacturing processes.
"Permitted Investments" means: (i) any Investment in
▇▇▇▇▇▇ International or in a Restricted Subsidiary of ▇▇▇▇▇▇
International; (ii) any Investment in Cash Equivalents; (iii) any
Investment by ▇▇▇▇▇▇ International or any Restricted Subsidiary
of ▇▇▇▇▇▇ International in a Person engaged in a Permitted
Business, if as a result of such Investment: (A) such Person
becomes a Restricted Subsidiary of ▇▇▇▇▇▇ International; 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, ▇▇▇▇▇▇ International or a Restricted Subsidiary
of ▇▇▇▇▇▇ International; (iv) any Investment made as a result of
the receipt of non-cash consideration from an Asset Sale that was
made pursuant to and in compliance with Section 4.10 hereof or
the disposition of assets not constituting an Asset Sale; (v)
guarantees (including Guarantees) of Indebtedness permitted under
Section 4.09 hereof; (vi) any Investment acquired by ▇▇▇▇▇▇
International or any of its Restricted Subsidiaries (A) in
exchange for any other Investment or accounts receivable held by
▇▇▇▇▇▇ International or any of its Restricted Subsidiaries in
connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other
Investment or accounts receivable or (B) as a result of the
transfer of title with respect to any secured Investment in
default as a result of a foreclosure by ▇▇▇▇▇▇ International or
any of its Restricted Subsidiaries with respect to such secured
Investment; (vii) any Investment by ▇▇▇▇▇▇ International or a
Restricted Subsidiary of ▇▇▇▇▇▇ International in connection with
deferred compensation trust arrangements existing, and as in
effect, on the Issue Date and as amended thereafter; provided,
however, that any future amendment to any such existing
arrangements will only be permitted pursuant to this clause (vii)
to the extent that the terms of the amendment are not otherwise
disadvantageous to the Holders of Notes in any material respect;
(viii) any acquisition of assets solely in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of
▇▇▇▇▇▇ International; (ix) Hedging Obligations permitted to be
incurred under Section 4.09 hereof; (x) loans and advances to
employees and officers of ▇▇▇▇▇▇ International and its Restricted
Subsidiaries in the ordinary course of business for bona fide
business purposes not to exceed an aggregate of $2,500,000 at any
one time outstanding; (xi) any Investment by ▇▇▇▇▇▇ International
or a Restricted Subsidiary of ▇▇▇▇▇▇ International in a
Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person, in each case, in connection with
a Qualified Receivables Transaction, provided, that the
Investment in any Person is in the form of a Purchase Money Note,
an equity interest or an interest in accounts receivable
generated by ▇▇▇▇▇▇ International or a Restricted Subsidiary of
▇▇▇▇▇▇ International and transferred to any Person in connection
with a Qualified Receivables Transaction or any Person owning
those accounts receivable; (xii) any Investment in a Permitted
Business (whether or not an Investment in an Unrestricted
Subsidiary) having an aggregate fair market value that, when
taken together with all other outstanding Investments made
pursuant to this clause (xii), does not exceed in aggregate
amount 10% of Total Assets at the time of this Investment (with
the fair market value of each Investment being measured at the
time made and without giving effect to subsequent changes in
value); and (xiii) any Investment (whether or not an Investment
in an Unrestricted Subsidiary) having an aggregate fair market
value that, when taken together with all other outstanding
Investments made pursuant to this clause (xiii), does not exceed
in aggregate amount $25,000,000 at the time of this Investment
(with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in
value).
"Permitted Junior Securities" means: (i) Equity
Interests in the Company or any Guarantor; or (ii) debt
securities that are subordinated to all Senior Debt and any debt
securities issued in exchange for Senior Debt to substantially
the same extent as, or to a greater extent than, the Notes and
the Guarantees are subordinated to Senior Debt under this
Indenture.
"Permitted Liens" means: (i) Liens on assets of
▇▇▇▇▇▇ International, the Company and any Restricted Subsidiary
of ▇▇▇▇▇▇ International securing Senior Debt, including under the
New Credit Facilities and the 1998 Indenture, that was permitted
by the terms of this Indenture to be incurred; (ii) Liens in
favor of the Company or the Guarantors or, in the case of a
Foreign Subsidiary, Liens securing Indebtedness or other
obligations of such Foreign Subsidiary owing to ▇▇▇▇▇▇
International, the Company or any Wholly Owned Restricted
Subsidiary thereof; (iii) Liens on property or shares of Capital
Stock of a Person existing at the time such Person is merged with
or into or consolidated with ▇▇▇▇▇▇ International or any
Restricted Subsidiary of ▇▇▇▇▇▇ International; provided that such
Liens were in existence prior to the contemplation of such merger
or consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with ▇▇▇▇▇▇
International or such Restricted Subsidiary (other than assets
and property affixed or appurtenant thereto); (iv) Liens on
property existing at the time of acquisition thereof by ▇▇▇▇▇▇
International or any Restricted Subsidiary of ▇▇▇▇▇▇
International, provided that such Liens were in existence prior
to the contemplation of such acquisition; (v) Liens to secure the
performance of statutory obligations, surety or appeal bonds,
performance bonds or letters of credit permitted by clause (vi)
of the second paragraph of Section 4.09 hereof, or other
obligations of a like nature incurred in the ordinary course of
business; (vi) pledges or deposits by ▇▇▇▇▇▇ International or any
Restricted Subsidiary of ▇▇▇▇▇▇ International under worker's
compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness)
or leases to which ▇▇▇▇▇▇ International or such Restricted
Subsidiary is a party, or deposits to secure public or statutory
obligations of ▇▇▇▇▇▇ International or such Restricted Subsidiary
or deposits of cash or United States government bonds to secure
surety or appeal bonds to which ▇▇▇▇▇▇ International or such
Restricted Subsidiary is a party, or deposits as security for
contested taxes or import duties or for the payment of rent, in
each case incurred in the ordinary course of business; (vii)
Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (iv) of the second paragraph of
Section 4.09 hereof, covering only the assets acquired with such
Indebtedness; (viii) Liens existing on the Issue Date; (ix) 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 as shall be required in conformity with GAAP shall have
been made therefor; (x) Liens on the assets of Unrestricted
Subsidiaries, or on the Equity Interests of Unrestricted
Subsidiaries, that secure Non-Recourse Debt of Unrestricted
Subsidiaries not otherwise prohibited by this Indenture; (xi)
Liens on accounts receivable and related assets of a Receivables
Subsidiary arising in connection with a Qualified Receivables
Transaction; (xii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' Liens, in each case for sums not
yet due or being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards
against ▇▇▇▇▇▇ International or any Restricted Subsidiary of
▇▇▇▇▇▇ International with respect to which ▇▇▇▇▇▇ International
or such Restricted Subsidiary shall then be proceeding with an
appeal or other proceedings for review and Liens arising solely
by virtue of any statutory or common law provision relating to
banker's Liens, rights of set-off or similar rights and remedies
as to deposit accounts or other funds maintained with a creditor
depository institution; provided, however, that (A) such deposit
account is not a dedicated cash collateral account and is not
subject to restrictions against access by ▇▇▇▇▇▇ International or
such Restricted Subsidiary in excess of those set forth by
regulations promulgated by the Federal Reserve Board and (B) such
deposit account is not intended by ▇▇▇▇▇▇ International or such
Restricted Subsidiary to provide collateral to the depository
institution; (xiii) judgment Liens not giving rise to an Event of
Default so long as any appropriate legal proceeding that may have
been duly initiated for the review of such judgment shall not
have been finally terminated or the period within which such
legal proceeding may be initiated shall not have expired; (xiv)
easements, rights-of-way, minor survey exceptions, zoning and
similar restrictions and other similar encumbrances or title
defects incurred or imposed, or Liens incidental to the conduct
of the business of ▇▇▇▇▇▇ International or its Subsidiaries or to
the ownership of its properties, as applicable, which, in the
aggregate, are not substantial in amount, and which do not in any
case materially detract from the value of the property subject
thereto (as such property is used by ▇▇▇▇▇▇ International or its
Subsidiaries) or interfere with the ordinary conduct of the
business of ▇▇▇▇▇▇ International or its Subsidiaries; provided,
however, that any such Liens are not incurred in connection with
any borrowing of money or any commitment to loan any money or to
extend any credit; (xv) Liens securing Hedging Obligations;
provided that such Liens are only secured by property or assets
that secure the Indebtedness related to the Hedging Obligation or
the property securing Indebtedness under clause (i) of the second
paragraph of Section 4.09 hereof; (xvi) Liens to secure
Indebtedness permitted by clause (xv) of the second paragraph of
Section 4.09 hereof; (xvii) Liens to secure any refinancings,
extensions, renewals, refunds, repayments, prepayments,
redemptions, defeasance, retirements, exchanges or replacements
(collectively "refinancings") (or successive refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (iii), (iv), (vii) or
(viii); provided, however, that: (A) such new Lien shall be
limited to all or part of the same property and assets that
secured or, under the written agreements pursuant to which the
original Lien arose, could secure the original Lien (plus
improvements and accessions to, such property or proceeds or
distributions thereof); and (B) the Indebtedness secured by such
Lien at such time is not increased to any amount greater than the
sum of (x) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clause
(iii), (iv), (vii) or (viii) above at the time the original Lien
became a Permitted Lien and (y) an amount necessary to pay any
fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement.
Notwithstanding the foregoing, "Permitted Liens" will
not include any Lien described in clause (iii), (iv) or (vii)
above to the extent such Lien applies to any Additional Assets
acquired directly or indirectly from Net Proceeds pursuant to
Section 4.10 hereof. For purposes of this definition, the term
"Indebtedness" shall be deemed to include interest on such
Indebtedness.
"Permitted Refinancing Indebtedness" means any
Indebtedness of ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund
other Indebtedness of ▇▇▇▇▇▇ International or any of its
Restricted Subsidiaries (other than intercompany Indebtedness);
provided that: (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Indebtedness does not
exceed the principal amount (or accreted value, if applicable),
of the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus all accrued interest thereon and the
amount of all reasonable expenses and premiums incurred in
connection therewith); (ii) such Permitted Refinancing
Indebtedness has a final maturity date later than the final
maturity date of, and has 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; (iii) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness has a final maturity date later than the
final maturity date of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded, and is
subordinated 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; and (iv) the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is incurred either by ▇▇▇▇▇▇ International
or by the Restricted Subsidiary of ▇▇▇▇▇▇ International who is
the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Person" means an individual, partnership, corporation,
limited liability company, unincorporated organization,
association, joint-stock company, trust, joint venture,
government, or any agency or political subdivision thereof or any
other entity.
"Preferred Stock" means any Capital Stock of a Person,
however designated, which entitles the holder thereof to a
preference with respect to dividends, distributions or
liquidation proceeds of such Person over the holders of the other
Capital Stock issued by such Person.
"Private Placement Legend" means the legend set forth
in Section 2.06(g)(i) hereof to be placed on all Notes issued
under this Indenture except as otherwise permitted by the
provisions of this Indenture.
"Principal" means ▇▇▇▇▇▇ Brothers Merchant Banking
Partners and any of its Affiliates.
"Purchase Agreement" means the Purchase Agreement dated
as of August 16, 1999 among the Company, the Guarantors and
▇▇▇▇▇▇ Brothers Inc. as initial purchaser.
"Purchase Money Note" means a promissory note
evidencing a line of credit, or evidencing other Indebtedness
owed to ▇▇▇▇▇▇ International or any Restricted Subsidiary of
▇▇▇▇▇▇ International in connection with a Qualified Receivables
Transaction, which note shall be repaid from cash available to
the maker of such note, other than amounts required to be
established as reserves pursuant to agreement, amounts paid to
investors in respect of interest, principal and other amounts
owing to such investors and amounts paid in connection with the
purchase of newly generated accounts receivable.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"Qualified Receivables Transaction" means any
transaction or series of transactions that may be entered into by
▇▇▇▇▇▇ International or any Restricted Subsidiary of ▇▇▇▇▇▇
International pursuant to which ▇▇▇▇▇▇ International or any
Restricted Subsidiary of ▇▇▇▇▇▇ International may sell, convey or
otherwise transfer to (A) a Receivables Subsidiary (in the case
of a transfer by ▇▇▇▇▇▇ International or any Restricted
Subsidiary of ▇▇▇▇▇▇ International) and (B) any other Person (in
the case of a transfer by a Receivables Subsidiary), or may grant
a security interest in, any accounts receivable (whether now
existing or arising in the future) of ▇▇▇▇▇▇ International or
any Restricted Subsidiary of ▇▇▇▇▇▇ International and any asset
related thereto including all collateral securing the accounts
receivable, all contracts and all guarantees or other obligations
in respect of the accounts receivable, proceeds of the accounts
receivable and other assets which are customarily transferred, or
in respect of which security interests are customarily granted,
in connection with asset securitization transactions involving
accounts receivable.
"Recapitalization" refers to a series of
recapitalization transactions which includes the issuance of the
Initial Notes hereunder, together with an equity contribution of
approximately $417,500,000 from ▇▇▇▇▇▇ Brothers Merchant Banking,
its affiliated co-investors and certain members of ▇▇▇▇▇▇
International's senior management and borrowings under the New
Credit Facilities, which will be used to fund the acquisition by
▇▇▇▇▇▇ Brothers Merchant Banking, its affiliated co-investors and
certain members of ▇▇▇▇▇▇ International's senior management at
the Issue Date of approximately 90.4% of ▇▇▇▇▇▇ International
pursuant to the Merger Agreement and to pay transaction fees and
expenses incurred in connection therewith.
"Receivables Subsidiary" means a Wholly Owned
Subsidiary of ▇▇▇▇▇▇ International (other than the Company or a
Guarantor) which engages in no activities other than in
connection with the financing of accounts receivables and which
is designated by the Board of Directors of ▇▇▇▇▇▇ International
(as provided below) as a Receivables Subsidiary: (i) no portion
of the Indebtedness or any other Obligations (contingent or
otherwise) of which (A) is guaranteed by ▇▇▇▇▇▇ International or
any other Restricted Subsidiary of ▇▇▇▇▇▇ International
(excluding guarantees of Obligations (other than the principal
of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings), (B) is recourse to or obligates
▇▇▇▇▇▇ International or any other Restricted Subsidiary of ▇▇▇▇▇▇
International in any way other than pursuant to Standard
Securitization Undertakings, or (C) subjects any property or
asset of ▇▇▇▇▇▇ International or any other Restricted Subsidiary
of ▇▇▇▇▇▇ International, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings; (ii) with which neither
▇▇▇▇▇▇ International nor any other Restricted Subsidiary of
▇▇▇▇▇▇ International has any material contract, agreement,
arrangement or understanding (except in connection with a
Purchase Money Note or Qualified Receivables Transaction) other
than on terms no less favorable to ▇▇▇▇▇▇ International or the
other Restricted Subsidiary of ▇▇▇▇▇▇ International than those
that might be obtained at the time from Persons that are not
Affiliates of ▇▇▇▇▇▇ International, other than fees payable in
the ordinary course of business in connection with servicing
accounts receivable; and (iii) as to which neither ▇▇▇▇▇▇
International nor any other Restricted Subsidiary of ▇▇▇▇▇▇
International has any obligation to maintain or preserve such
entity's financial condition or cause such entity to achieve
certain levels of operating results.
Any designation of a Subsidiary of ▇▇▇▇▇▇ International
as a Receivables Subsidiary shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the Board Resolution
of the Board of Directors of ▇▇▇▇▇▇ International giving effect
to such designation and an Officers' Certificate certifying that
such designation complied with the preceding conditions and was
permitted by this Indenture.
"Red Dog Acquisition" means Red Dog Acquisition, Corp.
a Delaware corporation and a Wholly Owned Subsidiary of ▇▇▇▇▇▇
Brothers Merchant Banking Partners.
"Registration Rights Agreement" means the Exchange and
Registration Rights Agreement dated the Issue Date among the
Company, the Guarantors and ▇▇▇▇▇▇ Brothers Inc., as the initial
purchaser.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Regulation S
Temporary Global Note or Regulation S Permanent Global Note, as
appropriate.
"Regulation S Permanent Global Note" means a permanent
global Note in the form of Exhibit A1 hereto bearing the Global
Note Legend and deposited with and registered in the name of the
Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes upon
expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Note" means a temporary
global Note in the form of Exhibit A2 hereto bearing the Private
Placement Legend and the Global Note Legend and deposited with
and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Regulation S.
"Related Party" means (i) any controlling stockholder,
80% (or more) owned Subsidiary, or immediate family member (in
the case of an individual) of any Principal or (ii) any trust,
corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of the
Principal and/or such other Persons referred to in the
immediately preceding clause (i).
"Representative" means the Trustee or other trustee,
agent or representative for any Senior Debt.
"Responsible Officer" when used with respect to the
Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Definitive Note" means a Definitive Note
bearing the Private Placement Legend.
"Restricted Global Notes" means the 144A Global Note
and the Regulation S Temporary Global Note, each of which shall
bear the Private Placement Legend.
"Restricted Investment" means an Investment other than
a Permitted Investment.
"Restricted Subsidiary" means, with respect to any
Person, any Subsidiary of such Person that is not an Unrestricted
Subsidiary.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 903" means Rule 903 under the Securities Act.
"Rule 904" means Rule 904 under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor to
its rating agency business.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Debt" means: (i) all Indebtedness of ▇▇▇▇▇▇
International or any of its Restricted Subsidiaries outstanding
under Credit Facilities, including under the New Credit
Facilities, and all Hedging Obligations with respect thereto;
(ii) any other Indebtedness, including under the 1998 Indenture,
of the Company, ▇▇▇▇▇▇ International or any of their respective
Restricted Subsidiaries permitted to be incurred under the terms
of this Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a
parity with or subordinated in right of payment to the Notes or
any Guarantee; and (iii) all Obligations with respect to the
items listed in the preceding clauses (i) and (ii).
Notwithstanding anything to the contrary in the
preceding, Senior Debt will not include: (i) any liability for
Federal, state, local or other taxes owed or owing by the Company
or ▇▇▇▇▇▇ International; (ii) any Indebtedness of the Company or
▇▇▇▇▇▇ International to any of its Subsidiaries or other
Affiliates; (iii) any trade payables; or (iv) the portion of any
Indebtedness that is incurred in violation of this Indenture.
"Shelf Registration Statement" means the Shelf
Registration Statement as defined in the Registration Rights
Agreement.
"Significant Subsidiary" means any Restricted
Subsidiary that would be a "significant subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to
the Act, as such Regulation is in effect on the date hereof;
provided that all Unrestricted Subsidiaries of ▇▇▇▇▇▇
International shall be excluded from all calculations under Rule
1-02(w) of Regulation S-X.
"Standard Securitization Undertakings" means
representations, warranties, covenants and indemnities entered
into by ▇▇▇▇▇▇ International or any Restricted Subsidiary of
▇▇▇▇▇▇ International which are reasonably customary in an
accounts receivable transaction.
"Stated Maturity" means, with respect to any
installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or
principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase such interest or
principal prior to the date originally scheduled for the payment
thereof.
"Subsidiary" means, with respect to any specified
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 such 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 Person
or one or more Subsidiaries of such Person (or any combination
thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
77aaa-77bbbb) as in effect on the date on which this Indenture
is qualified under the TIA.
"Total Assets" means, as of any date, ▇▇▇▇▇▇
International's total consolidated assets as of that date, as
determined in accordance with GAAP. To the extent that
information is not available as to the amount of total
consolidated assets as of a specific date, ▇▇▇▇▇▇ International
may utilize the most recent available information for purposes of
calculating Total Assets.
"Transaction Documents" means the documents related to:
(i) the Recapitalization of ▇▇▇▇▇▇ International on the Issue
Date and the related equity contributions; (ii) the Indebtedness
under the New Credit Facilities; and (iii) this Indenture and the
Notes.
"Transfer Restricted Securities" means securities that
bear or are required to bear the Private Placement Legend set
forth in Section 2.06(g)(i) hereof.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor
serving hereunder.
"Unrestricted Global Note" means one or more global
Notes, in the form of Exhibit A1 attached hereto, that do not and
are not required to bear the Private Placement Legend and are
deposited with and registered in the name of the Depositary or
its nominee.
"Unrestricted Definitive Note" means one or more
Definitive Notes that do not and are not required to bear the
Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of
▇▇▇▇▇▇ International (other than the Company) that is designated
by the Board of Directors of ▇▇▇▇▇▇ International as an
Unrestricted Subsidiary pursuant to a Board Resolution, but only
to the extent that such Subsidiary: (i) has no Indebtedness
other than Non-Recourse Debt; (ii) is not party to any agreement,
contract, arrangement or understanding with ▇▇▇▇▇▇ International
or any Restricted Subsidiary of ▇▇▇▇▇▇ International (other than
in connection with the pledge of the Equity Interests of such
Unrestricted Subsidiary) unless the terms of such agreement,
contract, arrangement or understanding are no less favorable to
▇▇▇▇▇▇ International or its Restricted Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates
of ▇▇▇▇▇▇ International; (iii) is a Person with respect to which
neither ▇▇▇▇▇▇ International nor any of its Restricted
Subsidiaries has any direct or indirect obligation (A) to
subscribe for additional Equity Interests or (B) to maintain or
preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; (iv)
has not guaranteed or otherwise directly or indirectly provided
credit support for such Indebtedness of ▇▇▇▇▇▇ International or
any of its Restricted Subsidiaries; and (v) has at least one
director on its Board of Directors that is not a director or
executive officer of ▇▇▇▇▇▇ International or any of its
Restricted Subsidiaries and has at least one executive officer
that is not a director or executive officer of ▇▇▇▇▇▇
International or any of its Restricted Subsidiaries.
Any designation of a Subsidiary of ▇▇▇▇▇▇ International
as an Unrestricted Subsidiary shall be evidenced to the Trustee
by filing with the Trustee a certified copy of the Board
Resolution of the Board of Directors of ▇▇▇▇▇▇ International
giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing
conditions and was permitted by Section 4.07 hereof. If, at any
time, any Unrestricted Subsidiary would fail to meet the
preceding requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of ▇▇▇▇▇▇
International as of such date and, if such Indebtedness is not
permitted to be incurred as of such date under Section 4.09
hereof, ▇▇▇▇▇▇ International shall be in default of such
covenant. The Board of Directors of ▇▇▇▇▇▇ International may at
any time designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of ▇▇▇▇▇▇ International; provided that such
designation shall be deemed to be an incurrence of Indebtedness
by a Restricted Subsidiary of ▇▇▇▇▇▇ International of any
outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if (i) such Indebtedness is
permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of
such four-quarter reference period; and (ii) no Default would be
continuing following such designation.
"U.S. Person" means a U.S. person as defined in Rule
902(o) under the Securities Act.
"Voting Stock" of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to vote
in the election of the Board of Directors of such Person.
"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 Restricted Subsidiary" of any specified
Person means a Restricted Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares or shares or interests
required to be held by foreign nationals, in each case, to the
extent mandated by applicable law) shall at the time be owned by
such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a
Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors'
qualifying shares or shares or interests required to be held by
foreign nationals, in each case, to the extent mandated by
applicable law) shall at the time be owned by such Person or by
one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" 4.10
"Change of Control Offer" 4.15
"Change of Control Payment" 4.15
"Change of Control Payment Date" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Funding Guarantor" 11.06
"Global Note Legend" 2.06
"Excess Proceeds" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Blockage Notice" 10.03
"Purchase Date" 3.09
"Permitted Debt" 4.09
"Payment Default" 6.01(f)
"Registrar" 2.03
"Restricted Payments" 4.07
Section 1.03. 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 a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee;
"obligor" on the Notes means the Company and 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 Commission rule under the TIA have the meanings so
assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular;
(5) provisions apply to successive events and
transactions;
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or successor
sections or rules adopted by the Commission from time to time;
and
(7) "including" means including without limitation.
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibits
A1 or A2 hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each
Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture, and the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and
be controlling.
(b) Global Notes. Notes issued in global form shall
be substantially in the form of Exhibits A1 or A2 attached hereto
(including the Global Note Legend and the "Schedule of Exchanges
in the Global Note" attached thereto). Notes issued in definitive
form shall be substantially in the form of Exhibit A1 attached
hereto (but without the Global Note Legend and without the
"Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the
Trustee or the Note Custodian, at the direction of the Trustee,
in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and
sold in reliance on Regulation S shall be issued initially in the
form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented
thereby with the Trustee, at the Corporate Trust Office of the
Trustee, as custodian for the Depositary, and registered in the
name of the nominee of the Depositary for credit to the accounts
of designated agents holding on behalf of Euroclear or Cedelbank,
duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Distribution Compliance Period shall
be terminated upon the receipt by the Trustee of (i) a written
certificate from the Depositary, together with copies of
certificates from Euroclear and Cedelbank certifying that they
have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during
the Distribution Compliance Period pursuant to another exemption
from registration under the Securities Act and who will take
delivery of a beneficial ownership interest in a 144A Global Note
bearing a Private Placement Legend, all as contemplated by
Section 2.06(b) hereof), and (ii) an Officers' Certificate from
the Company. Following the termination of the Distribution
Compliance Period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests
in Regulation S Permanent Global Notes pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation
S Permanent Global Notes, the Trustee shall cancel the Regulation
S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent
Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
(d) Euroclear and Cedelbank Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and
the "General Terms and Conditions of Cedelbank" and "Customer
Handbook" of Cedelbank shall be applicable to interests in the
Regulation S Temporary Global Notes and the Regulation S
Permanent Global Notes that are held by Participants through
Euroclear or Cedelbank.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid.
A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated under
this Indenture.
The Trustee shall, upon a written order of the Company
signed by two Officers, authenticate Notes for original issue up
to the aggregate principal amount stated in paragraph 4 of the
Notes. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section
2.07 hereof.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
The Notes will be limited in aggregate principal amount
to $450,000,000, of which $325,000,000 will be issued on the date
hereof. The Company may issue Additional Notes from time to time
after the offering of the Initial Notes. Any offering of
Additional Notes is subject to Section 4.09 hereof. The Initial
Notes and any Additional Notes subsequently issued under this
Indenture shall be treated as a single class for all purposes
under this Indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep
a register of the Notes and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-
registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may act
as Paying Agent or Registrar.
The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global
Notes.
The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Note Custodian with
respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will hold
in trust for the benefit of Holders or the Trustee all money held
by the Paying Agent for the payment of principal, premium or
Additional Interest, if any, or interest on the Notes, and will
notify the Trustee in writing of any default by the Company in
making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of all Holders and shall otherwise comply
with TIA 312(a). If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least five Business Days
before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise
comply with TIA 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global
Note may not be transferred as a whole except by the Depositary
to a nominee of the Depositary, by a nominee of the Depositary to
the Depositary or to another nominee of the Depositary, or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Notes will be
exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee written notice from the Depositary that
it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such
notice from the Depositary; (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in
part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee or (iii) there shall
have occurred and be continuing a Default with respect to the
Notes; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Company for Definitive Notes
prior to (x) the expiration of the Distribution Compliance Period
and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903 under the Securities Act. Upon the
occurrence of either of the preceding events in (i) or (ii)
above, Definitive Notes shall be issued in such names as the
Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in
Sections 2.06, 2.07 and 2.10 hereof. Every Note authenticated and
made available for delivery in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to Section 2.06,
2.07 or 2.10 hereof, shall be authenticated and made available
for delivery in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a); however beneficial interests in
a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in
the Global Notes. The transfer and exchange of beneficial
interests in the Global Notes shall be effected through the
Depositary, in accordance with the provisions of this Indenture
and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent
required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs as applicable:
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof
in the form of a beneficial interest in the same Restricted
Global Note in accordance with the transfer restrictions set
forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Distribution Compliance
Period, transfers of beneficial interests in the Regulation
S Temporary Global Note may not be made to a U.S. Person or
for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred only to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers
and exchanges of beneficial interests (other than transfers
of beneficial interests in a Global Note to Persons who take
delivery thereof in the form of a beneficial interest in the
same Global Note), the transferor of such beneficial
interest must deliver to the Registrar either (A)(1) a
written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in the specified Global Note
in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing
information regarding the Participant account to be credited
with such increase or (B)(1) a written order from a
Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures
directing the Depositary to cause to be issued a Definitive
Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in
(B)(1) above; provided that in no event shall Definitive
Notes be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note prior to
(x) the expiration of the Distribution Compliance Period and
(y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act.
Upon an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained
in this Indenture, the Notes and otherwise applicable under
the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. Beneficial interests in any
Restricted Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest
in another Restricted Global Note if the transfer complies
with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note,
then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications
in item (1) thereof; and
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S
Temporary Global Note or the Regulation S Global Note,
then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications
in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the
Unrestricted Global Note. Beneficial interests in any
Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in the Unrestricted Global
Note or transferred to Persons who take delivery thereof in
the form of a beneficial interest in the Unrestricted Global
Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder, in the
case of an exchange, or the transferee, in the case of
a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial
interest in the Unrestricted Global Note, a certificate
from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such beneficial interest is
being exchanged or transferred in compliance with any
applicable blue sky securities laws of any State of the
United States.
If any such transfer is effected pursuant to
subparagraph (B) or (D) above at a time when an Unrestricted
Global Note has not yet been issued, the Company shall issue and,
upon receipt of an authentication order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal
to the principal amount of beneficial interests transferred
pursuant to subparagraph (B) or (D) above.
(v) Transfer or Exchange of Beneficial Interests in
Unrestricted Global Notes for Beneficial Interests in
Restricted Global Notes Prohibited. Beneficial interests in
an Unrestricted Global Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form
of, a beneficial interest in any Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Restricted Definitive Note or
to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Restricted Definitive
Note, then, upon receipt by the Registrar of the following
documentation (all of which may be submitted by facsimile):
(A) if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under
the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the
registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being
transferred to a ▇▇▇▇▇▇ Accredited Investor or an
Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set
forth in Exhibit B hereto, including the certifications
in item (3)(d) thereof, a certificate from the
transferee to the effect set forth in Exhibit D hereof
and, to the extent required by item 3(d) of Exhibit B,
an Opinion of Counsel from the transferee or the
transferor reasonably acceptable to the Company to the
effect that such transfer is in compliance with the
Securities Act and such beneficial interest is being
transferred in compliance with any applicable blue sky
securities laws of any State of the United States;
(F) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries,
a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being
transferred pursuant to an effective registration
statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of
the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(h) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Note
in the appropriate principal amount. Definitive Notes issued
in exchange for beneficial interests in a Restricted Global
Note pursuant to this Section 2.06(c) shall be registered in
such names and in such authorized denominations as the
holder shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes
to the Persons in whose names such Notes are so registered.
Definitive Notes issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend
and shall be subject to all restrictions on transfer
contained therein.
(ii) Beneficial Interests in Regulation S Temporary
Global Notes for Definitive Notes. Notwithstanding Sections
2.06(c)(i)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be (A) exchanged
for a Definitive Note prior to (x) the expiration of the
Distribution Compliance Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule
903(c)(3)(B) under the Securities Act or (B) transferred to
a Person who takes delivery thereof in the form of a
Definitive Note prior to the conditions set forth in clause
(A) above or unless the transfer is pursuant to an exemption
from the registration requirements of the Securities Act
other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global
Notes to Unrestricted Definitive Notes. Notwithstanding
Section 2.06(c)(i) hereof, a holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer
such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only
if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder, in the
case of an exchange, or the transferee, in the case of
a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Definitive Note
that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b)
thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note
that does not bear the Private Placement Legend, a
certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4)
thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such beneficial interest in a
Restricted Global Note is being exchanged or
transferred in compliance with any applicable blue sky
securities laws of any State of the United States.
(iv) Beneficial Interests in Unrestricted Global Notes
to Unrestricted Definitive Notes. If any holder of a
beneficial interest in an Unrestricted Global Note proposes
to exchange such beneficial interest for a Definitive Note
or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note,
then, upon satisfaction of the conditions set forth in
Section 2.06(b)(ii) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Global Note to
be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal
amount. Definitive Notes issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iv) shall be
registered in such names and in such authorized
denominations as the holder shall instruct the Registrar
through instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes
are so registered. Definitive Notes issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iv)
shall not bear the Private Placement Legend.
(v) Transfer or Exchange of Beneficial Interests in
Unrestricted Global Notes to Restricted Definitive Notes
Prohibited. Beneficial interests in an Unrestricted Global
Note cannot be exchanged for a Definitive Note bearing the
Private Placement Legend or transferred to a Person who
takes delivery thereof in the form of a Definitive Note
bearing the Private Placement Legend.
(d) Transfer or Exchange of Definitive Notes for
Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial
Interests in Restricted Global Notes. If any Holder of
Restricted Definitive Notes proposes to exchange such Notes
for a beneficial interest in a Restricted Global Note or to
transfer such Restricted Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest
in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation (all of which may
be submitted by facsimile):
(A) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for a beneficial
interest in a Restricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Notes are being
transferred to a QIB in accordance with Rule 144A under
the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such Restricted Definitive Notes are being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Notes are being
transferred pursuant to an exemption from the
registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a)
thereof;
(E) if such Restricted Definitive Notes are being
transferred to the Company or any of its Subsidiaries,
a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b)
thereof; or
(F) if such Restricted Definitive Notes are being
transferred pursuant to an effective registration
statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Definitive Notes, increase or
cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted
Global Note, in the case of clauses (B), (D), (E) and (F)
above, the 144A Global Note, and in the case of clause (C)
above, the Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of
Restricted Definitive Notes may exchange such Notes for a
beneficial interest in the Unrestricted Global Note or
transfer such Restricted Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest
in the Unrestricted Global Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case of
a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such Definitive Notes are being
exchanged or transferred in compliance with any
applicable blue sky securities laws of any State of the
United States.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee shall
cancel the Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Note.
(iii) Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of
Unrestricted Definitive Notes may exchange such Notes for a
beneficial interest in the Unrestricted Global Note or
transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note. Upon receipt of a request for such
an exchange or transfer, the Trustee shall cancel the
Unrestricted Definitive Notes and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Note.
(iv) Transfer or Exchange of Unrestricted Definitive
Notes to Beneficial Interests in Restricted Global Notes
Prohibited. An Unrestricted Definitive Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the
form of, beneficial interests in a Restricted Global Note.
(v) Issuance of Unrestricted Global Notes. If any such
exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraph (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not
yet been issued, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of
beneficial interests transferred pursuant to subparagraph
(ii)(B), (ii)(D) or (iii) above.
(e) Transfer and Exchange of Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive
Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar
duly executed by such ▇▇▇▇▇▇ or by his attorney-in-fact, duly
authorized in writing. In addition, the requesting Holder shall
provide any additional certifications, documents and information,
as applicable, pursuant to the provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted
Definitive Notes. Restricted Definitive Notes may be
transferred to and registered in the name of Persons who
take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904 under the Securities Act, then the
transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item
(2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of
the Securities Act, then the transferor must deliver
(x) a certificate in the form of Exhibit B hereto,
including the certifications in item (3) thereof, (y)
to the extent required by item 3(d) of Exhibit B
hereto, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act and
such beneficial interest is being transferred in
compliance with any applicable blue sky securities laws
of any State of the United States and (z) if the
transfer is being made to an Institutional Accredited
Investor and effected pursuant to an exemption from the
registration requirements of the Securities Act other
than Rule 144A under the Securities Act, Rule 144 under
the Securities Act or Rule 904 under the Securities
Act, a certificate from the transferee in the form of
Exhibit D hereto.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Restricted Definitive Notes may be
exchanged by any Holder thereof for an Unrestricted
Definitive Note or transferred to Persons who take delivery
thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder, in the
case of an exchange, or the transferee, in the case of
a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Note, a certificate from
such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that
such exchange or transfer is in compliance with the
Securities Act, that the restrictions on transfer
contained herein and in the Private Placement Legend
are not required in order to maintain compliance with
the Securities Act, and such Restricted Definitive Note
is being exchanged or transferred in compliance with
any applicable blue sky securities laws of any State of
the United States.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes
may transfer such Notes to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note. Upon
receipt of a request for such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to
the instructions from the Holder thereof.
(iv) Transfer or Exchange of Unrestricted Definitive
Notes to Restricted Definitive Notes Prohibited. An Unrestricted
Definitive Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of a Restricted
Definitive Note.
(f) Exchange Offer. Upon the occurrence of the
Exchange Offer in accordance with the Registration Rights
Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the
Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal
amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that are not (x) broker-
dealers, (y) Persons participating in the distribution of the
Exchange Notes or (z) Persons who are affiliates (as defined in
Rule 144) of the Company and accepted for exchange in the
Exchange Offer and (ii) Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer.
Concurrent with the issuance of such Notes, the Trustee shall
cause the aggregate principal amount of the applicable Restricted
Global Notes to be reduced accordingly, and the Company shall
execute and the Trustee shall authenticate and make available for
delivery to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this
Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (b)
below, each Global Note and each Definitive Note (and
all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the
following form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR OTHER SECURITIES LAWS. NEITHER
THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING ITS NOTE IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR
TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR
OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS
NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A INSIDE THE UNITED
STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE
TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING IN THE INDENTURE
GOVERNING THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraph
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) of this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a
legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED
IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION
2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Regulation S Temporary Global Note Legend.
The Regulation S Temporary Global Note shall bear a legend
in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular Global
Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or canceled in whole
and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or
transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note, by the Trustee or by the
Depositary at the direction of the Trustee, to reflect such
reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other
Global Note shall be increased accordingly and an endorsement
shall be made on such Global Note, by the Trustee or by the
Depositary at the direction of the Trustee, to reflect such
increase.
(i) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes upon the
Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.10,
4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon
any registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a
period beginning at the opening of business 15 days before
the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next
succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes
and Definitive Notes in accordance with the provisions of
Section 2.02 hereof.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its 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 two Officers 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 and any authenticating agent from any loss that any of them
may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of
the Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Notes duly
issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it,
those delivered to it for cancellation, those reductions in the
interest in a Global Note effected by the Trustee in accordance
with the provisions hereof, and those described in this Section
2.08 as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 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 4.01 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) holds, on a redemption
date or maturity date, money sufficient to pay Notes payable on
that date, then on and after that date such Notes shall be deemed
to be no longer outstanding and shall cease to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver
or consent, Notes owned by the Company, or by any Person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes that a Trustee
has actual knowledge are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary
Notes upon a written order of the Company signed by two Officers
of the Company. Temporary Notes shall be substantially in the
form of Definitive Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate
Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and no
one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Notes (subject to the record retention
requirements of the Exchange Act). Certification of the
destruction of all canceled Notes shall be delivered to the
Company. The Company may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special
record date, in each case at the rate provided in the Notes and
in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid
on each Note and the date of the proposed payment. The Company
shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be
less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of
such interest to be paid.
Section 2.13. CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP,"
"CINS," and "ISIN" numbers (if then generally in use), and, if
so, the Trustee shall use CUSIP, CINS or ISIN numbers as
applicable, in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on
the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be
affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee in writing of any change
in the CUSIP, CINS or ISIN numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 30 days but not more than 60
days before a redemption date, an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption
price.
Section 3.02. Selection of Notes to be Redeemed.
If less than all of the Notes are to be redeemed at any
time, selection of Notes for redemption shall be made by the
Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are
listed, or, if the Notes are not so listed, on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and
appropriate; provided that no Notes of less than $1,000 shall be
redeemed in part. Notices of redemption shall be mailed by first
class mail at least 30 but not more than 60 days before the
redemption date to each Holder of Notes to be redeemed at its
registered address. If any Note is to be redeemed in part only,
the notice of redemption that relates to such Note shall state
the portion of the principal amount thereof to be redeemed. A new
Note in principal amount equal to the unredeemed portion thereof
shall be issued in the name of the Holder thereof upon
cancellation of the original Note. Notes called for redemption
become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue on Notes or portions
of them called for redemption.
The Trustee shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount
thereof to be redeemed. Notes and portions of Notes selected
shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed,
the entire outstanding amount of Notes held by such Holder, even
if not a multiple of $1,000, shall be redeemed. Except as
provided in the preceding sentence, provisions of this Indenture
that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
As of the date hereof, the Notes are not listed on any
national securities exchange. The Company shall give written
notice to the Trustee of any such listing promptly after it
becomes effective.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at
least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be
redeemed at its registered address.
The notice shall identify the Notes to be redeemed
(including CUSIP, CINS or ISIN numbers, if any) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion
of the principal amount of such Note to be redeemed and that,
after the redemption date upon surrender of such Note, a new Note
or Notes in principal amount equal to the unredeemed portion
shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption
ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are
being redeemed; and
(h) that no representation is made as to the
correctness or accuracy of the CUSIP, CINS or ISIN number, if
any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense;
provided, however, that the Company shall have delivered to the
Trustee, at least 45 days prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption become
irrevocably due and payable on the redemption date at the
redemption price.
Section 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m. on the Business Day prior to the
redemption date, the Company shall deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to
the Company any money deposited with the Trustee or the Paying
Agent by the Company in excess of the amounts necessary to pay
the redemption price of, and accrued interest on, all Notes to be
redeemed.
If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest
shall cease to accrue on the Notes or the portions of Notes
called for redemption. If a Note is redeemed on or after an
interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid
to the Person in whose name such Note was registered at the close
of business on such record date. If any Note called for
redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid,
and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon the Company's written request, the
Trustee shall authenticate for the Holder at the expense of the
Company a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section
3.07, the Notes shall not be redeemable at the Company's option
prior to August 1, 2004. Thereafter, the Notes shall be subject
to redemption at any time 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, if any,
to the applicable redemption date, if redeemed during the twelve-
month period beginning on August 1 of the years indicated below:
Year Percentage
2004 106.500%
2005 104.333%
2006 102.167%
2007 and thereafter 100.000%
(b) Notwithstanding the foregoing clause (a), on or
prior to August 1, 2002, the Company may on any one or more
occasions redeem up to an aggregate of 35% of the Notes
originally issued at a redemption price of 113% of the principal
amount thereof, plus accrued and unpaid interest and Additional
Interest thereon, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date), with the net
cash proceeds of one or more Equity Offerings by the Company or
the net cash proceeds of one or more Equity Offerings by ▇▇▇▇▇▇
International that are contributed to the Company as common
equity capital; provided that at least 65% of the Notes
originally issued remain outstanding immediately after the
occurrence of each such redemption (excluding Notes held by
▇▇▇▇▇▇ International, the Company and their Subsidiaries); and
provided, further, that any such redemption must occur within 90
days of the date of the closing of such Equity Offering.
Section 3.08. Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.15
hereof, the Company is not required to make mandatory redemption
or sinking fund payments with respect to the Notes. The Company
may at any time and from time to time purchase Notes in the open
market or otherwise.
Section 3.09. Offer to Purchase by Application of Excess
Proceeds.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an Asset Sale Offer to all
Holders to purchase Notes, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of
20 Business Days following its commencement and no longer, except
to the extent that a longer period is required by applicable law
(the "Offer Period"). No later than five Business Days after the
termination of the Offer Period (the "Purchase Date"), the
Company shall purchase the principal amount of Notes required to
be purchased pursuant to Section 4.10 hereof (the "Offer Amount")
or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased shall be made in the same manner as interest
payments are made.
If the Purchase Date is on or after an interest record
date and on or before the related interest payment date, any
accrued and unpaid interest shall be paid to the Person in whose
name a Note is registered at the close of business on such record
date, and no additional interest shall be payable to Holders who
tender Notes pursuant to the 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 3.09 and Section 4.10 hereof and the length of
time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the
Purchase Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such
payment, 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 an Asset Sale Offer may only elect to have all of
such Note purchased and may not elect to have only a portion of
such Note purchased;
(f) 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;
(g) 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 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 ▇▇▇▇▇▇ is
withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company
shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in
part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (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 3.09. The
Company, the Depositary or the Paying Agent, as the case may be,
shall promptly (but in any case not later than five days after
the Purchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such
Holder and accepted by the Company for purchase, and the 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
3.09, any purchase pursuant to this Section 3.09 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal
of, premium, if any, and interest on the Notes on the dates and
in the manner provided in the Notes. Principal, premium, if any,
and interest shall be considered paid on the date due if the
Paying Agent, if other than ▇▇▇▇▇▇ International or a Subsidiary
thereof, holds as of 10:00 a.m. Eastern Time on the due date,
money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if
any, and interest then due. The Company shall pay all Additional
Interest, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan,
The City of New York, an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee, Registrar or co-
registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of their obligations to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes.
The Company shall give prompt written notice to the Trustee of
any such designation or rescission and of any change in the
location of any such other office or agency.
The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company
in accordance with Section 2.03 hereof.
Section 4.03. Reports.
So long as any Notes are outstanding, ▇▇▇▇▇▇
International shall furnish to the Holders of Notes, within 15
days after the time ▇▇▇▇▇▇ International would be required to
file such information with the Commission, if it were subject to
Section 13 or 15(d) of the Exchange Act: (a) all quarterly and
annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K
(or any successor forms) if ▇▇▇▇▇▇ International were required to
file those forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report on the
annual financial statements by ▇▇▇▇▇▇ International's certified
independent accountants; and (b) all current reports that would
be required to be filed with the Commission on Form 8-K (or any
successor form) if ▇▇▇▇▇▇ International were required to file
such reports.
If ▇▇▇▇▇▇ International has designated any of its
Subsidiaries as Unrestricted Subsidiaries, then the quarterly and
annual financial information required by the preceding paragraph
shall include a reasonably detailed presentation, either on the
face of the financial statements or in the footnotes, and in
Management's Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of
operations of ▇▇▇▇▇▇ International and its Restricted
Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of ▇▇▇▇▇▇
International.
In addition, ▇▇▇▇▇▇ International shall file a copy of
all information and reports referred to in clauses (a) and (b)
above with the Commission for public availability within the time
periods specified in the Commission's rules and regulations
(unless the Commission will not accept that filing) and make that
information available to securities analysts and prospective
investors upon request. ▇▇▇▇▇▇ International and the Guarantors
have also agreed that, for so long as any Notes are not freely
transferable under the Securities Act, they will furnish to the
Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.04. Compliance Certificate.
(a) ▇▇▇▇▇▇ International shall deliver to the Trustee,
within 90 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of ▇▇▇▇▇▇
International and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers
with a view to determining whether ▇▇▇▇▇▇ International and the
Company have kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his or
her knowledge, ▇▇▇▇▇▇ International and the Company have kept,
observed, performed and fulfilled each and every covenant
contained in this Indenture and are not in default in the
performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or
Events of Default of which he or she may have knowledge and what
action ▇▇▇▇▇▇ International or the Company are taking or propose
to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action ▇▇▇▇▇▇
International or the Company are taking or propose 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 4.03 hereof shall be accompanied by a written
statement of ▇▇▇▇▇▇ International's independent public
accountants (who shall be a firm of established national
reputation) that in making the examination necessary for
certification of such financial statements, nothing has come to
their attention that would lead them to believe that ▇▇▇▇▇▇
International or the Company has violated any provisions of
Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, as soon as possible and in
any event within five Business Days after any Officer becomes
aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what
action ▇▇▇▇▇▇ International or the Company is taking or proposes
to take with respect thereto.
Section 4.05. Taxes.
▇▇▇▇▇▇ International shall pay, and shall cause each of
its Subsidiaries to pay, prior to delinquency, all material
taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where
the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
Section 4.06. Sale and Leaseback Transactions.
▇▇▇▇▇▇ International shall not, and shall not permit
any of its Restricted Subsidiaries to, enter into any sale and
leaseback transaction; provided that ▇▇▇▇▇▇ International or any
Restricted Subsidiary may enter into a sale and leaseback
transaction if: (i) ▇▇▇▇▇▇ International or such Restricted
Subsidiary, as applicable, could have incurred Indebtedness in an
amount equal to the Attributable Debt relating to such sale and
leaseback transaction under the Fixed Charge Coverage Ratio test
in the first paragraph of Section 4.09 hereof; (ii) the gross
cash proceeds of such sale and leaseback transaction are at least
equal to the fair market value, as (if in excess of $20,000,000)
determined in good faith by ▇▇▇▇▇▇ International and set forth in
an Officers' Certificate delivered to the Trustee, of the
property that is the subject of such sale and leaseback
transaction; and (iii) the transfer of assets in such sale and
leaseback transaction is permitted by, and ▇▇▇▇▇▇ International
or that Restricted Subsidiary applies the proceeds of such
transaction in compliance with Section 4.10 hereof.
Section 4.07. Restricted Payments.
▇▇▇▇▇▇ International shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of ▇▇▇▇▇▇ International's or any of its
Restricted Subsidiaries' Equity Interests (including any
distribution, dividend or payment in connection with any merger
or consolidation involving ▇▇▇▇▇▇ International or any of its
Restricted Subsidiaries) or to the direct or indirect holders of
▇▇▇▇▇▇ International's or any of its Restricted Subsidiaries'
Equity Interests in their capacity as such, except for dividends
or distributions that are payable in Equity Interests (other than
Disqualified Stock) of ▇▇▇▇▇▇ International or payable to ▇▇▇▇▇▇
International or a Restricted Subsidiary of ▇▇▇▇▇▇ International;
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving ▇▇▇▇▇▇ International) any Equity
Interests of the Company, ▇▇▇▇▇▇ International or any direct or
indirect parent of ▇▇▇▇▇▇ International; (iii) make any payment
on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated
to the Notes or the Guarantees, except the scheduled payment of
interest and Additional Interest, if any, or principal and
premium, if any, at the Stated Maturity of the Indebtedness that
is subordinated to the Notes or the Guarantees or Indebtedness
that is permitted under clause (viii) of Section 4.09 hereof, 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:
(a) no Default shall have occurred and be continuing
or would occur as a consequence thereof;
(b) at the date 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,
▇▇▇▇▇▇ International would 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
4.09 hereof;
(c) the aggregate amount of such Restricted Payment
and all other Restricted Payments made since the Issue Date
(excluding Restricted Payments permitted by clauses (ii), (iii),
(iv), (vi), (vii) and (viii) of the next succeeding paragraph) is
less than or equal to the sum, without duplication, of (i) 50% of
the Consolidated Net Income of ▇▇▇▇▇▇ International for the
period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the Issue Date through the
last full fiscal quarter of ▇▇▇▇▇▇ International for which
internal financial statements are available at the time of that
Restricted Payment (or, if the Consolidated Net Income for that
period is a deficit, minus 100% of the deficit); plus (ii) 100%
of the aggregate net cash proceeds or the fair market value of
property other than cash received by ▇▇▇▇▇▇ International since
the Issue Date as a contribution to its common equity capital or
from the issue or sale of Equity Interests of ▇▇▇▇▇▇
International (other than Disqualified Stock) or from the issue
or sale of Disqualified Stock or debt securities of ▇▇▇▇▇▇
International that have been converted into or exchanged for such
Equity Interests (other than Equity Interests (or Disqualified
Stock or convertible debt securities) sold to a Subsidiary of
▇▇▇▇▇▇ International); plus (iii) an amount equal to the lesser
of (A) the sum of the net reduction in the Restricted Investments
made by ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries in any Person resulting from repurchases, repayments
or redemptions of the Restricted Investment by such Person,
proceeds realized on the sale of the Restricted Investment and
proceeds representing the return of capital (excluding dividends
and distributions), in each case received by ▇▇▇▇▇▇ International
or any of its Restricted Subsidiaries and (B) the initial amount
of such Restricted Investments; plus (iv) if any Unrestricted
Subsidiary is redesignated by ▇▇▇▇▇▇ International as a
Restricted Subsidiary of ▇▇▇▇▇▇ International after the Issue
Date, an amount equal to the lesser of (A) the net book value of
▇▇▇▇▇▇ International's Investment in the Unrestricted Subsidiary
at the time of the redesignation and (B) the fair market value of
▇▇▇▇▇▇ International's Investment in the Unrestricted Subsidiary
at the time of the redesignation.
The preceding provisions shall not prohibit: (i) the
payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration, the dividend
would have complied with the provisions of this Indenture;
(ii) the making of any Investment or the redemption, repurchase,
retirement, defeasance or other acquisition of any Indebtedness
of the Company or any Guarantor that is subordinated to the Notes
or the Guarantees or of any Equity Interests of ▇▇▇▇▇▇
International or any Restricted Subsidiary of ▇▇▇▇▇▇
International in exchange for, or out of the net cash proceeds of
the sale (other than to a Subsidiary of ▇▇▇▇▇▇ International) of,
Equity Interests of ▇▇▇▇▇▇ International (other than Disqualified
Stock); provided that the amount of any net cash proceeds that
are utilized for any such Restricted Payment shall be excluded
from clause (c)(ii) of the preceding paragraph; provided,
further, that in the case of any such sale of Equity Interests of
▇▇▇▇▇▇ International, the net cash proceeds from the sale (x) are
used to make any such Investment within 270 days of the sale or
(y) are used to effect any other transaction contemplated by this
clause (ii) within 90 days of the sale; (iii) the defeasance,
redemption, repurchase or other acquisition of Indebtedness of
▇▇▇▇▇▇ International or any Guarantor that is subordinated to the
Notes or the Guarantees with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness; (iv) the
payment of any dividend or distribution by a Restricted
Subsidiary of ▇▇▇▇▇▇ International to the holders of such
Restricted Subsidiary's common Equity Interests so long as ▇▇▇▇▇▇
International or a Restricted Subsidiary of ▇▇▇▇▇▇ International
receives at least its pro rata share (and in like form) of the
dividend or distribution in accordance with its common Equity
Interests; (v) the payment of dividends on ▇▇▇▇▇▇ International's
common stock, following the first Equity Offering after the Issue
Date, of up to 3% per annum of the net cash proceeds of the
Equity Offering by ▇▇▇▇▇▇ International other than an Equity
Offering with respect to common stock registered on Form S-8;
(vi) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of ▇▇▇▇▇▇
International or any Restricted Subsidiary of ▇▇▇▇▇▇
International held by any member of ▇▇▇▇▇▇ International's (or
any of its Restricted Subsidiaries') management, employees and
directors pursuant to any management equity subscription
agreement, stock option agreement, employment agreement or any
other management or employee benefit plan, trust arrangement or
agreement; provided that the price paid for all repurchased,
redeemed, acquired or retired Equity Interests in all cases,
other than as a result of death or disability, does not exceed
$2,500,000 in the aggregate in any twelve-month period (with
unused amounts in any calendar year being carried over to
succeeding calendar years subject to a maximum of $5,000,000 in
any calendar year); (vii) the deemed repurchase of Capital Stock
by ▇▇▇▇▇▇ International on the exercise of stock options; and
(viii) Restricted Payments, when taken together with all other
Restricted Payments made pursuant to this clause (viii), in an
aggregate amount since the Issue Date not to exceed $25,000,000;
provided that ▇▇▇▇▇▇ International will not and will not permit
any of its Restricted Subsidiaries to make any Restricted Payment
contemplated by clauses (iii) through (v) and clauses (vii) and
(viii) above so long as an Event of Default has occurred and is
continuing.
The Board of Directors of ▇▇▇▇▇▇ International may
designate any Restricted Subsidiary of ▇▇▇▇▇▇ International to be
an Unrestricted Subsidiary if that designation would not cause a
Default. If a Restricted Subsidiary of ▇▇▇▇▇▇ International is
designated as an Unrestricted Subsidiary, the aggregate fair
market value of all outstanding Investments owned by ▇▇▇▇▇▇
International and its Restricted Subsidiaries in the newly
designated Unrestricted Subsidiary will be deemed to be an
Investment made as of the time of that designation and will
either reduce the amount available for Restricted Payments under
this Section 4.07 or reduce the amount available for future
Investments under one or more clauses of the definition of
Permitted Investments, as ▇▇▇▇▇▇ International shall determine.
Such designation shall only be permitted if that Investment would
be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
The Board of Directors of ▇▇▇▇▇▇ International may redesignate
any Unrestricted Subsidiary to be a Restricted Subsidiary of
▇▇▇▇▇▇ International if the redesignation would not cause a
Default. The Company shall be a Restricted Subsidiary of ▇▇▇▇▇▇
International and may not be designated as an Unrestricted
Subsidiary.
The amount of all Restricted Payments (other than cash)
shall be the fair market value of the assets or securities
proposed to be transferred or issued to or by ▇▇▇▇▇▇
International or a Restricted Subsidiary of ▇▇▇▇▇▇ International,
as the case may be, pursuant to the Restricted Payment on the
date of such Restricted Payment. The fair market value of any
assets or securities that are required to be valued by this
Section 4.07 shall be determined in good faith by ▇▇▇▇▇▇
International. Not later than the date of making any Restricted
Payment in an aggregate amount which exceeds $20.0 million,
▇▇▇▇▇▇ International shall deliver to the Trustee an Officers'
Certificate stating that the Restricted Payment is permitted and
setting forth the basis upon which the calculations required by
this Section 4.07 were computed.
If any Restricted Investment is sold or otherwise
liquidated or repaid or any dividend or payment is received by
▇▇▇▇▇▇ International or any of its Restricted Subsidiaries and
such amounts may be credited to clause (c)(i) or (iii) of the
first paragraph of this Section 4.07, then such amounts will be
credited only to the extent of amounts that do not otherwise
increase the amount available as a Permitted Investment pursuant
to clause (xii) in the definition of "Permitted Investments."
Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries.
▇▇▇▇▇▇ International shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly,
create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted
Subsidiary of ▇▇▇▇▇▇ International that is not a Guarantor to:
(i) pay dividends or make any other distributions on its Capital
Stock to ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits; (ii) pay any
indebtedness owed to ▇▇▇▇▇▇ International or any of its
Restricted Subsidiaries; (iii) make loans or advances to ▇▇▇▇▇▇
International or any of its Restricted Subsidiaries; or
(iv) transfer any of its properties or assets to ▇▇▇▇▇▇
International or any of its Restricted Subsidiaries.
However, the preceding restrictions will not apply to
encumbrances or restrictions existing under or by reason of:
(i) Existing Indebtedness as in effect on the Issue Date and any
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof,
provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or
refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than
those contained in that Existing Indebtedness, as in effect on
the Issue Date; (ii) the New Credit Facilities as in effect on
the Issue Date and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or
refinancings thereof or such other Credit Facility, provided that
those amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings,
and such other Credit Facility, are no more restrictive, taken as
a whole, with respect to dividend and other payment restrictions
than those contained in the New Credit Facilities, as in effect
on the Issue Date; (iii) this Indenture and the Notes or any
other indenture governing debt securities that are no more
restrictive, taken as a whole, with respect to dividend and other
payment restrictions than those contained in this Indenture and
the Notes; (iv) applicable law or any applicable rule, regulation
or order; (v) any instrument governing Indebtedness or Capital
Stock of a Person acquired by ▇▇▇▇▇▇ International or any of its
Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent that Indebtedness was incurred
in connection with or in contemplation of that 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, in the case of Indebtedness, such Indebtedness was
permitted to be incurred by the terms of this Indenture;
(vi) customary non-assignment provisions in leases entered into
in the ordinary course of business; (vii) purchase money
obligations for property acquired in the ordinary course of
business that impose restrictions on the property so acquired of
the nature described in clause (iv) of the preceding paragraph;
(viii) any agreement for the sale or other disposition of a
Restricted Subsidiary of ▇▇▇▇▇▇ International that restricts
distributions by that Restricted Subsidiary pending its sale or
other disposition; (ix) Permitted Refinancing Indebtedness,
provided that the restrictions contained in the agreements
governing that Permitted Refinancing Indebtedness are no more
restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced; (x) Liens
securing Indebtedness that limit the right of the debtor to
dispose of the assets subject to that Lien; (xi) provisions with
respect to the disposition or distribution of assets or property
in joint venture agreements, asset sale agreements, stock sale
agreements and other similar agreements entered into in the
ordinary course of business; (xii) any Purchase Money Note or
other Indebtedness or contractual requirements incurred with
respect to a Qualified Receivables Transaction relating to a
Receivables Subsidiary; (xiii) restrictions on cash or other
deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business; (xiv) secured
Indebtedness otherwise permitted to be incurred pursuant to the
provisions of Section 4.12 hereof that limits the right of the
debtor to dispose of the assets securing the Indebtedness; and
(xv) any encumbrances or restrictions imposed by any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancing of the contracts,
instruments or obligations referred to in clauses (i) through
(xiv) above, provided that the amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of
▇▇▇▇▇▇ International's Board of Directors not materially more
restrictive in the aggregate with respect to the dividend and
other payment restrictions than those (considered as a whole)
contained in the dividend or other payment restrictions prior to
the applicable amendment, modification, restatement, renewal,
increase, supplement, refunding, replacement or refinancing.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.
▇▇▇▇▇▇ International shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired
Debt), and ▇▇▇▇▇▇ International and the Company shall not issue
any Disqualified Stock and will not permit any of their
respective Subsidiaries (other than the Company) to issue any
shares of Preferred Stock; provided, however, that ▇▇▇▇▇▇
International and the Company may incur Indebtedness (including
Acquired Debt), ▇▇▇▇▇▇ International and the Company may issue
Disqualified Stock, and Restricted Subsidiaries of ▇▇▇▇▇▇
International that are Guarantors may incur Indebtedness or issue
Preferred Stock, if the Fixed Charge Coverage Ratio for ▇▇▇▇▇▇
International'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 or such Disqualified Stock or Preferred Stock is issued
would have been at least 2.0 to 1.0 if incurred or issued during
the period from the Issue Date through December 31, 2000, at
least 2.25 to 1.0 if incurred or issued during the period from
January 1, 2001 to December 31, 2001, and at least 2.50 to 1.0 if
incurred or issued thereafter.
The first paragraph of this Section 4.09 shall not
prohibit any of the following (collectively, "Permitted Debt"):
(i) the incurrence by ▇▇▇▇▇▇ International, the
Company and any Restricted Subsidiary of ▇▇▇▇▇▇
International that is a Guarantor of additional Indebtedness
and letters of credit under Credit Facilities in an
aggregate principal amount at any one time outstanding under
this clause (i) (with letters of credit being deemed to have
a principal amount equal to the maximum potential
reimbursement liability (excluding interest and fees) of
▇▇▇▇▇▇ International and its Restricted Subsidiaries
thereunder) not to exceed an amount equal to $500,000,000
minus (a) the aggregate amount of all permanent repayments
of principal under any revolving Indebtedness pursuant to
such Credit Facilities (which are accompanied by a
corresponding permanent commitment reduction) and (b) the
aggregate amount of all mandatory repayments of the
principal of any term Indebtedness pursuant to such Credit
Facilities (excluding any such payments to the extent
refinanced at the time of payment under a new Credit
Facility or otherwise immediately reborrowed) that have
actually been made since the Issue Date;
(ii) the incurrence by ▇▇▇▇▇▇ International and its
Restricted Subsidiaries of Existing Indebtedness;
(iii) the incurrence by the Company and the
Guarantors of Indebtedness represented by the Notes to be
issued on the Issue Date and the Exchange Notes to be issued
pursuant to the Registration Rights Agreement (including, in
each case, the Guarantees);
(iv) the incurrence by ▇▇▇▇▇▇ International or any of
its Restricted Subsidiaries of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase
money obligations, in each case, incurred for the purpose of
financing all or any part of the purchase price or lease
expense or cost of construction or repair, improvement or
addition to property, plant or equipment used in the
business of ▇▇▇▇▇▇ International or such Restricted
Subsidiary, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to
this clause (iv), not to exceed, in aggregate principal
amount at any one time outstanding, 5% of Total Assets on a
pro forma basis (including a pro forma application of the
net proceeds of such Indebtedness), as if such Indebtedness
had been incurred on the date of calculation;
(v) the incurrence by ▇▇▇▇▇▇ International or any of
its Restricted Subsidiaries of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which
are used to refund, refinance or replace Indebtedness (other
than intercompany Indebtedness) that was incurred under the
first paragraph of this Section 4.09 or clause (ii), (iii)
or (v) of this paragraph;
(vi) Indebtedness incurred by ▇▇▇▇▇▇ International or
any of its Restricted Subsidiaries constituting
reimbursement obligations with respect to (A) letters of
credit issued in the ordinary course of business in respect
of workers' compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement type obligations
regarding workers' compensation claims or (B) commercial
letters of credit issued in the ordinary course of business;
provided, however, that upon the drawing of such letters of
credit or the incurrence of the Indebtedness, these
obligations are reimbursed within 30 days following such
drawing or incurrence;
(vii) Indebtedness arising from agreements of
▇▇▇▇▇▇ International or a Restricted Subsidiary of ▇▇▇▇▇▇
International providing for indemnification, adjustment of
purchase price or similar obligations, in each case,
incurred or assumed in connection with the disposition of
any business, assets or a Subsidiary of ▇▇▇▇▇▇
International, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such
business, assets or a Subsidiary of ▇▇▇▇▇▇ International for
purpose of financing such acquisition;
(viii) the incurrence by ▇▇▇▇▇▇ International or any
of its Restricted Subsidiaries of intercompany Indebtedness
between or among ▇▇▇▇▇▇ International and any of its
Restricted Subsidiaries; provided, however, that
(A) Indebtedness must be expressly subordinated to the prior
payment in full in cash of all Obligations with respect to
the Notes and this Indenture, in the case of the Company, or
the Guarantee, in the case of a Guarantor and (B)(1) any
subsequent issuance or transfer of Equity Interests that
results in such Indebtedness being held by a Person other
than ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries and (2) any sale or other transfer of such
Indebtedness to a Person that is not either ▇▇▇▇▇▇
International or any of its Restricted Subsidiaries shall be
deemed, in each case, to constitute an incurrence of such
Indebtedness by ▇▇▇▇▇▇ International or its Restricted
Subsidiary, as the case may be, that was not permitted by
this clause (viii);
(ix) the incurrence by ▇▇▇▇▇▇ International or any of
its Restricted Subsidiaries of Hedging Obligations that are
incurred for the purpose of (A) fixing or hedging interest
rate risk with respect to any floating rate Indebtedness
that is permitted to be outstanding by the terms of this
Indenture or (B) hedging exposure to foreign currency
fluctuations;
(x) (A) the guarantee by ▇▇▇▇▇▇ International, the
Company or any of the other Guarantors of Indebtedness of
▇▇▇▇▇▇ International or a Restricted Subsidiary of ▇▇▇▇▇▇
International or (B) the incurrence of Indebtedness of
▇▇▇▇▇▇ International or a Restricted Subsidiary of ▇▇▇▇▇▇
International to the extent that such Indebtedness is
supported by a letter of credit, in each case that was
permitted to be incurred by another provision of this
Section 4.09;
(xi) the incurrence of Non-Recourse Debt by
Unrestricted Subsidiaries, provided, however, that if such
Indebtedness ceases to be Non-Recourse Debt of an
Unrestricted Subsidiary, such event shall be deemed to
constitute an incurrence of Indebtedness by a Restricted
Subsidiary of ▇▇▇▇▇▇ International that was not permitted by
this clause (xi), and the issuance of Preferred Stock by
Unrestricted Subsidiaries;
(xii) the accrual of interest, the accretion or
amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional
Indebtedness with the same terms, and the payment of
dividends on Disqualified Stock or Preferred Stock in the
form of additional shares of the same class of Disqualified
Stock or Preferred Stock, as the case may be, which will not
be deemed to be an incurrence of Indebtedness or an issuance
of Disqualified Stock or Preferred Stock, as the case may
be, for purposes of this Section 4.09; provided, in each
case, that the amount thereof is included in the Fixed
Charges of ▇▇▇▇▇▇ International and its Restricted
Subsidiaries as accrued;
(xiii) the incurrence by ▇▇▇▇▇▇ International or any
of its Restricted Subsidiaries of Indebtedness in respect of
performance and surety bonds and completion guarantees
provided in the ordinary course of business to the extent
that the incurrence does not result in the incurrence of any
obligation for the payment of borrowed money to others;
(xiv) the incurrence by a Receivables Subsidiary of
Indebtedness that is not recourse to ▇▇▇▇▇▇ International or
any other Restricted Subsidiary of ▇▇▇▇▇▇ International
(other than with respect to Standard Securitization
Undertakings) in connection with a Qualified Receivables
Transaction; and
(xv) the incurrence by ▇▇▇▇▇▇ International or any of
its Restricted Subsidiaries of additional Indebtedness in an
aggregate principal amount (or accreted value, as
applicable) at any time outstanding, not to exceed
$50,000,000.
For purposes of determining compliance with this
Section 4.09, in the event that an item of proposed Indebtedness
meets the criteria of more than one of the categories of
Permitted Debt described in clauses (i) through (xv) above, or is
entitled to be incurred pursuant to the first paragraph of this
Section 4.09, ▇▇▇▇▇▇ International shall be permitted to classify
all or a portion of such item of Indebtedness on the date of its
incurrence, or reclassify at a later date all or a portion of
such item of Indebtedness, in any manner that complies with this
Section 4.09.
Section 4.10. Asset Sales.
▇▇▇▇▇▇ International shall not, and shall not permit
any of its Restricted Subsidiaries to, consummate an Asset Sale
unless (i) ▇▇▇▇▇▇ International (or the Restricted Subsidiary of
▇▇▇▇▇▇ International, as the case may be) receives consideration
at the time of such Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or
otherwise disposed of; (ii) the fair market value is determined
by the Board of Directors of ▇▇▇▇▇▇ International and evidenced
by a resolution of that Board of Directors set forth in an
Officers' Certificate delivered to the Trustee in the event such
Asset Sale involves aggregate consideration in excess of
$20,000,000 million; and (iii) at least 75% of the consideration
therefor received by ▇▇▇▇▇▇ International or the Restricted
Subsidiary of ▇▇▇▇▇▇ International is in the form of cash or Cash
Equivalents or Marketable Securities. For purposes of this
provision, each of the following shall be deemed to be cash:
(A) any liabilities of ▇▇▇▇▇▇ International (or the Restricted
Subsidiary of ▇▇▇▇▇▇ International, as the case may be), as shown
on its most recent balance sheet (other than contingent
liabilities and liabilities that are by their terms subordinated
to the Notes or any Guarantee) that are assumed by the transferee
of the assets pursuant to a customary novation agreement that
releases the transferor from further liability; (B) any
securities, notes or other obligations received from the
transferee that are within 90 days converted by ▇▇▇▇▇▇
International or the Restricted Subsidiary of ▇▇▇▇▇▇
International into cash (to the extent of that cash); (C) any
Designated Noncash Consideration received by ▇▇▇▇▇▇ International
or any of its Restricted Subsidiaries in the Asset Sale; provided
that the aggregate fair market value (as determined above) of the
Designated Noncash Consideration, taken together with the fair
market value at the time of receipt of all other Designated
Noncash Consideration received pursuant to this clause (C) less
the amount of Net Proceeds previously realized in cash from prior
Designated Noncash Consideration is less than 10% of Total Assets
at the time of the receipt of the Designated Noncash
Consideration (with the fair market value of each item of
Designated Noncash Consideration being measured at the time
received and without giving effect to subsequent changes in
value); and (D) Additional Assets received in an exchange of
assets transaction.
Within 18 calendar months after the receipt by ▇▇▇▇▇▇
International or a Restricted Subsidiary of ▇▇▇▇▇▇ International
of any Net Proceeds from an Asset Sale, the Company or ▇▇▇▇▇▇
International may apply those Net Proceeds at its option, (i) to
repay Senior Debt, including Indebtedness under the New Credit
Facilities and the 1998 Indenture, and, if the Senior Debt repaid
is revolving credit Indebtedness, to correspondingly reduce the
lenders' commitments with respect thereto; (ii) to acquire all or
substantially all of the assets or a majority of the Voting Stock
of another company that is engaged in a Permitted Business;
(iii) to make a capital expenditure in a Permitted Business; or
(iv) to acquire Additional Assets; provided that ▇▇▇▇▇▇
International will have complied with this clause (iv) if, within
18 calendar months of the Asset Sale, ▇▇▇▇▇▇ International has
entered into an agreement covering the acquisition which is
thereafter completed within 180 days after the date of the
agreement. Pending the final application of any such Net
Proceeds, the Company or ▇▇▇▇▇▇ International may temporarily
reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall be deemed
to constitute "Excess Proceeds". When the aggregate amount of
Excess Proceeds exceeds $10,000,000, the Company shall make an
offer to all Holders of Notes, as well as all holders of other
Indebtedness that is pari passu with the Notes and that has the
benefit of provisions requiring the Company to make a similar
offer (an "Asset Sale Offer"), to purchase the maximum principal
amount of Notes and such other pari passu Indebtedness that may
be purchased out of the Excess Proceeds. The offer price will be
equal to 100% of the principal amount of Notes and other
Indebtedness to be purchased or the lesser amount required under
agreements governing such other Indebtedness, plus accrued and
unpaid interest and Additional Interest, if any, to the date of
purchase. ▇▇▇▇▇▇ International or the Company may use any Excess
Proceeds remaining after consummation of an Asset Sale Offer for
any purpose not otherwise prohibited by this Indenture. If the
aggregate principal amount of Notes and other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Company shall select the Notes and
other pari passu Indebtedness to be purchased on a pro rata basis
based on the principal amount of Notes and other pari passu
Indebtedness so tendered. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and all other applicable securities
laws and regulations in connection with each purchase of Notes
pursuant to an Asset Sale Offer. If the provisions of any
securities laws or regulations conflict with this Section 4.10,
the Company will comply with the applicable securities laws and
regulations and by so doing will not be deemed to have breached
its obligations under this Section 4.10.
Section 4.11. Transactions with Affiliates.
▇▇▇▇▇▇ International shall not, and shall not permit
any of its Restricted Subsidiaries to, make any payment to, or
sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from,
or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate of such Person (each, an "Affiliate
Transaction"), unless (i) the Affiliate Transaction is on terms
that are no less favorable to ▇▇▇▇▇▇ International or the
relevant Restricted Subsidiary than terms that would have been
obtained in a comparable transaction by ▇▇▇▇▇▇ International or
such Restricted Subsidiary with an unrelated Person and
(ii) ▇▇▇▇▇▇ International delivers to the Trustee (A) with
respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in
excess of $5,000,000, a resolution of its Board of Directors set
forth in an Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such
Affiliate Transaction has been approved by a majority of the
disinterested members of its Board of Directors and (B) with
respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in
excess of $25,000,000, ▇▇▇▇▇▇ International obtains an opinion
from an accounting, appraisal or investment banking firm of
national standing to the effect that the Affiliate Transaction is
fair to ▇▇▇▇▇▇ International or the relevant Restricted
Subsidiary of ▇▇▇▇▇▇ International from a financial point of view
or that the terms of the Affiliate Transaction are at least as
favorable to ▇▇▇▇▇▇ International or the relevant Restricted
Subsidiary of ▇▇▇▇▇▇ International as might reasonably be
obtained in a comparable arm's length transaction with an
unaffiliated third party.
The following items shall not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the
provisions of the prior paragraph: (i) any employment agreement
entered into by ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries in the ordinary course of business; (ii)
transactions between or among ▇▇▇▇▇▇ International and/or its
Restricted Subsidiaries; (iii) payment of reasonable fees to
officers, directors, employees or consultants of ▇▇▇▇▇▇
International or to Persons who are not otherwise Affiliates of
▇▇▇▇▇▇ International; (iv) any sale, conveyance or other transfer
of accounts receivable and other related assets customarily
transferred in an asset securitization transaction involving
accounts receivable to a Receivables Subsidiary in a Qualified
Receivables Transaction; (v) Restricted Payments that are
permitted by, and Investments that are not prohibited by Section
4.07 hereof; (vi) indemnification payments made to officers,
directors and employees of ▇▇▇▇▇▇ International or any of its
Restricted Subsidiaries pursuant to charter, bylaw, statutory or
contractual provisions; (vii) the payment of customary annual
management, consulting and advisory fees and related expenses to
▇▇▇▇▇▇ Brothers Merchant Banking Partners and its Affiliates;
(viii) payments by ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries to ▇▇▇▇▇▇ Brothers Merchant Banking Partners and its
Affiliates made for any financial advisory, financing,
underwriting or placement services or in respect of other
investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by a
majority of the Board of Directors of ▇▇▇▇▇▇ International in
good faith; (ix) the existence of, or the performance by ▇▇▇▇▇▇
International or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders' agreement
(including any registration rights agreement or purchase
agreement related thereto) to which it is a party as of the Issue
Date and any similar agreements which it may enter into
thereafter; provided, however, that the existence of, or the
performance by ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries of obligations under any future amendment to, any
such existing agreement or under any similar agreement entered
into after the Issue Date will only be permitted by this
clause (ix) to the extent that the terms of the amendment or new
agreement are not otherwise disadvantageous to the Holders of
Notes in any material respect; (x) transactions pursuant to the
terms of the Transaction Documents in effect on the Issue Date,
as amended thereafter; provided, however, that transactions
pursuant to the terms of any future amendment to any Transaction
Document will only be permitted pursuant to this clause (x) to
the extent that the terms of the amendment are not otherwise
disadvantageous to the Holders of Notes in any material respect;
(xi) transactions with Unrestricted Subsidiaries, customers,
clients, suppliers, joint venture partners, joint ventures,
including their members or partners, or purchasers or sellers of
goods or services, in each case in the ordinary course of
business (including pursuant to joint venture agreements) and
otherwise in compliance with the terms of this Indenture which
are, in the aggregate (taking into account all the costs and
benefits associated with such transactions), materially no less
favorable to ▇▇▇▇▇▇ International or the applicable Restricted
Subsidiary of ▇▇▇▇▇▇ International than those that would have
been obtained in a comparable transaction by ▇▇▇▇▇▇ International
or the applicable Restricted Subsidiary of ▇▇▇▇▇▇ International
with an unrelated Person, in the reasonable determination of the
Board of Directors of ▇▇▇▇▇▇ International or the senior
management thereof, or are on terms at least as favorable as
might reasonably have been obtained at such time from an
unaffiliated party; (xii) guarantees of performance by ▇▇▇▇▇▇
International and its Restricted Subsidiaries of Unrestricted
Subsidiaries in the ordinary course of business, except for
guarantees of Obligations in respect of borrowed money;
(xiii) pledges of Equity Interests of Unrestricted Subsidiaries
for the benefit of lenders of Unrestricted Subsidiaries;
(xiv) any issuance of securities, or other payments, awards or
grants in cash, securities, options or otherwise pursuant to, or
the funding of, employment arrangements, stock option and stock
ownership plans approved by the Board of Directors of ▇▇▇▇▇▇
International; and (xv) the issuance or sale of any Capital Stock
(other than Disqualified Stock) of ▇▇▇▇▇▇ International.
Section 4.12. Liens.
▇▇▇▇▇▇ International shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly,
create, incur, assume or suffer to exist any Lien of any kind
securing Indebtedness, Attributable Debt or trade payables on any
asset now owned or hereafter acquired, or any income or profits
therefrom or assign or convey any right to receive income
therefrom, except Permitted Liens, unless all payments due under
this Indenture and the Notes are secured on an equal and ratable
basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien.
Section 4.13. Additional Guarantees.
▇▇▇▇▇▇ International shall not permit any of its
Restricted Subsidiaries, directly or indirectly, to guarantee or
pledge any assets to secure the payment of any Credit Facility of
▇▇▇▇▇▇ International or any Restricted Subsidiary of ▇▇▇▇▇▇
International unless (i) all of the obligors, guarantors or
pledgors under that Credit Facility are Foreign Subsidiaries or
(ii) that Restricted Subsidiary is a Guarantor or that Restricted
Subsidiary becomes a Guarantor by simultaneously executing and
delivering to the Trustee an Opinion of Counsel and a
supplemental indenture providing for a Guarantee of the payment
of the Notes by such Restricted Subsidiary which Guarantee shall
be (A) in the case of Indebtedness that is subordinated to the
Notes or the guarantee of the Notes, senior to such Restricted
Subsidiary's guarantee of or pledge to secure such other
Indebtedness; (B) in the case of Indebtedness that is pari passu
with the Notes or the guarantee of the Notes, pari passu with
that Restricted Subsidiary's guarantee of or pledge to secure the
other Indebtedness; and (C) in the case of Indebtedness that is
Senior Debt of the issuer, subordinated to the guarantee of the
Senior Debt to the same extent as the guarantee of the Notes by a
Restricted Subsidiary of ▇▇▇▇▇▇ International is subordinated to
Senior Debt of such Restricted Subsidiary.
This Section 4.13 shall not apply to any Subsidiary of
▇▇▇▇▇▇ International that has been properly designated as an
Unrestricted Subsidiary or as a Receivables Subsidiary.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, ▇▇▇▇▇▇ International shall
do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the
corporate, partnership or other existence of each of its
Restricted Subsidiaries, including the Company, in accordance
with the respective organizational documents (as the same may be
amended from time to time) of ▇▇▇▇▇▇ International or any such
Restricted Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of ▇▇▇▇▇▇ International and
its Restricted Subsidiaries, including the Company; provided,
however, that ▇▇▇▇▇▇ International shall not be required to
preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Restricted
Subsidiaries, including the Company, if the Board of Directors of
▇▇▇▇▇▇ International shall determine that the preservation
thereof is no longer desirable in the conduct of the business of
▇▇▇▇▇▇ International and its Restricted Subsidiaries, including
the Company, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder of Notes shall have the right to require the Company to
purchase all or any part (equal to $1,000 or an integral multiple
thereof) of that Holder's Notes pursuant to the offer on the
terms described below (the "Change of Control Offer"). In the
Change of Control Offer, the Company will offer a payment in cash
equal to 101% of the aggregate principal amount of Notes
purchased plus accrued and unpaid interest and Additional
Interest, if any, to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control
and offering to purchase Notes on the date specified in such
notice (the "Change of Control Payment Date"). The Change of
Control Payment Date may not be earlier than 30 days nor later
than 60 days from the date such notice is mailed. Such notice,
which shall govern the terms of the Change of Control offer,
shall state: (i) that the Change of Control Offer is being made
pursuant to this Section 4.15 and that all Notes tendered will be
accepted for payment; (ii) the purchase price and the purchase
date; (iii) that any Note not tendered will continue to accrue
interest; (iv) that, unless ▇▇▇▇▇▇ International defaults in the
payment of the Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date; (v)
that Holders electing to have 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; (vi) 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 Holder, the principal
amount of Notes delivered for purchase, and a statement that such
▇▇▇▇▇▇ is withdrawing his election to have the Notes purchased;
and (vii) 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.
The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and all other applicable securities
laws and regulations in connection with the repurchase of the
Notes as a result of a Change of Control. If the provisions of
any securities laws or regulations conflict with this Section
4.15, the Company will comply with the applicable securities laws
and regulations and by so doing will not be deemed to have
breached its obligations under the Change of Control provisions
of this Indenture.
(b) On the Change of Control Payment Date, the Company
shall, to the extent lawful, (i) accept for payment all Notes or
portions thereof properly 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. The Paying Agent
shall promptly mail to each Holder of Notes so tendered 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 shall be in a principal amount
of $1,000 or an integral multiple thereof. Prior to complying
with any of the provisions of this Section 4.15, but in any event
within 90 days following a Change of Control, the Company will
either repay all outstanding Senior Debt or obtain the requisite
consents, if any, under all agreements governing outstanding
Senior Debt to permit the repurchase of Notes required by this
Section 4.15. The Company will publicly announce the results of
the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
The provisions described above that require the Company
to make a Change of Control Offer following a Change of Control
will be applicable regardless of whether or not any other
provisions of this Indenture are applicable.
(c) If the New Credit Facilities (which currently
prohibit ▇▇▇▇▇▇ International and the Company from redeeming or
purchasing any Notes, and also provides that the occurrence of
certain change of control events with respect to ▇▇▇▇▇▇
International and the Company would constitute a default under
such New Credit Facilities) are in effect, or any future credit
agreements or other agreements relating to Indebtedness to which
the Company becomes a party containing similar restrictions are
in effect, at the time of the occurrence of a Change in Control
when the Company is prohibited by such agreements from purchasing
Notes, the Company shall obtain the requisite consent of its
lenders to the purchase of Notes or refinance the borrowings
under the agreement containing such prohibition. The Company
shall first comply with the covenant described in the preceding
sentence before it shall be required to purchase Notes in the
event of a Change of Control; provided that the Company's failure
to purchase Notes in the event of a Change of Control after
complying with the covenant described in this Section 4.15
constitutes an Event of Default described in clause (d) under
Section 6.01 hereof if not cured within 30 days after the notice
required by such clause.
(d) Notwithstanding anything to the contrary in this
Section 4.15, the Company shall not be required to make a Change
of Control Offer upon a Change of Control if a third party offers
to purchase the Notes in the manner, at the times and otherwise
in compliance with the requirements set forth in this Indenture
applicable to a Change of Control Offer by the Company and that
third party purchases all Notes validly tendered to it in
response to that offer.
Section 4.16. No Senior Subordinated Debt.
▇▇▇▇▇▇ International 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 ▇▇▇▇▇▇ International and senior in any respect in right
of payment to the Notes. No Guarantor shall incur, create,
issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to
the Senior Debt of such Guarantor and senior in any respect in
right of payment to such Guarantor's Guarantee.
Section 4.17. Payments for Consent.
▇▇▇▇▇▇ International shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or
otherwise, to or for the benefit of any Holder of Notes for or as
an inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid and is paid to all Holders of
the Notes that consent, waive or agree to amend in the time frame
set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 4.18. Business Activities.
▇▇▇▇▇▇ International shall not, and shall not permit
any of its Restricted Subsidiaries to, engage in any business
other than Permitted Businesses, except to an extent that would
not be material to ▇▇▇▇▇▇ International and its Restricted
Subsidiaries taken as a whole.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
Neither ▇▇▇▇▇▇ International nor the Company shall,
directly or indirectly, consolidate or merge with or into another
Person (whether or not ▇▇▇▇▇▇ International or the Company, as
the case may be, is the surviving corporation); or sell, assign,
transfer, convey, lease or otherwise dispose of all or
substantially all of the properties or assets of ▇▇▇▇▇▇
International or the Company, as the case may be, and their
respective Restricted Subsidiaries taken as a whole, in one or
more related transactions, to another Person unless (i) either
(A) ▇▇▇▇▇▇ International or the Company, as the case may be, is
the surviving corporation, limited liability company, business
trust or limited partnership; or (B) the Person formed by or
surviving any such consolidation or merger (if other than ▇▇▇▇▇▇
International or the Company, as the case may be) or to which
such sale, assignment, transfer, conveyance, lease or other
disposition shall have been made is a corporation, limited
liability company, business trust or limited partnership
organized or existing under the laws of the United States, any
state thereof or the District of Columbia; provided that in the
case of (A) or (B) above, if the surviving Person is a limited
liability company, business trust or limited partnership, a
corporation which is a Wholly Owned Subsidiary of the surviving
Person shall act as joint and several obligor with respect to the
Notes; (ii) the Person formed by or surviving any such
consolidation or merger (if other than ▇▇▇▇▇▇ International or
the Company, as the case may be) or the Person to which such
sale, assignment, transfer, conveyance, lease or other
disposition shall have been made assumes all the obligations of
▇▇▇▇▇▇ International or the Company, as the case may be, under
this Indenture, the Registration Rights Agreement and the Notes
or the Guarantee, as the case may be, pursuant to agreements
reasonably satisfactory to the Trustee and the execution and
delivery of an Opinion of Counsel to the Trustee that such
agreements are legal, valid and binding; (iii) immediately after
such transaction no Default exists; and (iv) immediately after
giving pro forma effect to such transaction and any related
financing transactions as if such transactions had occurred at
the beginning of the most recently ended four-quarter period for
which internal financial statements are available immediately
preceding such transaction either: (A) the entity surviving such
consolidation or merger would be 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
4.09 hereof; or (B) the Fixed Charge Coverage Ratio for ▇▇▇▇▇▇
International or the Company, as the case may be, or the Person
formed by or surviving such consolidation or merger (if other
than ▇▇▇▇▇▇ International or the Company, as the case may be), or
to which such sale, assignment, transfer, conveyance, lease or
other disposition has been made, would, immediately after giving
pro forma effect thereto as if such transaction had occurred at
the beginning of the applicable four-quarter period, not be less
than the Fixed Charge Coverage Ratio for ▇▇▇▇▇▇ International or
the Company, as the case may be, and any of their respective
Restricted Subsidiaries immediately prior to such transaction.
The foregoing clauses (iii) and (iv) of this Section
5.01 will not apply to:
(a) the consolidation or merger of ▇▇▇▇▇▇
International or the Company with or into a Wholly Owned
Restricted Subsidiary of ▇▇▇▇▇▇ International; or
(b) a sale, assignment, transfer, conveyance, lease or
other disposition of properties or assets among ▇▇▇▇▇▇
International, the Company or any of their respective Wholly
Owned Subsidiaries that are not Unrestricted Subsidiaries; or
(c) the merger of ▇▇▇▇▇▇ International or the Company
with an Affiliate of ▇▇▇▇▇▇ International that has no significant
assets or liabilities and was formed solely for the purpose of
changing the jurisdiction of organization of the ▇▇▇▇▇▇
International or the Company, as the case may be, to another
State of the United States or the form of ▇▇▇▇▇▇ International or
the Company, as the case may be, so long as the amount of
Indebtedness of ▇▇▇▇▇▇ International or the Company, as the case
may be, and their respective Restricted Subsidiaries is not
increased thereby.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of
all or substantially all of the assets of ▇▇▇▇▇▇ International or
the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which
▇▇▇▇▇▇ International or the Company, as the case may be, 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
"▇▇▇▇▇▇ International" or the "Company" or "▇▇▇▇▇▇", as the case
may be, shall refer instead to the successor corporation and not
to ▇▇▇▇▇▇ International or the Company, as the case may be), and
may exercise every right and power of ▇▇▇▇▇▇ International or the
Company, as the case may be, under this Indenture with the same
effect as if such successor Person had been named as ▇▇▇▇▇▇
International or the Company, as the case may be, herein;
provided, however, that the predecessor Person, ▇▇▇▇▇▇
International or the Company, as the case may be, shall not be
relieved from the obligation to pay the principal of and interest
on the Notes except in the case of a sale of all of ▇▇▇▇▇▇
International's or the Company's, as the case may be, assets that
meets the requirements of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company defaults for 30 days in the payment,
when due, of interest on, or Additional Interest with respect to,
the Notes whether or not prohibited by Article 10 hereof;
(b) the Company defaults in payment, when due, of the
principal of, or premium, if any, on the Notes whether or not
prohibited by Article 10 hereof;
(c) ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries fails to purchase any of the Notes as required under
the provisions of Section 4.10 or 4.15 hereof, or comply with the
provisions of Section 5.01 hereof;
(d) ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries fails to comply with the provisions of Sections 4.10
(other than a failure to purchase Notes), 4.15 (other than a
failure to purchase Notes), 4.07 and 4.09 for 30 days after
notice of such failure has been given;
(e) ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries fails to comply with any of the other agreements in
this Indenture or the Notes for 60 days after notice of such
failure has been given;
(f) a default occurs 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
▇▇▇▇▇▇ International or any of its Significant Subsidiaries (or
the payment of which is guaranteed by ▇▇▇▇▇▇ International or any
of its Significant Subsidiaries) whether such Indebtedness or
guarantee now exists, or is created after the Issue Date, if such
default (i) is caused by a failure to pay principal of such
Indebtedness at final maturity and after giving effect to the
applicable grace period, if any, provided in such Indebtedness on
the date of such default (a "Payment Default"); or (ii) results
in the acceleration of such Indebtedness prior to its express
maturity; and, in each case, the principal amount of such
Indebtedness, together with the principal amount of any other
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates without
duplication $25,000,000 or more;
(g) ▇▇▇▇▇▇ International or any of its Significant
Subsidiaries fails to pay final judgments aggregating in excess
of $25,000,000, which judgments are not paid, discharged or
stayed for a period of 60 consecutive days;
(h) except as permitted by this Indenture, if any
Guarantee shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason (other
than in accordance with the terms of such Guarantee and this
Indenture) to be in full force and effect or any Guarantor, or if
any Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under its Guarantee;
(i) ▇▇▇▇▇▇ International or any of its Significant
Subsidiaries pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a
custodian of it or for all or substantially all of its
property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) generally is not paying its debts as they
become due; or
(j) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against ▇▇▇▇▇▇ International or
any of its Significant Subsidiaries in an involuntary
case;
(ii) appoints a custodian of ▇▇▇▇▇▇ International
or any of its Significant Subsidiaries or for all or
substantially all of the property of ▇▇▇▇▇▇
International or any of its Significant Subsidiaries;
or
(iii) orders the liquidation of ▇▇▇▇▇▇
International;
and the order or decree remains unstayed and in effect
for 60 consecutive days.
The Holders of a majority in aggregate principal amount
of the Notes then outstanding may, on behalf of the Holders of
all of the Notes, by written notice to the Trustee, waive any
existing Default and its consequences under this Indenture except
a continuing Default in the payment of interest or Additional
Interest on, or the principal of, the Notes.
Section 6.02. Acceleration.
If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare all the Notes to be due and
payable immediately; provided that so long as any Indebtedness
permitted to be incurred pursuant to the Indebtedness under the
New Credit Facilities shall be outstanding, the acceleration
shall not be effective until the earlier of (i) an acceleration
of any Indebtedness under the New Credit Facilities or (ii) five
Business Days after receipt by the Company of written notice of
the acceleration of the Notes. Notwithstanding the foregoing, in
the case of an Event of Default specified in Section 6.01(i) or
(j) hereof, with respect to ▇▇▇▇▇▇ International or the Company,
all outstanding Notes will become due and payable immediately
without further action or notice. Holders of the Notes may not
enforce this Indenture or the Notes except as provided in this
Indenture. Subject to the limitations described in this
Article 6, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of
principal or interest or Additional Interest) if it determines
that withholding notice is in their interest.
In the case of any Event of Default 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 upon an
Optional Redemption, 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 August 1, 2004 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 August 1, 2004, then the premium specified
below shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes during the
twelve-month period ending on August 1 of the years indicated
below:
Year Percentage
2000 117.333%
2001 115.167%
2002 113.000%
2003 110.833%
2004 108.667%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of
principal, premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Holder
of a Note in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by written notice
to the Trustee may on behalf of the Holders of all of the Notes
waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of
Default in the payment of the principal of, premium and
Additional Interest, if any, or interest on, the Notes (including
in connection with an offer to purchase) (provided, however, that
the Holders of a majority in aggregate principal amount at
maturity of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment
default that resulted from such acceleration). Upon any such
waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent
thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then
outstanding Notes may, by written notice, direct the time, method
and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of
other Holders of Notes or that may involve the Trustee in
personal liability.
The Trustee may take any other action which it deems
proper and which is not inconsistent with any such direction. In
the event the Trustee takes any action or follows any direction
pursuant to the Indenture, the Trustee shall be entitled to
indemnification reasonably satisfactory to it in its sole
discretion against any loss or expense caused by taking such
action or following such direction.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to
this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the Trustee
to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer
and, if requested, provide to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a
majority in principal amount of the then outstanding Notes do not
give the Trustee a written direction inconsistent with the
request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of
principal, premium and Additional Interest, if any, and interest
on the Note, on or after the respective due dates expressed in
the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without
the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or
(b) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal of,
premium and Additional Interest, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable
on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof. To the extent that the payment
of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any
such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys
for amounts due under Section 7.07 hereof, including payment of
all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium and Additional
Interest, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on
the Notes for principal, premium and Additional Interest, if any
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 pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of
more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of
care and skill in its exercise, as a prudent Person would
exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the
Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith or negligence 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 (but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities
for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (e) and (f) of
this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability.
The Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any
Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it in its sole discretion
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required
by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any
document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate
any fact or matter stated in such document.
(b) Before the Trustee acts or refrains from acting,
it may consult with counsel and 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.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be
authorized or within the rights or powers conferred upon it by
this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the
Company.
(f) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or
direction.
(g) The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(h) The Trustee shall not be deemed to have notice of
any Default or Event of Default unless a Responsible Officer of
the Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by a
Responsible Officer of the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the specific Default
or Event of Default, the Notes and this Indenture.
(i) Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed in
writing with the Company.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with
the Company or any Affiliate of the Company with the same rights
it would have if it were not Trustee. However, in the event that
the Trustee acquires any conflicting interest it must eliminate
such conflict within 120 days, apply to the Commission for
permission to continue as trustee or resign. Any Agent may do the
same with like rights and duties. The Trustee is also subject to
Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimers.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture
or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company
or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application
of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital
herein or any statement in the Notes or any other document in
connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall
mail to Holders of Notes in the manner and to the extent provided
in TIA 313(c) a notice of the Default or Event of Default within
90 days after it occurs. Except in the case of a Default or Event
of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the
Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May
15 following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of the
Notes a brief report dated as of such reporting date that
complies with TIA 313(a) (but if no event described in TIA
313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also
shall comply with TIA 313(b)(2). The Trustee shall also transmit
by mail all reports as required by TIA 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with
the Commission and each stock exchange on which the Notes are
listed in accordance with TIA 313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
such compensation as the Company and the Trustee shall from time
to time agree in writing for its acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee promptly upon
request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee or any
predecessor Trustee against any and all losses, claims, damages,
penalties, fines, liabilities or expenses, including incidental
and out-of-pocket expenses and reasonable attorneys fees
("losses") incurred by it arising out of or in connection with
the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and
defending itself against any claim (whether asserted by the
Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers
or duties hereunder, except to the extent any such losses may be
attributable to its negligence or bad faith. The Trustee shall
notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this Indenture
and, to the extent permitted by law, any rejection or termination
under any bankruptcy plan.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(i) or (j)
hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any
Bankruptcy Law.
To secure the Company's and the Guarantor's payment
obligations to the Trustee, the Trustee shall have a lien prior
to the Notes on all money or property held or collected by the
Trustee other than money or property held in trust to pay
principal of and interest on particular Notes. The Trustee's
rights to receive payment of any amounts due under this Section
7.07 shall not be subordinate to any other liability or
Indebtedness of the Company or the Guarantors.
The Trustee shall comply with the provisions of TIA
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this
Section 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the
Company. The Holders of Notes of a majority in principal amount
of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10
hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in
principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor ▇▇▇▇▇▇▇ does not take office within 30
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company, or the Holders of Notes 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
a Note who has been a Holder of a Note for at least six months,
fails to comply with Section 7.10, such Holder of a Note may
petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company.
Thereupon, the resignation or removal of the retiring Trustee
shall become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the 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 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the
retiring Trustee.
Section 7.09. Successor Trustee by ▇▇▇▇▇▇, Etc.
If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is
a corporation organized and doing business under the laws of the
United States of America or of any state thereof that is
authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at
least $150,000,000 as set forth in its most recent published
annual report of condition.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA 310(a)(1), (2) and (5). The
Trustee is subject to TIA 310(b).
Section 7.11. Preferential Collection of Claims Against
Company.
The Trustee is subject to TIA 311(a), excluding any
creditor relationship listed in TIA 311(b). A Trustee who has
resigned or been removed shall be subject to TIA 311(a) to the
extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, elect
to have either Section 8.02 or 8.03 hereof be applied to all
outstanding Notes and all obligations of the Guarantors with
respect to their Guarantees upon compliance with the conditions
set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.02, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have been discharged from its
obligations with respect to all outstanding Notes and all
obligations of the Guarantors with respect to their Guarantees 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 and Guarantees, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee,
on written demand of and at the expense of the Company, shall
execute proper instruments 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 payments in respect of the principal
of, premium, if any, or interest and Additional Interest, if any,
on such Notes when such payments are due solely from the trust
fund described in Section 8.04 hereof, (b) the Company's
obligations with respect to such Notes under Sections 2.06, 2.07,
2.10 and 4.02 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 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.03, the Company shall,
subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from its obligations under
Sections 4.03, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13,
4.15, 4.16, 4.17 and 4.18 and Articles 5 and 10 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 to any such covenant or by reason of any
reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.03 hereof, subject to
the satisfaction of the conditions set forth in Section 8.04
hereof, Sections 6.01(c) through 6.01(h) hereof shall not
constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the
application of either Section 8.02 or 8.03 hereof to the
outstanding Notes:
In order to exercise either Legal Defeasance or
Covenant Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in United
States dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium and Additional
Interest, if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable redemption
date, as the case may be, and the Company must specify whether
the Notes are being defeased to maturity or to a particular
redemption date;
(b) in the case of an election under Section 8.02
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel 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 Issue Date, 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 8.03
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel 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 Event of Default under Section 6.01(i) or
6.01(j) hereof shall have occurred and be continuing at any time
in the period ending on the 91st day after the date of the
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 ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries is a party or by which ▇▇▇▇▇▇ International or any
of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, assuming no intervening
bankruptcy of the Company or any Guarantor between the date of
deposit and the 91st day following the deposit and assuming that
no Holder is an "insider" of the Company under applicable
Bankruptcy Law, 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 over any
other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other 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 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-
callable Government Securities (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the "Trustee")
pursuant to Section 8.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
cash or non-callable Government Securities deposited pursuant to
Section 8.04 hereof or the principal and interest received in
respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding
Notes.
Anything in this Article 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 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may
be the opinion delivered under Section 8.04(a) hereof), are in
excess of the amount thereof that would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company.
Subject to Section 7.07, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or
interest on any Note and remaining unclaimed for two years after
such principal, and premium, if any, or interest has become due
and payable shall be paid to the Company on its written request
or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as a secured
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal
(national edition), notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication,
any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities in
accordance with Section 8.02 or 8.03 hereof, as the case may be,
by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture
and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof
until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or
interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 hereof, the Company and
the Trustee may amend or supplement this Indenture or the Notes
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
(c) to provide for the assumption of the Company's
obligations to the Holders of the Notes in the case of a merger
or consolidation or sale of all or substantially all of the
Company's assets permitted hereby;
(d) to provide for the assumption of ▇▇▇▇▇▇
International's obligations to Holders of Notes in respect of the
Guarantees in the case of a merger or consolidation or sale of
all or substantially all of ▇▇▇▇▇▇ International's assets
permitted hereby;
(e) to make any change that would provide any
additional rights or benefits to the Holders of the Notes;
(f) to provide for the issuance of Additional Notes in
accordance with the provisions set forth in this Indenture;
(g) to comply with requirements of the Commission in
order to effect or maintain the qualification of this Indenture
under the TIA; or
(h) to make any other change, provided that such other
change does not adversely affect the legal rights hereunder of
any Holder of the Notes or to surrender any right or power
conferred upon ▇▇▇▇▇▇ International or the Company.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of
any such amended or supplemental Indenture, and upon receipt by
the Trustee of the documents described in Section 7.02(b) hereof,
the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the
terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into such amended or
supplemental Indenture that, by its express terms, affects its
own rights, duties or immunities under this Indenture or
otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the
Company and the Trustee may amend or supplement this Indenture
(including Sections 3.09, 4.10 and 4.15 hereof) and the Notes may
be amended or supplemented with the 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), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment
of the principal of, premium, if any, or interest on the Notes,
except a payment default resulting from an acceleration that has
been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the
Holders of 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). Without the consent of
at least 75% in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, such Notes), no waiver or
amendment to this Indenture may make any change in the provisions
of Article 10 hereof that adversely affects the rights of any
Holder of Notes. Section 2.08 hereof shall determine which Notes
are considered to be "outstanding" for purposes of this Section
9.02.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of
any such amended or supplemental Indenture, 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 7.02(b) hereof,
the Trustee shall join with the Company in the execution of such
amended or supplemental Indenture unless such amended or
supplemental Indenture, by its express terms, 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 amended or
supplemental Indenture.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled
to consent to any indenture supplemental hereto. If a record date
is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided that
unless such consent shall have become effective by virtue of the
requisite percentage having been obtained prior to the date which
is 180 days after such record date, any such consent previously
given shall automatically and without further action by any
Holder be canceled and of no further effect.
It shall not be necessary for the consent of the
Holders of Notes under this Section 9.02 to approve the
particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Holders
of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and
6.07 hereof, the Holders of a majority in aggregate 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 affected, an amendment or waiver may not (with respect to
any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed
maturity of any Note or alter the provisions with respect to the
redemption of the Notes;
(c) reduce the rate of or change the time for payment
of interest on any Note;
(d) waive a Default in the payment of principal of or
premium, if any, or interest or Additional Interest, if any, on
the Notes (except a rescission of acceleration of the Notes by
the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes and a waiver of the payment default
that resulted from such acceleration);
(e) make any Note payable in money other than that
stated in the Notes;
(f) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights of
Holders of Notes to receive payments of principal of, or interest
or premium or Additional Interest, if any, on the Notes;
(g) waive a redemption payment with respect to any
Note;
(h) release any Guarantor from any of its obligations
under its Guarantee or this Indenture, except in accordance with
the terms of this Indenture; or
(i) make any change in the foregoing amendment and
waiver provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Notes shall be set forth in an amended or supplemental Indenture
that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing
consent by the Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the
consenting ▇▇▇▇▇▇'s Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or
subsequent Holder of a Note may revoke the consent as to its Note
if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.06. Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental
Indenture authorized pursuant to this Article 9 if the amendment
or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not
sign an amendment or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive and (subject
to Section 7.01 hereof) shall be fully protected in relying upon,
an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that the
supplemental indenture will be valid and binding on the Company.
ARTICLE 10.
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Note
agrees, that the Indebtedness evidenced by the Notes is
subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment in full in cash
or Cash Equivalents 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 10.02. Liquidation; Dissolution; Bankruptcy.
The holders of Senior Debt shall be entitled to receive
payment in full of all Obligations due in respect of Senior Debt
(including interest after the commencement of any bankruptcy
proceeding at the rate specified in the applicable Senior Debt)
before the Holders of Notes will be entitled to receive any
payment with respect to the Notes (except that Holders of Notes
may receive and retain Permitted Junior Securities and payments
made from the trust described in Article 8), in the event of any
distribution to creditors of the Company: (i) in a liquidation or
dissolution of ▇▇▇▇▇▇; (ii) in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to ▇▇▇▇▇▇
or its property; (iii) in an assignment for the benefit of
creditors; or (iv) in any marshaling of the Company's assets and
liabilities.
Section 10.03. Default on Designated Senior Debt.
The Company may not make any payment or distribution to
the Trustee or any Holder in respect of Obligations with respect
to the Notes and may not acquire from the Trustee or any Holder
any Notes for cash or property (other than (i) Permitted Junior
Securities and (ii) payments and other distributions made from
any defeasance trust created pursuant to Section 8.01 hereof)
until all principal and other Obligations with respect to the
Senior Debt have been paid in full if:
(i) a default in the payment of any principal or other
Obligations with respect to Designated Senior Debt occurs
and is continuing beyond any applicable grace period; or
(ii) a default, other than a payment default, on any
series of Designated Senior Debt occurs and is continuing
that then permits holders of such series of Designated
Senior Debt to accelerate its maturity and the Trustee
receives a written notice of the default (a "Payment
Blockage Notice") from the holders of or a Representative
with respect such series of Designated Senior Debt. If the
Trustee receives any such Payment Blockage Notice, no
subsequent Payment Blockage Notice shall be effective for
purposes of this Section unless and until (i) at least 360
days shall have elapsed since the delivery of the
immediately prior Payment Blockage Notice and (ii) all
scheduled payments of principal, interest, premium and
Additional Interest, if any, on the Notes that have come due
have been paid in full in cash. No nonpayment 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 unless
such default shall have been cured or waived for a period of
not less than 90 days.
The Company may and shall resume payments on and
distributions in respect of the Notes and may acquire them upon
the earlier of:
(1) in the case of a payment default, the date upon
which such default is cured or waived, and
(2) in the case of a nonpayment default referred to in
Section 10.03(ii) hereof, unless the maturity of any
Designated Senior Debt has been accelerated, upon the
earliest of the dates on which one of the following events
occurs:
(a) the Person who gave the Payment Blockage
Notice terminates the blockage period by written notice
to the Trustee and the Company;
(b) the default giving rise to the Payment
Blockage Notice is cured, waived or otherwise no longer
continuing;
(c) the Designated Senior Debt has been
discharged or paid in full; or
(d) 179 days after the date on which the
applicable Payment Blockage Notice has been received,
if this Article otherwise permits the payment, distribution or
acquisition at the time of such payment or acquisition.
Section 10.04. Acceleration of Securities.
If payment of the Securities is accelerated because of
an Event of Default, the Company shall promptly notify holders of
Senior Debt of the acceleration.
Section 10.05. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives
any payment of any Obligations with respect to the Notes at a
time when the Trustee or such Holder, as applicable, has actual
knowledge that such payment is prohibited by this Article 10,
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, upon written request, 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 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 negligence of the Trustee.
Section 10.06. Notice by Company
The Company shall promptly notify in writing 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 10, but failure to give such notice
shall not affect the subordination of the Notes to the Senior
Debt as provided in this Article 10.
Section 10.07. Subrogation.
After all Senior Debt is paid in full in cash and until
the Notes are paid in full, Holders of Notes 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 of Notes have been
applied to the payment of Senior Debt. A distribution made under
this Article 10 to holders of Senior Debt that otherwise would
have been made to Holders of Notes is not, as between the Company
and Holders, a payment by the Company on the Notes.
Section 10.08. Relative Rights.
This Article 10 defines the relative rights of Holders
of Notes and holders of Senior Debt. Nothing in this Indenture
shall:
(1) impair, as between the Company and
Holders of Notes, the obligation of the Company, which
is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of
Notes and creditors of the Company other than their
rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder of
Notes from exercising its available remedies upon a
Default or Event of Default, subject to (i) the rights
of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders
of Notes and (ii) the notice provisions of Section 6.02
hereof.
If the Company fails because of this Article 10 to pay
principal of or interest on a Note on the due date, the failure
is still a Default or Event of Default.
Section 10.09. 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 of Notes 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 of Notes 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.
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 the Trustee shall have
received at its Corporate Trust Office at least three Business
Days prior to the date of such payment written notice of facts
(in the form of an officer's certificate) that would cause the
payment of any Obligations with respect to the Notes to violate
this Article 10. 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 7.07
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 Notes, by the Holder's acceptance
thereof, authorizes and directs the Trustee on such ▇▇▇▇▇▇'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 such ▇▇▇▇▇▇'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 6.09 hereof at least 30 days
before the expiration of the time to file such claim, the credit
agents are hereby authorized to file an appropriate claim for and
on behalf of the Holders of the Notes.
Section 10.13. Amendments.
The provisions of this Article 10 shall not be amended
or modified without the written consent of the holders of at
least 75% in aggregate principal amount of the Notes then
outstanding if such amendment would adversely affect the rights
of Holders of Notes.
ARTICLE 11.
GUARANTEES
Section 11.01. Guarantees.
Subject to Section 11.04 hereof, each of the Guarantors
hereby, jointly and severally, unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, the Notes and the
Obligations of the Company hereunder and thereunder, that:
(a) the principal of, premium, if any, interest and Additional
Interest, if any, on the Notes will be promptly paid in full when
due, subject to any applicable grace period, whether at maturity,
by acceleration, redemption or otherwise, and interest on the
overdue principal, premium, if any (to the extent permitted by
law), interest on any interest, if any, and Additional Interest,
if any, on the Notes, and all other payment Obligations of the
Company to the Holders or all other obligations of the Company to
the Trustee hereunder or thereunder will be promptly paid in full
and performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, the same
will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so
due of any amount so guaranteed or any performance so guaranteed
for whatever reason the Guarantors will be jointly and severally
obligated to pay the same immediately. An Event of Default under
this Indenture or the Notes shall constitute an event of default
under the Guarantees, and shall entitle the Holders to accelerate
the obligations of the Guarantors hereunder in the same manner
and to the same extent as the Obligations of the Company.
The Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity or
enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder
with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Each
Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands
whatsoever and covenants that its Guarantee will not be
discharged except by complete performance of the Obligations
contained in the Notes and this Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any Note Custodian, Trustee,
liquidator or other similar official acting in relation to either
the Company or the Guarantors, any amount paid by the Company or
any Guarantor to the Trustee or such Holder, the Guarantees, to
the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor agrees that it shall not be
entitled to, and hereby waives, any right of subrogation in
relation to the Holders in respect of any Obligations guaranteed
hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the
purposes of its Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of
the Obligations guaranteed thereby, and (y) in the event of any
declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantor
for the purpose of its Guarantee. The Guarantors shall have the
right to seek contribution from any non-paying Guarantor as
provided in Section 11.06 hereof so long as the exercise of such
right does not impair the rights of the Holders or the Trustee
under the Guarantees or this Indenture.
Section 11.02. Subordination of Guarantee.
The Obligations of each Guarantor under its Guarantee
pursuant to this Article 11 shall be junior and subordinated to
the Senior Debt of such Guarantor on the same basis as the Notes
are junior and subordinated to Senior Debt of the Company. For
the purposes of the foregoing sentence, the Trustee and the
Holders shall have the right to receive and/or retain payments by
any of the Guarantors only at such times as they may receive
and/or retain payments in respect of the Notes pursuant to this
Indenture, including Article 11 hereof.
Section 11.03. Execution and Delivery of Guarantee.
(a) To evidence its Guarantee set forth in Section
11.01 hereof, each Guarantor hereby agrees that a notation of
such Guarantee substantially in the form of Exhibit E hereto
shall be endorsed by manual or facsimile signature by an Officer
of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf of
such Guarantor, by manual or facsimile signature, by an Officer
of such Guarantor.
(b) Each Guarantor hereby agrees that its Guarantee
set forth in Section 11.01 hereof shall remain in full force and
effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee.
(c) If an officer whose signature is on this Indenture
or on any Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which such Guarantee is
endorsed, such Guarantee shall be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery
of the Guarantees set forth in this Indenture on behalf of the
Guarantors.
(e) In the event that ▇▇▇▇▇▇ International or the
Company creates or acquires any new Subsidiaries subsequent to
the date of this Indenture, if required by Section 4.17 hereof,
▇▇▇▇▇▇ International or the Company, as the case may be, shall
cause such Subsidiaries to execute supplemental indentures to
this Indenture and Guarantees in accordance with Section 4.13
hereof and this Article 11, to the extent applicable.
Section 11.04. Guarantors May Consolidate, Etc., on Certain
Terms.
(a) Except as set forth in Articles 4 and 5 hereof,
nothing contained in this Indenture shall prohibit a merger
between a Guarantor and another Guarantor or a merger between a
Guarantor and the Company.
(b) No Guarantor shall consolidate with or merge with
or into (whether or not such Guarantor is the surviving Person)
or sell or otherwise dispose of all or substantially all of its
assets to, another Person (other than the Company or another
Guarantor) unless (i) immediately after giving effect to such
transaction, no Default exists and (ii) either (x) the Person
formed by or surviving any such merger or consolidation, or to
which such sale of assets shall have been made (if other than
such Guarantor) assumes all the obligations of such Guarantor
under this Indenture, its Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture substantially in
the form of Exhibit F hereto, or (y) the Net Proceeds of such
transaction are applied in accordance with Section 4.10 hereof.
Notwithstanding the foregoing, any Guarantor that is a Subsidiary
of ▇▇▇▇▇▇ International may merge with another Subsidiary of
▇▇▇▇▇▇ International that has no significant assets or
liabilities and was incorporated solely for the purpose of
reincorporating such Guarantor in another State of the United
States so long as the amount of Indebtedness of ▇▇▇▇▇▇
International and its Restricted Subsidiaries is not increased
thereby.
(c) In the case of any such consolidation, merger,
sale or conveyance and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the
Trustee and substantially in the form of Exhibit F hereto, of the
Guarantees endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this
Indenture to be performed by the Guarantor, such successor Person
shall succeed to and be substituted for the Guarantor with the
same effect as if it had been named herein as a Guarantor. Such
successor Person thereupon may cause to be signed any or all of
the Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee. All of the Guarantees so
issued shall in all respects have the same legal rank and benefit
under this Indenture as the Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though
all of such Guarantees had been issued at the date of the
execution hereof.
Section 11.05. Releases of Guarantees.
(a) In the event of (i) a sale or other disposition of
all or substantially all of the assets of any Guarantor that is a
Subsidiary of ▇▇▇▇▇▇ International, or (ii) a sale or other
disposition of all of the Capital Stock of any Guarantor that is
a Subsidiary of ▇▇▇▇▇▇ International, in each case to a Person
that is not (either before or after giving effect to such
transaction) a Subsidiary of ▇▇▇▇▇▇ International, then such
Guarantor shall be automatically released and relieved of any
obligations under this Indenture and its Guarantee; provided that
(i) the Net Proceeds from such sale or other disposition are
treated in accordance with the provisions of Section 4.10 hereof
and (ii) the Company and ▇▇▇▇▇▇ International are in compliance
with all other provisions of this Indenture applicable to such
disposition.
(b) Upon the designation of a Guarantor that is a
Subsidiary of ▇▇▇▇▇▇ International by ▇▇▇▇▇▇ International as an
Unrestricted Subsidiary or a Receivables Subsidiary in accordance
with the terms of this Indenture, such Guarantor shall be
released and relieved of any obligations under this Indenture and
its Guarantee.
(c) In the event of the Company's exercise of its
option under Section 8.01 hereof, each Guarantor that is a
Subsidiary of ▇▇▇▇▇▇ International shall be released and relieved
of any obligations under this Indenture and its Guarantee.
(d) Upon delivery by the Company to the Trustee of an
Officers' Certificate to the effect of any of the foregoing, the
Trustee shall execute any documents reasonably required in order
to evidence the release of any Guarantor that is a Subsidiary of
▇▇▇▇▇▇ International from its obligations under its Guarantee.
Any such Guarantor not released from its obligations under its
Guarantee shall remain liable for the full amount of principal
of, premium, if any, interest and Additional Interest, if any, on
the Notes and for the other obligations of such Guarantor under
this Indenture as provided in this Article 11.
Section 11.06. Limitation on Guarantor Liability;
Contribution.
(a) For purposes hereof, each Guarantor's liability
shall be limited to the lesser of (i) the aggregate amount of the
Obligations of the Company under the Notes and this Indenture and
(ii) the maximum amount that will result in the obligations of
such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance under applicable law of any relevant
jurisdiction; provided that, it will be a presumption in any
lawsuit or other proceeding in which a Guarantor is a party that
the amount guaranteed pursuant to its Guarantee is the amount set
forth in clause (i) above unless any creditor, or representative
of creditors of such Guarantor, or debtor in possession or
trustee in bankruptcy of the Guarantor, otherwise proves in such
a lawsuit that the aggregate liability of the Guarantor is the
amount set forth in clause (ii) above. In making any
determination as to solvency or sufficiency of capital of a
Guarantor in accordance with the previous sentence, the right of
such Guarantor to contribution from other Guarantors as set forth
below, and any other rights such Guarantor may have, contractual
or otherwise, shall be taken into account.
(b) In order to provide for just and equitable
contribution among the Guarantors, the Guarantors agree, inter
se, that in the event any payment or distribution is made by any
Guarantor (a "Funding Guarantor") under its Guarantee, such
Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net
Assets of each Guarantor (including the Funding Guarantor) for
all payments, damages and expenses incurred by that Funding
Guarantor in discharging the Company's Obligations with respect
to the Notes or any other Guarantor's obligations with respect to
its Guarantee.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA 318(c), the imposed
duties shall control.
Section 12.02. Notices.
Any notice or communication by the Company or the
Trustee to the others is duly given if in writing and delivered
in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier
guaranteeing next day delivery, to the others' address:
If to the Company or any Guarantor:
▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-1602
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
With a copy to:
▇▇▇▇▇▇▇, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
If to the Trustee:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 25th Floor
Mail Code HQ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-1532
Attention: Corporate Trust Division
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
The Company or the Trustee, by notice to the others may
designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent
to Holders) shall take effect at the time of receipt thereof.
Any notice or communication to a Holder shall be mailed
by first class mail, certified or registered, return receipt
requested, or by overnight air courier guaranteeing next day
delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at
the same time.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Noteholders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 12.03. Communications by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA 312(b) with
other Holders with respect to their rights under this Indenture
or the Notes. The Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA 312(c).
Section 12.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in
the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in
the opinion of such counsel, all such conditions precedent have
been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA 314(a)(4))
shall comply with the provisions of TIA 314(e) and shall
include:
(a) a statement that the Person making such
certificate or opinion has read such covenant or condition and
the definitions relating thereto;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been satisfied.
Section 12.06. Rule by Trustee and Agents.
The Trustee may make reasonable rules for action by or
at a meeting of Holders. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its
functions.
Section 12.07 No Personal Liability of Directors, Officers,
Employees and Stockholders.
No director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or the
Guarantors under the Notes, this Indenture, the Guarantees 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 are part of the consideration for issuance of the Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE
GUARANTEES.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its
Subsidiaries or of any other Person. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
Section 12.10. Successors.
All agreements of the Company in this Indenture and the
Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
Section 12.13. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the
terms or provisions hereof.
[Signatures on following pages]
SIGNATURES
Dated as of August 19, 1999
▇▇▇▇▇▇, INC.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇ INTERNATIONAL, INC.
By:___________________________________
Name:
Title:
BI HOLDINGS CORP.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ COMPANY
By:___________________________________
Name:
Title:
BI, L.L.C.
By: ▇▇▇▇▇▇, Inc. as Member of BI, L.L.C.
By:______________________________
Name:
Title:
By: BI Holdings Corp. as Member of
BI, L.L.C.
By:______________________________
Name:
Title:
▇▇▇▇▇▇ DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:___________________________________
Name:
Title:
4520 CORP., INC.
By:___________________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:___________________________________
Name:
Title:
▇▇▇▇▇ INDUSTRIES, INC.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇ MANUFACTURING CORPORATION
By:___________________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇ OUTDOOR CORPORATION
By:___________________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:___________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: _________________________________________
Name:
Title:
EXHIBIT A1
(Face of Note)
CUSIP/CINS ▇▇▇▇▇▇▇▇▇
13% Senior Subordinated Notes due 2009
No. ___ $_________
▇▇▇▇▇▇, INC.
promises to pay to _____________________________________
or registered assigns,
the principal sum of ___________________________________
Dollars on August 1, 2009.
Interest Payment Dates: August 1 and February 1.
Record Dates: July 15 and January 15.
Dated: [______________]
▇▇▇▇▇▇, INC.
By:
Name:
Title:
By:
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
Dated: ______________
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
Name:
Title:
(Back of Note)
13% Senior Subordinated Notes due 2009
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.]1
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-
U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE
COMPANY, THE TRUSTEE, AND THE REGISTRAR SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING IN THE INDENTURE
GOVERNING THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
--------------
1 This paragraph should be included only if the Note is issued in
global form.
--------------
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless
otherwise indicated.
1. Interest. ▇▇▇▇▇▇, Inc., a Delaware corporation
("▇▇▇▇▇▇" or the "Company"), promises to pay interest on the
principal amount of this Note at 13% per annum from August 19,
1999 until maturity and shall pay the Additional Interest payable
pursuant to Section 5 of the Registration Rights Agreement
referred to below. The Company will pay interest and Additional
Interest, if any, semi-annually on February 1 and August 1 of
each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"), with
the same force and effect as if made on the date for such
payment. Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be
February 1, 2000 Interest will be computed on the basis of a 360-
day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on
the Notes (except defaulted interest) and Additional Interest to
the Persons who are registered Holders of Notes at the close of
business on the January 1 or July 15 next (whether or not a
Business Day) preceding the Interest Payment Date, even if such
Notes are canceled after such record date and on or before such
Interest Payment Date. The Notes will be payable as to principal,
premium and Additional Interest, if any, and interest 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 Additional Interest may be made
by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer
of immediately available funds will be required with respect to
principal of and interest, premium and Additional Interest, if
any, on, all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, United States
Trust Company of New York, the Trustee under the Indenture, will
act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. Indenture; Subordination. The Company issued the Notes
under an Indenture dated as of August 19, 1999 (the "Indenture")
among the Company, the Guarantors named therein and the Trustee.
The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of such terms. To
the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The Notes issuable under the
Indenture are obligations of the Company limited to $450,000,000
in aggregate principal amount, plus amounts, if any, issued to
pay Additional Interest on outstanding Notes as set forth in
Paragraph 2 hereof.
The Notes are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior
payment in full in cash or Cash Equivalents of all Senior Debt,
whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed. The Guarantees in
respect of the Notes will be subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior
Debt of each Guarantor, whether outstanding on the date of the
Indenture or thereafter created, incurred assumed or guaranteed.
Each Holder by its acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on
its behalf, to take such action as may be necessary or
appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee its attorney-in-fact for such
purposes.
5. Optional Redemption.
(a) Except as set forth in clause (b) of this
paragraph 5, the Notes shall not be redeemable at the Company's
option prior to August 1, 2004. Thereafter, the Notes shall be
subject to redemption at any time 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 Additional Interest thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month
period beginning on August 1 of the years indicated below:
Year Percentage
---- ----------
2004 106.500%
2005 104.333%
2006 102.167%
2007 and thereafter 100.000%
(b) Notwithstanding the foregoing, on or prior to
August 1, 2002, the Company may on any one or more occasions
redeem up to an aggregate of 35% of the Notes originally issued
at a redemption price of 113% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest thereon,
if any, to the redemption date (subject to the right of Holders
of record on the relevant record date to receive interest due on
the relevant interest payment date), with the net cash proceeds
of one or more Equity Offerings by the Company or the net cash
proceeds of one or more Equity Offerings by ▇▇▇▇▇▇ International
that are contributed to the Company as common equity capital;
provided that at least 65% of the Notes originally issued remain
outstanding immediately after the occurrence of each such
redemption (excluding Notes held by ▇▇▇▇▇▇ International, the
Company and their Subsidiaries); and provided, further, that any
such redemption must occur within 90 days of the date of the
closing of such Equity Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company
shall not be required to make mandatory redemption payments with
respect to the Notes.
7. Repurchase At Option Of Holder.
(a) If there is a Change of Control, the Company shall
be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes at a purchase price
equal to 101% of aggregate principal amount thereof plus accrued
and unpaid interest and Additional Interest thereon, if any, to
the date of purchase (in either case, the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by
the Indenture.
(b) If the Company or any of its Restricted
Subsidiaries consummates any Asset Sales, when the aggregate
amount of Excess Proceeds exceeds $20,000,000, the Company will
be required to make an offer to all Holders of Notes and any
other Indebtedness that ranks pari passu with the Notes that, by
its terms, requires the Company to offer to repurchase such
Indebtedness with such Excess Proceeds (an "Asset Sale Offer"),
to purchase the maximum principal amount of Notes and such other
pari passu Indebtedness that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of
the principal amount of Notes and other Indebtedness to be
purchased or the lessor amount required under agreements
governing such other Indebtedness, plus accrued and unpaid
interest and Additional Interest, if any, to the date of
purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes or
pari passu Indebtedness tendered pursuant to an Asset Sale Offer
is less than the Excess Proceeds, the Company may use any Excess
Proceeds for any purpose not prohibited by the Indenture. If the
aggregate principal amount of Notes or pari passu Indebtedness
surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a
pro rata basis. Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes.
8. Notice Of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed. On
and after the redemption date interest ceases to accrue on Notes
or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any
Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, it
need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding
Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
11. Amendment, Supplement And Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes, and
any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding
Notes. Without the consent of any Holder of a Note, the Indenture
or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to
Holders of the Notes in case of a merger or consolidation or sale
of all or substantially all of the Company's assets, to provide
for the assumption of ▇▇▇▇▇▇ International's obligations to
Holders of Notes in respect of the Guarantees in the case of a
merger or consolidation or sale of all or substantially all of
▇▇▇▇▇▇ International's assets, to make any change that would
provide any additional rights or benefits to the Holders of the
Notes or any other change that does not adversely affect the
legal rights under the Indenture of any such Holder or to
surrender any right or power conferred upon the Company or ▇▇▇▇▇▇
International, to provide for the issuance of Additional Notes in
accordance with the Indenture, or to comply with the requirements
of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
12. Defaults And Remedies. An "Event of Default" occurs if:
(i) the Company defaults in the payment when due of interest on,
or Additional Interest, if any, with respect to, the Notes and
such default continues for a period of 30 days whether or not
prohibited by Article 10 of the Indenture; (ii) the Company
defaults in the payment when due of the principal of or premium,
if any, on the Notes whether or not prohibited by Article 10 of
the Indenture; (iii) ▇▇▇▇▇▇ International or any of its
Restricted Subsidiaries fails to purchase any of the Notes as
required under the provisions of Section 4.10 or 4.15 of the
Indenture, or comply with the provisions of Section 5.01 of the
Indenture; (iv) ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries fails to comply with the provisions of Sections 4.10
(other than a failure to purchase Notes), 4.15 (other than a
failure to purchase Notes), 4.07 and 4.09 for 30 days after
notice of such failure has been given; (v) ▇▇▇▇▇▇ International
or any of its Restricted Subsidiaries fails to observe or perform
any other agreements in the Indenture or the Notes for 60 days
after notice of such failure has been given; (vi) a default
occurs 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 ▇▇▇▇▇▇ International or
any of its Significant Subsidiaries (or the payment of which is
guaranteed by ▇▇▇▇▇▇ International or any of its Significant
Subsidiaries), whether such Indebtedness or guarantee now exists,
or is created after the Issue Date, which default (A) is caused
by a failure to pay principal of such Indebtedness at final
maturity and after giving effect to the applicable grace period,
if any, provided in such Indebtedness on the date of such default
(a "Payment Default"), or (B) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the
principal amount of 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 without duplication $25,000,000 or more;
(vii) ▇▇▇▇▇▇ International or any of its Significant Subsidiaries
fails to pay final judgments aggregating in excess of
$25,000,000, which judgments are not paid, discharged or stayed
for a period of 60 consecutive days; (viii) except as permitted
by the Indenture, if any Guarantee is held in any judicial
proceeding to be unenforceable or invalid or shall cease for any
reason (other than in accordance with the terms of such Guarantee
and the Indenture) to be in full force and effect or any
Guarantor, or if any Person acting on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Guarantee; and
(ix) certain events of bankruptcy or insolvency with respect to
▇▇▇▇▇▇ International or any of its Significant Subsidiaries.
In the case of an Event of Default arising from certain
events of bankruptcy or insolvency, with respect to ▇▇▇▇▇▇
International or the Company, all outstanding Notes will become
due and payable without further action or notice. If any other
Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately, provided that so long as any Indebtedness permitted
to be incurred pursuant to the Indebtedness under the New Credit
Facilities shall be outstanding, the acceleration shall not be
effective until the earlier of (i) an acceleration of any
Indebtedness under the New Credit Facilities or (ii) five
Business Days after receipt by the Company of written notice of
the acceleration of the Notes. Holders of the Notes may not
enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing
Default (except a Default relating to the payment of principal or
interest) if it determines that withholding notice is in their
interest.
In the case of any Event of Default 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 the optional
redemption provisions of the Indenture, 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 August 1, 2004 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 August 1, 2004, 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.
The Holders of a majority in aggregate principal amount of
the Notes then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default and
its consequences under the Indenture except a continuing Default
in the payment of interest or Additional Interest on, or the
principal of, the Notes.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. Trustee Dealings With Company. The Trustee, in its
individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer,
employee, incorporator or stockholder, of the Company, as such,
shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration
for the issuance of the Notes.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
16. 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).
17. Additional Rights Of Holders Of Transfer Restricted
Securities. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Transferred Restricted
Securities shall have all the rights set forth in the
Registration Rights Agreement dated as of August 19, 1999 between
the Company and the parties named on the signature pages thereof
(the "Registration Rights Agreement").
18. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP, CINS and/or ISIN
numbers to be printed on the Notes and the Trustee may use CUSIP,
CINS and/or ISIN numbers in notices of redemption as a
convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
19. Governing Law. The internal law of the State of New
York shall govern and be used to construe this Note.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-1602
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
_________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________________________
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
_________________________________________________________________
Date:
Your Signature:____________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:____________
SIGNATURE GUARANTEE:
___________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, check
the box below:
_ _
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture, state the amount you elect to have purchased:
$______________
Date:___________ Your Signature:____________________
(Sign exactly as your name appears
on the Note)
Tax Identification No.:____________
SIGNATURE GUARANTEE:
___________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE2
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for
an interest in this Global Note, have been made:
Principal
Amount of
this Global Signature
Amount of Amount of Note of
decrease in increase in following authorized
Principal Principal such officer of
Amount of Amount of decrease Trustee or
Date of this Global this Global (or Note
Exchange Note Note increase) Custodian
------------ ------------ ------------ ------------- ----------
---------
2 This should be included only if the Note is issued in global form.
---------
EXHIBIT A2
(Face of Regulation S Temporary Global Note)
CUSIP/CINS 409288AA6
13% Senior Subordinated Notes due 2009
No. ___ $_________
▇▇▇▇▇▇, INC.
promises to pay to _________________________________________
or registered assigns,
the principal sum of _______________________________________
Dollars on August 1, 2009.
Interest Payment Dates: August 1 and February 1.
Record Dates: July 15 and January 15.
Dated: [______________]
▇▇▇▇▇▇, INC.
By:_______________________________
Name:
Title:
By:_______________________________
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
Dated: ______________
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:___________________________
Name:
Title:
(Back of Regulation S Temporary Global Note)
13% Senior Subordinated Notes due 2009
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE
PAYMENT OF INTEREST HEREON.
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.]1
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED
BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON
WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A
INSIDE THE UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-
U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE
COMPANY, THE TRUSTEE, AND THE REGISTRAR SHALL HAVE THE RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OF TRANSFER IN THE FORM APPEARING IN THE INDENTURE
GOVERNING THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR
TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
----------------
1 This paragraph should be included only if the Note is issued in
global form.
----------------
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless
otherwise indicated.
1. Interest. ▇▇▇▇▇▇, Inc., a Delaware corporation
("▇▇▇▇▇▇" or the "Company"), promises to pay interest on the
principal amount of this Note at 13% per annum from August 19,
1999 until maturity and shall pay the Additional Interest payable
pursuant to Section 5 of the Registration Rights Agreement
referred to below. The Company will pay interest and Additional
Interest, if any, semi-annually on February 1 and August 1 of
each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"), with
the same force and effect as if made on the date for such
payment. Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be
February 1, 2000. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
Until this Regulation S Temporary Global Note is exchanged
for one or more Regulation S Permanent Global Notes, the Holder
hereof shall not be entitled to receive payments of interest
hereon; until so exchanged in full, this Regulation S Temporary
Global Note shall in all other respects be entitled to the same
benefits as other Notes under the Indenture.
2. Method of Payment. The Company will pay interest on
the Notes (except defaulted interest) and Additional Interest to
the Persons who are registered Holders of Notes at the close of
business on the January 15 or July 15 next (whether or not a
Business Day) preceding the Interest Payment Date, even if such
Notes are canceled after such record date and on or before such
Interest Payment Date. The Notes will be payable as to principal,
premium and Additional Interest, if any, and interest 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 Additional Interest may be made
by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer
of immediately available funds will be required with respect to
principal of and interest, premium and Additional Interest, if
any, on, all Global Notes and all other Notes the Holders of
which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, United States
Trust Company of New York, the Trustee under the Indenture, will
act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. Indenture; Subordination. The Company issued the Notes
under an Indenture dated as of August 19, 1999 (the "Indenture")
among the Company, the Guarantors named therein and the Trustee.
The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of such terms. To
the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The Notes issuable under the
Indenture are obligations of the Company limited to $450,000,000
in aggregate principal amount, plus amounts, if any, issued to
pay Additional Interest on outstanding Notes as set forth in
Paragraph 2 hereof.
The Notes are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior
payment in full in cash or Cash Equivalents of all Senior Debt,
whether outstanding on the date of the Indenture or thereafter
created, incurred, assumed or guaranteed. The Guarantees in
respect of the Notes will be subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior
Debt of each Guarantor, whether outstanding on the date of the
Indenture or thereafter created, incurred assumed or guaranteed.
Each Holder by its acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on
its behalf, to take such action as may be necessary or
appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee its attorney-in-fact for such
purposes.
5. Optional Redemption.
(a) Except as set forth in clause (b) of this
paragraph 5, the Notes shall not be redeemable at the Company's
option prior to August 1, 2004. Thereafter, the Notes shall be
subject to redemption at any time 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 Additional Interest thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month
period beginning on August 1 of the years indicated below:
Year Percentage
---- ----------
2004 106.500%
2005 104.333%
2006 102.167%
2007 and thereafter 100.000%
(b) Notwithstanding the foregoing, on or prior to
August 1, 2002, the Company may on any one or more occasions
redeem up to an aggregate of 35% of the Notes originally issued
at a redemption price of 113% of the principal amount thereof,
plus accrued and unpaid interest and Additional Interest thereon,
if any, to the redemption date (subject to the right of Holders
of record on the relevant record date to receive interest due on
the relevant interest payment date), with the net cash proceeds
of one or more Equity Offerings by the Company or the net cash
proceeds of one or more Equity Offerings by ▇▇▇▇▇▇ International
that are contributed to the Company as common equity capital;
provided that at least 65% of the Notes originally issued remain
outstanding immediately after the occurrence of each such
redemption (excluding Notes held by ▇▇▇▇▇▇ International, the
Company and their Subsidiaries); and provided, further, that any
such redemption must occur within 90 days of the date of the
closing of such Equity Offering.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company
shall not be required to make mandatory redemption payments with
respect to the Notes.
7. Repurchase At Option Of Holder.
(a) If there is a Change of Control, the Company shall
be required to make an offer (a "Change of Control Offer") to
repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of each Holder's Notes at a purchase price
equal to 101% of aggregate principal amount thereof plus accrued
and unpaid interest and Additional Interest thereon, if any, to
the date of purchase (in either case, the "Change of Control
Payment"). Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by
the Indenture.
(b) If the Company or any of its Restricted
Subsidiaries consummates any Asset Sales, when the aggregate
amount of Excess Proceeds exceeds $20,000,000, the Company will
be required to make an offer to all Holders of Notes and any
other Indebtedness that ranks pari passu with the Notes that, by
its terms, requires the Company to offer to repurchase such
Indebtedness with such Excess Proceeds (an "Asset Sale Offer"),
to purchase the maximum principal amount of Notes and such other
pari passu Indebtedness that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of
the principal amount of Notes and other Indebtedness to be
purchased or the lessor amount required under agreements
governing such other Indebtedness, plus accrued and unpaid
interest and Additional Interest, if any, to the date of
purchase, in accordance with the procedures set forth in the
Indenture. To the extent that the aggregate amount of Notes or
pari passu Indebtedness tendered pursuant to an Asset Sale Offer
is less than the Excess Proceeds, the Company may use any Excess
Proceeds for any purpose not prohibited by the Indenture. If the
aggregate principal amount of Notes or pari passu Indebtedness
surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a
pro rata basis. Holders of Notes that are the subject of an
offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes.
8. Notice Of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at
its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed. On
and after the redemption date interest ceases to accrue on Notes
or portions thereof called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any
Note or portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part. Also, it
need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding
Interest Payment Date.
This Regulation S Temporary Global Note is exchangeable in
whole or in part for one or more Global Notes only (i) on or
after the termination of the 40-day distribution compliance
period (as defined in Regulation S) and (ii) upon presentation of
certificates (accompanied by an Opinion of Counsel, if
applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Note for one or
more Global Notes, the Trustee shall cancel this Regulation S
Temporary Global Note.
10. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
11. Amendment, Supplement And Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes, and
any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding
Notes. Without the consent of any Holder of a Note, the Indenture
or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to
Holders of the Notes in case of a merger or consolidation or sale
of all or substantially all of the Company's assets, to provide
for the assumption of ▇▇▇▇▇▇ International's obligations to
Holders of Notes in respect of the Guarantees in the case of a
merger or consolidation or sale of all or substantially all of
▇▇▇▇▇▇ International's assets, to make any change that would
provide any additional rights or benefits to the Holders of the
Notes or any other change that does not adversely affect the
legal rights under the Indenture of any such Holder or to
surrender any right or power conferred upon the Company or ▇▇▇▇▇▇
International, to provide for the issuance of Additional Notes in
accordance with the Indenture, or to comply with the requirements
of the Commission in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
12. Defaults And Remedies. An "Event of Default" occurs if:
(i) the Company defaults in the payment when due of interest on,
or Additional Interest, if any, with respect to, the Notes and
such default continues for a period of 30 days whether or not
prohibited by Article 10 of the Indenture; (ii) the Company
defaults in the payment when due of the principal of or premium,
if any, on the Notes whether or not prohibited by Article 10 of
the Indenture; (iii) ▇▇▇▇▇▇ International or any of its
Restricted Subsidiaries fails to purchase any of the Notes as
required under the provisions of Section 4.10 or 4.15 of the
Indenture, or comply with the provisions of Section 5.01 of the
Indenture; (iv) ▇▇▇▇▇▇ International or any of its Restricted
Subsidiaries fails to comply with the provisions of Sections 4.10
(other than a failure to purchase Notes), 4.15 (other than a
failure to purchase Notes), 4.07 and 4.09 for 30 days after
notice of such failure has been given; (v) ▇▇▇▇▇▇ International
or any of its Restricted Subsidiaries fails to observe or perform
any other agreements in the Indenture or the Notes for 60 days
after notice of such failure has been given; (vi) a default
occurs 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 ▇▇▇▇▇▇ International or
any of its Significant Subsidiaries (or the payment of which is
guaranteed by ▇▇▇▇▇▇ International or any of its Significant
Subsidiaries), whether such Indebtedness or guarantee now exists,
or is created after the Issue Date, which default (A) is caused
by a failure to pay principal of such Indebtedness at final
maturity and after giving effect to the applicable grace period,
if any, provided in such Indebtedness on the date of such default
(a "Payment Default"), or (B) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the
principal amount of 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 without duplication $25,000,000 or more;
(vii) ▇▇▇▇▇▇ International or any of its Significant Subsidiaries
fails to pay final judgments aggregating in excess of
$25,000,000, which judgments are not paid, discharged or stayed
for a period of 60 consecutive days; (viii) except as permitted
by the Indenture, if any Guarantee is held in any judicial
proceeding to be unenforceable or invalid or shall cease for any
reason (other than in accordance with the terms of such Guarantee
and the Indenture) to be in full force and effect or any
Guarantor, or if any Person acting on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Guarantee; and
(ix) certain events of bankruptcy or insolvency with respect to
▇▇▇▇▇▇ International or any of its Significant Subsidiaries.
In the case of an Event of Default arising from certain
events of bankruptcy or insolvency, with respect to ▇▇▇▇▇▇
International or the Company, all outstanding Notes will become
due and payable without further action or notice. If any other
Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable
immediately, provided that so long as any Indebtedness permitted
to be incurred pursuant to the Indebtedness under the New Credit
Facilities shall be outstanding, the acceleration shall not be
effective until the earlier of (i) an acceleration of any
Indebtedness under the New Credit Facilities or (ii) five
Business Days after receipt by the Company of written notice of
the acceleration of the Notes. Holders of the Notes may not
enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing
Default (except a Default relating to the payment of principal or
interest) if it determines that withholding notice is in their
interest.
In the case of any Event of Default 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 the optional
redemption provisions of the Indenture, 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 August 1, 2004 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 August 1, 2004, 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.
The Holders of a majority in aggregate principal amount of
the Notes then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default and
its consequences under the Indenture except a continuing Default
in the payment of interest or Additional Interest on, or the
principal of, the Notes.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the
Company is required upon becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such
Default or Event of Default.
13. Trustee Dealings With Company. The Trustee, in its
individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer,
employee, incorporator or stockholder, of the Company, as such,
shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration
for the issuance of the Notes.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
16. 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).
17. Additional Rights Of Holders Of Transfer Restricted
Securities. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Transferred Restricted
Securities shall have all the rights set forth in the
Registration Rights Agreement dated as of August 19, 1999 between
the Company and the parties named on the signature pages thereof
(the "Registration Rights Agreement").
18. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures,
the Company has caused CUSIP, CINS and/or ISIN numbers to be
printed on the Notes and the Trustee may use CUSIP, CINS and/or
ISIN numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
19. Governing Law. The internal law of the State of New
York shall govern and be used to construe this Note.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the
Registration Rights Agreement. Requests may be made to:
▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-1602
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we)
assign and transfer this Note to
_____________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________________________
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
_____________________________________________________________________
Date:__________
Your Signature:________________________
(Sign exactly as your name
appears on the face of this Note)
Tax Identification No.:________________
SIGNATURE GUARANTEE:
_______________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.15 of the Indenture, check
the box below:
_ _
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture, state the amount you elect to have purchased:
$______________
Date:__________ Your Signature:____________________
(Sign exactly as your name appears
on the Note)
Tax Identification No.:____________
SIGNATURE GUARANTEE:
___________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE REGULATION S TEMPORARY
GLOBAL NOTE3
The following exchanges of a part of this Regulation S
Temporary Global Note for an interest in another Global Note or
for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Regulation S
Temporary Global Note, have been made:
Principal
Amount of
this
Amount of Amount of Regulation
decrease in increase in S Temporary Signature
Principal Principal Global Note of
Amount of Amount of following authorized
this this such officer of
Regulation Regulation decrease Trustee or
Date of S Temporary S Temporary (or Note
Exchange Global Note Global Note increase) Custodian
------------ ------------ ------------ ------------- ----------
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-1602
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 25th Floor
Mail Code HQ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-1532
Attention: Corporate Trust Division (Fax: ▇▇▇-▇▇▇-▇▇▇▇)
Re: 13% Senior Subordinated Notes due 2009.
Reference is hereby made to the Indenture, dated as of
August 19, 1999 (the "Indenture"), ▇▇▇▇▇▇, Inc., as issuer (the
"Company"), the Guarantors named therein and United States Trust
Company of New York, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the
Indenture.
________________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in
Annex A hereto, in the principal amount of $___________ in such
Note[s] or interests (the "Transfer"), to ___________ (the
"Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies
that:
[CHECK ALL THAT APPLY]
_
1. |_| Check if Transferee will take delivery of Beneficial
Interests in the 144A Global Note or Definitive Notes Pursuant to
Rule 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Beneficial Interests
or Definitive Note(s) are being transferred to a Person that the
Transferor reasonably believes is purchasing the Beneficial
Interests or Definitive Note(s) for its own account, or for one
or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A
in a transaction meeting the requirements of Rule 144A and such
Transfer is in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture,
the transferred Beneficial Interest or Definitive Note(s) will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the
Definitive Note(s) and in the Indenture and the Securities Act.
_
2. |_| Check if Transferee will take delivery of Beneficial
Interests in the Temporary Regulation S Global Note, the
Regulation S Global Note or Definitive Notes pursuant to
Regulation S. The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that
(i) the Transfer is not being made to a Person in the United
States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and
any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor
nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S under
the Securities Act and (iii) the transaction is not part of a
plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made
prior to the expiration of the Distribution Compliance Period,
the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred
Beneficial Interest or Definitive Note(s) will be subject to the
restrictions on Transfer enumerated in the Private Placement
Legend printed on the Temporary Regulation S Global Note,
Regulation S Global Note and/or the Definitive Note(s) and in the
Indenture and the Securities Act.
_
3. |_| Check and complete if Transferee will take delivery of
Beneficial Interests in the 144A Note or Definitive Notes
pursuant to any provision of the Securities Act other than Rule
144A or Regulation S. The Transfer is being effected in
compliance with the transfer restrictions applicable to
Beneficial Interests in Restricted Global Notes and Definitive
Notes bearing the Private Placement Legend and pursuant to and in
accordance with the Securities Act and any applicable blue sky
securities laws of any State of the United States, and
accordingly the Transferor hereby further certifies that (check
one):
_
(a) |_| such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
_ or
(b) |_| such Transfer is being effected to the Company or a
Subsidiary thereof,
_ or
(c) |_| such Transfer is being effected pursuant to an
effective registration statement under the Securities Act;
_ or
(d) |_| such Transfer is being effected to a ▇▇▇▇▇▇
Accredited Investor or an Institutional Accredited Investor and
pursuant to an available exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that the
Transfer complies with the transfer restrictions applicable to
Beneficial Interests in a Restricted Global Note or Definitive
Notes bearing the Private Placement Legend and the requirements
of the exemption claimed, which certification is supported by (x)
if such Transfer is in respect of a principal amount of Notes at
the time of Transfer of $250,000 or more, a certificate executed
by the Transferee in the form of Exhibit D to the Indenture, or
(y) if such Transfer is in respect of a principal amount of Notes
at the time of transfer of less than $250,000, (1) a certificate
executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such
Transfer is in compliance with the Securities Act and (2) such
Transfer complies with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the
transferred Beneficial Interest or Definitive Note(s) will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Definitive Note(s) and in the
Indenture and the Securities Act.
_
4. |_| Check if Transferee will take delivery of Beneficial
Interests in the Unrestricted Global Note or in Unrestricted
Definitive Notes.
_
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The
Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred Beneficial Interests or
Definitive Note(s) will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Definitive Notes bearing the
Private Placement Legend and in the Indenture.
_
(b) |_| Check if Transfer is Pursuant to Regulation S. (i)
The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred Beneficial Interests or
Definitive Note(s) will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Definitive Notes bearing the
Private Placement Legend and in the Indenture.
_
(c) |_| Check if Transfer is Pursuant to Other Exemption.
(i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in
compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any
State of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are
not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred Beneficial
Interests or Definitive Note(s) will not be subject to the
restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Definitive
Notes bearing the Private Placement Legend and in the Indenture.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Company.
_______________________________________
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated: ____________, ____
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
_
(a) |_| Beneficial Interests in the:
_
(i) |_| 144A Global Note (CUSIP _______), or
_
(ii)|_| Regulation S Global Note (CUSIP ______); or
_
(b) |_| Restricted Definitive Notes.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
_
(a) |_| Beneficial Interests in the:
_
(i) |_| 144A Global Note (CUSIP _____), or
_
(ii) |_| Regulation S Global Note (CUSIP _____), or
_
(iii)|_| Unrestricted Global Note (CUSIP ______); or
_
(b) |_| Restricted Definitive Notes; or
_
(c) |_| Definitive Notes that do not bear the Private Placement Legend,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-1602
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 25th Floor
Mail Code HQ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-1532
Attention: Corporate Trust Division (Fax: ▇▇▇-▇▇▇-▇▇▇▇)
Re: 13% Senior Subordinated Notes due 2009.
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of
August 19, 1999 (the "Indenture"), among ▇▇▇▇▇▇, Inc., as issuer
(the "Company"), the Guarantors named therein and United States
Trust Company of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the
Indenture.
______________ (the "Holder") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $______________ in such
Note[s] or interests (the "Exchange"). In connection with the
Exchange, the Holder hereby certifies that:
1. Exchange of Restricted Definitive Notes or Restricted
Beneficial Interests for Unrestricted Definitive Notes or
Unrestricted Beneficial Interests
_
(a) |_| Check if Exchange is from Restricted Beneficial
Interest to Unrestricted Beneficial Interest. In connection with
the Exchange of the Holder's Restricted Beneficial Interest for
Unrestricted Beneficial Interests in an equal principal amount,
the Holder hereby certifies (i) the Unrestricted Beneficial
Interests are being acquired for the Holder's own account without
transfer, (ii) such Exchange has been effected in compliance with
the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the
restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted
Beneficial Interests are being acquired in compliance with any
applicable blue sky securities laws of any state of the United
States.
_
(b) |_| Check if Exchange is from Restricted Beneficial
Interest to Unrestricted Definitive Notes. In connection with
the Exchange of the Holder's Restricted Beneficial Interests for
Unrestricted Definitive Notes, the Holder hereby certifies (i)
the Definitive Notes are being acquired for the Holder's own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act
and (iv) the Definitive Notes are being acquired in compliance
with any applicable blue sky securities laws of any state of the
United States.
_
(c) |_|Check if Exchange is from Restricted Definitive Notes
to Unrestricted Beneficial Interests. In connection with the
Holder's Exchange of Restricted Definitive Notes for Unrestricted
Beneficial Interests, (i) the Unrestricted Beneficial Interests
are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act, (iii)
the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted
Beneficial Interests are being acquired in compliance with any
applicable blue sky securities laws of any state of the United
States.
_
(d) |_|Check if Exchange is from Restricted Definitive Notes
to Unrestricted Definitive Notes. In connection with the
Holder's Exchange of a Restricted Definitive Note for
Unrestricted Definitive Notes, the Holder hereby certifies (i)
the Unrestricted Definitive Notes are being acquired for the
Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act , (iii) the restrictions on
transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Notes are being acquired in
compliance with any applicable blue sky securities laws of any
state of the United States.
2. Exchange of Restricted Definitive Notes or Restricted
Beneficial Interests for Restricted Definitive Notes or
Restricted Beneficial Interests
_
(a) |_| Check if Exchange is from Restricted Beneficial
Interests to Restricted Definitive Note. In connection with the
Exchange of the Holder's Restricted Beneficial Interest for
Restricted Definitive Notes with an equal principal amount, (i)
the Restricted Definitive Notes are being acquired for the
Holder's own account without transfer and (ii) such Exchange has
been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the Restricted Definitive Notes
issued will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted
Definitive Notes and in the Indenture and the Securities Act.
_
(b) |_|Check if Exchange is from Restricted Definitive Notes
to Restricted Beneficial Interests. In connection with the
Exchange of the Holder's Restricted Definitive Note for
Restricted Beneficial Interests in the [CHECK ONE] 144A Global
Note, Regulation S Global Note with an equal principal amount,
(i) the Definitive Notes are being acquired for the Holder's own
account without transfer and (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the
Restricted Definitive Note and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue
sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the
terms of the Indenture, the Beneficial Interests issued will be
subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note
and in the Indenture and the Securities Act.
This certificate and the statements contained herein are
made for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
Dated: ____________, ____
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING ACCREDITED INVESTOR
▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-1602
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(Fax: ▇▇▇-▇▇▇-▇▇▇▇)
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 25th Floor
Mail Code HQ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-1532
Attention: Corporate Trust Division (Fax: ▇▇▇-▇▇▇-▇▇▇▇)
Re: 13% Senior Subordinated Notes due 2009
Reference is hereby made to the Indenture, dated as of
August 19, 1999 (the "Indenture"), among ▇▇▇▇▇▇, Inc., as issuer
(the "Company"), the Guarantors named therein and United States
Trust Company of New York, as trustee. Capitalized terms used but
not defined herein shall have the meanings given to them in the
Indenture.
In connection with our proposed purchase of
$____________ aggregate principal amount at maturity of
Definitive Notes, we confirm that:
1. we are an "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of
1933, as amended (the "Securities Act"), an entity in which all
of the equity owners are accredited investors within the meaning
of Rule (501)(a)(1), (2), (3) or (7) under the Securities Act (an
"institutional accredited investor") or a Lehman Accredited
Investor, an "accredited investor" within the meaning of Rule
501(a)(5) or (6) under the Securities Act;
2. (A) any purchase of the Notes by us will be for
our own account or for the account of one or more other
institutional accredited investors or as fiduciary for the
account of one or more trusts, each of which is an "accredited
investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment
discretion, (B) we are a "bank," within the meaning of Section
3(a)(2) of the Securities Act, or a "savings and loan
association" or other institution described in Section 3(a)(5)(A)
of the Securities Act that is acquiring Notes as fiduciary for
the account of one or more institutions for which we exercise
sole investment discretion or (C) we are a Lehman Accredited
Investor purchasing the Notes for our own account;
3. we have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits
and risks of purchasing Notes;
4. we are not acquiring the Notes with a view to any
distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any state of the United
States or any other applicable jurisdictions, provided that the
disposition of our property and the property of any accounts for
which we are acting as fiduciary shall remain at all times within
our control; and
5. we acknowledge that we have had access to such
financial and other information, and have been afforded the
opportunity to ask such questions of representatives of the
Company and receive answers thereto, as we deem necessary in
connection with our decision to purchase the Notes.
We understand that the Notes are being offered in a
transaction not involving any public offering within the United
States within the meaning of the Securities Act and that the
Notes have not been registered under the Securities Act. We
agree on our own behalf and on behalf of any investor account for
which we are purchasing the Notes, to offer, sell or otherwise
transfer such Notes prior to (x) the date which is two years (or
such shorter period of time as permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the
later of the date of the original issue of the Notes and the last
date on which the Company or any affiliate of the Company was the
owner of such Notes (or any predecessor thereto) or (y) such
later date, if any, as may be required by applicable law (the
"Resale Restriction Termination Date") only (a) to the Company,
(b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) for so long as the Notes
are eligible for resale pursuant to Rule 144A, to a Person we
reasonably believe is a QIB, that purchases for its own account
or for the account of a QIB to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales to non-U.S. persons that occur outside the
United States within the meaning of Regulation S under the
Securities Act or (e) pursuant to any other available exemption
from the registration requirements of the Securities Act, subject
in each of the foregoing cases to any requirements of law that
the disposition of our property or the property of such investor
account or accounts be at all times within our control and in
compliance with any applicable state securities laws. We further
agree to provide any Person purchasing any of the Notes other
than pursuant to clause (b) above from us a notice advising such
purchaser that resales of such securities are restricted as
stated herein. We understand that the Trustee and the Registrar
for the Notes will not be required to accept for registration of
transfer any Notes, except upon presentation of evidence
satisfactory to the Company that the foregoing restrictions on
transfer have been complied with.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters
covered hereby.
_________________________________________
[Insert Name of Accredited Investor]
By:______________________________________
Name:
Title:
Dated: ____________, ____
EXHIBIT E
FORM OF NOTATION ON SENIOR SUBORDINATED NOTE RELATING TO
GUARANTEE
Subject to Section 11.06 of the Indenture, each
Guarantor hereby, jointly and severally, unconditionally
guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns,
the Notes and the Obligations of the Company under the Notes or
under the Indenture, that: (a) the principal of, premium, if any,
interest and Additional Interest, if any, on the Notes will be
promptly paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration, redemption or
otherwise, and interest on overdue principal, premium, if any (to
the extent permitted by law), interest on any interest, if any,
and Additional Interest, if any, on the Notes and all other
payment Obligations of the Company to the Holders or the Trustee
under the Indenture or under the Notes will be promptly paid in
full and performed, all in accordance with the terms thereof; and
(b) in case of any extension of time of payment or renewal of any
Notes or any of such other payment Obligations, the same will be
promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, subject to any applicable
grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any
amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately.
The obligations of the Guarantors to the Holders and to
the Trustee pursuant to this Guarantee and the Indenture are
expressly set forth in Article 11 of the Indenture, and reference
is hereby made to such Indenture for the precise terms of this
Guarantee. The terms of Article 11 of the Indenture are
incorporated herein by reference. This Guarantee is subject to
release as and to the extent provided in Section 11.05 of the
Indenture.
This is a continuing Guarantee and shall remain in full
force and effect and shall be binding upon each Guarantor and its
respective successors and assigns to the extent set forth in the
Indenture until full and final payment of all of the Company's
Obligations under the Notes and the Indenture and shall inure to
the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights
by any Holder or the Trustee, the rights and privileges herein
conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms
and conditions hereof. This is a Guarantee of payment and not a
guarantee of collection.
Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the Obligations
contained in the Notes and the Indenture.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon
which this Guarantee is noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its
authorized officers.
This Guarantee is subordinated in right of payment to
the extent set forth in the Indenture.
For purposes hereof, each Guarantor's liability shall
be limited to the lesser of (i) the aggregate amount of the
Obligations of the Company under the Notes and the Indenture and
(ii) the maximum amount that will result in the obligations of
such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance under applicable law of any relevant
jurisdiction.
Capitalized terms used herein have the same meanings
given in the Indenture unless otherwise indicated.
Dated:
▇▇▇▇▇▇ INTERNATIONAL, INC.
By:___________________________________
Name:
Title:
BI HOLDINGS CORP.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ COMPANY
By:___________________________________
Name:
Title:
BI, L.L.C.
By: ▇▇▇▇▇▇, Inc. as Member of BI, L.L.C.
By:___________________________________
Name:
Title:
By: BI Holdings Corp. as Member of
BI, L.L.C.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇ DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:___________________________________
Name:
Title:
4520 CORP., INC.
By:___________________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:___________________________________
Name:
Title:
▇▇▇▇▇ INDUSTRIES, INC.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇ MANUFACTURING CORPORATION
By:___________________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇ OUTDOOR CORPORATION
By:___________________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:___________________________________
Name:
Title:
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of ______________, ______ among ▇▇▇▇▇▇, Inc., a Delaware
corporation (the "Company"), ▇▇▇▇▇▇ International, Inc., a
Delaware corporation ("▇▇▇▇▇▇ International"), and BI Holdings
Corp., a Delaware corporation, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Company, a
Delaware corporation, BI, L.L.C., a Delaware limited liability
company, ▇▇▇▇▇▇ Development Corp., a Delaware corporation, Omark
Properties, Inc., an Oregon corporation, 4520 Corp., Inc., a
Delaware corporation, Gear Products, Inc., an Oklahoma
corporation, ▇▇▇▇▇ Industries, Inc., a Kansas corporation,
▇▇▇▇▇▇▇▇▇ Manufacturing Corporation, a Delaware corporation,
Federal Cartridge Company, a Minnesota corporation, ▇▇▇▇▇▇▇
Outdoor Corporation, a Delaware corporation, Mocenplaza
Development Corp., a Delaware corporation and CTR Manufacturing,
Inc., a North Carolina corporation (collectively, the
"Guarantors") and United States Trust Company of New York, a bank
and trust company organized under the New York Banking Law, as
trustee under the indenture referred to below (the "Trustee").
Capitalized terms used herein and not defined herein shall have
the meaning ascribed to them in the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, the Company and the Guarantors have heretofore
executed and delivered to the Trustee an indenture (the
"Indenture"), dated as of August 19, 1999, providing for the
issuance of an aggregate principal amount of $450,000,000 of 13%
Senior Subordinated Notes due 2009 (the "Notes");
WHEREAS, Section 4.13 and Article 10 of the Indenture
provides that under certain circumstances ▇▇▇▇▇▇ International or
the Company may or must cause certain of its Subsidiaries to
execute and deliver to the Trustee a supplemental indenture
pursuant to which such respective Subsidiaries shall
unconditionally guarantee all of ▇▇▇▇▇▇ International's and the
Company's Obligations under the Notes pursuant to a Guarantee on
the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental
Indenture.
NOW THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which
is hereby acknowledged, ▇▇▇▇▇▇ International, the Company, the
New Guarantor and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein
without definition shall have the meanings assigned to them in
the Indenture.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby
agrees, jointly and severally with all other Guarantors, to
guarantee the Company's Obligations under the Notes and the
Indenture on the terms and subject to the conditions set forth in
Article 11 of the Indenture and to be bound by all other
applicable provisions of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or
future director, officer, employee, incorporator, partner,
member, shareholder or agent of any Guarantor, as such, shall
have any liability for any obligations of the Company or any
Guarantor under the Notes, any Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of
the Notes.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE
STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS
SUPPLEMENTAL INDENTURE.
5. COUNTERPARTS. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same
agreement.
6. EFFECT OF HEADINGS. The Section headings herein
are for convenience only and shall not affect the construction
hereof.
7. THE TRUSTEE. The Trustee shall not be responsible
in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect
of the correctness of the recitals of fact contained herein, all
of which recitals are made solely by the New Guarantor.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as
of the date first above written.
Dated: [GUARANTEEING SUBSIDIARY]
By:___________________________________
Name:
Title:
▇▇▇▇▇▇, INC.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇ INTERNATIONAL, INC.
By:___________________________________
Name:
Title:
BI HOLDINGS CORP.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ COMPANY
By:___________________________________
Name:
Title:
BI, L.L.C.
By: ▇▇▇▇▇▇ Inc. as Member of BI, L.L.C.
By:___________________________
Name:
Title:
By: BI Holdings Corp. as
Member of BI, L.L.C.
By:___________________________
Name:
Title:
▇▇▇▇▇▇ DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:___________________________________
Name:
Title:
4520 CORP., INC.
By:___________________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:___________________________________
Name:
Title:
▇▇▇▇▇ INDUSTRIES, INC.
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇ MANUFACTURING CORPORATION
By:___________________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇ OUTDOOR CORPORATION
By:___________________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:___________________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:___________________________________
Name:
Title:
Dated: ______________, ______ UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:___________________________________
Name:
Title:
