Exhibit 4.2
▇▇▇▇-▇▇▇▇▇ COMPANY,
as Issuer
THE SUBSIDIARY GUARANTORS named herein,
as Guarantors
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
---------------------
INDENTURE
Dated as of April 24, 1998
--------------------
$165,000,000
8-1/2% Senior Subordinated Notes due 2008, Series A
8-1/2% Senior Subordinated Notes due 2008, Series B
Reconciliation and tie between Trust Indenture Act of 1939,as amended, and
Indenture, dated as of April 24, 1998
Trust Indenture Indenture
Act Section Section
-------------- ----------
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . 6.09
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . 6.08, 6.10
Section 311 (a). . . . . . . . . . . . . . . . . . . . . 6.13
(b). . . . . . . . . . . . . . . . . . . . . 6.13
(c). . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a). . . . . . . . . . . . . . . . . . . . . 3.06, 7.01
(b). . . . . . . . . . . . . . . . . . . . . 7.02
(c). . . . . . . . . . . . . . . . . . . . . 7.02
Section 313 (a). . . . . . . . . . . . . . . . . . . . . 7.03
(b). . . . . . . . . . . . . . . . . . . . . 7.03
(c). . . . . . . . . . . . . . . . . . . . . 7.03
(d). . . . . . . . . . . . . . . . . . . . . 7.03
Section 314 (a). . . . . . . . . . . . . . . . . . . . . 7.04
(a)(4) . . . . . . . . . . . . . . . . . . . 10.13
(b). . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 1.04, 4.04, 12.01(c)
(c)(2) . . . . . . . . . . . . . . . . . . . 1.04, 4.04, 12.01(c)
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . 1.04
Section 315 (a). . . . . . . . . . . . . . . . . . . . . 6.01(a)
(b). . . . . . . . . . . . . . . . . . . . . 6.02
(c). . . . . . . . . . . . . . . . . . . . . 6.01(b)
(d). . . . . . . . . . . . . . . . . . . . . 6.01(c)
(e). . . . . . . . . . . . . . . . . . . . . 5.14
Section 316 (a) (last sentence) . . . . . . . . . . . . 3.14
(a)(1)(A). . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B). . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . 5.08
(c). . . . . . . . . . . . . . . . . . . . . 9.07
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . 5.03
(a)(2) . . . . . . . . . . . . . . . . . . . 5.04
(b). . . . . . . . . . . . . . . . . . . . . 10.03
Section 318 (a). . . . . . . . . . . . . . . . . . . . . 1.08
_________________
Note: This Cross-Reference Table shall not, for any purpose, be deemed a
part of the Indenture.
TABLE OF CONTENTS
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PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Other Definitions. . . . . . . . . . . . . . . . . . . . . 24
Section 1.03. Rules of Construction. . . . . . . . . . . . . . . . . . . 24
Section 1.04. Form of Documents Delivered to Trustee.. . . . . . . . . . 25
Section 1.05. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . 26
Section 1.06. Notices, etc., to the Trustee,
the Company and the Guarantors.. . . . . . . . . . . . . . 26
Section 1.07. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . 27
Section 1.08. Conflict with Trust Indenture Act. . . . . . . . . . . . . 27
Section 1.09. Effect of Headings and Table of Contents.. . . . . . . . . 28
Section 1.10. Successors and Assigns.. . . . . . . . . . . . . . . . . . 28
Section 1.11. Separability Clause. . . . . . . . . . . . . . . . . . . . 28
Section 1.12. Benefits of Indenture. . . . . . . . . . . . . . . . . . . 28
Section 1.13. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . 28
Section 1.14. No Recourse Against Others.. . . . . . . . . . . . . . . . 28
Section 1.15. Independence of Covenants. . . . . . . . . . . . . . . . . 29
Section 1.16. Exhibits.. . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 1.17. Counterparts.. . . . . . . . . . . . . . . . . . . . . . . 29
Section 1.18. Duplicate Originals. . . . . . . . . . . . . . . . . . . . 29
ARTICLE TWO NOTE AND GUARANTEE FORMS
Section 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE THREE THE NOTES
Section 3.01. Title and Terms. . . . . . . . . . . . . . . . . . . . . . 30
Section 3.02. Optional Redemption. . . . . . . . . . . . . . . . . . . . 31
Section 3.03. Registrar and Paying Agent.. . . . . . . . . . . . . . . . 31
Section 3.04. Execution and Authentication.. . . . . . . . . . . . . . . 31
Section 3.05. Temporary Notes. . . . . . . . . . . . . . . . . . . . . . 33
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Section 3.06. Transfer and Exchange. . . . . . . . . . . . . . . . . . . 34
Section 3.07. Mutilated, Destroyed, Lost and Stolen Notes. . . . . . . . 35
Section 3.08. Payment of Interest; Interest Rights Preserved.. . . . . . 35
Section 3.09. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . 36
Section 3.10. Cancellation.. . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.11. Legal Holidays.. . . . . . . . . . . . . . . . . . . . . . 37
Section 3.12. CUSIP and CINS Numbers.. . . . . . . . . . . . . . . . . . 38
Section 3.13. Paying Agent To Hold Money in Trust. . . . . . . . . . . . 38
Section 3.14. Treasury Notes.. . . . . . . . . . . . . . . . . . . . . . 38
Section 3.15. Deposits of Monies.. . . . . . . . . . . . . . . . . . . . 39
Section 3.16. Book-Entry Provisions for Global Notes.. . . . . . . . . . 39
Section 3.17. Special Transfer Provisions. . . . . . . . . . . . . . . . 40
ARTICLE FOUR DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect Defeasance or Covenant
Defeasance.. . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.02. Defeasance and Discharge.. . . . . . . . . . . . . . . . . 43
Section 4.03. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . 44
Section 4.04. Conditions to Defeasance or Covenant Defeasance. . . . . . 44
Section 4.05. Deposited Money and U.S. Government Obligations To
Be Held in Trust; Other Miscellaneous Provisions.. . . . . 47
Section 4.06. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE FIVE REMEDIES
Section 5.01. Events of Default. . . . . . . . . . . . . . . . . . . . . 48
Section 5.02. Acceleration of Maturity; Rescission and Annulment.. . . . 50
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.. . . . . . . . . . . . . . . . . . 51
Section 5.04. Trustee May File Proofs of Claims. . . . . . . . . . . . . 52
Section 5.05. Trustee May Enforce Claims Without Possession of Notes.. . 53
Section 5.06. Application of Money Collected.. . . . . . . . . . . . . . 53
Section 5.07. Limitation on Suits. . . . . . . . . . . . . . . . . . . . 54
Section 5.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest.. . . . . . . . . . . . . . . . . . . 54
Section 5.09. Restoration of Rights and Remedies.. . . . . . . . . . . . 54
Section 5.10. Rights and Remedies Cumulative.. . . . . . . . . . . . . . 55
Section 5.11. Delay or Omission Not Waiver.. . . . . . . . . . . . . . . 55
Section 5.12. Control by Majority. . . . . . . . . . . . . . . . . . . . 55
Section 5.13. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . 56
Section 5.14. Undertaking for Costs. . . . . . . . . . . . . . . . . . . 56
Section 5.15. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . 56
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ARTICLE SIX THE TRUSTEE
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Section 6.01. Certain Duties and Responsibilities. . . . . . . . . . . . 57
Section 6.02. Notice of Defaults.. . . . . . . . . . . . . . . . . . . . 58
Section 6.03. Certain Rights of Trustee. . . . . . . . . . . . . . . . . 58
Section 6.04. Trustee Not Responsible for Recitals, Dispositions
of Notes or Application of Proceeds Thereof. . . . . . . . 59
Section 6.05. Trustee and Agents May Hold Notes; Collections; Etc. . . . 60
Section 6.06. Money Held in Trust. . . . . . . . . . . . . . . . . . . . 60
Section 6.07. Compensation and Indemnification of Trustee
and Its Prior Claim. . . . . . . . . . . . . . . . . . . . 60
Section 6.08. Conflicting Interests. . . . . . . . . . . . . . . . . . . 61
Section 6.09. Corporate Trustee Required; Eligibility. . . . . . . . . . 61
Section 6.10. Resignation and Removal; Appointment of Successor Trustee. 61
Section 6.11. Acceptance of Appointment by Successor.. . . . . . . . . . 63
Section 6.12. Merger, Conversion, Amalgamation, Consolidation or
Succession to Business.. . . . . . . . . . . . . . . . . . 64
Section 6.13. Preferential Collection of Claims Against Company
and Guarantors.. . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company To Furnish
Trustee Names and Addresses of Holders.. . . . . . . . . . 65
Section 7.02. Communications of Holders. . . . . . . . . . . . . . . . . 65
Section 7.03. Reports by Trustee.. . . . . . . . . . . . . . . . . . . . 65
Section 7.04. Reports by Company and Each Guarantor. . . . . . . . . . . 66
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. Company May Consolidate, etc., Only on Certain Terms.. . . 66
Section 8.02. Successor Substituted. . . . . . . . . . . . . . . . . . . 68
ARTICLE NINE SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and Waivers
Without Consent of Holders.. . . . . . . . . . . . . . . . 69
Section 9.02. Supplemental Indentures, Agreements and Waivers with
Consent of Holders.. . . . . . . . . . . . . . . . . . . . 70
Section 9.03. Execution of Supplemental Indentures, Agreements
and Waivers. . . . . . . . . . . . . . . . . . . . . . . . 72
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Section 9.04. Effect of Supplemental Indentures. . . . . . . . . . . . . 72
Section 9.05. Conformity with Trust Indenture Act. . . . . . . . . . . . 72
Section 9.06. Reference in Notes to Supplemental Indentures. . . . . . . 72
Section 9.07. Record Date. . . . . . . . . . . . . . . . . . . . . . . . 73
Section 9.08. Revocation and Effect of Consents. . . . . . . . . . . . . 73
ARTICLE TEN COVENANTS
Section 10.01. Payment of Principal, Premium and Interest. . . . . . . . 73
Section 10.02. Maintenance of Office or Agency.. . . . . . . . . . . . . 73
Section 10.03. Money for Note Payments To Be Held in Trust.. . . . . . . 74
Section 10.04. Corporate Existence.. . . . . . . . . . . . . . . . . . . 76
Section 10.05. Payment of Taxes and Other Claims.. . . . . . . . . . . . 76
Section 10.06. Maintenance of Properties.. . . . . . . . . . . . . . . . 76
Section 10.07. Insurance.. . . . . . . . . . . . . . . . . . . . . . . . 77
Section 10.08. Books and Records.. . . . . . . . . . . . . . . . . . . . 77
Section 10.09. Guarantees. . . . . . . . . . . . . . . . . . . . . . . . 77
Section 10.10. Provision of Financial Statements.. . . . . . . . . . . . 77
Section 10.11. Change of Control.. . . . . . . . . . . . . . . . . . . . 78
Section 10.12. Limitation on Indebtedness. . . . . . . . . . . . . . . . 81
Section 10.13. Statement by Officers as to Default.. . . . . . . . . . . 84
Section 10.14. Limitation on Restricted Payments.. . . . . . . . . . . . 84
Section 10.15. Limitation on Transactions with Affiliates. . . . . . . . 89
Section 10.16. Limitation on Sale of Assets. . . . . . . . . . . . . . . 90
Section 10.17. Limitation on Liens.. . . . . . . . . . . . . . . . . . . 93
Section 10.18. Limitation on Issuances of Guarantees by
Restricted Subsidiaries.. . . . . . . . . . . . . . . . . 94
Section 10.19. Limitation on Preferred Stock of Restricted Subsidiaries. 96
Section 10.20. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries. . . . . . 96
Section 10.21. Limitations on Unrestricted Subsidiaries. . . . . . . . . 97
Section 10.22. Compliance Certificates and Opinions. . . . . . . . . . . 99
Section 10.23. Limitation on Incurrence of Senior Subordinated
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . 99
Section 10.24. Application of Fall-Away Covenants. . . . . . . . . . . . 100
ARTICLE ELEVEN SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of Indenture.. . . . . . . . . 100
Section 11.02. Application of Trust Money. . . . . . . . . . . . . . . . 101
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ARTICLE TWELVE GUARANTEE OF NOTES
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Section 12.01. Unconditional Guarantee.. . . . . . . . . . . . . . . . . 101
Section 12.02. Subordination of Guarantees.. . . . . . . . . . . . . . . 103
Section 12.03. Execution and Delivery of Guarantee.. . . . . . . . . . . 103
Section 12.04. Additional Guarantors.. . . . . . . . . . . . . . . . . . 103
Section 12.05. Release of a Guarantor. . . . . . . . . . . . . . . . . . 104
Section 12.06. Waiver of Subrogation.. . . . . . . . . . . . . . . . . . 104
Section 12.07. Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc. of Guarantors.. . . . . 105
Section 12.08. Article Twelve Applicable to Paying Agents. . . . . . . . 105
Section 12.09. No Suspension of Remedies.. . . . . . . . . . . . . . . . 105
Section 12.10. Limitation of Subsidiary Guarantor's Liability. . . . . . 105
Section 12.11. Contribution from Other Guarantors. . . . . . . . . . . . 106
Section 12.12. Obligations Reinstated. . . . . . . . . . . . . . . . . . 106
Section 12.13. No Obligation To Take Action Against the Company. . . . . 106
Section 12.14. Dealing with the Company and Others.. . . . . . . . . . . 106
ARTICLE THIRTEEN REDEMPTIONS AND OFFERS TO PURCHASE
Section 13.01. Notice to Trustee. . . . . . . . . . . . . . . . . . . . . 107
Section 13.02. Selection of Notes to Be Redeemed or Purchased.. . . . . . 108
Section 13.03. Notice of Redemption.. . . . . . . . . . . . . . . . . . . 108
Section 13.04. Effect of Notice of Redemption.. . . . . . . . . . . . . . 109
Section 13.05. Deposit of Redemption Price. . . . . . . . . . . . . . . . 109
Section 13.06. Notes Redeemed in Part.. . . . . . . . . . . . . . . . . . 110
Section 13.07. Optional Redemption. . . . . . . . . . . . . . . . . . . . 110
Section 13.08. Procedures Relating to Mandatory Offers. . . . . . . . . . 111
ARTICLE FOURTEEN SUBORDINATION
Section 14.01. Agreement to Subordinate. . . . . . . . . . . . . . . . . 112
Section 14.02. Liquidation; Dissolution; Bankruptcy. . . . . . . . . . . 112
Section 14.03. Default on Designated Senior Indebtedness.. . . . . . . . 113
Section 14.04. Acceleration of Notes.. . . . . . . . . . . . . . . . . . 115
Section 14.05. When Distributions Must Be Paid Over. . . . . . . . . . . 115
Section 14.06. Notice. . . . . . . . . . . . . . . . . . . . . . . . . . 115
Section 14.07. Subrogation.. . . . . . . . . . . . . . . . . . . . . . . 116
Section 14.08. Relative Rights.. . . . . . . . . . . . . . . . . . . . . 116
Section 14.09. The Company and Holders May Not Impair Subordination. . . 117
Section 14.10. Distribution or Notice to Representative. . . . . . . . . 118
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Section 14.11. Rights of Trustee and Paying Agent. . . . . . . . . . . . 118
Section 14.12. Authorization to Effect Subordination.. . . . . . . . . . 118
Section 14.13. Payment.. . . . . . . . . . . . . . . . . . . . . . . . . 119
ARTICLE I TERMS OF INTERCOMPANY NOTE
ARTICLE III MISCELLANEOUS
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Exhibit A-1 - Form of Series A Note
Exhibit A-2 - Form of Series B Note
Exhibit B - Form of Legend for Book-Entry Securities
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit D - Form of Guarantee
Exhibit E - Form of Intercompany Note
_______________
Note: This Table of Contents shall not, for any purpose, be deemed a part of
the Indenture.
-vii-
INDENTURE, dated as of April 24, 1998, among ▇▇▇▇-▇▇▇▇▇ COMPANY, a
Delaware corporation (the "Company"), as issuer, the Subsidiary Guarantors named
herein (the "Guarantors"), as guarantors, and U.S. BANK TRUST NATIONAL
ASSOCIATION, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of (i) 8-1/2%
Senior Subordinated Notes due 2008, Series A (the "Initial Notes") and (ii)
8-1/2% Senior Subordinated Notes due 2008, Series B (the "Exchange Notes") to be
issued in exchange for the Initial Notes pursuant to the Registration Rights
Agreement (as defined herein). The Initial Notes, the Exchange Notes and the
Private Exchange Notes (as defined herein), if any, are collectively referred to
as the "Notes" and are treated as a single class of securities under this
Indenture. To provide therefor, the Company has duly authorized the execution
and delivery of this Indenture.
The Guarantors have duly authorized their senior subordinated
guarantees of the Notes and to provide therefor, the Guarantors have duly
authorized the execution and delivery of this Indenture and their Guarantees (as
defined herein) under the terms set forth herein.
All things necessary have been done to make the Notes and the
Guarantees, when executed by the Company and the Guarantors, respectively, and
authenticated and delivered hereunder and duly issued by the Company and the
Guarantors, respectively, the valid obligations of the Company and the
Guarantors and to make this Indenture a valid agreement of each of the Company,
the Guarantors and the Trustee in accordance with the terms hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders (as hereinafter defined) of the Notes, as
follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person (i) assumed
in connection with an Asset Acquisition from such Person or (ii) existing at the
time such Person becomes a Restricted Subsidiary of any other Person (other than
any Indebtedness incurred in connection with, or in contemplation of, such Asset
Acquisition or such Person becoming such a Restricted Subsidiary). Acquired
Indebtedness shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the acquired Person becomes a
Restricted Subsidiary, as the case may be.
"AFFILIATE" means with respect to any specified Person: (i) any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person; (ii) any other Person
that owns, directly or indirectly, 10% or more of such specified Person's
Capital Stock or any officer, director or employee of any such specified Person
or other Person or, with respect to any natural Person, any Person having a
relationship with such Person by blood, marriage or adoption no more remote than
first cousin; or (iii) any other Person 10% or more of the Voting Stock of which
is beneficially owned or held directly or indirectly by such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"ASSET ACQUISITION" means (i) an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary or will be merged or consolidated with or into
the Company or any Restricted Subsidiary or (ii) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of the assets of such Person, or any division or line of
business of such Person, or which is otherwise outside of the ordinary course of
business.
"ASSET SALE" means any sale, issuance, conveyance, transfer, lease
or other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of: (i) any
Capital Stock of any Subsidiary; (ii) all or substantially all of the properties
and assets of any division or line of business of the Company or its
Subsidiaries; or (iii) any other properties or assets of the Company or any
Subsidiary other than in the ordi-
-3-
nary course of business. For the purposes of this definition, the term "Asset
Sale" shall not include any transfer of properties and assets (a) that is
governed by the provisions of Section 8.01; PROVIDED, HOWEVER, that any
transaction consummated in compliance with Section 8.01 involving a transfer of
less than all of the properties or assets of the Company shall be deemed to be
an Asset Sale with respect to the properties or assets of the Company that are
not so transferred in such transaction, (b) that is by the Company to any
Guarantor, or by any Subsidiary to the Company or any Restricted Subsidiary in
accordance with the terms of this Indenture, (c) that is of obsolete equipment
in the ordinary course of business, (d) to any Securitization Subsidiary (on a
"true sale" non-recourse basis) of any accounts receivable or customer loans
receivable of the Company or any Restricted Subsidiary in the ordinary course of
business on terms customary for such transactions, but only to the extent that
the aggregate amount of such accounts receivable or loans held by all such
Securitization Subsidiaries which remain uncollected at any one time does not
exceed $125,000,000, or (e) the Fair Market Value of any such Asset Sale not
otherwise described in clause (a) through (d) above which in the aggregate does
not exceed $10,000,000.
"ASSET SALE OFFER" has the meaning set forth in Section 10.16.
"ASSET SALE OFFER PURCHASE DATE" has the meaning set forth in
Section 10.16.
"AVERAGE LIFE TO STATED MATURITY" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years from such date to the
date or dates of each successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such Indebtedness multiplied by
(b) the amount of each such principal payment by (ii) the sum of all such
principal payments.
"BANK CREDIT FACILITIES" means the following credit facilities of
the Company: (i) Master Note Agreement with ▇▇▇▇▇▇▇ Trust Company dated as of
May 16, 1997, (ii) a conditional line of credit from Norwest Bank Minnesota,
N.A. dated as of June 24, 1997 and (iii) a line of credit from Wachovia Bank of
Georgia, N.A. dated as of December 17, 1996, and, with respect to each,
including related notes, guarantees and other agreements executed in connection
therewith.
"BANKRUPTCY LAW" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code or any similar
federal or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or the law of any
other jurisdiction relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law.
-4-
"BANKRUPTCY ORDER" means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation,
receivership, winding-up, dissolution, "concordate" or reorganization, or
appointing a Custodian of a debtor or of all or any substantial part of a
debtor's property, or providing for the staying, arrangement, adjustment or
composition of indebtedness or other relief of a debtor.
"BOARD OF DIRECTORS" means the board of directors of the Company
or any Guarantor, as the case may be, or any duly authorized committee of such
board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or any Guarantor, as the case
may be, to have been duly adopted by its respective Board of Directors and to be
in full force and effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
State of New York or Minneapolis, Minnesota are authorized or obligated by law,
regulation or executive order to close.
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents (however
designated) of such Person's capital stock, and any rights (other than debt
securities convertible into capital stock), warrants or options exchangeable for
or convertible into such capital stock, whether now outstanding or issued after
the date of this Indenture.
"CAPITALIZED LEASE OBLIGATION" means any obligation under a lease
of (or other agreement conveying the right to use) any property (whether real,
personal or mixed) that is required to be classified and accounted for as a
capital lease obligation under GAAP, and, for the purpose of this Indenture, the
amount of such obligation at any date shall be the capitalized amount thereof at
such date, determined in accordance with GAAP.
"CASH EQUIVALENTS" means, at any time, (i) any evidence of
Indebtedness with a maturity of not more than one year issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of not more than one year of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500,000,000; (iii)
commercial paper with a maturity of not more than one year issued by a
corporation that is not an Affiliate of the Company organized under the laws of
any state of the United States or the District of Columbia and rated at least
-▇-
▇-▇ by Standard & Poor's Corporation or at least P-1 by ▇▇▇▇▇'▇ Investors
Service, Inc.; and (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (i) and
(ii) above entered into with any financial institution meeting the
qualifications specified in clause (ii) above.
"CEDEL" means Cedel Bank, SOCIETE ANONYME.
"CHANGE OF CONTROL" means the occurrence of any of the following
events (whether or not approved by the Board of Directors of the Company):
(i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial ownership" of all securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 35% or more of the total voting power of
the then outstanding Voting Stock of the Company; (ii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the board of directors of the Company (together with any new directors whose
election to such board or whose nomination for election by the stockholders of
the Company was approved by a vote of 66-2/3% of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved), cease for any
reason to constitute a majority of such board of directors then in office;
(iii) the Company consolidates with or merges with or into any person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any person, or any corporation consolidates
with or merges into or with the Company, in any such event pursuant to a
transaction in which the outstanding Voting Stock of the Company is changed into
or exchanged for cash, securities or other property, other than any such
transaction where the outstanding Voting Stock of the Company is not changed or
exchanged at all (except to the extent necessary solely to reflect a change in
the jurisdiction of incorporation of the Company) or where (A) the outstanding
Voting Stock of the Company is changed into or exchanged for (x) Voting Stock of
the surviving corporation which is not Redeemable Capital Stock or (y) cash,
securities and other property (other than Capital Stock of the surviving
corporation) in an amount which could be paid by the Company as a Restricted
Payment as described in Section 10.14 (and such amount shall be treated as a
Restricted Payment subject to the provisions of Section 10.14), (B) no "person"
or "group" owns immediately after such transaction, directly or indirectly, 35%
or more of the total outstanding Voting Stock of the surviving corporation and
(C) the holders of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority of the total
voting power of the then outstanding Voting Stock of the surviving or transferee
corporation immediately after such transaction; or (iv) any order, judgment or
decree shall be entered against the
-6-
Company decreeing the dissolution or split up of the Company and such order
shall remain undischarged or unstayed for a period in excess of sixty days.
"CHANGE OF CONTROL OFFER" has the meaning set forth in Section
10.11.
"COMMODITY PRICE PROTECTION AGREEMENT" means any forward contract,
commodity swap, commodity option or other similar financial agreement or
arrangement relating to, or the value of which is dependent upon, fluctuations
in commodity prices.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, or if at any time after the execution of this
Indenture such Commission is not existing and performing the applicable duties
now assigned to it, then the body or bodies performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by any one of its Chief Executive
Officer, its President or a Vice President, and by its Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer or its chief financial
officer, and delivered to the Trustee.
"CONSOLIDATED CASH FLOW AVAILABLE FOR FIXED CHARGES" means, for
any period, (i) the sum of, without duplication, the amounts for such period,
taken as a single accounting period, of (a) Consolidated Net Income, (b) to the
extent reducing Consolidated Net Income, Consolidated Non-cash Charges, (c) to
the extent reducing Consolidated Net Income, Consolidated Interest Expense, and
(d) to the extent reducing Consolidated Net Income, Consolidated Income Tax
Expense less (ii) other non-cash items increasing Consolidated Net Income for
such period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means the ratio of the
aggregate amount of Consolidated Cash Flow Available for Fixed Charges of the
Company for the four full fiscal quarters immediately preceding the date of the
transaction (the "Transaction Date") giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio for which consolidated financial
information of the Company is available (such four full fiscal quarter period
being referred to herein as the "Four Quarter Period") to the aggregate amount
of Consolidated Fixed Charges of the Company for such Four Quarter Period. For
purposes of this definition, "Consolidated Cash Flow Available for Fixed
Charges" and "Consolidated Fixed Charges" will be calculated, without
duplication, after giving effect on a PRO FORMA basis for the period of such
calculation to (i) the incurrence of any Indebtedness of the Company or
-7-
any of the Restricted Subsidiaries during the period commencing on the first day
of the Four Quarter Period to and including the Transaction Date (the "Reference
Period"), including, without limitation, the incurrence of the Indebtedness
giving rise to the need to make such calculation, as if such incurrence occurred
on the first day of the Reference Period, except that with respect to the
calculation of Consolidated Interest Expense in the determination of
Consolidated Fixed Charges, the Consolidated Interest Expense of such Person
attributable to interest on any Indebtedness under a revolving credit facility
computed on a PRO FORMA basis shall be computed based upon the average daily
balance of such Indebtedness during the Reference Period, (ii) an adjustment to
eliminate or include, as applicable, the Consolidated Cash Flow Available for
Fixed Charges and Consolidated Fixed Charges of the Company directly
attributable to assets which are the subject of any Asset Sale or Asset
Acquisition (including, without limitation, any Asset Acquisition giving rise to
the need to make such calculation as a result of the Company or one of the
Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring Acquired
Indebtedness) occurring during the Reference Period, as if such Asset Sale or
Asset Acquisition occurred on the first day of the Reference Period and (iii)
the retirement of Indebtedness during the Reference Period which cannot
thereafter be reborrowed occurring as if retired on the first day of the
Reference Period. In calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio," (1) interest on Indebtedness determined on a fluctuating
basis as of the Transaction Date and which will continue to be so determined
thereafter will be deemed to accrue at a fixed rate per annum equal to the rate
of interest on such Indebtedness in effect on the Transaction Date; (2) if
interest on any Indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rates, then the
interest rate in effect on the Transaction Date shall be deemed to have been in
effect during the Reference Period; and (3) notwithstanding clause (1) above,
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by Interest Rate Agreements, will be deemed to accrue at the
rate per annum resulting after giving effect to the operation of such
agreements. If the Company or any Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the above definition will
give effect to the incurrence of such guaranteed Indebtedness as if the Company
or any Restricted Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of,
without duplication, the amounts for such period of (i) Consolidated Interest
Expense; and (ii) the aggregate amount of cash dividends and other distributions
paid or accrued during such period in respect of Redeemable Capital Stock and
Preferred Stock of the Company.
-8-
"CONSOLIDATED INCOME TAX EXPENSE" means, for any period, the
provision for federal, state, local and foreign income taxes payable by the
Company and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, without
duplication, the sum of (a) the interest expense of the Company and the
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including, without limitation, (i) any amortization of
debt discount attributable to such period, (ii) the net cost under or otherwise
associated with Interest Rate Agreements, Currency Agreements and Commodity
Price Protection Agreements (in each case, including any amortization of
discounts), (iii) the interest portion of any deferred payment obligation, (iv)
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and (v) all capitalized
interest and all accrued interest, and (b) all but the principal component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by the Company and the Restricted Subsidiaries during such period and as
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated
net income (or loss) of the Company and the Restricted Subsidiaries for such
period on a consolidated basis as determined in accordance with GAAP, adjusted,
to the extent included in calculating such net income (or loss), by excluding,
without duplication, (i) all extraordinary gains or losses (net of all fees and
expenses relating thereto), (ii) the portion of net income (or loss) of the
Company and its Restricted Subsidiaries on a consolidated basis allocable to
minority interests in unconsolidated Persons, except to the extent that cash
dividends or distributions are actually received by the Company or a Restricted
Subsidiary, (iii) income of the Company and the Restricted Subsidiaries derived
from or in respect of Investments in Unrestricted Subsidiaries, except to the
extent that cash dividends or distributions are actually received by the Company
or a Restricted Subsidiary, (iv) net income (or loss) of any Person combined
with the Company or any of the Restricted Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(v) any gain or loss, net of taxes, realized upon the termination of any
employee pension benefit plan, (vi) net gains (or losses), net of taxes, less
all fees and expenses relating thereto, in respect of any Asset Sales by the
Company or a Restricted Subsidiary, (vii) the net income of any Restricted
Subsidiary to the extent that the declaration of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders,
(viii) any restoration to income of any contingency reserve except to the extent
provision for such reserve was made out of income accrued at any time following
the Issue Date, (ix) any gain, arising from the acquisition of any securities,
or the extinguishment, under GAAP, of any Indebtedness of the Company,
-9-
(x) the net gain or loss resulting from the Prepayments (as defined in the
Offering Memorandum relating to the sale of the Notes) and (xi) the net non-cash
compensation expense incurred in connection with the issuance or exercise of any
employee stock options the issuance of which was approved by the board of
directors of the Company.
"CONSOLIDATED NET SALES" means, for any period, the consolidated
net sales of the Company and the Restricted Subsidiaries as determined in
accordance with GAAP.
"CONSOLIDATED NON-CASH CHARGES" means, for any period, the
aggregate depreciation, amortization and other non-cash expenses of the Company
and the Restricted Subsidiaries reducing Consolidated Net Income for such period
(other than any non-cash item requiring an accrual or reserve for cash
disbursements in any future period), determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED TANGIBLE ASSETS" means, at any date, the total
assets, less goodwill and other intangibles, of the Company and the Restricted
Subsidiaries determined on a consolidated basis in accordance with GAAP as of
the most recent date for which a consolidated balance sheet of the Company is
available.
"CONSOLIDATION" means, with respect to any Person, the
consolidation of the accounts of its Restricted Subsidiaries with those of such
Person, all in accordance with GAAP; PROVIDED, HOWEVER, that "consolidation"
will not include consolidation of the accounts of any Unrestricted Subsidiary
with the accounts of such Person. The term "consolidated" has a correlative
meaning to the foregoing.
"CONTROL" means, with respect to any specified Person, the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at First Trust Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Corporate Trust Administration.
"COVENANT DEFEASANCE" has the meaning set forth in Section 4.03.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or its Restricted Subsidiaries against fluctuations in currency values.
-10-
"CUSTODIAN" means any receiver, interim receiver, receiver and
manager, receiver-manager, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law or any other law respecting secured
creditors and the enforcement of their security or any other Person with like
powers whether appointed judicially or out of court and whether pursuant to an
interim or final appointment.
"DEFAULT" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"DEFEASANCE" has the meaning set forth in Section 4.02.
"DEPOSITORY" means The Depository Trust Company, its nominees and
successors.
"DESIGNATED SENIOR INDEBTEDNESS" means (a) all Senior Indebtedness
outstanding under the Revolving Credit Facility and (b) any other Senior
Indebtedness which, at the time of determination, is specifically designated in
the instrument governing such Senior Indebtedness as "Designated Senior
Indebtedness" by the Company.
"DESIGNATION" has the meaning set forth in Section 10.21.
"DESIGNATION AMOUNT" has the meaning set forth in Section 10.21.
"DISINTERESTED DIRECTOR" means, with respect to any transaction or
series of related transactions, a member of the board of directors of the
Company who does not have any material direct or indirect financial interest in
or with respect to such transaction or series of related transactions.
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"EVENT OF DEFAULT" has the meaning set forth in Section 5.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the Commission thereunder.
"EXCHANGE NOTES" means the 8-1/2% Senior Subordinated Notes due
2008, Series B, to be issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement.
"EXCHANGE OFFER" shall have the meaning specified in the
Registration Rights Agreement.
-11-
"FAIR MARKET VALUE" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length transaction, for cash,
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy. Fair Market Value shall
be determined by the Board of Directors of the Company acting in good faith
evidenced by a Board Resolution thereof delivered to the Trustee.
"FOUR QUARTER PERIOD" has the meaning set forth in the definition
of "Consolidated Fixed Charge Coverage Ratio."
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States which are applicable at the
date of determination and which are consistently applied for all applicable
periods.
"GLOBAL NOTES" means one or more Regulation S Global Notes and
144A Global Notes.
"GUARANTEE" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. A guarantee shall include,
without limitation, any agreement to maintain or preserve any other Person's
financial condition or to cause any other Person to achieve certain levels of
operating results.
"GUARANTEE" means the guarantee by any Guarantor of both the
Company's obligations under this Indenture and the Notes pursuant to a guarantee
given in accordance with this Indenture.
"GUARANTOR" means (i) each of ▇▇▇▇ ▇▇▇▇▇▇ Company, ▇.▇. ▇▇▇▇▇▇
Company, Super Food Services, Inc., ▇▇▇▇▇▇▇ Transportation Services, Inc., GTL
Truck Lines, Inc., Piggly Wiggly Northland Corporation, ▇▇▇▇▇▇▇▇ Dairy of the
Black Hills, Inc. and Nebraska Dairies, Inc. and their respective successors and
(ii) any Person that executes or is required after the Issue Date to execute a
guarantee of the Notes pursuant to this Indenture until a successor replaces
such party pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor; PROVIDED that for purposes hereof, the
term "Guarantor" shall not include any Unrestricted Subsidiary unless
specifically provided otherwise.
-12-
"HOLDER" or "NOTEHOLDER" means a Person in whose name a Note is
registered in the Note Register.
"INCUR" has the meaning set forth in Section 10.12. "Incurrence,"
"incurred" and "incurring" shall have the meanings correlative to the foregoing.
"INDEBTEDNESS" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities incurred or arising in the ordinary course
of business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit, bankers
acceptance or other similar credit transaction and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock of such Person, or any warrants, rights or options to acquire
such Capital Stock, now or hereafter outstanding, (ii) all obligations of such
Person evidenced by bonds, notes, debentures or other similar instruments,
(iii) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person (even
if the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), but
excluding trade payables arising in the ordinary course of business, (iv) all
Capitalized Lease Obligations of such Person, (v) all Indebtedness referred to
in clauses (i) through (iv) above of other Persons and all dividends of other
Persons, to the extent the payment of which is secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon or with respect to property (including, without
limitation, accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness,
(vi) all guarantees of Indebtedness by such Person, (vii) except for purposes of
Section 10.14, all Redeemable Capital Stock issued by such Person valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends, (viii) all obligations under Interest Rate
Agreements, Currency Agreements or Commodity Price Protection Agreements of such
Person (net of any payments owed to such Person thereunder to the extent such
Person's obligations thereunder are subject to offset by the amount of payments
owed to such Person thereunder), and (ix) any amendment, supplement,
modification, deferral, renewal, extension, refunding or refinancing of any
liability of the types referred to in clauses (i) through (viii) above. For
purposes hereof, the "maximum fixed repurchase price" of any Redeemable Capital
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock as if such Redeemable
Capital Stock were purchased on any date on which Indebtedness shall be required
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the Fair Market Value of such Redeemable Capital Stock, such
-▇▇-
▇▇▇▇ ▇▇▇▇▇▇ Value shall be determined in good faith by the board of directors of
the issuer of such Redeemable Capital Stock.
"INDENTURE" means this instrument as originally executed
(including all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"INDENTURE OBLIGATIONS" means the obligations of the Company and
any other obligor under this Indenture or under the Notes, to pay principal of,
premium, if any, and interest on the Notes when due and payable, whether at
maturity, by acceleration, call for redemption or repurchase or otherwise, and
all other amounts due or to become due under or in connection with this
Indenture, the Notes or the Guarantees and the performance of all other
obligations to the Trustee (including, but not limited to, payment of all
amounts due the Trustee under Section 6.07 hereof) and the Holders of the Notes
under this Indenture, the Notes and the Guarantees, according to the terms
thereof.
"INDEPENDENT FINANCIAL ADVISOR" means a nationally recognized
accounting, appraisal or investment banking firm (i) which does not, and whose
directors, officers and employees or Affiliates do not have, a direct or
indirect financial interest in the Company and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"INITIAL NOTES" means the 8-1/2% Senior Subordinated Notes due
2008, Series A, of the Company.
"INITIAL PURCHASERS" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Inc., and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
"INTEREST" means, when used with respect to any Note, the amount
of all interest accruing on such Note, including all additional interest payable
on the Notes pursuant to the Registration Rights Agreement and all interest
accruing subsequent to the occurrence of any events specified in Sections
5.01(h), (i) and (j) or which would have accrued but for any such event, whether
or not such claims are allowable under applicable law.
"INTEREST PAYMENT DATE" means, when used with respect to any Note,
the Stated Maturity of an installment of interest on such Note, as set forth in
such Note.
"INTEREST RATE AGREEMENTS" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
obligations of any Person pursuant to any arrangement with any other Person
whereby, directly or indirectly, such
-14-
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by
applying a fixed or a floating rate of interest on the same notional amount or
any other arrangement involving payments by or to such Person based upon
fluctuations in interest rates (including, without limitation, interest rate
swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"INVESTMENT" means, with respect to any Person, any direct or
indirect advance, loan or other extension of credit (including by means of a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others or otherwise), or any purchase or acquisition by such Person of
any Capital Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by any other Person and all other items that would be
classified as investments on a balance sheet prepared in accordance with GAAP.
Investments shall exclude extensions of trade credit on commercially reasonable
terms in accordance with normal trade practices. In addition to the foregoing,
any Currency Agreement, Interest Rate Agreement, Commodity Price Protection
Agreement or similar agreement shall constitute an Investment in the net amount
required to be set forth on such Person's balance sheet in accordance with GAAP.
Upon the sale of any portion of the Capital Stock of any Restricted Subsidiary
by the Company or any other Restricted Subsidiary, the Company or such other
Restricted Subsidiary shall be deemed to have made an Investment in the amount
of its remaining Investment, if any, in such Person.
"INVESTMENT GRADE RATING" means a rating of BBB- and Baa3 or
higher, in each case by the applicable Rating Agency, or the equivalents
thereof.
"ISSUE DATE" means the original issue date of the Notes hereunder.
"LIEN" means any mortgage or deed of trust, charge, pledge, lien
(statutory or other), privilege, security interest, hypothecation, cessation and
transfer, lease of real property, assignment for security, claim, deposit
arrangement, or preference or priority or other encumbrance upon or with respect
to any property of any kind (including any conditional sale, capital lease or
other title retention agreement, any leases in the nature thereof, and any
agreement to give any security interest), whether real, personal or mixed,
movable or immovable, now owned or hereafter acquired. A Person shall be deemed
to own subject to a Lien any property which it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement.
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"MATERIAL SUBSIDIARY" means each Restricted Subsidiary of the
Company that is a "significant subsidiary" as defined in Rule 1-02 of Regulation
S-X under the Securities Act and the Exchange Act (as such regulation is in
effect on the Issue Date).
"MATURITY DATE" means, with respect to any Note, the date on which
any principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"NET CASH PROCEEDS" means (a) with respect to any Asset Sale by
any Person, the proceeds thereof (without duplication in respect of all Asset
Sales) in the form of cash or Cash Equivalents including payments in respect of
deferred payment obligations when received in the form of, or stock or other
assets when disposed of for, cash or Cash Equivalents (except to the extent that
such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary) net of (i) brokerage commissions and other reasonable
fees and expenses (including fees and expenses of legal counsel and investment
bankers) related to such Asset Sale, (ii) provisions for all taxes payable as a
result of such Asset Sale, (iii) payments made to retire Indebtedness where
payment of such Indebtedness is secured by the assets or properties the subject
of such Asset Sale, (iv) amounts required to be paid to any Person (other than
the Company or any Restricted Subsidiary) owning a beneficial interest in or
having a Lien on the assets subject to the Asset Sale and (v) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale (provided that the amount of any
such reserves shall be deemed to constitute Net Cash Proceeds at the time such
reserves shall have been released or are not otherwise required to be retained
as a reserve), all as reflected in an Officers' Certificate delivered to the
Trustee and (b) with respect to any issuance or sale of shares of Capital Stock
that have been converted into or exchanged for shares of Capital Stock as
referred to Section 10.14, the proceeds of such issuance or sale in the form of
cash or Cash Equivalents including payments in respect of deferred payment
obligations when received in the form of, or stock or other assets when disposed
of for, cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Company or any Restricted Subsidiary), net
of attorney's fees, accountant's fees and brokerage, consultation, underwriting
and other fees and expenses actually incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.
"NON-U.S. PERSON" has the meaning assigned to such term in
Regulation S.
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"NOTES" shall have the meaning specified in the Recitals of this
Indenture.
"OFFER" means a Change of Control Offer made pursuant to Section
10.11 or an Asset Sale Offer made pursuant to Section 10.16.
"OFFERING MEMORANDUM" means the Offering Memorandum dated
April 20, 1998 pursuant to which the Notes and the Guarantees were offered, and
any supplement thereto.
"OFFICER" means, with respect to the Company or any Guarantor, the
Chief Executive Officer, the President, a Vice President, the Secretary, an
Assistant Secretary, the Treasurer, an Assistant Treasurer, or the Chief
Financial Officer.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chief
Executive Officer, the President, the Chief Financial Officer or a Vice
President, and by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer of the Company or any Guarantor, as the case may be, and
delivered to the Trustee.
"144A GLOBAL NOTE" means a permanent global note in registered
form representing the aggregate principal amount of Notes sold in reliance on
Rule 144A under the Securities Act.
"OPINION OF COUNSEL" means a written opinion of counsel who may be
counsel for the Company, a Guarantor, or the Trustee, and who shall be
reasonably acceptable to the Trustee.
"OUTSTANDING" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company or any Guarantor or
any Affiliate thereof) in trust or set aside and segregated in trust by
the Company or any Guarantor or any Affiliate thereof (if the Company or
such Guarantor or Affiliate shall act as Paying Agent) for the Holders of
such Notes; PROVIDED, HOWEVER, that if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture
or provision therefor satisfactory to the Trustee has been made;
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(iii) Notes with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article Four, to the
extent provided in Sections 4.02 and 4.03; and
(iv) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, other than
any such Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona fide
purchaser in whose hands the Notes are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company, any Guarantor or any other obligor upon the Notes or any Affiliate
of the Company, any Guarantor or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes that a Responsible Officer of
the Trustee knows to be so owned shall be so disregarded. The Company shall
notify the Trustee, in writing, when it repurchases or otherwise acquires Notes,
of the aggregate principal amount of such Notes so repurchased or otherwise
acquired. Notes so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act as a Holder with respect to such Notes and that the
pledgee is not the Company, any Guarantor or any other obligor upon the Notes or
any Affiliate of the Company, any Guarantor or such other obligor. If the
Paying Agent holds, in its capacity as such, on any Maturity Date or on any
optional redemption date money sufficient to pay all accrued interest and
principal with respect to such Notes payable on that date and is not prohibited
from paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Notes cease to be Outstanding and
interest on them ceases to accrue. Notes may also cease to be outstanding to
the extent expressly provided in Article Four.
"PARI PASSU INDEBTEDNESS" means (a) any Indebtedness of the
Company which ranks PARI PASSU in right of payment to the Notes and (b) with
respect to any Guarantor, Indebtedness which ranks PARI PASSU in right of
payment to the Guarantee of such Guarantor.
"PERMITTED INDEBTEDNESS" has the meaning set forth in Section
10.12.
"PERMITTED INVESTMENTS" means (a) Cash Equivalents;
(b) Investments in prepaid expenses, negotiable instruments held for collection
and lease, utility and workers' compensation, performance and other similar
deposits; (c) loans and advances to employees and sales representatives made in
the ordinary course of business not to exceed $1,000,000 in the aggre-
-18-
gate at any one time outstanding; (d) Interest Rate Agreements, Currency
Agreements and Commodity Price Protection Agreements permitted under clause
(vii) or (viii) of the second paragraph of Section 10.12, (e) Investments
represented by accounts receivable created or acquired in the ordinary course of
business; (f) loans or advances to vendors in the ordinary course of business in
an amount not to exceed $10,000,000 at any time; (g) Investments existing on the
Issue Date and any renewal or replacement thereof on terms and conditions no
less favorable in any respect than that existing on the Issue Date; (h) any
Investment to the extent that the consideration therefor is Qualified Capital
Stock of the Company; (i) bonds, notes, debentures or other securities or other
non-cash proceeds received in connection with an Asset Sale permitted under
Section 10.16 not to exceed 20% of the total consideration in such Asset Sale;
(j) Investments in the form of the sale (on a "true sale" non-recourse basis) or
the servicing of receivables transferred from the Company or any Guarantor, or
transfer of cash, to a Securitization Subsidiary as a capital contribution or in
exchange for Indebtedness of such Securitization Subsidiary in the ordinary
course of business consistent with past practice on terms customary for such
transactions); (k) Indebtedness permitted under clauses (iv), (v) and (vi) of
the second paragraph of Section 10.12; and (l) Investments in any of the Notes
or any other debt securities of the Company not otherwise prohibited by this
Indenture.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PREDECESSOR NOTE" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any
Note authenticated and delivered under Section 3.07 hereof in exchange for a
mutilated Note or in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"PREFERRED STOCK" means, with respect to any Person, Capital Stock
of any class or, classes (however designated) of such Person which is preferred
as to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Capital Stock of any other class of such Person.
"PRIVATE EXCHANGE SECURITIES" shall have the meaning specified in
the Registration Rights Agreement.
"PRIVATE PLACEMENT LEGEND" shall mean the first paragraph of the
legend initially set forth in the Securities in the form set forth on Exhibit
A-1.
"PUBLIC EQUITY OFFERING" has the meaning set forth in Section
13.07.
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"PURCHASE MONEY OBLIGATION" means any Indebtedness secured by a
Lien on assets related to the business of the Company and the Restricted
Subsidiaries and any additions and accessions thereto, which are purchased by
the Company or any Restricted Subsidiary at any time after the Notes are issued;
PROVIDED that (i) the security agreement or conditional sales or other title
retention contract pursuant to which the Lien on such assets is created
(collectively, a "Purchase Money Security Agreement") shall be entered into
within 180 days after the purchase or substantial completion of the construction
of such assets and shall at all times be confined solely to the assets so
purchased or acquired, any additions and accessions thereto and any proceeds
therefrom except that, in the case of land upon which a supermarket is
constructed, such Purchase Money Security Agreement may be entered into within
180 days after the substantial completion of such supermarket, (ii) at no time
shall the aggregate principal amount of the outstanding Indebtedness secured
thereby be increased, except in connection with the purchase of additions and
accessions thereto and except in respect of fees and other obligations in
respect of such Indebtedness and (iii) (A) the aggregate outstanding principal
amount of Indebtedness secured thereby (determined on a per asset basis in the
case of any additions and accessions) shall not at the time such Purchase Money
Security Agreement is entered into exceed 90% of the purchase price to the
Company and its Restricted Subsidiaries of the assets subject thereto or (B) the
Indebtedness secured thereby shall be with recourse solely to the assets so
purchased or acquired, any additions and accessions thereto and any proceeds
therefrom.
"QUALIFIED CAPITAL STOCK" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"RATING AGENCIES" means (i) Standard & Poor's Ratings Group and
(ii) ▇▇▇▇▇'▇ Investors Service, Inc. or (iii) if Standard & Poor's Ratings Group
or ▇▇▇▇▇'▇ Investors Service, Inc. or both shall not make a rating of the Notes
publicly available, a nationally recognized securities rating agency or
agencies, as the case may be, selected by the Company, which shall be
substituted for Standard & Poor's Ratings Group, ▇▇▇▇▇'▇ Investors Service, Inc.
or both, as the case may be.
"REDEEMABLE CAPITAL STOCK" means any class or series of Capital
Stock to the extent that, either by its terms, by the terms of any security into
which it is convertible or exchangeable, or by contract or otherwise, is or upon
the happening of an event or passage of time would be, required to be redeemed
prior to any Stated Maturity of the principal of the Notes or is redeemable at
the option of the holder thereof at any time prior to such Stated Maturity, or
is convertible into or exchangeable for debt securities at any time prior to
such Stated Maturity.
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"REFERENCE PERIOD" has the meaning set forth in the definition of
"Consolidated Fixed Charge Coverage Ratio."
"REGISTRABLE SECURITIES" shall have the meaning specified in the
Registration Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of April 24, 1998 by and among the Company, the Guarantors
and the Initial Purchasers, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof.
"REGULAR RECORD DATE" means the Regular Record Date specified in
the Notes.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S GLOBAL NOTE" means a permanent global note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"REORGANIZATION SECURITIES" means , with respect to any insolvency
or liquidation proceeding involving the Company, Capital Stock or other
securities of the Company as reorganized or readjusted (or Capital Stock or any
other securities of any other Person provided for by a plan of reorganization or
readjustment) that are subordinated, at least to the same extent as the Notes,
to the payment of all outstanding Senior Indebtedness after giving effect to
such plan of reorganization or readjustment; PROVIDED, HOWEVER, that if debt
securities such securities shall not provide for amortization (including sinking
fund and mandatory prepayment provisions) commencing prior to three months
following the final scheduled maturity of all Senior Debt of the Company (as
modified by such plan of reorganization or readjustment).
"RESPONSIBLE OFFICER" means, with respect to the Trustee, the
chairman or vice chairman of the board of directors, the chairman or vice
chairman of the executive committee of the board of directors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller 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 of the Trustee to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
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"RESTRICTED NOTE" means a Note that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) under the Securities Act;
PROVIDED, HOWEVER, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Note.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that
is not an Unrestricted Subsidiary.
"REVOCATION" has the meaning set forth in Section 10.21.
"REVOLVING CREDIT FACILITY" means the Credit Agreement dated as of
October 8, 1996, as amended, among the Company, ▇▇▇▇▇▇ Trust and Savings Bank,
as administrative agent, and the other financial institutions signatory thereto,
as in effect on the Issue Date, and includes related notes, guarantees and other
agreements executed in connection therewith.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the Commission thereunder.
"SECURITIZATION SUBSIDIARY" means any Unrestricted Subsidiary of
the Company which engages in no business, activity or transaction other than
(i) acquiring accounts or customer loans receivable of the Company or any
Restricted Subsidiary, (ii) incurring Indebtedness which is without credit
recourse and which is secured solely by, or selling (on a "true sale"
non-recourse basis) interests in, such accounts or customer loans receivable and
(iii) immediately paying all of the proceeds of such Indebtedness or sale of
interests to the Company or such Restricted Subsidiary as payment for accounts
or customer loans receivable of the Company or such Restricted Subsidiary.
"SENIOR INDEBTEDNESS" means, with respect to the Company or any
Guarantor, as applicable, the principal of, premium, if any, and interest on any
Indebtedness of the Company or such Guarantor, as the case may be, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to any
Indebtedness of the Company or such Guarantor, as the case may be. Without
limiting the generality of the foregoing, "Senior Indebtedness" will include the
principal of, premium, if any, and interest (including interest that would
accrue but for the filing of a petition initiating any proceeding under any
state or federal bankruptcy laws, whether or not such claim is allowable in such
proceeding) on all obligations of every nature of the Company or such Guarantor,
as the case may be, from time to time owed to the lenders under the Revolving
Credit Facility, in-
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cluding, without limitation, principal of and interest on, and all fees and
expenses payable under the Revolving Credit Facility. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include, to the extent constituting
Indebtedness, (i) Indebtedness evidenced by the Notes or the Guarantors,
(ii) Indebtedness that is subordinate or junior in right of payment to any
Indebtedness of the Company or any Guarantor, (iii) Indebtedness which, when
incurred and without respect to any election under Section 1111(b) of ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, is without recourse to the Company or any Guarantor,
(iv) Indebtedness which is represented by Redeemable Capital Stock,
(v) Indebtedness for goods, materials or services purchased in the ordinary
course of business or Indebtedness consisting of trade payables or other current
liabilities (other than any current liabilities owing under the Revolving Credit
Facility or the current portion of any long-term Indebtedness which would
constitute Senior Indebtedness but for the operation of this clause (v)),
(vi) Indebtedness of or amounts owed by the Company or any Guarantor for
compensation to employees or for services rendered to the Company or such
Guarantor, (vii) any liability for federal, state, local or other taxes owed or
owing by the Company or any Guarantor, (viii) Indebtedness of the Company or any
Guarantor to a Subsidiary of the Company, and (ix) that portion of any
Indebtedness which at the time of issuance is issued in violation of this
Indenture.
"SPECIAL RECORD DATE" means, with respect to the payment of any
Defaulted Interest, a date fixed by the Trustee pursuant to Section 3.08 hereof.
"STATED MATURITY" means, with respect to any Note or any
installment of interest thereon, the dates specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable and, when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest, is
due and payable.
"SUBORDINATED INDEBTEDNESS" means, with respect to the Company,
Indebtedness of the Company which is expressly subordinated in right of payment
to the Notes or, with respect to any Guarantor, Indebtedness of such Guarantor
which is expressly subordinated in right of payment to the Guarantee of such
Guarantor.
"SUBSIDIARY" means, with respect to any Person, (a) any
corporation of which the outstanding shares of Voting Stock having at least a
majority of the votes entitled to be cast in the election of directors shall at
the time be owned, directly or indirectly, by such Person, or (b) any other
Person of which at least a majority of the shares of Voting Stock are at the
time, directly or indirectly, owned by such first named Person.
"SURVIVING PERSON" means, with respect to any Person involved in
any consolidation or merger, or any sale, assignment, conveyance, transfer,
lease or other disposition of
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all or substantially all of its properties and assets as an entirety, the Person
formed by or surviving such merger or consolidation or the Person to which such
sale, assignment, conveyance, transfer or lease is made.
"TRANSACTION DATE" has the meaning set forth in the definition of
"Consolidated Fixed Charge Coverage Ratio."
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of
1939, as amended.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"UNRESTRICTED NOTES" means one or more Notes that do not and are
not required to bear the Private Placement Legend in the form set forth in
Exhibit A, including, without limitation, the Exchange Notes.
"UNRESTRICTED SUBSIDIARY" means (i) each Securitization Subsidiary
and its Subsidiaries and (ii) each Subsidiary of the Company (other than a
Guarantor) designated as such pursuant to and in compliance with Section 10.21,
and each Subsidiary of each such Subsidiary of the Company. Any such
designation may be revoked by a Board Resolution of the Company delivered to the
Trustee, subject to the provisions of such Section 10.21.
"UNUTILIZED NET CASH PROCEEDS" has the meaning set forth in
Section 10.16.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof at any
time prior to the Stated Maturity of the Notes, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such U.S. Government Obligation
or a specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt; PROVIDED, HOWEVER, that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
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"VOTING STOCK" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the Board of Directors,
managers or trustees of any Person (irrespective of whether or not, at the time,
stock of any other class or classes shall have, or might have, voting power by
reason of the happening of any contingency).
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means any Restricted
Subsidiary of which 100% of the outstanding Capital Stock is owned by the
Company and/or another Wholly-Owned Restricted Subsidiary. For purposes of this
definition, any directors' qualifying shares shall be disregarded in determining
the ownership of a Restricted Subsidiary.
Section 1.02. OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Act" 1.05
"Affiliate Transaction" 10.15
"Agent Member" 3.16
"Change of Control Date" 10.11
"Change of Control Purchase Date" 10.11
"Change of Control Purchase Price" 10.11
"Defaulted Interest" 3.08
"Defeased Notes" 4.01
"insolvent Person" 4.04
"Non-payment Default" 14.03
"Note Register" 3.06
"Registrar" 3.03
"Paying Agent" or "Agent" 3.03
"Payment Blockage Period" 14.03
"Physical Notes" 3.04
"Required Filling Dates" 10.10
"Restricted Payments" 10.14
"Restricted Period" 3.17
Section 1.03. RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
-25-
(a) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) all references to "$" or "dollars" refer to the lawful
currency of the United States of America; and
(f) the words "include," "included" and "including" as used
herein are deemed in each case to be followed by the phrase "without
limitation."
Section 1.04. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or any
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or any
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or any Guarantor, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this
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Indenture, they may, but need not, be consolidated, with proper identification
of each matter covered therein, and form one instrument.
Section 1.05. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in Person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution (as provided below in
subsection (b) of this Section 1.05) of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01 hereof) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind every
future Holder of the same Note or the Holder of every Note issued upon the
transfer thereof or in exchange therefor or in lieu thereof to the same extent
as the original Holder, in respect of anything done, suffered or omitted to be
done by the Trustee, any Paying Agent or the Company or any Guarantor in
reliance thereon, whether or not notation of such action is made upon such Note.
Section 1.06. NOTICES, ETC., TO THE TRUSTEE, THE COMPANY AND THE GUARANTORS.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed, in writing, to or with the Trustee at First Trust Center, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Assistant Vice President) or at any other address previ-
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ously furnished in writing to the Holders, the Company and the Guarantors
by the Trustee; or
(b) the Company or a Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose (except as otherwise expressly
provided herein) hereunder if in writing and mailed, first-class postage
prepaid, to the Company or such Guarantor addressed to it at ▇▇▇▇-▇▇▇▇▇
Company, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief
Executive Officer, or at any other address previously furnished in
writing to the Trustee by the Company.
Section 1.07. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise expressly provided
herein) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the address of such Holder as it appears in the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice when
mailed to a Holder in the aforesaid manner shall be conclusively deemed to have
been received by such Holder whether or not actually received by such Holder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.08. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
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If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
Section 1.09. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.10. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and
the Guarantors, shall bind their respective successors and assigns, whether so
expressed or not.
Section 1.11. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes or any
Guarantee issued pursuant hereto shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 1.12. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes or in any Guarantee
issued pursuant hereto, express or implied, shall give to any Person (other than
the parties hereto and their successors hereunder, any Paying Agent and the
Holders) any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.13. GOVERNING LAW.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 1.14. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company or of a Guarantor shall not have any liability for any obligations of
the Company or a Guarantor under the Notes, the Guarantee or this Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation.
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Section 1.15. INDEPENDENCE OF COVENANTS.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default if such action is taken or condition exists.
Section 1.16. EXHIBITS.
All exhibits attached hereto are by this reference made a part
hereof with the same effect as if herein set forth in full.
Section 1.17. COUNTERPARTS.
This Indenture may be executed in any number of counterparts and
by telecopier, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 1.18. DUPLICATE 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.
ARTICLE TWO
NOTE AND GUARANTEE FORMS
Section 2.01. FORM AND DATING.
The Notes and the Trustee's certificate of authentication with
respect thereto and the Guarantees shall be in substantially the forms set
forth, or referenced, in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit D, respectively,
annexed hereto, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any applicable law
or with the rules of the Depository, any clearing agency or any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Notes and Guarantees, as evidenced by their execution thereof.
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The definitive Notes and Guarantees shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes and such Guarantees may be listed, all as determined
by the officers executing such Notes and Guarantees, as evidenced by their
execution of such Notes and Guarantees.
Each Note shall be dated the date of its issuance and shall show
the date of its authentication. The terms and provisions contained in the Notes
shall constitute, and are expressly made, a part of this Indenture.
ARTICLE THREE
THE NOTES
Section 3.01. TITLE AND TERMS.
PRINCIPAL AMOUNT. The aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is limited to
$165,000,000 in aggregate principal amount of Notes, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 3.04, 3.05, 3.06, 3.07,
9.06, 10.11, 10.16 or 13.06
MATURITY AND INTEREST. The Notes will mature on May 1, 2008.
Interest on the Notes will accrue at the rate of 8-1/2% per annum and will be
payable semi-annually on each May 1 and November 1, commencing November 1, 1998,
to the holders of record of Notes at the close of business on the April 15 and
October 15, respectively, immediately preceding such interest payment date.
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the Issue Date. Interest
on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.
Pursuant to the Registration Rights Agreement, the interest rate
on the Notes is subject to increase under certain circumstances if the Company
is not in compliance with its obligations under the Registration Rights
Agreement.
At the election of the Company, the entire Indebtedness on the
Notes or certain of the Company's obligations and covenants and certain Events
of Default thereunder may be defeased as provided in Article Four.
The terms and provisions contained in the Notes annexed hereto as
Exhibits A-1 and A-2 (including the Guarantees annexed hereto as Exhibit D)
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Com-
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pany, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Section 3.02. OPTIONAL REDEMPTION.
The Notes will be redeemable at the option of the Company as set
forth in the Notes and in Article Thirteen.
Section 3.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency (which shall be located in the Borough of
Manhattan in The City of New York, State of New York) where Notes may be
presented for payment (the "Paying Agent" or "Agent") and an office or agency
where notices and demands to or upon the Company in respect of the Notes, the
Guarantees and this Indenture may be served. The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents. The term
"Paying Agent" or "Agent" includes any additional paying agent. The Company may
act as its own Paying Agent, except for the purposes of payments on account of
principal on the Notes pursuant to Sections 10.11 and 10.16 hereof.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which shall incorporate the provisions
of the Trust Indenture Act. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall notify the Trustee
of the name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such and shall be entitled to appropriate compensation in
accordance with Section 6.07 hereof.
The Company initially appoints the Trustee as the Registrar and
Paying Agent and agent for service of notices and demands in connection with the
Notes.
Section 3.04. EXECUTION AND AUTHENTICATION.
The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A-1 hereto. The Exchange Notes
and the Trustee's certificate of authentication relating thereto shall be
substantially in the form of Exhibit A-2 hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company shall approve the form of the Notes and any notation, legend or en-
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dorsement thereon. Each Note shall be dated the date of issuance and shall show
the date of its authentication. Each Note shall have an executed Guarantee from
each of the Guarantors endorsed thereon substantially in the form of Exhibit D
hereto.
Notes offered and sold in reliance on Rule 144A and Notes offered
and sold in reliance on Regulation S shall be issued initially in the form of
one or more Global Notes, substantially in the form set forth in Exhibit A-1,
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company (and having an executed Guarantee from each of the Guarantors
endorsed thereon) and authenticated by the Trustee as hereinafter provided and
shall bear the legend set forth in Exhibit B. The aggregate principal amount of
the Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Notes issued in exchange for interests in a Global Note pursuant
to Section 3.17 may be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A-1 (the
"Physical Notes").
All Notes offered and sold in reliance on Regulation S shall
remain in the form of a Global Note until the consummation of the Exchange Offer
pursuant to the Registration Rights Agreement; PROVIDED, HOWEVER, that all of
the time periods specified in the Registration Rights Agreement to be complied
with by the Company and the Guarantors have been so complied with.
Two Officers shall sign, or one Officer shall sign, and one
Officer (each of whom shall, in each case, have been duly authorized by all
requisite corporate actions) shall attest to, the Notes for the Company, and the
Guarantees for the Guarantors, by manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a Note
or a Guarantee, as the case may be, was an Officer or Assistant Secretary at the
time of such execution but no longer holds that office or position at the time
the Trustee authenticates the Note, the Note shall nevertheless be valid.
The Trustee shall authenticate (i) Initial Notes for original
issue in an aggregate principal amount not to exceed $165,000,000, (ii) Private
Exchange Notes from time to time only in exchange for a like principal amount of
Initial Notes and (iii) Unrestricted Notes from time to time only in exchange
for (A) a like principal amount of Initial Notes or (B) a like principal amount
of Private Exchange Notes, in each case upon a written order of the Company in
the form of an Officers' Certificate of the Company. Each such written order
shall specify the amount of Notes to be authenticated and the date on which the
Notes are to be authenticated, whether the Notes are to be Initial Notes,
Private Exchange Notes or Unre-
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stricted Notes and whether (subject to this Section 3.04) the Notes are to be
issued as Physical Notes or Global Notes and such other information as the
Trustee may reasonably request. The aggregate principal amount of Notes
outstanding at any time may not exceed $165,000,000, except as provided in
Section 3.07.
Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Notes may vote or consent) as one class and no series of Notes will have
the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof.
Section 3.05. TEMPORARY NOTES.
Until definitive Notes are prepared and ready for delivery, the
Company may execute and upon a Company Order the Trustee shall authenticate and
deliver temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes, in any authorized denominations, but may have variations that
the Company reasonably considers appropriate for temporary Notes as conclusively
evidenced by the Company's execution of such temporary Notes.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay but in no event later than the
date that the Exchange Offer is consummated. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 10.02, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of like tenor and of
authorized denominations. Until so exchanged the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
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Section 3.06. TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 10.02 being sometimes
referred to herein as the "Note Register") in which, subject to such reasonable
regulations as the Registrar may prescribe, the Company shall provide for the
registration of Notes and of transfers and exchanges of Notes. The Trustee is
hereby initially appointed Registrar for the purpose of registering Notes and
transfers of Notes as herein provided.
Subject to Sections 3.16 and 3.17, when Notes are presented to the
Registrar or a co-Registrar with a request from the Holder of such Notes to
register the transfer or exchange for an equal principal amount of Notes of
other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested; PROVIDED, HOWEVER, that every Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
be accompanied by a written instrument of transfer or exchange in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. Whenever any Notes are so
presented for exchange, the Company and any Guarantor shall execute, and the
Trustee shall authenticate and deliver, the Notes and Guarantees which the
Holder making the exchange is entitled to receive. No service charge shall be
made to the Noteholder for any registration of transfer or exchange. The
Company may require from the Noteholder payment of a sum sufficient to cover any
transfer taxes or other governmental charge that may be imposed in relation to a
transfer or exchange, but this provision shall not apply to any exchange
pursuant to Sections 9.06, 10.11, 10.16 or 13.06 hereof (in which events the
Company will be responsible for the payment of all such taxes which arise solely
as a result of the transfer or exchange and do not depend on the tax status of
the Holder). The Trustee shall not be required to exchange or register the
transfer of any Note for a period of 15 days immediately preceding the first
mailing of notice of redemption of Notes to be redeemed or of any Note selected,
called or being called for redemption except, in the case of any Note where
public notice has been given that such Note is to be redeemed in part, the
portion thereof not to be redeemed.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Notes may be effected only through a book-entry system maintained by
the Holder of such Global Note (or
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its agent), and that ownership of a beneficial interest in the Note shall be
required to be reflected in a book-entry system.
Section 3.07. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note of any series claims that the Note has been lost, destroyed or
wrongfully taken, the Company shall execute and upon a Company Order, the
Trustee shall authenticate and deliver a replacement Note of like tenor and
principal amount, bearing a number not contemporaneously outstanding, and the
Guarantors shall execute a replacement Guarantee, if the Holder of such Note
furnishes to the Company and to the Trustee evidence reasonably acceptable to
them of the ownership and the destruction, loss or theft of such Note and an
indemnity bond shall be posted by such Holder, sufficient in the judgment of the
Company or the Trustee, as the case may be, to protect the Company, the Trustee
or any Agent from any loss that any of them may suffer if such Note is replaced.
The Company may charge such Holder for the Company's and any Guarantor's
expenses in replacing such Note (including (i) expenses of the Trustee charged
to the Company and (ii) any tax or other governmental charge that may be
imposed) and the Trustee may charge the Company for the Trustee's expenses in
replacing such Note.
Every replacement Note and Guarantee issued pursuant to this
Section in lieu of any destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Company and each Guarantor,
whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
Section 3.08. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the then applicable interest rate borne by the Notes, to
the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the Regular Record Date; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in subsection (a) or
(b) below:
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(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as provided in this subsection (a). Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company in writing of
such Special Record Date. In the name and at the expense of the Company,
the Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder at its address as it appears in the Note
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered on such Special Record Date and shall
no longer be payable pursuant to the following subsection (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after written notice
given by the Company to the Trustee of the proposed payment pursuant to
this subsection (b), such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
Section 3.09. PERSONS DEEMED OWNERS.
Prior to and at the time of due presentment for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in
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whose name any Note is registered in the Note Register as the owner of such Note
for the purpose of receiving payment of principal of, premium, if any, and
(subject to Section 3.08) interest on such Note and for all other purposes
whatsoever, whether or not such Note shall be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 3.10. CANCELLATION.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall be delivered to the Trustee and, if not already
canceled, shall be promptly canceled by it. The Company and any Guarantor may
at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company or such Guarantor may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Trustee. The Registrar and the Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer or exchange, redemption or payment. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation. No Notes shall be authenticated in lieu of or in
exchange for any Notes canceled as provided in this Section 3.10, except as
expressly permitted by this Indenture. All canceled Notes held by the Trustee
shall be destroyed and certification of their destruction delivered to the
Company unless by a Company Order the Company shall direct that the canceled
Notes be returned to it. The Trustee shall provide the Company a list of all
Notes that have been canceled from time to time as requested by the Company. If
the Company or any Affiliate of the Company acquires any Notes (other than by
redemption pursuant to Section 13.07 or an Offer pursuant to Section 10.11 or
10.16), such acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Notes unless and until such Notes are
delivered to the Trustee for cancellation.
Section 3.11. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, date
established for the payment of Defaulted Interest or Stated Maturity of any Note
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Notes) payment of principal, premium, if any, or interest
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date, date established for the payment of Defaulted Interest or at
the Stated Maturity, as the case may be. In such event, no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date, Redemption Date, date established for the payment of Defaulted
Interest or Stated Maturity, as the case may be, to the next succeeding Business
Day and, with respect to any Interest Pay-
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ment Date, interest for the period from and after such Interest Payment Date
shall accrue with respect to the next succeeding Interest Payment Date.
Section 3.12. CUSIP AND CINS NUMBERS.
The Company in issuing the Notes may use "CUSIP" and "CINS"
numbers (if then generally in use), and if so, the Trustee shall use the CUSIP
or CINS numbers, as the case may be, in notices of redemption or exchange as a
convenience to Holders; PROVIDED, HOWEVER, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP or CINS
number, as the case may be, printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee in writing of any change
in the CUSIP or CINS number of any type of Notes.
Section 3.13. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, or interest on the Notes, and shall notify the
Trustee of any default by the Company in making any such payment. Money held
in trust by the Paying Agent need not be segregated except as required by law
and except if the Company, any Guarantor or any of their respective Affiliates
is acting as Paying Agent, and in no event shall the Paying Agent be liable for
any interest on any money received by it hereunder. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default, upon a Company Order to the Paying Agent, require such
Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
Section 3.14. TREASURY NOTES.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver, consent or
notice, Notes owned by the Company or an Affiliate of the Company shall be
considered as though they are 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 which the Trustee actually knows are so
owned shall be so considered. The Company shall notify the Trustee, in writing,
when it or any of its Affiliates repurchases or otherwise acquires Notes, of the
aggregate principal amount of such Notes so repurchased or otherwise acquired.
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Section 3.15. DEPOSITS OF MONIES.
Prior to 11:30 a.m. New York City time on each Interest Payment
Date, maturity date, Change of Control Purchase Date and Asset Sale Offer
Purchase Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date, maturity date, Change of Control Purchase Date
and Asset Sale Offer Purchase Date, as the case may be, in a timely manner which
permits the Paying Agent to remit payment to the Holders on such Interest
Payment Date, maturity date, Change of Control Purchase Date and Asset Sale
Offer Purchase Date, as the case may be.
Section 3.16. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) The Global Notes initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Exhibit B.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Sections 3.04 and 3.17. In addition,
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in Global Notes if (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for any Global
Note, or that it will cease to be a "Clearing Agency" under the Exchange Act,
and in either case a successor depositary is not appointed by the Company within
90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a written request from the Depository
to issue Physical Notes.
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(c) In connection with any transfer or exchange of a portion of
the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Notes of like tenor and principal amount of authorized denominations.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Notes, an equal aggregate principal amount at maturity of
Physical Notes of like tenor of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to subparagraph (b), (c) or
(d) of this Section 3.16 shall, except as otherwise provided by Section 3.17,
bear the Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
Section 3.17. SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS TO NON-U.S. PERSONS. The following additional
provisions shall apply with respect to the registration of any proposed transfer
of an Initial Note to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement Legend, if (x)
the requested transfer is after the second anniversary of the Issue Date;
PROVIDED, HOWEVER, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Note, or portion
thereof, at any time on or prior to the second anniversary of the Issue
Date and such transfer can otherwise be lawfully made under the
Securities Act without registering such Initial Notes thereunder or
(y) the proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit D hereto;
(ii) if the proposed transferee is an Agent Member and the Notes
to be transferred consist of Physical Notes which after transfer are to
be evidenced by an in-
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terest in the Regulation S Global Note upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and
the Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, together with any required
legal opinions and certifications, the Registrar shall register the
transfer and reflect on its books and records the date and an increase in
the principal amount of the Regulation S Global Note in an amount equal
to the principal amount of Physical Notes to be transferred, and the
Trustee shall cancel the Physical Notes so transferred;
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and
the Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, together with any required
legal opinions and certifications, the Registrar shall register the
transfer and reflect on its books and records the date and (A) a decrease
in the principal amount of the Global Note from which such interests are
to be transferred in an amount equal to the principal amount of the Notes
to be transferred and (B) an increase in the principal amount of the
Regulation S Global Note in an amount equal to the principal amount of
the Global Note to be transferred; and
(iv) until the 41st day after the Issue Date (the "Restricted
Period"), an owner of a beneficial interest in the Regulation S Global
Note may not transfer such interest to a transferee that is a U.S. Person
or for the account or benefit of a U.S. Person within the meaning of Rule
902(o) of the Securities Act. During the Restricted Period, all
beneficial interests in the Regulation S Global Note shall be transferred
only through Cedel or Euroclear, either directly if the transferor and
transferee are participants in such systems, or indirectly through
organizations that are participants.
(b) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial Note to
a QIB (excluding Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement Legend, if
(x) the requested transfer is after the second anniversary of the Issue
Date; PROVIDED, HOWEVER, that neither the Company nor any Affiliate of
the Company has held any beneficial interest in such Note, or portion
thereof, at any time on or prior to the second anniversary of the Issue
Date and such transfer can otherwise be lawfully made under the
Securities Act without registering such Initial Note thereunder or
(y) such transfer is being made by a proposed transferor who has checked
the box provided for on the form of Note stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
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been made in compliance with the provisions of Rule 144A to a transferee
who has signed the certification provided for on the form of Note
stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Note for its own account or an account
with respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company
as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(ii) if the proposed transferee is an Agent Member and the Notes
to be transferred consist of Physical Notes which after transfer are to
be evidenced by an interest in the 144A Global Note, upon receipt by the
Registrar of written instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall register
the transfer and reflect on its book and records the date and an increase
in the principal amount of the 144A Global Note in an amount equal to the
principal amount of Physical Notes to be transferred, and the Trustee
shall cancel the Physical Note so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
written instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the
principal amount of the Global Note from which interests are to be
transferred in an amount equal to the principal amount of the Notes to be
transferred and (B) an increase in the principal amount of the 144A
Global Note in an amount equal to the principal amount of the Global Note
to be transferred.
(c) PRIVATE PLACEMENT LEGEND. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) the circumstances contemplated
by paragraph (a)(i)(x) of this Section 3.17 exist, (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act.
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(d) OTHER TRANSFERS. If a Holder proposes to transfer a Note
constituting a Restricted Note pursuant to any exemption from the registration
requirements of the Securities Act other than as provided for by Section
3.17(a), (b) and (c), the Registrar shall only register such transfer or
exchange if such transferor delivers an Opinion of Counsel satisfactory to the
Company and the Registrar that such transfer is in compliance with the
Securities Act and the terms of this Indenture; PROVIDED, HOWEVER, that the
Company may, based upon the opinion of its counsel, instruct the Registrar by a
Company Order not to register such transfer in any case where the proposed
transferee is not a QIB or Non-U.S. Person.
(e) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.16 or this Section
3.17. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable prior written notice to the Registrar.
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option by Board Resolution, at any time,
with respect to the Notes, elect to have either Section 4.02 or Section 4.03 be
applied to all of the Outstanding Notes (the "Defeased Notes"), upon compliance
with the conditions set forth below in this Article Four.
Section 4.02. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 4.01 of the option
applicable to this Section 4.02, the Company and each Guarantor shall be deemed
to have been discharged from their obligations with respect to the Defeased
Notes and the related Guarantees on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Defeased Notes, which shall thereafter be deemed
to
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be "Outstanding" only for the purposes of Section 4.05 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 insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, and, upon Company
Request, shall execute proper instruments acknowledging the same), except for
the following, which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Notes to receive, solely from
the trust funds described in Section 4.04 and as more fully set forth in such
section, payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due, (b) the Company's obligations with
respect to such Defeased Notes under Sections 3.05, 3.06, 3.07, 10.02 and
10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, the Trustee's rights under Section
6.07, and (d) this Article Four. Subject to compliance with this Article Four,
the Company may exercise its option under this Section 4.02 notwithstanding the
prior exercise of its option under Section 4.03 with respect to the Notes.
Section 4.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 4.01 of the option
applicable to this Section 4.03, the Company and each Guarantor shall be
released from their obligations under any covenant or provision contained in
Sections 10.05 through 10.08 and 10.10 through 10.22 and the provisions of
Article Eight and Article Fourteen shall not apply, with respect to the Defeased
Notes, on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Defeased Notes shall thereafter be
deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the Defeased Notes, the Company and each Guarantor
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in Sections 10.05 through 10.08 and 10.10
through 10.22 or Article Eight, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Sections 5.01(c), (d), (e) (other than a Default of Event
of Default thereunder arising by reason of the covenant defeasance itself), (g),
or (k), but, except as specified above, the remainder of this Indenture and such
Defeased Notes shall be unaffected thereby.
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Section 4.04. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to application of either
Section 4.02 or Section 4.03 to the Defeased Notes:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the
provisions of this Article Four applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Notes, (a) cash in United States dollars in an amount, or (b) U.S.
Government Obligations which through the scheduled payment of principal,
premium, if any, and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (c) a combination thereof, in any such
case, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and interest on the
Defeased Notes at the Stated Maturity of such principal or installment of
principal, premium, if any, or interest; PROVIDED, HOWEVER, that the
Company may only make such deposit if Article Fourteen does not prohibit
payments on the Notes at the time of the deposit; PROVIDED FURTHER,
HOWEVER, that the Trustee shall have been irrevocably instructed to apply
such cash or the proceeds of such U.S. Government Obligations to said
payments with respect to the Notes;
(2) No Default shall have occurred and be continuing on the
date of such deposit or, insofar as Sections 5.01(h), (i) or (j) are
concerned, at any time during the period ending on the ninety-first day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(3) Neither the Company nor any Subsidiary of the Company is an
"insolvent Person" within the meaning of any applicable Bankruptcy Law on
the date of such deposit or at any time during the period ending on the
ninety-first day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period);
(4) Such defeasance or covenant defeasance shall not cause the
Trustee for the Notes to have a conflicting interest in violation of
Section 6.08 and for purposes of
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the Trust Indenture Act with respect to any securities of the Company or
any Guarantor;
(5) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company or any
Guarantor is a party or by which it is bound;
(6) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be registered under such Act or exempt from
registration thereunder;
(7) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(8) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the holders of the Notes or any
Guarantee over the other creditors of the Company or any Guarantor with
the intent of defeating, hindering, delaying or defrauding creditors of
the Company, any Guarantor or others;
(9) No event or condition shall exist that would prevent the
Company from making payments of the principal of, premium, if any, and
interest on the Notes on the date of such deposit or at any time ending
on the 91st day after the date of such deposit;
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel (which counsel shall
practice in the United States), each stating that (i) all conditions
precedent provided for relating to either the defeasance under Section
4.02 or the covenant defeasance under Section 4.03 (as the case may be)
have been complied with as contemplated by this Section 4.04 and (ii) if
any other Indebtedness of the Company or any Guarantor shall then be
outstanding or committed, such defeasance or covenant defeasance will not
violate the provisions of the agreements or instruments evidencing such
Indebtedness;
(11) In the case of an election under Section 4.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or
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(y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion 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 defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred; and
(12) In the case of an election under Section 4.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
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;
Opinions required to be delivered under this Section shall be
delivered by independent counsel (other than as set forth above) and may have
such qualifications as are customary for opinions of the type required and
reasonably acceptable to the Trustee, and counsel delivering such opinion may
rely on certificates of the Company or government officials customary for
opinions of the type required.
Section 4.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the proviso of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 4.05, the "Trustee") pursuant to Section 4.04 in respect of the Defeased
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 (other than the Company) 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. Money
deposited with the Trustee or a Paying Agent pursuant to this Article Four shall
not be subject to Article Fourteen.
The Company shall pay and indemnify the Trustee and hold it
harmless against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 4.04 or the principal,
premium, if any, and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of the
Defeased Notes.
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Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 4.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 4.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 4.02 or 4.03, 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 obligations of the Company and of any Guarantor under this Indenture, the
Notes and the Guarantees shall be revived and reinstated as though no deposit
had occurred pursuant to Section 4.02 or 4.03, as the case may be, until such
time as the Trustee or Paying Agent is permitted to apply all such money and
U.S. Government Obligations in accordance with Section 4.02 or 4.03, as the case
may be; PROVIDED, HOWEVER, that if the Company makes any payment of principal,
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 and U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 5.01. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of the principal of or premium, if
any, when due and payable, on any of the Notes (at its Stated Maturity,
upon optional redemption, acceleration, required purchase, sinking fund,
scheduled principal payment or otherwise); or
(b) default in the payment of an installment of interest on any
of the Notes, when due and payable, continued for 30 days or more; or
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(c) the Company or any Guarantor fails to comply with any of its
obligations described under Article 8 or Sections 10.11 or 10.16; or
(d) the Company or any Guarantor fails to perform or observe any
other term, covenant or agreement contained in the Notes, the Guarantees
or this Indenture (other than a default specified in (a), (b) or
(c) above) for a period of 30 days after written notice of such failure
requiring the Company to remedy the same shall have been given (x) to the
Company by the Trustee or (y) to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the Notes then
outstanding; or
(e) default or defaults under one or more agreements, indentures
or instruments under which the Company, any Guarantor or any Restricted
Subsidiary then has outstanding Indebtedness in excess of $17,500,000
individually or in the aggregate and either (a) such Indebtedness is
already due and payable in full or (b) such default or defaults result in
the acceleration of the maturity of such Indebtedness; or
(f) any Guarantee ceases to be in full force and effect or is
declared null and void or any Guarantor denies that it has any further
liability under any Guarantee, or gives notice to such effect (other than
by reason of the termination of this Indenture or the release of any such
Guarantee in accordance with Sections 10.18 or 12.05); or
(g) one or more judgments, orders or decrees of any court or
regulatory or administrative agency for the payment of money in excess of
$17,500,000 (in excess of the coverage under applicable insurance
policies (after giving effect to any deductibles) under which a
financially sound and reputable insurer has admitted liability) either
individually or in the aggregate shall have been rendered against the
Company, any Guarantor or any Restricted Subsidiary or any of their
respective properties and shall not have been discharged and either
(a) any creditor shall have commenced an enforcement proceeding upon such
judgment, order or decree or (b) there shall have been a period of 60
consecutive days during which a stay of enforcement of such judgment,
order or decree, by reason of a pending appeal or otherwise, shall not be
in effect; or
(h) the Company, any Guarantor or any Material Subsidiary of the
Company pursuant to or under or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the making of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any case
against it;
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(iii) consents to the appointment of a Custodian of it or
for any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors;
(v) files an answer or consent seeking reorganization or
relief;
(vi) shall admit in writing its inability to pay its
debts generally; or
(vii) consents to the filing of a petition in bankruptcy;
or
(i) a court of competent jurisdiction in any involuntary case or
proceeding enters a Bankruptcy Order against the Company, any Guarantor
or any Material Subsidiary, and such Bankruptcy Order remains unstayed
and in effect for 60 consecutive days; or
(j) a Custodian shall be appointed out of court with respect to
the Company, any Guarantor or any Material Subsidiary or with respect to
all or any substantial part of the assets or properties of the Company,
any Guarantor or any Material Subsidiary; or
(k) any holder of at least $17,500,000 in aggregate principal
amount of Indebtedness of the Company, any Guarantor or any Restricted
Subsidiary shall commence judicial proceedings to foreclose upon assets
of the Company, any Guarantor or any of its Restricted Subsidiaries
having a Fair Market Value, individually or in the aggregate, in excess
of $17,500,000 or shall have exercised any right under applicable law or
applicable security documents to take ownership of any such assets in
lieu of foreclosure.
Section 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than as specified in Sections
5.01(h), (i) or (j) with respect to the Company) shall occur and be continuing,
the Trustee, by notice to the Company, or the holders of at least 25% in
aggregate principal amount of the Notes then Outstanding, by notice to the
Trustee and the Company, may declare the principal of, premium, if any, and
accrued interest on all of the outstanding Notes due and payable immediately,
upon which declaration all such amounts payable in respect of the Notes will
become and be immediately due and payable. If an Event of Default specified in
Sections 5.01(h), (i) or (j) with respect to the Company occurs and is
continuing, then the principal of, premium, if any, and accrued interest on all
of the outstanding Notes will IPSO FACTO become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
holder of Notes.
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At any time after a declaration of acceleration, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the
Outstanding Notes, by written notice to the Company and the Trustee, may rescind
such declaration if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, (ii) all overdue
interest on all Outstanding Notes, (iii) the principal of and premium, if
any, on any Outstanding Notes which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate borne
by the Outstanding Notes, and (iv) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate borne by
the Outstanding Notes, and
(b) all Events of Default, other than the non-payment of
principal of, premium, if any, and interest on the Notes that has become
due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair
any right consequent thereon.
Section 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company and each Guarantor covenant that if an Event of
Default specified in Section 5.01(a) or 5.01(b) shall have occurred and be
continuing, the Company and each Guarantor will, jointly and severally, upon
demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Notes, the whole amount then due and payable on such Notes for principal,
premium, if any, and interest, with interest upon the overdue principal,
premium, if any, and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest, at the rate then
borne by the Notes; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company and each Guarantor fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may, but is not obligated under this paragraph to, institute a
judicial proceeding for the collection of the sums so due and unpaid and may,
but is not obligated under this paragraph to, prosecute such proceeding to
judgment or final decree, and may, but is not obligated under this paragraph to,
enforce the same against the Company, any Guarantor or any other obligor upon
the Notes
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and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any Guarantor or any other obligor
upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion but is not obligated under this paragraph to, (i) proceed to
protect and enforce its rights and the rights of the Holders under this
Indenture or any Guarantee by such appropriate private or judicial proceedings
as the Trustee shall deem most effectual to protect and enforce such rights,
whether for the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted herein, including,
without limitation, seeking recourse against any Guarantor or (ii) proceed to
protect and enforce any other proper remedy, including, without limitation,
seeking recourse against any Guarantor. No recovery of any such judgment upon
any property of the Company or any Guarantor shall affect or impair any rights,
powers or remedies of the Trustee or the Holders.
Section 5.04. TRUSTEE MAY FILE PROOFS OF CLAIMS.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes, including each Guarantor or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
the Notes and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, fees, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any Custodian, in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 hereof.
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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 thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture, the Notes or
any Guarantee may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name and as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
fees, expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Notes in respect of
which such judgment has been recovered.
Section 5.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal, premium,
if any, or interest, upon presentation of the Notes and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.07;
Second: to the holders of Senior Indebtedness to the extent
required by Article Fourteen.
Third: to Holders for interest accrued on the Notes, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Notes for interest;
Fourth: to Holders for principal and premium, if any, amounts
owing under the Notes, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and premium, if any; and
Fifth: the balance, if any, to the Company.
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The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
5.06.
Section 5.07. LIMITATION ON SUITS.
No holder of any of the Notes has any right to institute any
proceeding with respect to this Indenture or any remedy thereunder, unless
(i) the holders of at least 25% in aggregate principal amount
of the Outstanding Notes have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as
Trustee under the Notes and this Indenture,
(ii) the Trustee has failed to institute such proceeding within
15 days after receipt of such notice and offer of indemnity, and
(iii) the Trustee, within such 15-day period, has not received
directions inconsistent with such written request by Holders of a
majority in aggregate principal amount of the Outstanding Notes. Such
limitations do not apply, however, to a suit instituted by a holder of a
Note for the enforcement of the payment of the principal of, premium, if
any, or interest on such Note on or after the respective due dates
expressed in such Note;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing to, any provision of
this Indenture, any Note or any Guarantee to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
any Note or any Guarantee, except in the manner provided in this Indenture and
for the equal and ratable benefit of all the Holders.
Section 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, but subject
to Article Fourteen, the Holder of any Note shall have the right, which is
absolute and unconditional, to receive cash payment of the principal of,
premium, if any, and (subject to Section 3.08 hereof) interest on such Note on
the respective Stated Maturities expressed in such Note (or, in the case of
redemption, a Change of Control Offer or Asset Sale Offer, on the Redemption
Date, Change of Control Purchase Date or Asset Sale Offer Purchase Date,
respectively) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
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Section 5.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture, any Note or any Guarantee and
such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, each of the Guarantor, the Trustee and the Holders shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Note
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article Five or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 5.12. CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, PROVIDED, HOWEVER, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, any Note or any Guarantee or expose the
Trustee to personal liability; and
(b) subject to Section 315 of the TIA, the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with
such direction.
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Section 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes may on behalf of the Holders of all the Notes
waive any past Default or Event of Default hereunder and its consequences,
except a Default or Event of Default:
(a) in the payment of the principal of, premium, if any, or
interest on any Note or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected thereby.
Upon any such waiver, such Default or Event of 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 Event of Default or impair any right
consequent thereon.
Section 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Note
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.14 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Notes, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of, premium, if any, or interest on any Note on or after the
respective Stated Maturities expressed in such Note (or, in the case of
redemption, on or after the respective Redemption Dates).
Section 5.15. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each of the Company and the Guarantors covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the
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Company or any Guarantor from paying all or any portion of the principal of,
premium, if any, or interest on the Notes contemplated herein or in the Notes or
which may affect the covenants or the performance of this Indenture; and each of
the Company and the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
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(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 6.01.
Section 6.02. NOTICE OF DEFAULTS.
Within 30 days after the occurrence of any Default, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in
the Note Register, notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a Default in the payment of the principal of, premium, if any, or
interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as a trust committee of Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest of
the Holders.
Section 6.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to Section 6.01 hereof and the provisions of Section 315
of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any Board Resolution of the Company or any Guarantor may be sufficiently
evidenced by a Board Resolution thereof;
(c) the Trustee may consult with counsel and any written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by the Trustee in compliance with such request or direction;
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(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture
other than any liabilities arising out of its own negligence, bad faith
or willful misconduct;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, other evidence of indebtedness or other paper or document
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Notes then Outstanding;
PROVIDED, HOWEVER, that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the
Company or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Company upon demand; PROVIDED, FURTHER, the Trustee in its
discretion may make such further inquiry or investigation into such facts
or matters as it may deem fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company and its
Subsidiaries, personally or by agent or attorney; and
(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.
Section 6.04. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITIONS OF NOTES OR
APPLICATION OF PROCEEDS THEREOF.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Guarantors, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes or of any Guarantee except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder and that
the statements made by it in a Statement of Eligibility and Qualification on
Form T-1, if any, to be supplied to the Company are true and accurate subject to
the qualifications set forth therein. The Trustee shall not be accountable for
the use or application by the Company of Notes or the proceeds thereof.
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Section 6.05. TRUSTEE AND AGENTS MAY HOLD NOTES; COLLECTIONS; ETC.
The Trustee, any Paying Agent, Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Notes, with the same rights it would have if it were not the Trustee,
Paying Agent, Registrar or such other agent and, subject to Sections 6.08 and
6.13 hereof and Sections 310 and 311 of the Trust Indenture Act, may otherwise
deal with the Company and receive, collect, hold and retain collections from the
Company with the same rights it would have if it were not the Trustee, Paying
Agent, Registrar or such other agent.
Section 6.06. MONEY HELD IN TRUST.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required herein or by law. Except for funds or securities deposited pursuant to
Article Four, the Trustee shall be required to invest all moneys received by it,
until used or applied as herein provided, in Cash Equivalents in accordance with
the Company's directions. The Trustee shall not be under any liability for
interest on any moneys received by it hereunder, except as otherwise agreed in
writing with the Company.
Section 6.07. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND
ITS PRIOR CLAIM.
The Company and each Guarantor covenant and agree:
(a) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered
by it hereunder (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) to reimburse the Trustee and each predecessor Trustee upon
its request for all reasonable expenses, fees, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation,
fees, and the expenses and disbursements of its counsel and of all agents
and other Persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its negligence, bad faith or
willful misconduct; and
(c) to indemnify the Trustee and each predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence, bad faith
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or willful misconduct on its part, arising out of or in connection with
the acceptance or administration of this Indenture or the trusts
hereunder and its duties hereunder, including enforcement of this Section
6.07.
The obligations of the Company and each Guarantor under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, fees,
disbursements and advances shall constitute an additional obligation hereunder
and shall survive the satisfaction and discharge of this Indenture.
Section 6.08. CONFLICTING INTERESTS.
The Trustee shall be subject to and comply with the provisions of
Section 310(b) of the Trust Indenture Act.
Section 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Act Sections 310(a)(1) and (2)
and which shall have a combined capital and surplus of at least $25,000,000, and
have a Corporate Trust Office in the Borough of Manhattan in The City of New
York, State of New York; provided that, to the extent such capital and surplus
is not at least $100,000,000, such Trustee shall be a direct or indirect
subsidiary of a bank holding company which bank holding company shall have a
combined capital and surplus of at least $100,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of any Federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee, or any trustee or trustees hereinafter
appointed, may at any time resign by giving written notice thereof to the
Company at least 20 Business Days
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prior to the date of such proposed resignation. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee by written
instrument executed by authority of the Board of Directors of the Company, a
copy of which shall be delivered to the resigning Trustee and a copy to the
successor Trustee. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 20 Business Days after the giving
of such notice of resignation, the resigning Trustee may, or any Holder who has
been a bona fide Holder of a Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem proper, appoint a successor
Trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act in accordance with Section 6.08
hereof after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09
hereof and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Note for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose or
rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) the Holder of any Note who has been a bona fide Holder of a Note for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution of its Board of Directors, shall promptly
appoint a successor Trustee. If, within
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one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Notes delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders of the Notes
and accepted appointment in the manner hereinafter provided, the Holder of any
Note who has been a bona fide Holder for at least six months may on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Notes as their names and addresses appear in the Note Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor Trustee, upon payment of amounts due it pursuant to Section 6.07,
such retiring Trustee shall duly assign, transfer and deliver to the successor
Trustee all moneys and property at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers, duties and obligations of the retiring Trustee. Upon request of
any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee
all such rights and powers.
No successor Trustee with respect to the Notes shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under this
Article.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 6.11, the successor, at the expense of the Company,
shall give notice thereof to the Holders of the Notes, by mailing such notice to
such Holders at their addresses as they shall appear on the Note Register. If
the acceptance of appointment is substantially contempora-
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neous with the resignation, then the notice called for by the preceding sentence
may be combined with the notice called for by Section 6.10.
Section 6.12. MERGER, CONVERSION, AMALGAMATION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated or amalgamated, or any corporation
resulting from any merger, conversion, amalgamation or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing of any paper
or any further act on the part of any of the parties hereto, provided such
corporation shall be eligible under this Article Six to serve as Trustee
hereunder.
In case at the time such successor to the Trustee under this
Section 6.12 shall succeed to the trusts created by this Indenture any of the
Notes shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Notes so authenticated; and, in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee under this
Section 6.12 may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have been
authenticated.
Section 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY AND GUARANTORS.
If and when the Trustee shall be or become a creditor of the
Company or any Guarantor (or other obligor on the Notes), the Trustee shall be
subject to the provisions of the TIA regarding the collection of claims against
the Company or any such Guarantor (or any such other obligor). A Trustee who
has resigned or been removed shall be subject to TIA Section 311(a) to the
extent set forth therein.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. PRESERVATION OF INFORMATION; COMPANY TO FURNISH
TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
(a) The Trustee shall preserve the names and addresses of the
Noteholders and otherwise comply with TIA Section 312(a). If the Trustee is not
the Registrar, the Company shall furnish or cause the Registrar to furnish to
the Trustee 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 Noteholders.
Neither the Company nor the Trustee shall be under any responsibility with
regard to the accuracy of such list.
(b) The Company will furnish or cause to be furnished to the
Trustee
(i) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record Date;
and
(ii) at such other times as the Trustee may reasonably request
in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Registrar, no
such list need be furnished pursuant to this Subsection 7.01(b).
SECTION 7.02. COMMUNICATIONS OF HOLDERS.
Holders may communicate with other Holders with respect to their
rights under this Indenture or under the Notes pursuant to Section 312(b) of the
Trust Indenture Act. The Company and the Trustee and any and all other Persons
benefited by this Indenture shall have the protection afforded by Section 312(c)
of the Trust Indenture Act.
Section 7.03. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the first
May 15 following the date of this Indenture, the Trustee shall mail to all
Holders, as their names and addresses appear in the Note Register, a brief
report dated as of such May 15, in accordance with, and to the extent required
under Section 313 of the Trust Indenture Act. At the time of its mailing to
Holders, a copy of each such report shall be filed by the Trustee with the Com-
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pany, the Commission and with each stock exchange on which the Notes are listed.
The Company shall notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.04. REPORTS BY COMPANY AND EACH GUARANTOR.
The Company and each Guarantor shall:
(a) file with the Commission, the copies of annual reports and
of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) required to be filed with Commission
pursuant to Section 13 or Section 15 of the Exchange Act, whether or not
the Company or any Guarantor has a class of securities registered under
the Exchange Act;
(b) file with the Trustee, within 15 days after it files or
would be required to file the information specified in subsection (a) of
this Section 7.04 with the Commission, copies of such information;
(c) file with the Trustee and the Commission in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company and each Guarantor with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(d) transmit by mail to all Holders, as their names and
addresses appear in the Note Register, concurrently with the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company and each Guarantor
pursuant to subsections (a) and (c) of this Section as may be required
by rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company will not, in a single transaction or through a series
of related transactions, merge or consolidate with or into, or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any Person or Persons, and the Company
will not permit any of the Restricted Subsidiaries to enter into any such
transaction or series of related transactions if such transaction or series of
re-
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lated transactions, in the aggregate, would result in the sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company and the Restricted Subsidiaries
(determined on a consolidated basis for the Company and the Restricted
Subsidiaries) to any other Person or Persons, unless at the time and after
giving effect thereto:
(i) either (A)(1) if the transaction or transactions is a
merger or consolidation involving the Company, the Company shall be the
Surviving Person of such merger or consolidation or (2) if the
transaction or transactions is a merger or consolidation involving a
Restricted Subsidiary, such Restricted Subsidiary shall be the Surviving
Person of such merger or consolidation, or (B)(1) the Surviving Person
shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia,
and (2)(x) in the case of a transaction involving the Company, the
Surviving Person shall expressly assume, by a supplemental indenture
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Notes and this
Indenture and the Registration Rights Agreement and, in each case, the
Notes, this Indenture and the Registration Rights Agreement shall remain
in full force and effect, or (y) in the case of a transaction involving a
Restricted Subsidiary that is a Guarantor, the Surviving Person shall
expressly assume by a supplemental indenture executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations of
such Restricted Subsidiary under its Guarantee and this Indenture and the
Registration Rights Agreement and, in each case, such Guarantee and this
Indenture and the Registration Rights Agreement shall remain in full
force and effect;
(ii) immediately after giving effect to such transaction or
series of transactions on a PRO FORMA basis, no Default or Event of
Default shall have occurred and be continuing;
(iii) if the Company is then subject to Section 10.12, the
Company, or the Surviving Person, as the case may be, immediately after
giving effect to such transaction or series of transactions on a PRO
FORMA basis (including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 10.12
hereof; and
(iv) at the time of the transaction if any of the property or
assets of the Company or any of its Restricted Subsidiaries would
thereupon be become subject to any Lien, the provisions of Section 10.17
are complied with.
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If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by both Rating Agencies are equal to or
higher than Investment Grade Ratings, and notwithstanding that the Notes may
later cease to have an Investment Grade Rating, the Company and the Restricted
Subsidiaries will not be subject to the provisions of clauses (iii) and (iv) of
this Section.
No Guarantor (other than a Guarantor whose Guarantee is to be
released in accordance with the terms of its Guarantee and this Indenture as
provided in paragraph (c) of Section 10.18 or Section 12.05) shall, in any
transaction or series of related transactions, consolidate with or merge with or
into another Person, whether or not such Person is affiliated with such
Guarantor and whether or not such Guarantor is the Surviving Person, unless (i)
the Surviving Person (if other than such Guarantor) is a corporation organized
and validly existing under the laws of the United States, any State thereof or
the District of Columbia; (ii) the Surviving Person (if other than such
Guarantor) expressly assumes by a supplemental indenture all the obligations of
such Guarantor under its Guarantee and the performance and observance of every
covenant of this Indenture and the Registration Rights Agreement to be performed
or observed by such Guarantor; and (iii) immediately after giving effect to such
transaction or series of related transactions on a PRO FORMA basis, no Default
or Event of Default shall have occurred and be continuing.
In connection with any consolidation, merger, transfer, lease or
other disposition contemplated hereby, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, transfer, lease or other disposition and the
supplemental indenture in respect thereof comply with the requirements of this
Indenture. In addition, each Guarantor, in the case of a transaction described
in the first paragraph of this Section 8.01, unless it is the other party to the
transaction or unless its Guarantee will be released and discharged in
accordance with its terms as a result of the transaction, will be required to
confirm, by supplemental indenture, that its Guarantee will continue to apply to
the obligations of the Company or the Surviving Person under this Indenture.
Section 8.02. SUCCESSOR SUBSTITUTED.
Upon any consolidation, combination or merger, or any sale,
assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the properties and assets of the Company or any Guarantor
in accordance with Section 8.01 hereof in which the Company or a Guarantor is
not the Surviving Person, such Surviving Person shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or such
Guarantor, as the case may be, under this Indenture, the Notes, the Guarantee of
such Guarantor and the Registration Rights Agreement with the same effect as if
such successor had
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been named as the Company or such Guarantor, as the case may be, herein, and in
the Notes and, thereafter, except in the case of (a) a lease or (b) any sale,
assignment, conveyance, transfer, lease or other disposition to a Restricted
Subsidiary of the Company or such Guarantor, the Company or such Guarantor, as
the case may be, shall be discharged from all obligations and covenants under
this Indenture, the Notes, the Guarantees and the Registration Rights Agreement,
as applicable.
For all purposes of this Indenture and the Notes (including this
Article Eight and Sections 10.12, 10.14 and 10.17 hereof), Subsidiaries of any
Surviving Person will, upon such transaction or series of related transactions
described in this Article Eight, become Restricted Subsidiaries or Unrestricted
Subsidiaries as provided pursuant to Section 10.21 and all Indebtedness, and all
Liens on property or assets, of the Company and the Restricted Subsidiaries in
existence immediately prior to such transaction or series of related
transactions will be deemed to have been incurred upon such transaction or
series of related transactions.
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. SUPPLEMENTAL INDENTURES, AGREEMENTS AND WAIVERS
WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the
Guarantors, when authorized by a Board Resolution of the Board of Directors of
the Company and each Guarantor, and the Trustee, at any time and from time to
time, may amend, waive, modify or supplement this Indenture or the Notes or the
Guarantees for any of the following purposes:
(a) to evidence the succession of another Person to the Company
or a Guarantor, and the assumption by any such successor of the covenants
of the Company or such Guarantor herein and in the Notes and/or in any
Guarantee, as the case may be, in accordance with Article Eight;
(b) to add to the covenants of the Company or any Guarantor for
the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or any Guarantor, as applicable, herein, in
the Notes or in any Guarantee, as the case may be;
(c) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, in the Notes, or in any Guarantee;
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(d) to comply with the requirements of the Commission in order
to maintain the qualification of this Indenture under the Trust Indenture
Act;
(e) to secure the Notes or to add a Guarantor pursuant to the
requirements of Section 10.18 hereof or otherwise;
(f) to evidence and provide the acceptance of the appointment
of a successor Trustee hereunder; or
(g) to make any other provisions with respect to matters or
questions arising under this Indenture, the Notes or any Guarantee;
PROVIDED, that in the case of clause (b), (c) or (g), such provisions shall not
adversely affect the interests of any of the holders of the Notes and the
Company shall have delivered to the Trustee an Opinion of Counsel to such
effect.
Section 9.02. SUPPLEMENTAL INDENTURES, AGREEMENTS AND WAIVERS WITH CONSENT OF
HOLDERS.
Amendments and modifications of this Indenture or the Notes may be
made by the Company, the Guarantors and the Trustee with the consent of the
holders of not less than a majority of the aggregate principal amount of the
outstanding Notes; PROVIDED, HOWEVER, that no such modification or amendment
may, without the consent of the holder of each outstanding Note affected
thereby,
(a) change the maturity of the principal of, or any installment
of interest on, any such Note or alter the optional redemption or
repurchase provisions of any such Note or this Indenture in a manner
adverse to the Holders of the Notes;
(b) reduce the principal amount of (or the premium of) any such
Note;
(c) reduce the rate of or extend the time for payment of
interest on any such Note;
(d) change the place or currency of payment of principal of (or
premium), or interest on, any such Note;
(e) modify any provisions of this Indenture relating to the
waiver of past defaults (other than to add sections of this Indenture or
the Notes subject thereto) or the right of the holders of Notes to
institute suit for the enforcement of any payment on or with respect to
any such Note or any Guarantee or the modification and amendment
provisions of this Indenture and the Notes (other than to add sections of
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this Indenture or the Notes which may not be amended, supplemented or
waived without the consent of each Holder therein affected);
(f) reduce the percentage of the principal amount of
outstanding Notes necessary for amendment to or waiver of compliance with
any provision of this Indenture or the Notes or for waiver of any Default
in respect thereof;
(g) waive a default in the payment of principal of, premium, if
any, or interest on, or redemption payment with respect to, the Notes
(except a rescission of acceleration of the Notes by the holders thereof
as provided in this Indenture and a waiver of the payment default that
resulted from such acceleration);
(h) modify the ranking or priority of any Note or the Guarantee
of any Guarantor;
(i) following the occurrence of a Change of Control or Asset
Sale, modify the provisions of any covenant (or the related definitions)
in this Indenture requiring the Company to make and consummate a Change
of Control Offer in respect of such Change of Control or Asset Sale Offer
in respect of an Asset Sale or modify any of the provisions or
definitions with respect thereto in a manner materially adverse to the
Holders of Notes affected thereby;
(j) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with this
Indenture; or
(k) make any change to Article Fourteen that adversely affects
the Holders.
Upon the written request of the Company and each Guarantor
accompanied by a copy of a Board Resolution of the Board of Directors of the
Company and each Guarantor authorizing the execution of any such supplemental
indenture or other agreement, instrument or waiver, and upon the filing with the
Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall
join with the Company and each Guarantor in the execution of such supplemental
indenture or other agreement, instrument or waiver.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture or
other agreement, instrument or waiver, but it shall be sufficient if such Act
shall approve the substance thereof.
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Section 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES, AGREEMENTS AND
WAIVERS.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01 hereof) shall be fully protected in relying upon, an Opinion of Counsel and
an Officers' Certificate from each obligor under the Notes entering into such
supplemental indenture, agreement, instrument or waiver, each stating that the
execution of such supplemental indenture, agreement, instrument or waiver (a) is
authorized or permitted by this Indenture and (b) does not violate the
provisions of any agreement or instrument evidencing any other Indebtedness of
the Company, any Guarantor or any other Subsidiary of the Company. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture,
agreement, instrument or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture, the Notes, any Guarantee or otherwise.
Section 9.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article Nine, this Indenture, the Notes, if applicable, and/or the applicable
Guarantee shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture, the Notes, if applicable, and/or
the applicable Guarantee, as the case may be, for all purposes; every Holder of
Notes theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.
Section 9.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 9.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the Board
of Directors of the Company, to any such supplemental indenture may be prepared
and executed by the Company and each Guarantor and authenticated and delivered
by the Trustee upon a Company Order in exchange for Outstanding Notes.
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Section 9.07. RECORD DATE.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
supplemental indenture, agreement or instrument or any waiver, and shall
promptly notify the Trustee of any such record date. If a record date is fixed,
those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to consent to such
supplemental indenture, agreement or instrument or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective with
respect to such supplemental indenture, agreement or instrument or waiver which
is entered into more than 90 days after such record date.
Section 9.08. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by
a Holder of a Note is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if a notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as
to his Note or portion of a Note if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver shall become effective in accordance with its terms and
thereafter bind every Holder.
ARTICLE TEN
COVENANTS
Section 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
Subject to the provisions of Article Fourteen, the Company will
duly and punctually pay the principal of, premium, if any, and interest on the
Notes in accordance with the terms of the Notes, this Indenture and the
Registration Rights Agreement.
Section 10.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain, in the Borough of Manhattan in The City
of New York, State of New York, an office or agency where Notes may be presented
or surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The office of the
Trustee at its Corporate Trust Office will be such office or agency of the
Company, unless the Company shall designate and maintain some
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other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any 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, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York, State of New York)
where the Notes may be presented or surrendered for any or all such purposes,
and may from time to time rescind such designation; PROVIDED, HOWEVER, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York, State of New
York for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and any change in the location of
any such other office or agency.
Section 10.03. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
If the Company or any of its Affiliates shall at any time act as
its own Paying Agent, it will, on or before each due date of the principal of,
premium, if any, or interest on any of the Notes, segregate and hold in trust
for the benefit of the Holders entitled thereto a sum sufficient to pay the
principal, premium, if any, or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
If the Company or any of its Affiliates is not acting as Paying
Agent, the Company will, on or before each due date of the principal of,
premium, if any, or interest on, any Notes, deposit with a Paying Agent a sum in
same day funds sufficient to pay the principal, premium, if any, or interest so
becoming due, such sum to be held in trust for the benefit of the Holders
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
If the Company is not acting as Paying Agent, the Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent will agree with the Trustee,
subject to the provisions of this Section 10.03, that such Paying Agent will:
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(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Notes in trust for the benefit of the
Holders entitled thereto until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company or any
Guarantor (or any other obligor upon the Notes) in the making of any
payment of principal of, premium, if any, or interest on the Notes;
(c) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with
the provisions of this Indenture relating to the duties, rights and
liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent will be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company upon receipt of a Company Request therefor, or (if then held by
the Company) will be discharged from such trust; and the Holder of such Note
will thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, will 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, at the option of the Company
in the New York Times or 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 publication, any unclaimed
balance of such money then remaining shall be repaid to the Company.
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Section 10.04. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory), licenses and franchises of the
Company and each of the Restricted Subsidiaries; PROVIDED, HOWEVER, that the
Company will not be required to preserve any such right, license or franchise if
the Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
the Restricted Subsidiaries as a whole and that the loss thereof is not adverse
in any material respect to the Holders; PROVIDED FURTHER, that the foregoing
will not prohibit a sale, transfer or conveyance of a Subsidiary of the Company
or any of its assets in compliance with the terms of this Indenture.
Section 10.05. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed (i) upon the Company or
any of its Restricted Subsidiaries or (ii) upon the income, profits or property
of the Company or any of the Restricted Subsidiaries and (b) all material lawful
claims for labor, materials and supplies, which, if unpaid, could reasonably be
expected to become a Lien upon the property of the Company or any of the
Restricted Subsidiaries; PROVIDED, HOWEVER, that the Company will not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings properly instituted and
diligently conducted and for which appropriate provision has been made.
Section 10.06. MAINTENANCE OF PROPERTIES.
The Company will cause all material properties owned by the
Company or any of the Restricted Subsidiaries or used or held for use in the
conduct of their respective businesses to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section 10.06 will prevent (a) the Company from discontinuing
the maintenance of any of such properties if such discontinuance is, in the
judgment of the Company (as evidenced, in each instance where the fair market
value of such property or properties exceeds $10,000,000, by a Board Resolution
of the Company), desirable in the conduct of its business or the business of any
of the Restricted Subsidiaries and is not disadvantageous in any material
respect to the
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Holders or (b) a sale, transfer, merger, consolidation or conveyance of assets
in compliance with Article Eight or Section 10.16.
Section 10.07. INSURANCE.
The Company shall maintain, and shall cause the Restricted
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions, as are customarily carried by similar businesses of
similar size, including property and casualty loss, and workers' compensation
insurance.
Section 10.08. BOOKS AND RECORDS.
The Company will keep proper books of record and account, in which
full and correct entries will be made of all financial transactions and the
assets and business of the Company and each Restricted Subsidiary of the Company
in material compliance with GAAP.
Section 10.09. GUARANTEES.
Each of the Guarantors and the Company will, and the Company will
cause each of the Guarantors to, ensure at all times that, unless otherwise
permitted by this Indenture, each Guarantee will remain in full force and
effect.
Section 10.10. PROVISION OF FINANCIAL STATEMENTS.
For so long as the Notes are outstanding, whether or not the
Company or any Guarantor is subject to Section 13(a) or 15(d) of the Exchange
Act, or any successor provision thereto, the Company will, to the extent
permitted by Commission practice and applicable law and regulations, file with
the Commission the annual reports, quarterly reports and other documents which
the Company and such Guarantor would have been required to file with the
Commission pursuant to such Section 13(a) or 15(d), or any successor provision
thereto, if the Company and such Guarantor were so subject, such documents to be
filed with the Commission on or prior to the date (the "Required Filing Dates")
by which the Company and such Guarantor would have been required so to file such
documents if the Company and such Guarantor were so subject. The Company and
such Guarantor will also in any event (x) within 15 days of each Required Filing
Date, whether or not permitted or required to be filed with the Commission,
(i) transmit or cause to be transmitted by mail to all Holders of Notes, as
their names and addresses appear in the security register, without cost to such
holders and (ii) file with the Trustee, copies of the annual reports, quarterly
reports and other documents which the Company and such Guarantor would have been
required to file with the Commis-
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sion pursuant to Section 13(a) or 15(d) of the Exchange Act, or any successor
provision thereto, if the Company and such Guarantor were subject to either of
such Sections and (y) if filing such documents by the Company and such Guarantor
with the Commission is not permitted under the Exchange Act, promptly upon
written request and payment of the reasonable cost of duplication and delivery,
supply copies of such documents to any prospective holder at the Company's and
such Guarantor's cost. In addition, for so long as any Notes remain
Outstanding, the Company will furnish to the Holders of Notes 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, and, to
any beneficial Holder of Notes, if not obtainable from the Commission,
information of the type that would be filed with the Commission pursuant to the
foregoing provisions, upon the request of any such Holder. If any Guarantor's
or other Subsidiaries' financial statements would be required to be included in
the financial statements filed or delivered pursuant hereto if the Company were
subject to Section 13(a) or 15(d) of the Exchange Act, the Company shall include
such Guarantor's or other Subsidiaries' financial statements in any filing or
delivery pursuant hereto.
Section 10.11. CHANGE OF CONTROL.
Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company will, within 20
Business Days after the Change of Control Date, make an offer to purchase (a
"Change of Control Offer") all of the then Outstanding Notes at a purchase price
(the "Change of Control Purchase Price") in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the
purchase date. The Company will purchase all Notes properly tendered into the
Change of Control Offer and not withdrawn. Failure of the Company to repurchase
all of the Notes properly tendered for purchase and not withdrawn will
constitute an Event of Default under Section 5.01(c).
In order to effect such Change of Control Offer, the Company will,
not later than the 20th Business Day after the Change of Control Date, mail to
each Holder of Notes notice of the Change of Control Offer, which notice will
govern the terms of the Change of Control Offer and will state, among other
things, the procedures that holders must follow to accept the Change of Control
Offer. The Change of Control Offer shall be kept open for a period of at least
20 Business Days and until 5:00 p.m., New York City time, on the last day of the
period (the "Change of Control Purchase Date"). The notice, which shall govern
the terms of the Change of Control Offer, shall include such disclosures as are
required by law and shall state:
(a) that the Change of Control Offer is being made pursuant to
this Section 10.11 and that all Notes tendered into the Change of Control
Offer will be ac-
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cepted for payment; and that the Change of Control Offer shall remain
open for a period of 20 Business Days or such longer period as may be
required by applicable law;
(b) the purchase price (including the amount of accrued
interest, if any) for each Note, the Change of Control Purchase Date and
the date on which the Change of Control Offer expires;
(c) that any Note not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of
the purchase price, any Note accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of
Control Purchase Date;
(e) that Holders electing to have Notes purchased pursuant to a
Change of Control Offer will be required to surrender their Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m.,
New York City time, on the Change of Control Purchase Date and must
complete any form letter of transmittal proposed by the Company and
acceptable to the Trustee and the Paying Agent;
(f) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Change of Control Purchase Date, a facsimile
transmission or letter setting forth the name of the Holders, the
principal amount of Notes the Holders delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is
withdrawing his election to have such Notes purchased;
(g) that Holders whose Notes are purchased only in part will be
issued Notes of like tenor equal in principal amount to the unpurchased
portion of the Notes surrendered;
(h) the instructions that Holders must follow in order to
tender their Notes; and
(i) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with the
Commission pursuant to the Exchange Act (or, if the Company is not
required to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 10.10), a description of material
developments in the Company's business, information with respect to pro
forma historical financial information after giving effect to such Change
of Control and such other information concerning the circumstances and
relevant facts re-
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▇▇▇▇▇▇▇ such Change of Control and Change of Control Offer as would, in
the good faith judgment of the Company, be material to a Holder of Notes
in connection with the decision of such Holder as to whether or not it
should tender Notes pursuant to the Change of Control Offer.
On the Change of Control Purchase Date, the Company will (i)
accept for payment Notes or portions thereof in integral multiples of $1,000
tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent money, in immediately available funds, sufficient to pay the purchase
price of all Notes or portions thereof so tendered and accepted and (iii)
deliver to the Trustee the Notes so accepted together with an Officers'
Certificate setting forth the Notes or portions thereof tendered to and accepted
for payment by the Company. The Paying Agent will promptly mail or deliver to
the Holders of Notes so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Note of like tenor equal in principal amount to any unpurchased
portion of the Note surrendered. Any Notes not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company will
publicly announce the results of the Change of Control Offer not later than the
first Business Day following the Change of Control Purchase Date.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities laws
or regulations and any applicable requirements of any securities exchange on
which the Notes are listed, in connection with the repurchase of Notes pursuant
to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
10.11, the Company will comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 10.11 by virtue thereof.
Subject to applicable escheat laws, the Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change of Control Purchase Price, PROVIDED, HOWEVER, that, (x) to the extent
that the aggregate amount of cash deposited by the Company pursuant to clause
(ii) of the third paragraph of this Section 10.11 exceeds the aggregate Change
of Control Purchase Price of the Notes or portions thereof to be purchased, then
the Trustee shall hold such excess for the Company and (y) unless otherwise
directed by the Company in writing, promptly after the Business Day following
the Change of Control Purchase Date the Trustee shall return any such excess to
the Company together with interest, if any, thereon.
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Section 10.12. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, issue, guarantee
or in any manner become liable for or with respect to, contingently or otherwise
(in each case, to "incur"), the payment of any Indebtedness (including any
Acquired Indebtedness), PROVIDED, HOWEVER, that (i) the Company or a Guarantor
may incur Indebtedness (including Acquired Indebtedness) and (ii) a Restricted
Subsidiary (which is not a Guarantor) may incur Acquired Indebtedness, if, in
either case, immediately after giving PRO FORMA effect thereto, the Consolidated
Fixed Charge Coverage Ratio of the Company is at least equal to 2.00:1.
Notwithstanding the foregoing, the Company and, to the extent
specifically set forth below, the Guarantors and the Restricted Subsidiaries may
incur each and all of the following (collectively, "Permitted Indebtedness"):
(i) Indebtedness of the Company or any Guarantor (without
duplication) under the Revolving Credit Facility or any other Bank Credit
Facility in an aggregate principal amount at any one time outstanding not
to exceed $500,000,000, less any permanent reductions made pursuant to
the provision described in the second paragraph of Section 10.16;
(ii) Indebtedness of the Company pursuant to the Notes and
Indebtedness of any Guarantor pursuant to a Guarantee of the Notes;
(iii) Indebtedness (other than Indebtedness under the Revolving
Credit Facility, the Notes and the Guarantees) of the Company or any
Restricted Subsidiary outstanding on the date of this Indenture, except
Indebtedness to be repaid as described under "Use of Proceeds" in the
Offering Memorandum;
(iv) Indebtedness of the Company owing to a Restricted
Subsidiary; PROVIDED that any Indebtedness for borrowed money of the
Company owing to a Subsidiary is made pursuant to an intercompany note in
the form attached hereto as Exhibit E and is subordinated in accordance
with provisions set forth in this Indenture; PROVIDED, FURTHER, that any
disposition, pledge or transfer of any such Indebtedness to a Person
(other than a disposition, pledge or transfer to a Restricted Subsidiary)
shall be deemed to be an incurrence of such Indebtedness by the Company
not permitted by this clause (iv);
(v) Indebtedness of a Guarantor owing to and held by the
Company or another Guarantor; PROVIDED, that any such Indebtedness for
borrowed money is made pursuant to an intercompany note in the form
attached hereto as Exhibit E; PROVIDED
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FURTHER, that (a) any disposition, pledge or transfer of any such
Indebtedness to a Person (other than the Company or a Guarantor) shall be
deemed to be an incurrence of such Indebtedness by the obligor not
permitted by this clause (v), and (b) any transaction pursuant to which
any Guarantor, which has Indebtedness owing to the Company or any other
Guarantor, ceases to be a Guarantor shall be deemed to be the incurrence
of Indebtedness by such Guarantor that is not permitted by this clause
(v);
(vi) guarantees by any Restricted Subsidiary incurred in
compliance with the provisions of the covenant described in Section
10.18;
(vii) Indebtedness of the Company or any Restricted Subsidiary
under Interest Rate Agreements covering Indebtedness of the Company or
such Restricted Subsidiary (which Indebtedness (a) bears interest at
fluctuating interest rates and (b) is otherwise permitted to be incurred
under this Section 10.12) to the extent the notional principal amount of
the obligations under such Interest Rate Agreements does not exceed the
principal amount of the Indebtedness to which such obligations relate;
(viii) Indebtedness of the Company or any Restricted Subsidiary
under Currency Agreements or Commodity Price Protection Agreements
relating to (a) Indebtedness of the Company or such Restricted Subsidiary
and/or (b) obligations to purchase or sell assets or properties, in each
case, incurred in the ordinary course of business of the Company;
PROVIDED, HOWEVER, that such Currency Agreements or Commodity Price
Protection Agreements, as the case may be, do not increase the
Indebtedness or other obligations of the Company outstanding other than
as a result of fluctuations in foreign currency exchange rates or by
reason of fees, indemnities and compensation payable thereunder;
(ix) Indebtedness of the Company or any Guarantor represented by
Capitalized Lease Obligations or Purchase Money Obligations or other
Indebtedness incurred or assumed in connection with the acquisition or
development of real or personal movable or immovable property in each
case incurred for the purpose of financing or refinancing all or any part
of the purchase price or cost of construction or improvement of property
used in the business of the Company or such Guarantor, in an aggregate
principal amount pursuant to this clause (ix) not to exceed $10,000,000
per year; PROVIDED, that immediately after any such incurrence pursuant
to this clause (ix), the aggregate amount of Indebtedness outstanding
pursuant to this clause (ix) shall not exceed 2.0% of the Consolidated
Net Sales of the Company in the most recent four full fiscal quarters for
which financial statements of the Company are available; PROVIDED
FURTHER, that the principal amount of any Indebtedness permitted under
this clause (ix) did not in each case at the time of incurrence exceed
the Fair Market Value,
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as determined by the Company or such Guarantor in good faith, of the
acquired or constructed asset or improvement so financed;
(x) reimbursement obligations under letters of credit and
letters of credit, in each case, to support (A) workers compensation
obligations not to exceed $10,000,000 in the aggregate at any time
outstanding and (B) bankers acceptances, performance bonds, surety bonds,
performance guarantees and supplier obligations not to exceed $10,000,000
in the aggregate at any time outstanding, in the case of each of such
clause (A) and (B) of the Company or any Guarantor, in each case, in the
ordinary course of business consistent with past practice;
(xi) guarantees by the Company of Indebtedness of any Guarantor;
PROVIDED that such Indebtedness of such Guarantor is permitted by the
terms of this Indenture;
(xii) any renewals, extensions, substitutions, refundings,
refinancings or replacements (collectively, a "refinancing") of any
Indebtedness described in clauses (i), (ii) and (iii) of this definition
of "Permitted Indebtedness," including any successive refinancings, so
long as the aggregate principal amount of Indebtedness represented
thereby is not increased by such refinancing plus the lesser of (I) the
stated amount of any premium or other payment required to be paid in
connection with such a refinancing pursuant to the terms of the
Indebtedness being refinanced or (II) the amount of premium or other
payment actually paid at such time to refinance the Indebtedness, plus,
in either case, the amount of expenses of the Company or a Restricted
Subsidiary incurred in connection with such refinancing and (A) in the
case of any refinancing of Indebtedness that is Subordinated
Indebtedness, such new Indebtedness is subordinated to the Notes at least
to the same extent as the Indebtedness being refinanced and (B) such
refinancing does not reduce the Average Life to Stated Maturity or the
Stated Maturity of such Indebtedness;
(xiii) guarantees which are permitted under clause (ix) of
paragraph (b) of Section 10.14; and
(xiv) Indebtedness of the Company or any Guarantor in addition to
that described in clauses (i) through (xiii) above, and any renewals,
extensions, substitutions, refinancings or replacements of such
Indebtedness, so long as the aggregate principal amount of all such
Indebtedness shall not exceed $35,000,000 outstanding at any one time.
If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by both Rating Agencies are equal to or
higher than Investment Grade Ratings, and notwithstanding that the Notes may
later cease to have an Investment
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Grade Rating, the Company and the Restricted Subsidiaries will not be subject to
the provisions of this Section 10.12.
Section 10.13. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 45 days after the
end of the first three fiscal quarters of the Company and 90 days after the end
of each fiscal year of the Company ending after the date hereof, a written
statement signed by the chief executive officer and either the principal
financial officer or principal accounting officer of the Company, stating
(i) that a review of the activities of the Company during the preceding fiscal
quarter or year, as applicable, has been made under the supervision of the
signing officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
(ii) that, to the knowledge of each officer signing such certificate, the
Company has kept, observed, performed and fulfilled each and every covenant and
condition contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions, conditions and covenants hereof
(or, if a Default shall have occurred, describing all such Defaults of which
such officers may have knowledge, their status and what action the Company is
taking or proposes to take with respect thereto). When any Default has occurred
and is continuing, or if the Trustee or any Holder or the trustee for or the
holder of any other evidence of Indebtedness of the Company or any Restricted
Subsidiary gives any notice or takes any other action with respect to a claimed
Default, the Company will promptly notify the Trustee of such Default, notice or
action and will deliver to the Trustee by registered or certified mail or by
telegram, or facsimile transmission followed by hard copy by registered or
certified mail an Officers' Certificate specifying such event, notice or other
action within five Business Days after the Company becomes aware of such
occurrence and what action the Company is taking or proposes to take with
respect thereto.
Section 10.14. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly:
(i) declare or pay any dividend or make any other distribution
or payment on or in respect of Capital Stock of the Company or any
payment to the direct or indirect holders (in their capacities as such)
of Capital Stock of the Company (other than dividends or distributions
payable solely in shares of Qualified Capital Stock of the Company or in
options, warrants or other rights to acquire shares of such Qualified
Capital Stock); or
(ii) purchase, redeem, defease or otherwise acquire or retire
for value, directly or indirectly, any Capital Stock of the Company
(other than any such Capital
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Stock owned by the Company or any Wholly-Owned Restricted Subsidiary) or
options, warrants or other rights to acquire such Capital Stock; or
(iii) make any principal payment on, or purchase, repurchase,
redeem, defease, retire or otherwise acquire for value, prior to any
scheduled maturity, scheduled repayment, scheduled sinking fund payment
or other Stated Maturity, any Subordinated Indebtedness (other than any
Subordinated Indebtedness owed to and held by the Company or a
Guarantor); or
(iv) make any Investment (other than any Permitted Investment)
in any Person (other than in the Company, any Restricted Subsidiary or a
Person that becomes a Restricted Subsidiary, or is merged with or into or
consolidated with the Company or a Restricted Subsidiary (provided the
Company or a Restricted Subsidiary is the survivor), as a result of or in
connection with such Investment)
(any of the foregoing actions described in clauses (i) through (iv), other than
any such action that is a Permitted Payment (as defined below), collectively,
"Restricted Payments") (the amount of any such Restricted Payment, if other than
cash, shall be the Fair Market Value of the asset(s) proposed to be transferred
by the Company or such Restricted Subsidiary, as the case may be, in each case,
as determined by the board of directors of the Company, whose determination
shall be conclusive and evidenced by a Board Resolution), unless (1) immediately
before and immediately after giving effect to such Restricted Payment on a PRO
FORMA basis, no Default or Event of Default shall have occurred and be
continuing; (2) immediately before and immediately after giving effect to such
Restricted Payment on a PRO FORMA basis, the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) under the provisions
of Section 10.12, and (3) after giving effect to the proposed Restricted
Payment, the aggregate amount of all such Restricted Payments declared or made
after the Issue Date, does not exceed $5,000,000 plus the sum of:
(A) 50% of the aggregate cumulative Consolidated Net Income of
the Company during the period (treated as one accounting period)
beginning on the first day of the fiscal quarter beginning after the
Issue Date and ending on the last day of the Company's last fiscal
quarter ending prior to the date of the Restricted Payment (or, if such
aggregate cumulative Consolidated Net Income shall be a deficit, minus
100% of such deficit);
(B) the aggregate Net Cash Proceeds received after the Issue
Date by the Company from the issuance or sale (other than to any of the
Restricted Subsidiaries) of Qualified Capital Stock of the Company or
from the exercise of any options, warrants or rights to purchase such
Qualified Capital Stock of the Company (except, in each case, to the
extent such proceeds are used to purchase, redeem or otherwise retire
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Capital Stock or Subordinated Indebtedness as set forth in clause (ii) or
(iii) of paragraph (b) below and excluding the net cash proceeds from any
issuance and sale of Capital Stock or from any such exercises, in each
case, financed, directly or indirectly, using funds borrowed from the
Company or any Restricted Subsidiary until and to the extent such
borrowing is repaid);
(C) the aggregate Net Cash Proceeds received after the Issue
Date by the Company from the conversion or exchange, if any, of debt
securities or Redeemable Capital Stock of the Company or its Subsidiaries
into or for Qualified Capital Stock of the Company plus, without
duplication, the aggregate of Net Cash Proceeds from their original
issuance, less any principal and sinking fund payments made thereon;
(D) in the case of the disposition or repayment of any
Investment (other than an Investment made pursuant to clause (viii) of
paragraph (b) below) constituting a Restricted Payment made after the
Issue Date, an amount (to the extent not included in Consolidated Net
Income) equal to the lesser of the return of capital with respect to such
Investment and the initial amount of such Investment which was treated as
a Restricted Payment, in either case, less the cost of disposition of
such Investment and net of taxes; and
(E) so long as the Designation thereof was treated as a
Restricted Payment made after the Issue Date, with respect to any
Unrestricted Subsidiary that has been redesignated as a Restricted
Subsidiary after the Issue Date in accordance with Section 10.21, the
Fair Market Value of the interest of the Company and the Restricted
Subsidiaries in such Subsidiary, provided that such amount shall not in
any case exceed the Designation Amount with respect to such Restricted
Subsidiary upon its Designation.
(b) Notwithstanding the foregoing, and in the case of clauses
(ii) through (viii) below, so long as no Default or Event of Default shall have
occurred and be continuing or would arise therefrom, the foregoing provisions
shall not prohibit the following actions (each of clauses (i) through (iv) being
referred to as a "Permitted Payment"):
(i) the payment of any dividend within 60 days after the date
of declaration thereof, if (A) at such date of declaration such payment
was permitted by the provisions of this Indenture and (B) such payment
shall have been deemed to have been paid on such date of declaration and
shall not have been deemed a "Permitted Payment" for purposes of the
calculation required by paragraph (a) of this Section 10.14;
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(ii) the repurchase, redemption, or other acquisition or
retirement of any shares of any class of Capital Stock of the Company in
exchange for (including any such exchange pursuant to the exercise of a
conversion right or privilege in connection with which cash is paid in
lieu of the issuance of fractional shares or scrip), or out of the Net
Cash Proceeds of a substantially concurrent issue and sale for cash to
any Person (other than to a Restricted Subsidiary) of, shares of
Qualified Capital Stock of the Company; PROVIDED, that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock are
excluded from clause (B) of paragraph (a) of this Section 10.14;
(iii) the repurchase, redemption, defeasance, retirement or
acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or out of the Net Cash Proceeds of a
substantially concurrent issuance and sale for cash to any Person (other
than to any Restricted Subsidiary of the Company) of, any Qualified
Capital Stock of the Company; PROVIDED, that the Net Cash Proceeds from
the issuance of such shares of Qualified Capital Stock are excluded from
clause (B) of paragraph (a) of this Section 10.14;
(iv) the repurchase, redemption, defeasance, retirement,
acquisition for value or payment of principal of any Subordinated
Indebtedness (other than Redeemable Capital Stock) in exchange for, or
out of the Net Cash Proceeds of a substantially concurrent issuance and
sale for cash to any Person (other than to a Restricted Subsidiary) of,
new Subordinated Indebtedness of such Person; PROVIDED, that any such new
Subordinated Indebtedness (1) shall be in a principal amount that does
not exceed the principal amount so repurchased, redeemed, defeased,
retired, acquired or paid (or, if such Subordinated Indebtedness provides
for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, then such lesser
amount as of the date of determination), plus the lesser of (I) the
stated amount of any premium or other payment required to be paid in
connection with such repurchase, redemption, defeasance, retirement,
acquisition or payment pursuant to the terms of the Indebtedness being
repurchased, redeemed, defeased, retired, acquired or paid or (II) the
amount of premium or other payment actually paid at such time to
repurchase, redeem, defease, retire, acquire or pay the Indebtedness,
plus, in either case, the amount of expenses of the Company incurred in
connection with such repurchase, redemption, defeasance, retirement,
acquisition or payment; (2) has an Average Life to Stated Maturity equal
to or greater than the Average Life to Stated Maturity of the
Subordinated Indebtedness being repurchased, redeemed, defeased, retired,
acquired or paid; (3) has no Stated Maturity earlier than the Stated
Maturity for the final scheduled principal payment of the Notes; and
(4) is expressly subordinated
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in right of payment to the Notes at least to the same extent as the
Subordinated Indebtedness to be repurchased, redeemed, defeased, retired,
acquired or paid;
(v) the repurchase of any Pari Passu Indebtedness (x) at a
purchase price not greater than 101% of the principal amount of such Pari
Passu Indebtedness in the event of a Change of Control pursuant to a
provision similar to Section 10.11; PROVIDED that prior to, or
contemporaneously with, such repurchase the Company has made the Change
of Control Offer if required by, and as provided under, Section 10.11 and
has repurchased all Notes validly tendered for payment in connection with
such Change of Control Offer and (y) at a purchase price not greater than
100% of the principal amount of such Pari Passu Indebtedness in the event
of an Asset Sale pursuant to a provision similar to Section 10.16;
PROVIDED, that prior to such repurchase the Company has made an Asset
Sale Offer if required by, and as provided in Section 10.16 and has
repurchased all Notes validly tendered for payment in connection with
such Asset Sale Offer;
(vi) the purchase of restricted stock from employees of the
Company upon the termination of employment of such employees, pursuant to
the terms of a restricted stock plan approved by the Company's Board of
Directors, in an amount not to exceed $1,000,000 in any fiscal year;
(vii) the payment of cash dividends on the Company's Common Stock
of up to $3,000,000 in the aggregate in any fiscal quarter;
(viii) Investments by the Company or a Restricted Subsidiary in
any Person established by the Company or a Restricted Subsidiary in
conjunction with customers or suppliers of the Company which Person is
engaged in the distribution and sale of food and related products or the
facilitation of goods and services in the food industry such that,
immediately after the making of any such Investment pursuant to this
clause (viii), the aggregate outstanding amount of all such Investments
made pursuant to this clause (viii) shall not exceed 1.0% of the
Consolidated Net Sales of the Company for the most recent four fiscal
quarters for which financial statements are available; and
(ix) guarantees of obligations of, or loans to, customers in the
ordinary course of business consistent with past practice, such that
immediately after the issuing of any such guarantee or the making of any
such loan pursuant to this clause (ix), the aggregate amount of all such
guarantees or loans made under this clause (ix) that are outstanding
would not exceed 4.0% of the Consolidated Net Sales of the Company for
the most recent four full fiscal quarters for which financial statements
of the
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Company are available; PROVIDED, that renewals of loans made in
compliance with this clause (ix) shall be permitted.
(c) In computing the amount of Restricted Payments previously
made for purposes of clause (3) of paragraph (a) of this Section 10.14,
Restricted Payments under clauses (i) (as described in subclause (B) of such
clause), (v), (vi), (vii), (viii) and (ix) of paragraph (b) of this Section
10.14 shall be included.
If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by both Rating Agencies are equal to or
higher than Investment Grade Ratings, and notwithstanding that the Notes may
later cease to have an Investment Grade Rating, the Company and the Restricted
Subsidiaries will not be subject to the provisions of this Section 10.14.
Section 10.15. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not cause or permit any of the
Restricted Subsidiaries to, directly or indirectly, conduct any business or
enter into or suffer to exist any transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or lease of assets,
property or services) with, or for the benefit of, any Affiliate of the Company
or of a Restricted Subsidiary (other than the Company or a Guarantor) unless
such transaction or series of related transactions is entered into in good faith
and in writing and (a) such transaction is on terms that are no less favorable
to the Company or such Restricted Subsidiary, as the case may be, than those
that would be available in a comparable transaction in arm's-length dealings
with an unrelated third party and (b) with respect to any transaction or series
of related transactions involving aggregate value in excess of $5,000,000, the
Company delivers an Officers' Certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (a) above and
such transaction or series of transactions has been approved by a majority of
the Board of Directors of the Company, including a majority of the Disinterested
Directors of the Company or, in the event there is only one Disinterested
Director, by such Disinterested Director; PROVIDED the Company or any Restricted
Subsidiary need not comply with the preceding clause (b) if the Company delivers
to the Trustee a written opinion of an Independent Financial Advisor stating
that the transaction or series of related transactions is fair to the Company or
such Restricted Subsidiary, from a financial point of view; PROVIDED, HOWEVER,
that this provision shall not apply to (i) any transaction with an officer or
director of the Company entered into in the ordinary course of business
(including compensation and employee benefit arrangements with any officer,
director or employee of the Company, including under any stock option or stock
incentive plans); PROVIDED that such transaction has been approved in the manner
described in clause (b) above, (ii) the payment of dividends otherwise permitted
by the terms of this Indenture, (iii) indemnification agreements for the benefit
of officers, directors and employees
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and (iv) transactions with any Securitization Subsidiary made in the ordinary
course of business on terms customary for such transactions.
If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by both Rating Agencies are equal to or
higher than Investment Grade Ratings, and notwithstanding that the Notes may
later cease to have an Investment Grade Rating, the Company and the Restricted
Subsidiaries will not be subject to the provisions of this Section 10.15.
Section 10.16. LIMITATION ON SALE OF ASSETS.
The Company will not, and will not cause or permit any Restricted
Subsidiary to, directly or indirectly, consummate an Asset Sale unless (i) at
least 80% of the consideration from such Asset Sale is received in cash or Cash
Equivalents and (ii) the Company or such Subsidiary receives consideration at
the time of such Asset Sale at least equal to the Fair Market Value of the
shares or assets subject to such Asset Sale. Notwithstanding the foregoing, the
Company need not comply with the preceding clause (i) in connection with any
Asset Sale involving stores (and related fixtures and inventory) to a customer
in exchange for a secured note on a basis consistent with past practice so long
as the aggregate outstanding amount of all such notes does not exceed 4.0% of
Consolidated Tangible Assets immediately after giving effect to any such Asset
Sale.
If all or a portion of the Net Cash Proceeds of any Asset Sale are
not required to be applied to repay permanently any Senior Indebtedness
outstanding as required by the terms thereof, or the Company determines not to
apply such Net Cash Proceeds to the permanent repayment of the Senior
Indebtedness which is required to be prepaid, or if no such Indebtedness under
the Senior Indebtedness is then outstanding, the Company or such Restricted
Subsidiary may within 365 days of such Asset Sale, invest the Net Cash Proceeds
in capital expenditures, properties and other assets or inventories that (as
determined by the board of directors of the Company) replace the properties and
assets that were the subject of the Asset Sale or in properties and assets that
will be used in the businesses of the Company or its Subsidiaries existing on
the Issue Date or in businesses reasonably related thereto; PROVIDED that the
Net Cash Proceeds of any Asset Sale in the case of a sale of a store or stores
or warehouse or warehouses shall be deemed to have been applied to the extent of
any capital expenditures made to acquire or construct a replacement store or
acquire, construct or expand a warehouse, in each case within 180 days preceding
the date of such Asset Sale; PROVIDED FURTHER that with respect to the sale of a
store or stores, the replacement store shall be in the general vicinity of the
store or stores being replaced.
To the extent all or part of the Net Cash Proceeds of any Asset
Sale are not applied, or the Company determines not to so apply such Net Cash
Proceeds, within 365
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days of such Asset Sale as described in the immediately preceding paragraph
(such Net Cash Proceeds, the "Unutilized Net Cash Proceeds"), the Company shall,
within 20 days after such 365th day or at any earlier time after such Asset
Sale, make an offer to purchase (the "Asset Sale Offer") all outstanding Notes
and any Pari Passu Indebtedness the terms of which require such an offer to be
made up to a maximum principal amount (expressed as a multiple of $1,000) of
Notes and such Pari Passu Indebtedness equal to such Unutilized Net Cash
Proceeds, at a purchase price in cash equal to 100% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Asset Sale
Offer Purchase Date; PROVIDED, HOWEVER, that the Asset Sale Offer may be
deferred until there are aggregate Unutilized Net Cash Proceeds equal to or in
excess of $10,000,000, at which time the entire amount of such Unutilized Net
Cash Proceeds, and not just the amount in excess of $10,000,000, shall be
applied as required pursuant to this paragraph. An Asset Sale Offer will be
required to be kept open for a period of at least 20 business days.
With respect to any Asset Sale Offer effected pursuant to this
Section 10.16, among the Notes and such Pari Passu Indebtedness, to the extent
the aggregate principal amount of Notes and such Pari Passu Indebtedness
tendered pursuant to such Asset Sale Offer exceeds the Unutilized Net Cash
Proceeds to be applied to the repurchase thereof, such Notes and such Pari Passu
Indebtedness shall be purchased PRO RATA based on the aggregate principal amount
of such Notes and such Pari Passu Indebtedness tendered. To the extent the
Unutilized Net Cash Proceeds exceed the aggregate amount of Notes and such Pari
Passu Indebtedness tendered pursuant to such Asset Sale Offer, the Company may
retain and utilize any portion of the Unutilized Net Cash Proceeds not applied
to repurchase the Notes and such Pari Passu Indebtedness for any purpose
consistent with the other terms of this Indenture and such excess amount of
Unutilized Net Cash Proceeds shall not be included in any future determination
of Unutilized Net Cash Proceeds.
Notice of an Asset Sale Offer shall be mailed by the Company not
more than 20 days after the obligation to make such Asset Sale Offer arises to
the Holders of Notes at their last registered addresses with a copy to the
Trustee and the Paying Agent. The Asset Sale Offer shall remain open from the
time of mailing for at least 20 Business Days or such longer period as may be
required by applicable law and until 5:00 p.m., New York City time, on the last
day of the period (the "Asset Sale Offer Purchase Date"). The notice, which
shall govern the terms of the Asset Sale Offer, shall include such disclosures
as are required by law and shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 10.16 and that all Notes in integral multiples of $1,000 tendered
into the Asset Sale Offer shall be accepted for payment; PROVIDED,
HOWEVER, that if the aggregate principal amount of Notes and Pari Passu
Indebtedness tendered in the Asset Sale Offer exceeds the Unutilized Net
Cash Proceeds, the Company shall select the Notes to be pur-
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chased on a PRO RATA basis based upon the aggregate principal amount of
such Pari Passu Indebtedness and Notes tendered by each Holder; and that
the Asset Sale Offer shall remain open for a period of 20 Business Days
or such longer period as may be required by applicable law;
(b) the purchase price (including the amount of accrued
interest, if any) for each Note, the Asset Sale Offer Purchase Date and
the date on which the Asset Sale Offer expires;
(c) that any Note not tendered for payment shall continue to
accrue interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of
the purchase price, any Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Asset Sale Offer
Purchase Date;
(e) that Holders electing to have Notes purchased pursuant to
an Asset Sale Offer shall be required to surrender their Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m.,
New York City time, on the Asset Sale Offer Purchase Date and must
complete any form letter of transmittal proposed by the Company and
acceptable to the Trustee and the Paying Agent;
(f) that any Holder of Notes shall be entitled to withdraw its
election if the Paying Agent receives, not later than 5:00 p.m., New York
City time, on the Asset Sale Offer Purchase Date, a facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Notes the Holder delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is
withdrawing its election to have such Notes purchased;
(g) that Holders whose Notes are purchased only in part shall
be issued Notes of like tenor equal in principal amount to the
unpurchased portion of the Notes surrendered;
(h) the instructions that Holders must follow in order to
tender their Notes; and
(i) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with the
Commission pursuant to the Exchange Act (or, if the Company is not
permitted to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 10.10), a description of material
developments in the Company's business, information with re-
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spect to pro forma historical financial position and results of
operations after giving effect to such Asset Sale and such other
information concerning the circumstances and relevant facts regarding
such Asset Sale and Asset Sale Offer as would, in the good faith judgment
of the Company, be material to a Holder of Notes in connection with the
decision of such Holder as to whether or not it should tender Notes
pursuant to the Asset Sale Offer.
On the Asset Sale Offer Purchase Date, the Company shall (i)
accept for payment (subject to pro ration as described in the second preceding
paragraph) Notes or portions thereof in integral multiples of $1,000 tendered
pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent money, in
immediately available funds, sufficient to pay the purchase price of all Notes
or portions thereof so tendered and accepted and (iii) deliver to the Trustee
the Notes so accepted together with an Officers' Certificate setting forth the
Notes or portions thereof tendered to and accepted for payment by the Company.
The Paying Agent shall promptly mail or deliver to the Holders of Notes so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Note of like
tenor equal in principal amount to any unpurchased portion of the Note
surrendered. Any Notes 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 not later than the first Business Day following
the Asset Sale Offer Purchase Date.
In the event that the Company makes an Asset Sale Offer, the
Company shall comply, to the extent applicable, with the requirements of Section
14(e) of the Exchange Act, and any other applicable securities laws or
regulations and any applicable requirements of any securities exchange on which
the Notes are listed. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this Section 10.16, the Company
will comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 10.16 by virtue
thereof.
If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by both Rating Agencies are equal to or
higher than Investment Grade Ratings, and notwithstanding that the Notes may
later cease to have an Investment Grade Rating, the Company and the Restricted
Subsidiaries will not be subject to the provisions of this Section 10.16.
Section 10.17. LIMITATION ON LIENS.
The Company will not, and will not cause or permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume, suffer to exist or
affirm any Lien of any kind securing any (a) Pari Passu Indebtedness or
Subordinated Indebtedness (including any assump-
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tion, guarantee or other liability with respect thereto by any Restricted
Subsidiary) upon any of its property or assets (including any intercompany
notes), whether owned on the Issue Date or acquired after the Issue Date, or any
proceeds, income or profits therefrom, or assign or convey any right to receive
proceeds, income or profits therefrom, unless the Notes are directly secured
equally and ratably with (or, in the case of Subordinated Indebtedness, prior or
senior thereto, with the same relative priority as the Notes shall have with
respect to such Subordinated Indebtedness) the obligation or liability secured
by such Lien, except for Liens (A) securing any Indebtedness which became
Indebtedness pursuant to a transaction permitted under Article Eight or securing
Acquired Indebtedness which, in each case, were created prior to (and not
created in connection with, or in contemplation of) the incurrence of such Pari
Passu Indebtedness or Subordinated Indebtedness (including any assumption,
guarantee or other liability with respect thereto by any Restricted Subsidiary)
and which Indebtedness is permitted under Section 10.12 or (B) securing any
Indebtedness incurred in connection with any refinancing, renewal, substitution
or replacement of any such Indebtedness described in clause (A), so long as the
aggregate principal amount of Indebtedness represented thereby is not increased
by such refinancing by an amount greater than the lesser of (i) the stated
amount of any premium or other payment required to be paid in connection with
such a refinancing pursuant to the terms of the Indebtedness being refinanced or
(ii) the amount of premium or other payment actually paid at such time to
refinance the Indebtedness, plus, in either case, the amount of expenses of the
Company incurred in connection with such refinancing; PROVIDED, HOWEVER, that in
the case of clauses (A) and (B) any such Lien only extends to the assets that
were subject to such Lien securing such Indebtedness prior to the related
acquisition by the Company or the Restricted Subsidiaries or (b) any Senior
Indebtedness which is not incurred in compliance with the terms of this
Indenture.
Section 10.18. LIMITATION ON ISSUANCES OF GUARANTEES BY RESTRICTED
SUBSIDIARIES.
(a) The Company will not cause or permit any Restricted
Subsidiary, other than the Guarantors, directly or indirectly, to secure the
payment of any Senior Indebtedness of the Company and the Company will not, and
will not permit any Restricted Subsidiary to, pledge any intercompany notes
representing obligations of any Restricted Subsidiary (other than the
Guarantors) to secure the payment of any Senior Indebtedness unless in each case
such Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture providing for a guarantee of payment of the Notes by
such Restricted Subsidiary, which guarantee shall be on the same terms as the
guarantee of the Senior Indebtedness (if a guarantee of Senior Indebtedness is
granted by any such Restricted Subsidiary) except that the guarantee of the
Notes need not be secured and shall be subordinated to the claims against such
Restricted Subsidiary in respect of Senior Indebtedness to the same
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extent as the Notes are subordinated to Senior Indebtedness of the Company under
this Indenture.
(b) The Company will not cause or permit any Restricted
Subsidiary, directly or indirectly, to guarantee, assume or in any other manner
become liable with respect to any Indebtedness of the Company unless such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture providing for a Guarantee of the Notes, on the same
terms as the guarantee of such Indebtedness except that (A) such guarantee need
not be secured unless required pursuant Section 10.17, (B) if such Indebtedness
is by its terms Senior Indebtedness, any such assumption, guarantee or other
liability of such Restricted Subsidiary with respect to such Indebtedness shall
be senior to such Restricted Subsidiary's Guarantee of the Notes to the same
extent as such Senior Indebtedness is senior to the Notes, and (C) if such
Indebtedness is by its terms subordinated to the Notes any such assumption,
guarantee or other liability of such Restricted Subsidiary with respect to such
Indebtedness shall be subordinated to such Restricted Subsidiary's Guarantee of
the Notes at least to the same extent as such Indebtedness is subordinated to
the Notes.
(c) Notwithstanding the foregoing, but subject to the
provisions of Section 8.01, any Guarantee by a Restricted Subsidiary of the
Notes shall provide by its terms that it (and all Liens securing the same) shall
be automatically and unconditionally released and discharged upon (i) any sale,
exchange or transfer, to any Person not an Affiliate of the Company, of all of
the Company's Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary, which transaction is in compliance with the terms of this
Indenture (including, but not limited to, Section 10.16) and such Restricted
Subsidiary is released from all guarantees, if any, by it of other Indebtedness
of the Company or any Restricted Subsidiaries or (ii) (with respect to any
Guarantees created after the date of this Indenture) the release by the holders
of the Indebtedness of the Company described in clauses (a) and (b) above of
their security interest or their guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all obligations under such
Indebtedness), at a time when (A) no other Indebtedness of the Company has been
secured or guaranteed by such Restricted Subsidiary, as the case may be, or
(B) the holders of all such other Indebtedness which is secured or guaranteed by
such Restricted Subsidiary also release their security interest in, or guarantee
by such Restricted Subsidiary (including any deemed release upon payment in full
of all obligations under such Indebtedness). The Company may, at any time,
cause a Subsidiary to become a Guarantor by executing and delivering a
supplemental indenture providing for the guarantee of payment of the Notes by
such Subsidiary on the basis provided in this Indenture.
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Section 10.19. LIMITATION ON PREFERRED STOCK OF RESTRICTED SUBSIDIARIES.
The Company will not sell and will not cause or permit any
Restricted Subsidiary of the Company to issue, sell or transfer any Preferred
Stock of any Restricted Subsidiary (other than to the Company or to a
Wholly-Owned Restricted Subsidiary) except for (i) Preferred Stock issued or
sold to, held by or transferred to the Company or a Wholly-Owned Restricted
Subsidiary and (ii) Preferred Stock issued by a Person prior to the time
(A) such Person becomes a Restricted Subsidiary, (B) such Person merges with or
into a Restricted Subsidiary or (C) a Restricted Subsidiary merges with or into
such Person; PROVIDED that such Preferred Stock was not issued or incurred by
such Person in anticipation of the type of transaction contemplated by subclause
(A), (B) or (C).
If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by both Rating Agencies are equal to or
higher than Investment Grade Ratings, and notwithstanding that the Notes may
later cease to have an Investment Grade Rating, the Company and the Restricted
Subsidiaries will not be subject to the provisions of this Section 10.19.
Section 10.20. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
The Company will not, and will not cause or permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective or enter into any agreement with any Person that would
cause to become effective, any consensual encumbrance or restriction of any
kind, on the ability of any Restricted Subsidiary to (i) pay dividends, in cash
or otherwise, or make any other distribution on or in respect of its Capital
Stock or any other interest or participation in, or measured by, its profits, to
the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed
to the Company or any other Restricted Subsidiary, (iii) make any Investment in
the Company or any other Restricted Subsidiary or (iv) transfer any of its
properties or assets to the Company or any other Restricted Subsidiary, except
for: (a) any encumbrance or restriction existing under any agreement in effect
on the Issue Date; (b) any encumbrance or restriction, with respect to a
Subsidiary that is not a Restricted Subsidiary of the Company on the Issue Date,
in existence at the time such Person becomes a Restricted Subsidiary of the
Company and not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary; PROVIDED, HOWEVER, that such encumbrances and
restrictions are not applicable to the Company or any other Restricted
Subsidiary, or the properties or assets of the Company or any other Restricted
Subsidiary; (c) customary provisions restricting the subletting or assignment of
any lease or the assignment of any other contract to which the Company or any
Restricted Subsidiary is a party, which lease or contract is entered into in the
ordinary course of business consistent with past practice; (d) any encumbrance
or restriction contained in con-
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tracts for sales of assets permitted by Section 10.16, PROVIDED, that such
encumbrance or restriction relates only to assets being sold pursuant to the
contract containing such encumbrance or restriction; (e) any encumbrance or
restriction customarily contained in any security agreement or mortgage which
security agreement or mortgage creates a Lien permitted under this Indenture;
PROVIDED, that such encumbrance or restriction relates only to assets subject to
such Lien; and (f) any encumbrance or restriction existing under any agreement
that extends, renews, refinances or replaces the agreements containing the
encumbrances or restrictions in the foregoing clauses (a), (b), (c), (d) and
(e), or in this clause (f), PROVIDED that the terms and conditions of any such
encumbrances or restrictions are no more restrictive in any material respect
than those under or pursuant to the agreement evidencing the Indebtedness so
extended, renewed, refinanced or replaced.
If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by both Rating Agencies are equal to or
higher than Investment Grade Ratings, and notwithstanding that the Notes may
later cease to have an Investment Grade Rating, the Company and the Restricted
Subsidiaries will not be subject to the provisions of this Section 10.20.
Section 10.21. LIMITATIONS ON UNRESTRICTED SUBSIDIARIES.
The Company may designate after the Issue Date any Subsidiary
(other than a Guarantor) as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
(ii) the Company would be permitted to make an Investment (other
than a Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to the provision described
under paragraph (a) of Section 10.14 in an amount (the "Designation
Amount") equal to the Fair Market Value of the Company's interest in such
Subsidiary on such date; and
(iii) the Company would be permitted under this Indenture to
incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 10.12 at the time of such Designation
(assuming the effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed
to have made an Investment constituting a Restricted Payment pursuant to
Section 10.14 for all purposes of this Indenture in the Designation Amount.
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The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, at any time (x) provide credit support for or subject
any of its property or assets (other than the Capital Stock of any Unrestricted
Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary or (z) be directly or indirectly liable for any
Indebtedness which provides that the holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity upon the occurrence
of a default with respect to any Indebtedness of any Unrestricted Subsidiary
(including any right to take enforcement action against such Unrestricted
Subsidiary), except any non-recourse guarantee given solely to support the
pledge by the Company or any Restricted Subsidiary of the Capital Stock of an
Unrestricted Subsidiary. No Unrestricted Subsidiary shall at any time guarantee
or otherwise provide credit support for any obligation of the Company or any
Restricted Subsidiary. All Subsidiaries of Unrestricted Subsidiaries shall
automatically be deemed to be Unrestricted Subsidiaries.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation;
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture; and
(iii) any transaction (or series of related transactions) between
such Subsidiary and any of its Affiliates that occurred while such
Subsidiary was an Unrestricted Subsidiary would be permitted by Section
10.15 as if such transaction (or series of related transactions) had
occurred at the time of such Revocation.
All Designations and Revocations must be evidenced by Board
Resolutions of the Company delivered to the Trustee certifying compliance with
the foregoing provisions
If no Default or Event of Default has occurred and is continuing,
after the ratings assigned to the Notes by both Rating Agencies are equal to or
higher than Investment Grade Ratings, and notwithstanding that the Notes may
later cease to have an Investment Grade Rating, the Company and the Restricted
Subsidiaries will not be subject to the provisions of clauses (ii) and (iii) of
the first and fourth paragraphs of this Section 10.21.
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Section 10.22. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company, the
Guarantors and any other obligor on the Notes will furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with,
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents,
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture will include:
(i) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 10.23. LIMITATION ON INCURRENCE OF SENIOR SUBORDINATED INDEBTEDNESS.
The Company will not, and will not permit any Guarantor to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise in
any manner become directly or indirectly liable for or with respect to or
otherwise permit to exist any Indebtedness that is subordinate or junior in
right of payment to any Indebtedness of the Company or such Guarantor, as the
case may be, unless such Indebtedness is also PARI PASSU with the Notes or the
Guarantee of such Guarantor or subordinate or junior, in right of payment to the
Notes or such Guarantee at least to the same extent as the Notes or such
Guarantee are subordinate
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or junior in right of payment to Senior Indebtedness or Senior Indebtedness of
such Guarantor, as the case may be.
Section 10.24. APPLICATION OF FALL-AWAY COVENANTS.
After the Notes have been assigned an Investment Grade Rating by
both Rating Agencies and the Company and the Guarantors shall no longer be
subject to the agreements and covenants contained in clauses (iii) and (iv) of
the first paragraph of Section 8.01, Sections 10.12, 10.14, 10.15, 10.16, 10.19,
10.20 and clauses (ii) and (iii) of the first and fourth paragraphs of Section
10.21 as therein provided, such provisions shall no longer have application for
any purpose of this Indenture (including, without limitation, for purposes of
Article Five, Article Eight, Article Nine, Article Ten and Article Twelve
hereof).
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to
surviving rights or registration of transfer or exchange of Notes herein
expressly provided for) and the Trustee, on written demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when either
(a) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.07 hereof and (ii) Notes
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(b) (i) all such Notes not theretofore delivered to the
Trustee for cancellation have become due and payable and the Company or
any Guarantor has irrevocably deposited or caused to be deposited with
the Trustee in trust an amount of money in dollars sufficient to pay and
discharge the entire Indebtedness on such Notes not theretofore delivered
to the Trustee for cancellation, for the principal of, premium, if any,
and interest to the date of such deposit;
(ii) the Company or any Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company and the Guarantor; and
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(iii) the Company and each of the Guarantors have delivered to
the Trustee (a) irrevocable instructions to apply the deposited money
toward payment of the Notes at the Stated Maturities and the Redemption
Dates thereof, and (b) an Officers' Certificate and an Opinion of Counsel
each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with and that such satisfaction and discharge will not result in a breach
or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company, any
Guarantor or any Subsidiary is a party or by which the Company, any
Guarantor or any Subsidiary is bound.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (a)(ii) of this
Section 11.01, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 10.03 shall survive.
Section 11.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.03,
all money deposited with the Trustee pursuant to Section 11.01 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of, premium, if
any, and interest on the Notes for whose payment such money has been deposited
with the Trustee.
ARTICLE TWELVE
GUARANTEE OF NOTES
Section 12.01. UNCONDITIONAL GUARANTEE.
Each Guarantor hereby jointly and severally absolutely and
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the invalidity, illegality, or unenforceability of this Indenture, the Notes
or any extension, compromise, waiver or release in respect of any obligation of
the Company or any other Guarantor under any Note, this Indenture or any
modification or amendment of or supplement to this Indenture, that: (a) the
principal of, premium, if any, and interest on the Notes will be duly and
punctually paid in full when due, whether at maturity, upon redemption, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the
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Notes and all other obligations of the Company or the Guarantor to the Holders
or the Trustee hereunder or thereunder (including fees, expenses or other) and
all other Indenture Obligations will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
Indenture Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed, or failing performance of any other obligation of the
Company to the Holders, for whatever reason, each Guarantor shall be obligated
to pay, or to perform or cause the performance of, the same immediately. An
Event of Default under this Indenture or the Notes shall constitute an event of
default under this Guarantee, and shall entitle the Holders of Notes to
accelerate the obligations of the Guarantor hereunder in the same manner and to
the same extent as the obligations of the Company.
Each Guarantor hereby agrees that its obligations hereunder shall
be unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, any release of any other Guarantor, the recovery of any
judgment against the Company, any action to enforce the same, whether or not a
Guarantee is affixed to any particular Note, or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a
guarantor.
Each Guarantor hereby waives the benefit of 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 shall not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture and this Guarantee. This
Guarantee is a guarantee of payment and not of collection. If any Holder or the
Trustee is required by any court or otherwise to return to the Company or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Guarantor, any amount paid by the
Company or such Guarantor to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders of Notes and the Trustee, on the other hand, (a) subject to this Article
Twelve, the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Five hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Article Five
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Note Guarantor for the purpose of this Guarantee.
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Section 12.02. SUBORDINATION OF GUARANTEES.
The obligations of any Guarantor under its Guarantee will be
subordinated, to the same extent as the obligations of the Company in respect of
the Notes, to the prior payment in full in cash or, to the extent permitted
under the agreements governing the Senior Indebtedness being prepaid, Cash
Equivalents, of all Senior Indebtedness of such Guarantor, which will include
any guarantee issued by such Guarantor of any Senior Indebtedness.
Section 12.03. EXECUTION AND DELIVERY OF GUARANTEE.
To further evidence the Guarantee set forth in Section 12.01, each
Guarantor hereby agrees that a notation of such Guarantee in the form annexed
hereto as Exhibit D shall be endorsed on each Note authenticated and delivered
by the Trustee and executed by either manual or facsimile signature of an
Officer of each Guarantor.
Each of the Guarantors hereby agrees that its Guarantee set forth
in Section 12.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture
or a Guarantee no longer holds that office at the time the Trustee authenticates
such Note or at any time thereafter, such Guarantor's Guarantee of such Note
shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of each Guarantor.
Section 12.04. ADDITIONAL GUARANTORS.
Any Person that was not a Guarantor on the date of this Indenture
may become a Guarantor by executing and delivering to the Trustee (a) a
supplemental indenture in form and substance satisfactory to the Trustee, which
subjects such Person to the provisions (including the representations and
warranties) of this Indenture as a Guarantor, (b) in the event that as of the
date of such supplemental indenture any Registrable Securities are outstanding,
an instrument in form and substance satisfactory to the Trustee which subjects
such Person to the provisions of the Registration Rights Agreement with respect
to such outstanding Registrable Securities, and (c) an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized and executed by
such Person and constitutes the legal, valid and binding obligation of such
Person (subject to such customary assumptions and exceptions as may be
acceptable to the Trustee in its reasonable discretion).
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Section 12.05. RELEASE OF A GUARANTOR.
Subject to Section 8.01(a), upon the sale, exchange, transfer or
other disposition (by merger or otherwise), other than a lease, of a Subsidiary
of the Company that is a Guarantor of all of the Capital Stock of such
Subsidiary or all, or substantially all, the assets of such Subsidiary, to any
Person that is not an Affiliate of the Company, and which sale or other
disposition is otherwise in compliance with the terms of this Indenture
(including, without limitation, Section 10.16), such Guarantor shall be deemed
automatically and unconditionally released and discharged from all obligations
under this Article Twelve without any further action required on the part of the
Trustee or any Holder. The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request of the Company accompanied by
an Officers' Certificate certifying as to the compliance with this Section and
the Company's rights of redemption in accordance with the terms of the Notes in
this Section 12.05. Any Guarantor not so released will remain liable for the
full amount of principal of, premium, if any, and interest on the Notes as
provided in this Article Twelve.
Section 12.06. WAIVER OF SUBROGATION.
Until this Indenture is discharged and all of the Notes are
discharged and paid in full, each Guarantor hereby irrevocably waives and agrees
not to exercise any claim or other rights which it may now or hereafter acquire
against the Company that arise from the existence, payment, performance or
enforcement of the Company's obligations under the Notes or this Indenture and
such Guarantor's obligations under this Guarantee and this Indenture, in any
such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and any amounts owing to the Trustee or the Holders of Notes under the
Notes, this Indenture, or any other document or instrument delivered under or in
connection with such agreements or instruments, shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor for
the benefit of, and held in trust for the benefit of, the Holders of the Notes,
and shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied to the Notes, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
12.06 is knowingly made in contemplation of such benefits.
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Section 12.07. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT REGARDING DISSOLUTION, ETC. OF GUARANTORS.
Upon any payment or distribution of assets of any Guarantor
referred to in this Article Twelve, the Trustee, subject to the provisions of
Section 6.01, and the Holders, shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve; PROVIDED,
HOWEVER, that the foregoing shall apply only if such court has been fully
apprised of the provisions of this Article Twelve.
Section 12.08. ARTICLE TWELVE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Twelve shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Twelve in addition to or in place of the Trustee.
Section 12.09. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article Twelve shall limit the right of
the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
Section 12.10. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.
Each Guarantor that is a Subsidiary of the Company, and by its
acceptance hereof each Holder, hereby confirms that it is the intention of all
such parties that the Guarantee by such Guarantor pursuant to its Guarantee not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing intention, the
Holders and such Guarantor hereby irrevocably agree that the obligations of such
Guarantor under this Guarantee shall be limited to the maximum amount which,
after giving effect to all other contingent and fixed liabilities of such
Guarantor, and
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after giving effect to any collections from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
its Guarantee or pursuant to its contribution obligations under this Article
Twelve, will result in the obligations of such Guarantor under its Guarantee not
constituting such fraudulent transfer or conveyance.
Section 12.11. CONTRIBUTION FROM OTHER GUARANTORS.
Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor in a pro
rata amount based on the net assets of each Guarantor, determined in accordance
with GAAP, so long as the exercise of such right does not impair the rights of
holders of Notes under any Guarantee.
Section 12.12. OBLIGATIONS REINSTATED.
The obligations of each Guarantor hereunder shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
which would otherwise have reduced the obligations of any Guarantor hereunder
(whether such payment shall have been made by or on behalf of the Company or by
or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders
upon the insolvency, bankruptcy, liquidation or reorganization of the Company or
any Guarantor or otherwise, all as though such payment had not been made. If
demand for, or acceleration of the time for, payment by the Company is stayed
upon the insolvency, bankruptcy, liquidation or reorganization of the Company,
all such Indebtedness otherwise subject to demand for payment or acceleration
shall nonetheless be payable by each Guarantor as provided herein.
Section 12.13. NO OBLIGATION TO TAKE ACTION AGAINST THE COMPANY.
Neither the Trustee nor any other Person shall have any obligation
to enforce or exhaust any rights or remedies or to take any other steps under
any security for this Indenture Obligations or against the Company or any other
Person or any property of the Company or any other Person before the Trustee is
entitled to demand payment and performance by any or all Guarantors of their
liabilities and obligations under their Guarantees or under this Indenture.
Section 12.14. DEALING WITH THE COMPANY AND OTHERS.
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any Guarantor
hereunder and without the consent of or notice to any Guarantor, may
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(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Company or any
other Person;
(b) take or abstain from taking security or collateral from the
Company or from perfecting security or collateral of the Company;
(c) release, discharge, compromise, realize, enforce or
otherwise deal with or do any act or thing in respect of (with or without
consideration) any and all collateral, mortgages or other security given
by the Company or any third party with respect to the obligations or
matters contemplated by this Indenture or the Notes;
(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or
from any security upon such part of the Indenture Obligations as the
Holders may see fit or change any such application in whole or in part
from time to time as the Holders may see fit; and
(f) otherwise deal with, or waive or modify their right to deal
with, the Company and all other Persons and any security as the Holders
or the Trustee may see fit.
ARTICLE THIRTEEN
REDEMPTIONS AND OFFERS TO PURCHASE
Section 13.01. NOTICE TO TRUSTEE.
If the Company elects to redeem Notes pursuant to Section 13.07 it
shall furnish to the Trustee, at least 30 days but not more than 60 days before
notice of any redemption is to be mailed to Holders (or such shorter times as
may be satisfactory to the Trustee), an Officers' Certificate stating that the
Company has elected to redeem Notes pursuant to Section 13.07, the date notice
of redemption is to be mailed to Holders, the redemption date, the aggregate
principal amount of Notes to be redeemed, the redemption price for such Notes,
the amount of accrued and unpaid interest on such Notes as of the redemption
date and the manner in which Notes are to be selected for redemption if less
than all Outstanding Notes are to be redeemed. If the Trustee is not the
Registrar, the Company shall, concurrently with delivery of its notice to the
Trustee of a redemption, cause the Registrar to deliver to the Trustee a
certificate (upon which the Trustee may rely) setting forth the name of, and the
aggregate principal amount of Notes held by each Holder.
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If the Company is required to offer to purchase Notes pursuant to
Sections 10.11 or 10.16, it shall furnish to the Trustee, at least two Business
Days before notice of the corresponding Offer is to be mailed to Holders, an
Officers' Certificate setting forth that the Offer is being made pursuant to
Sections 10.11 or 10.16, as the case may be, the Change of Control Purchase Date
or the Asset Sale Offer Purchase Date, the maximum principal amount of Notes the
Company is offering to purchase pursuant to such Offer, the purchase price for
such Notes, and the amount of accrued and unpaid interest on such Notes as of
the Change of Control Purchase Date or the Asset Sale Offer Purchase Date, as
the case may be.
The Company will also provide the Trustee with any additional
information that the Trustee reasonably requests in connection with any
redemption or Offer.
Section 13.02. SELECTION OF NOTES TO BE REDEEMED OR PURCHASED.
In the event that 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 listed on a
national securities exchange, on a PRO RATA basis, by lot or by such method as
the Trustee will deem fair and appropriate; PROVIDED, HOWEVER, that no Notes of
a principal amount of $1,000 or less shall be redeemed in part; PROVIDED,
FURTHER, HOWEVER, that any such redemption made with the net proceeds of a
Public Equity Offering shall be made on a PRO RATA basis or on as nearly a PRO
RATA basis as practicable (subject to the procedures of The Depository Trust
Company or any other depositary). Notice of redemption will 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
will state the portion of the principal amount thereof to be redeemed. A new
Note in a principal amount equal to the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation of the original Note.
Section 13.03. NOTICE OF REDEMPTION.
(a) At least 30 days but not more than 60 days before any
redemption date, the Company shall mail a notice of redemption by first class
mail to each Holder of Notes or portions thereof that are to be redeemed. With
respect to any redemption of Notes, the notice shall identify the Notes or
portions thereof to be redeemed and shall state: (1) the redemption date; (2)
the redemption price for the Notes and the amount of unpaid and accrued interest
on such Notes as of the date of redemption; (3) the paragraph of the Notes
pursuant to which the Notes called for redemption are being redeemed; (4) if any
Note is being redeemed in part, the portion of the principal
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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 will be issued; (5) the name and address of the Paying Agent;
(6) that Notes called for redemption must be surrendered to the Paying Agent to
collect the redemption price for, and any accrued and unpaid interest on, such
Notes; (7) 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; and (8) that no representation is made as to the correctness or
accuracy of the CUSIP number listed in such notice and printed on the Notes.
(b) At the Company's request, the Trustee shall (at the
Company's expense) give the notice of any redemption to Holders; PROVIDED,
HOWEVER, that the Company shall deliver to the Trustee, at least 45 days prior
to the date of redemption and at least 10 days prior to the date that notice of
the redemption is to be mailed to Holders, an Officers' Certificate that (i)
requests the Trustee to give notice of the redemption to Holders, (ii) sets
forth the information to be provided to Holders in the notice of redemption, as
set forth in the preceding paragraph, and (iii) sets forth the aggregate
principal amount of Notes to be redeemed and the amount of accrued and unpaid
interest thereon as of the redemption date. If the Trustee is not a Registrar,
the Company shall, concurrently with any such request, cause the Registrar to
deliver to the Trustee a certificate (upon which the Trustee may rely) setting
forth the name of, the address of, and the aggregate principal amount of Notes
held by, each Holder; PROVIDED FURTHER that any such Officers' Certificate may
be delivered to the Trustee on a date later than permitted under this Section
13.03(b) if such later date is acceptable to the Trustee.
Section 13.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Notes called for redemption
become due and payable on the redemption date at the price set forth in the
Note.
Section 13.05. DEPOSIT OF REDEMPTION PRICE.
(a) On or prior to any 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. After any redemption date, the Trustee or the Paying Agent shall promptly
return to the Company any money that the Company deposited with the Trustee or
the Paying Agent in excess of the amounts necessary to pay the redemption price
of, and accrued interest on, all Notes to be redeemed.
(b) If the Company complies with the preceding paragraph,
interest on the Notes to be redeemed will cease to accrue on such Notes on the
applicable redemption date, whether or not such Notes are presented for payment.
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
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unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business of 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 will be
paid on the unpaid principal, premium, if any, and interest from the redemption
date until such principal, premium and interest is paid, at the rate of interest
provided in the Notes, the Registration Rights Agreement and Section 10.01.
Section 13.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the Company's
expense a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
Section 13.07. OPTIONAL REDEMPTION.
Except as set forth below, the Notes are not redeemable at the
Company's option. The Notes will be redeemable at the option of the Company, in
whole or in part, at any time on or after May 1, 2003, at the redemption prices
(expressed as percentages of principal amount) set forth below, plus accrued and
unpaid interest thereon, if any, to the date of redemption, if redeemed during
the 12-month period beginning on May 1 of the years indicated below:
Year REDEMPTION PRICE
---- ----------------
2003..................................... 104.250%
2004..................................... 102.833%
2005..................................... 101.417%
2006 and thereafter...................... 100.000%
On or prior to May 1, 2001, the Company may, at its option, use
the net proceeds of a Public Equity Offering to redeem up to 35% of the
originally issued aggregate principal amount of the Notes, at a redemption price
in cash equal to 108.5% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the date of redemption; PROVIDED, HOWEVER, that at
least $107,250,000 in aggregate principal amount of Notes is outstanding
following such redemption. Notice of any such redemption must be given not later
than 60 days after the consummation of the Public Equity Offering.
As used in the preceding paragraph, a "Public Equity Offering"
means any underwritten public offering of Capital Stock (other than Redeemable
Capital Stock) of the Company made on a primary basis by the Company pursuant to
a registration statement filed with and declared effective by the Commission in
accordance with the Securities Act.
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On and after the redemption date, interest will cease to accrue on
Notes or portions thereof called for redemption so long as the Company has
deposited with the Paying Agent for the Notes funds in satisfaction of the
applicable redemption price pursuant to this Indenture.
Section 13.08. PROCEDURES RELATING TO MANDATORY OFFERS.
(a) On the Change of Control Purchase Date or the Asset Sale
Offer Purchase Date, as the case may be, for any Offer the Company will (i) in
the case of an Offer resulting from a Change of Control, accept for payment all
Notes or portions thereof tendered pursuant to such Offer and, in the case of an
Offer resulting from one or more Asset Sales, accept for payment the maximum
principal amount of Notes or portions thereof tendered pursuant to such Offer
that can be purchased out of Unutilized Net Cash Proceeds from such Asset Sales
to the extent provided in Section 10.16, (ii) deposit with the Paying Agent the
aggregate purchase price of all Notes or portions thereof accepted for payment
and any accrued and unpaid interest on such Notes as of the Purchase Date, and
(iii) deliver, or cause to be delivered, to the Trustee all Notes tendered
pursuant to the Offer, together with an Officers' Certificate setting forth the
name of each Holder that tendered Notes and the principal amount of the Notes or
portions thereof tendered by each such Holder.
(b) With respect to any Offer, (i) if less than all of the
Notes tendered pursuant to an Offer are to be accepted for payment by the
Company for any reason consistent with this Indenture, the Trustee shall select
on or prior to the Change of Control Purchase Date or the Asset Sale Offer
Purchase Date, as the case may be, the Notes or portions thereof to be accepted
for payment pursuant to Section 13.02, and (ii) if the Company deposits with the
Paying Agent on or prior to the Change of Control Purchase Date or the Asset
Sale Offer Purchase Date, as the case may be, an amount sufficient to purchase
all Notes accepted for payment, interest shall cease to accrue on such Notes on
the Purchase Date; PROVIDED, HOWEVER, that if the Company fails to deposit an
amount sufficient to purchase all Notes accepted for payment, the deposited
funds shall be used to purchase on a PRO RATA basis all Notes accepted for
payment and interest shall continue to accrue on all Notes not purchased.
(c) Promptly after consummation of an Offer, (i) the Paying
Agent shall mail to each Holder of Notes or portions thereof accepted for
payment an amount equal to the purchase price for, plus any accrued and unpaid
interest on, such Notes, (ii) with respect to any tendered Note not accepted for
payment in whole or in part, the Trustee shall return such Note to the Holder
thereof, and (iii) with respect to any Note accepted for payment in part, the
Trustee shall authenticate and mail to each such Holder a new Note equal in
principal amount to the unpurchased portion of the tendered Note.
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(d) The Company will (i) publicly announce the results of the
Offer to Holders not later than the first Business Day after each Change of
Control Purchase Date or Asset Sale Offer Purchase Date, as the case may be, and
(ii) as set forth in the penultimate paragraph of each of Section 10.11 and
Section 10.16, comply with the applicable tender offer rules and all other
securities laws and regulations in connection with any Offer.
ARTICLE FOURTEEN
SUBORDINATION
Section 14.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note agrees,
any provisions of this Indenture or the Notes to the contrary notwithstanding,
that all obligations owed under and in respect of the Notes are subordinated in
right of payment, to the extent and in the manner provided in this Article
Fourteen, to the prior payment in full of all Senior Indebtedness of the
Company, and that the subordination of the Notes pursuant to this Article
Fourteen is for the benefit of all holders of all Senior Indebtedness of the
Company, whether outstanding on the Issue Date or incurred thereafter.
Section 14.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment or distribution of cash, securities or
other property of the Company to creditors upon any insolvency or liquidation
proceeding with respect to the Company or its property or securities, the
holders of any Senior Indebtedness of the Company will be entitled to receive
payment in full, in cash or, to the extent permitted under the agreements
governing the Senior Indebtedness, Cash Equivalents, of all obligations due in
respect of such Senior Indebtedness before the Holders will be entitled to
receive any payment or distribution with respect to the Notes (excluding any
payment or distribution of, or repurchase or redemption in exchange for,
securities permitted by clause (b) of this Section 14.02), and until all
obligations with respect to such Senior Indebtedness of the Company are paid in
full, in cash or, to the extent permitted under the agreements governing the
Senior Indebtedness, Cash Equivalents, any payment or distribution to which the
Holders would be entitled shall be made to the holders of the Company's Senior
Indebtedness (pro rata to such holders on the basis of the amounts of Senior
Indebtedness held by them). Upon any insolvency or liquidation proceeding with
respect to the Company, any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (excluding any
payment or distribution of, or repurchase or redemption in exchange for,
securities permitted by clause (b) of this Section 14.02), to which the Holders
or the Trustee
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would be entitled to except for the provisions of this Indenture shall be paid
by the Company, any Custodian or other Person making such payment or
distribution, or by the Holders or by the Trustee if received by them, directly
to the holders of the Company's Senior Indebtedness (pro rata to such holders on
the basis of the amounts of Senior Indebtedness held by them) or their
Representatives, as their interests may appear, for application to the payment
of all outstanding Senior Indebtedness of the Company until all such Senior
Indebtedness has been paid in full in cash, after giving effect to all other
payments or distributions to, or provisions made for, holders of the Company's
Senior Indebtedness.
(b) A distribution may consist of cash, securities or other
property, by set-off or otherwise. For purposes of this Article Fourteen, the
words "cash, securities or other property" shall not include any distribution of
securities of the Company or any other corporation provided for in any
reorganization proceeding under any Bankruptcy Law if (i) such securities
constitute Reorganization Securities, (ii) such distribution was authorized by
an order or decree of a court of competent jurisdiction, and (iii) such order
gives effect to (and states in such order or decree that effect has been given
to) the subordination of such securities to all Senior Indebtedness of the
Company not paid in full in connection with such reorganization; provided that
(a) all such Senior Indebtedness is assumed by the reorganized corporation, and
(b) the rights of the holders of any such Senior Indebtedness are not, without
the consent of such holders, altered by such reorganization, which consent shall
be deemed to have been given if the holders of such Senior Indebtedness (or
their representative), individually or as a class, shall have approved such
reorganization.
(c) Notwithstanding anything to the contrary in this Indenture,
any disposition by or involving the Company, or the liquidation or dissolution
of the Company following any disposition, shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 14.02
if such disposition is permitted under Article Eight.
Section 14.03. DEFAULT ON DESIGNATED SENIOR INDEBTEDNESS.
(a) During the continuance of any default in the payment of any
Designated Senior Indebtedness pursuant to which the maturity thereof may
immediately be accelerated beyond any applicable grace period and after receipt
by the Trustee from representatives of holders of such Designated Senior
Indebtedness of written notice of such default, no payment or distribution of
any assets of the Company of any kind or character (excluding any payment or
distribution of securities set forth in Section 14.02(b)) shall be made on
account of the principal of, premium, if any, or interest on, or the purchase,
redemption or other acquisition of, the Notes unless and until such default has
been cured or waived or has ceased to exist or such Designated Senior
Indebtedness shall have been discharged or paid in full.
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(b) During the continuance of any non-payment default with
respect to any Designated Senior Indebtedness pursuant to which the maturity
thereof may immediately be accelerated (a "Non-payment Default") and (x) after
the receipt by the Trustee from the representatives of holders of such
Designated Senior Indebtedness of a written notice of such Non-payment Default
or (y) if the Non-payment Default results from the acceleration of the Notes,
from the date of such acceleration, no payment or distribution of any assets of
the Company of any kind or character (excluding any payment or distribution of
securities set forth in Section 14.02(b)) shall be made by the Company on
account of the principal of, premium, if any, or interest on, or the purchase,
redemption or other acquisition of, the Notes for the period specified below
(the "Payment Blockage Period").
The Payment Blockage Period will commence upon (x) the receipt of
notice of a Non-payment Default by the Trustee from the representatives of
holders of Designated Senior Indebtedness or (y) if the Non-payment Default
results from the acceleration of the Notes, upon such acceleration, and will end
on the earliest to occur of the following events: (i) 179 days shall have
elapsed (A) since the receipt of such notice of a Non-payment Default or (B) if
the Non-payment Default results from the acceleration of the Notes, since such
acceleration (in each case, provided that such Designated Senior Indebtedness
shall not have been accelerated and the Company has not defaulted with respect
to the payment of such Designated Senior Indebtedness), (ii) such default is
cured or waived or ceases to exist or such Designated Senior Indebtedness is
discharged or (iii) such Payment Blockage Period shall have been terminated by
written notice to the Company or the Trustee from the representatives of holders
of Designated Senior Indebtedness initiating such Payment Blockage Period.
After the end of any Payment Blockage Period the Company shall promptly resume
making any and all required payments in respect of the Notes, including any
missed payments. Notwithstanding anything in the subordination provisions of
the Indenture or the Notes to the contrary, (x) in no event shall a Payment
Blockage Period extend beyond 179 days from the date such Payment Blockage
Period was commenced, (y) there shall be a period of at least 186 consecutive
days in each 365-day period when no Payment Blockage Period is in effect and (z)
not more than one Payment Blockage Period with respect to the Notes may be
commenced within any period of 365 consecutive days. A Non-payment Default with
respect to Designated Senior Indebtedness that existed or was continuing on the
date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period cannot be
made the basis for the commencement of a second Payment Blockage Period, whether
or not within a period of 365 consecutive days, unless such default has been
cured or waived for a period of not less than 90 consecutive days and
subsequently recurs.
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Section 14.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify each holder of the Company's
Designated Senior Indebtedness or their representatives of the acceleration and
provide copies of such notice to the Trustee.
Section 14.05. WHEN DISTRIBUTIONS MUST BE PAID OVER.
If the Company shall make any payment to the Trustee on account of
the principal of, or premium, if any, or interest on, the Notes, or any other
obligation in respect to the Notes, or the Holders shall receive from any source
any payment on account of the principal of, or premium, if any, or interest on,
the Notes or any obligation in respect of the Notes, at a time when such payment
is prohibited by this Article Fourteen, the Trustee or such Holders shall hold
such payment in trust for the benefit of, and shall pay over and deliver to, the
holders of the Company's Senior Indebtedness (PRO RATA as to each of such
holders on the basis of the respective amounts of such Senior Indebtedness held
by them) or their representative or the trustee under the indenture or other
agreement (if any) pursuant to which such Senior Indebtedness may have been
issued, as their respective interests may appear, for application to the payment
of all outstanding Senior Indebtedness of the Company until all such Senior
Indebtedness has been paid in full in cash, after giving effect to all other
payments or distributions to, or provisions made for, the holders of the
Company's Senior Indebtedness.
With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform only such obligations on its part as are
specifically set forth in this Article Fourteen, and no implied covenants or
obligations with respect to any holders of the Company's Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of the Company's Senior
Indebtedness, and shall not be liable to any holders of such Senior Indebtedness
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 such Senior
Indebtedness are entitled pursuant to this Article Fourteen.
Section 14.06. NOTICE.
Neither the Trustee nor the Paying Agent shall at any time be
charged with the knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee or Paying Agent under this Article
Fourteen, unless the Trustee or the requisite Holders have given notice of
acceleration of the Notes or unless and until the Trustee or Paying Agent shall
have received written notice thereof from the Company or one or
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more holders of the Company's Senior Indebtedness or a representative of any
holders of such Senior Indebtedness; and, prior to the receipt of any such
written notice, the Trustee or Paying Agent shall be entitled to assume
conclusively that no such facts exist. The Trustee shall be entitled to rely on
the delivery to it of written notice by a Person representing itself to be a
holder of the Company's Senior Indebtedness (or a representative thereof) to
establish that such notice has been given.
The Company shall promptly notify the Trustee and the Paying Agent
in writing of any facts it knows that would cause a payment of principal of, or
premium, if any, or interest on, the Notes or any other obligation in respect of
the Notes to violate this Article Fourteen, but failure to give such notice
shall not affect the subordination of the Notes to the Senior Indebtedness of
the Company provided in this Article Fourteen or the rights of holders of such
Senior Indebtedness under this Article Fourteen.
Section 14.07. SUBROGATION.
After all Senior Indebtedness of the Company has been paid in full
in cash and until the Notes are paid in full, Holders shall be subrogated
(equally and ratably with all other Pari Passu Indebtedness) to the rights of
holders of such Senior Indebtedness to receive distributions applicable to such
Senior Indebtedness to the extent that distributions otherwise payable to the
Holders have been applied to the payment of such Senior Indebtedness. A
distribution made under this Article Fourteen to holders of the Company's Senior
Indebtedness that otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Company on its Senior Indebtedness.
Section 14.08. RELATIVE RIGHTS.
The provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of Holders and holders of
the Company's Senior Indebtedness. Nothing in this Indenture shall: (1)
impair, as between the Company and Holders, the Company's Indenture Obligations,
which are absolute and unconditional, to pay principal of, and premium, if any,
and interest on, the Notes in accordance with their terms; (2) affect the
relative rights of Holders and the Company's creditors other than their rights
in relation to holders of the Company's Senior Indebtedness; or (3) prevent the
Trustee or any Holder from exercising its available remedies upon a Default or
Event of Default, subject to the rights of holders of the Company's Senior
Indebtedness, if any, under this Article Fourteen.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in any Note is intended to or shall impair, as between the Company
and the Holders, the Indenture Obligations of the Company, which are absolute
and unconditional, to pay to the
-117-
Holders the principal of, and premium, if any, and interest on, the Notes as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of the Company's Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon Default under
this Indenture, subject to the rights, if any, under this Article Fourteen of
the holders of such Senior Indebtedness.
The failure to make a payment on account of principal of, or
interest on the Notes by reason of any provision of this Article Fourteen shall
not be construed as preventing the occurrence of an Event of Default under
Section 5.01.
Section 14.09. THE COMPANY AND HOLDERS MAY NOT IMPAIR SUBORDINATION.
(a) No right of any holder of the Company's Senior Indebtedness
to enforce the subordination as provided in this Article Fourteen shall at any
time or in any way be prejudiced or impaired by any act or failure to act by the
Company or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture or the Notes or any other agreement regardless of
any knowledge thereof with which any such holder may have or be otherwise
charged.
(b) Without in any way limiting Section 14.09(a), the holders
of any Senior Indebtedness of the Company may, at any time and from time to
time, without the consent of or notice to any Holders, without incurring any
liabilities to any Holder and without impairing or releasing the subordination
and other benefits provided in this Indenture or the Holders' obligations to the
holders of such Senior Indebtedness, even if any Holder's right of reimbursement
or subrogation or other right or remedy is affected, impaired or extinguished
thereby, do any one or more of the following: (i) amend, renew, exchange,
extend, modify, increase or supplement in any manner such Senior Indebtedness or
any instrument evidencing or guaranteeing or securing such Senior Indebtedness
or any agreement under which such Senior Indebtedness is outstanding (including,
but not limited to, changing the manner, place or terms of payment or changing
or extending the time of payment of, or renewing, exchanging, amending,
increasing or altering, (1) the terms of such Senior Indebtedness, (2) any
security for, or any guarantee of, such Senior Indebtedness, (3) any liability
of any obligor on such Senior Indebtedness (including any guarantor) or any
liability issued in respect of such Senior Indebtedness); (ii) sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any property pledged, mortgaged or otherwise securing such
Senior Indebtedness or any liability of any obligor thereon, to such holder, or
any liability issued in respect thereof; (iii) settle or compromise any such
Senior Indebtedness or any other liability of any obligor of such Senior
Indebtedness to such holder or any security
-118-
therefor or any liability issued in respect thereof and apply any sums by
whomsoever paid and however realized to any liability (including, without
limitation, payment of any of the Company's Senior Indebtedness) in any manner
or order; and (iv) fail to take or to record or otherwise perfect, for any
reason or for no reason, any lien or security interest securing such Senior
Indebtedness by whomsoever granted, exercise or delay in or refrain from
exercising any right or remedy against any obligor or any guarantor or any other
Person, elect any remedy and otherwise deal freely with any obligor and any
security for such Senior Indebtedness or any liability of any obligor to the
holders of such Senior Indebtedness or any liability issued in respect of such
Senior Indebtedness.
Section 14.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made, or a notice given, to
holders of Senior Indebtedness of the Company, the distribution may be made and
the notice given to their representative, if any. If any payment or
distribution of the Company's assets is required to be made to holders of any of
the Company's Senior Indebtedness pursuant to this Article Fourteen, the Trustee
and the Holders shall be entitled to rely upon any order or decree of any court
of competent jurisdiction, or upon any certificate of a representative of such
Senior Indebtedness or a custodian, in ascertaining the holders of such Senior
Indebtedness entitled to participate in any such payment or distribution, the
amount to be paid or distributed to holders of such Senior Indebtedness and all
other facts pertinent to such payment or distribution or to this Article
Fourteen.
Section 14.11. RIGHTS OF TRUSTEE AND PAYING AGENT.
The Trustee or Paying Agent may continue to make payments on the
Notes unless prior to any payment date it or the requisite Holders have given
notice of acceleration of the Notes or it has received written notice of facts
that would cause a payment of principal of, or premium, if any, or interest on,
the Notes to violate this Article Fourteen. Only the Company, a representative
of Senior Indebtedness, or a holder of Senior Indebtedness that has no
representative may give such notice.
To the extent permitted by the TIA, the Trustee in its individual
or any other capacity may hold Indebtedness of the Company (including Senior
Indebtedness) with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
Section 14.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of a Note by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the
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subordination as provided in this Article Fourteen, and appoints the Trustee as
such Holder's attorney-in-fact for any and all such purposes (including, without
limitation, the timely filing of a claim for the unpaid balance of the Note that
such Holder holds in the form required in any bankruptcy, reorganization,
insolvency or receivership proceeding and causing such claim to be approved).
If a proper claim or proof of debt in the form required in such
proceeding is not filed by or on behalf of all Holders prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders or a
representative of any Senior Indebtedness of the Company are hereby authorized,
and shall have the right (without any duty), to file an appropriate claim for
and on behalf of the Holders.
Section 14.13. PAYMENT.
A payment on account of or with respect to any Note shall include,
without limitation, any direct or indirect payment of principal, premium or
interest with respect to or in connection with any optional redemption or
purchase provisions, any direct or indirect payment payable by reason of any
other Indebtedness or obligation being subordinated to the Notes, and any direct
or indirect payment or recovery on any claim as a Holder relating to or arising
out of this Indenture or any Note, or the issuance of any Note, or the
transactions contemplated by this Indenture or referred to herein.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
COMPANY: ▇▇▇▇-▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Secretary &
General Counsel
GUARANTORS: ▇▇▇▇ ▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-fact
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-fact
▇.▇. ▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
[Signature page to ▇▇▇▇ ▇▇▇▇▇ Indenture]
SUPER FOOD SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇ TRANSPORTATION SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-fact
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-fact
GTL TRUCK LINES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
[Signature page to ▇▇▇▇ ▇▇▇▇▇ Indenture]
PIGGLY WIGGLY NORTHLAND CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇ DAIRY OF THE BLACK
HILLS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
NEBRASKA DAIRIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
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TRUSTEE: U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trust Officer
EXHIBIT A-1
[FORM OF NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR 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 THIS SECURITY IN
AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S, (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 SECURITY) OR THE LAST DATE ON WHICH
▇▇▇▇-▇▇▇▇▇ COMPANY (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY OR ANY PREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER DATE, IF
ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY 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 SECURITIES 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, (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, PURSUANT TO RULE ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇ (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEG-
A-1-1
END; PROVIDED THAT THE COMPANY, THE TRUSTEE, THE TRANSFER AGENT 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 ON THE OTHER SIDE OF THIS SECURITY 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
RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-1-2
▇▇▇▇-▇▇▇▇▇ COMPANY
_________________
8-1/2% SENIOR SUBORDINATED NOTES DUE 2008, SERIES A
CUSIP No. __________
No. ___________ $
▇▇▇▇-▇▇▇▇▇ COMPANY, a corporation incorporated under the laws of the
State of Delaware (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on May 1, 2008, at the office or agency
of the Company referred to below, and to pay interest thereon on May 1 and
November 1 (each an "Interest Payment Date"), of each year, commencing on
November 1, 1998, accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 8-1/2% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the April 15 and
October 15 (each a "Regular Record Date"), whether or not a Business Day, as the
case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid, or duly provided for, and interest on such defaulted
interest at the then applicable interest rate borne by the Notes, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee,
notice of which shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan in The City of New York, State of New York,
or at such other office or agency of the Company as may be maintained for such
purpose, in such coin or currency of the United
A-1-3
States of America as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER, that payment of interest may be
made at the option of the Company by check mailed to the address of the Person
entitled thereto as such address shall appear on the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or any Guarantee
described on the reverse side hereof, or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-1-4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: ▇▇▇▇-▇▇▇▇▇ COMPANY
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8-1/2% Senior Subordinated Notes due 2008, Series
A, referred to in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By:
-----------------------------
Authorized Officer
A-1-5
[REVERSE OF NOTE]
1. INDENTURE. This Note is one of a duly authorized issue of Notes
of the Company designated as its 8-1/2% Senior Subordinated Notes due 2008,
Series A (herein called the "Initial Notes"). The Notes are limited (except as
otherwise provided in the Indenture referred to below) in aggregate principal
amount to $165,000,000, which may be issued under an indenture (herein called
the "Indenture") dated as of April 24, 1998, by and among the Company, each of
the guarantors named in the Indenture, as guarantors (herein called the
"Guarantors"), and U.S. Bank Trust National Association, as trustee (herein
called the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee, the
Guarantors and the Holders of the Notes, and of the terms upon which the Notes
are, and are to be, authenticated and delivered. The Notes include the Initial
Notes, the Private Exchange Securities and the Unrestricted Notes (including the
Exchange Notes referred to below), issued in exchange for the Initial Notes
pursuant to the Registration Rights Agreement. The Initial Notes, the Private
Exchange Securities and the Unrestricted Notes are treated as a single class of
securities under the Indenture.
All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Company or any
Guarantor, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the times, place, and rate, and in
the coin or currency, herein prescribed.
2. GUARANTEES. This Note is initially entitled to the benefits of
the certain senior subordinated Guarantees of the Guarantors and may thereafter
be entitled to certain other senior subordinated Guarantees made for the benefit
of the Holders. Reference is hereby made to Article Twelve of the Indenture and
to the Guarantees endorsed on this Note for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.
A-1-6
3. REGISTRATION RIGHTS. Pursuant to the Registration Rights
Agreement by and among the Company, the Guarantors and the Initial Purchasers,
the Company and the Guarantors will be obligated to consummate an exchange offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note together with the Guarantees hereof endorsed hereon for 8-1/2% Senior
Subordinated Notes due 2008, Series B, of the Company (herein called the
"Exchange Notes") and the Guarantees endorsed thereon, which have been
registered under the Securities Act, in like principal amount and having
identical terms as the Notes (other than as set forth in this paragraph) and the
Guarantees endorsed hereon, respectively. The Holders of Notes shall be
entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
4. REDEMPTION. The Notes will be redeemable at the option of the
Company, in whole or in part, at any time on or after May 1, 2003, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest thereon, if any, to the date of
redemption, if redeemed during the 12-month period beginning on May 1 of the
years indicated below:
YEAR REDEMPTION PRICE
---- ----------------
2003 . . . . . . . . . . . . . . . . . . . 104.250%
2004 . . . . . . . . . . . . . . . . . . . 102.833%
2005 . . . . . . . . . . . . . . . . . . . 101.417%
2006 and thereafter. . . . . . . . . . . . 100.000%
On or prior to May 1, 2001, the Company may, at its option, use the
net proceeds of a Public Equity Offering to redeem up to 35% of the originally
issued aggregate principal amount of the Notes, at a redemption price in cash
equal to 108.5% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the date of redemption; PROVIDED, HOWEVER, that at
least $107,250,000 in aggregate principal amount of Notes is outstanding
following such redemption. Notice of any such redemption must be given not
later than 60 days after the consummation of the Public Equity Offering.
5. OFFERS TO PURCHASE. Sections 10.11 and 10.16 of the Indenture
provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to certain conditions and limitations contained
therein, the Company shall make an offer to purchase all or a portion of the
Notes in accordance with the procedures set forth in the Indenture.
A-1-7
6. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Notes, plus all accrued and
unpaid interest, if any, to and including the date the Notes are paid, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
7. DEFEASANCE. The Indenture contains provisions (which provisions
apply to this Note) for defeasance at any time of (a) the entire indebtedness of
the Company and the Guarantors on this Note and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
8. AMENDMENTS AND WAIVERS. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Notes at
the time Outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults and Events of Default under the Indenture and this Note and their
consequences. Any such consent or waiver by or on behalf of the Holder of this
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.
9. DENOMINATIONS, TRANSFER AND EXCHANGE. The Notes are issuable
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes of a different authorized denomination, as requested
by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Note Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company maintained for such purpose in the Borough of
Manhattan in The City of New York, State of New York, or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
A-1-8
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
10. PERSONS DEEMED OWNERS. Prior to and at the time of due
presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note shall be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
11. TERMINATION OF CERTAIN COVENANTS. After the Notes have been
assigned an Investment Grade Rating by both Rating Agencies, and notwithstanding
that the Notes may later cease to have an Investment Grade Rating, the Company
and the Restricted Subsidiaries will no longer be subject to the provisions of
Sections 10.12, 10.14, 10.15, 10.16, 10.19 and 10.20, clauses (ii) and (iii) of
the first and fourth paragraphs of Section 10.21 and clauses (iii) and (iv) of
the first paragraph of Section 8.01 of the Indenture; PROVIDED, that no Default
or Event of Default has occurred and is continuing at the time the Notes have
been assigned such rating.
12. GOVERNING LAW. THE INDENTURE, THIS NOTE AND EACH NOTE GUARANTEE
SET FORTH BELOW SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAW.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture. Requests may be made to:
▇▇▇▇-▇▇▇▇▇ Company, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Secretary.
A-1-9
ASSIGNMENT FORM
If you, the holder, want to assign this Note, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
-------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the date 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 issuance date appearing on the face
of this Note (or any Predecessor Note) or the last date on which the Company or
any Affiliate of the Company or any Guarantor was the owner of this Note (or any
Predecessor Note), the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that:
[CHECK ONE]
/ / (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Rule 144A
thereunder.
OR
A-1-10
/ / (b) this Note is being transferred other than in accordance with (a) above
and documents, including a transferor certificate substantially in the
form of Exhibit C to the Indenture in the case of a transfer pursuant
to Regulation S, are being furnished which comply with the conditions
of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if the
appropriate document is not attached or otherwise furnished to the Trustee, the
Trustee or Registrar shall not be obligated to register this Note in the name of
any Person other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in Section 3.17 of the
Indenture shall have been satisfied.
--------------------------------------------------------------------------------
Date: Your signature:
------------------ -----------------------------------
(Sign exactly as your name appears
on the other side of this Note)
By:
-------------------------------
NOTICE: To be executed by an
executive officer
Signature Guarantee:
-------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated: By:
------------------------- --------------------------------
NOTICE: To be executed by an
executive officer
A-1-11
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 10.11 or 10.16 of the Indenture, check the appropriate box:
Section 10.11 / / Section 10.16 / /
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 10.11 or 10.16 of the Indenture, state the amount:
$
---------------
---------------
Date: Your signature:
-------------------- ----------------------------------
(Sign exactly as your name appears
on the other side of this Note)
By:
------------------------------
NOTICE: To be executed by an
executive officer
Signature Guarantee:
-----------------------
▇-▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF NOTE]
▇▇▇▇-▇▇▇▇▇ COMPANY
_________________
8-1/2% SENIOR SUBORDINATED NOTES DUE 2008, SERIES B
CUSIP No. __________
No. ___________ $
▇▇▇▇-▇▇▇▇▇ COMPANY, a corporation incorporated under the laws of the
State of Delaware (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on May 1, 2008, at the office or agency
of the Company referred to below, and to pay interest thereon on May 1 and
November 1 (each an "Interest Payment Date"), of each year, commencing on
November 1, 1998, accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 8-1/2% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the April 15 and
October 15 (each a "Regular Record Date"), whether or not a Business Day, as the
case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid, or duly provided for, and interest on such defaulted
interest at the then applicable interest rate borne by the Notes, to the extent
lawful, shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee,
notice of which shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of
A-2-1
Manhattan in The City of New York, State of New York, or at such other office or
agency of the Company as may be maintained for such purpose, 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; PROVIDED, HOWEVER, that payment
of interest may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear on the Note
Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or any Guarantee
described on the reverse side hereof, or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-2-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: ▇▇▇▇-▇▇▇▇▇ COMPANY
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8-1/2% Senior Subordinated Notes due 2008, Series
B, referred to in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By:
----------------------------------
Authorized Officer
A-2-3
[REVERSE OF NOTE]
1. INDENTURE. This Note is one of a duly authorized issue of Notes
of the Company designated as its 8-1/2% Senior Subordinated Notes due 2008
Series B (herein called the "Unrestricted Notes"). The Notes are limited
(except as otherwise provided in the Indenture referred to below) in aggregate
principal amount to $150,000,000, which may be issued under an indenture (herein
called the "Indenture") dated as of April 24, 1998, by and among the Company,
each of the Guarantors named in the Indenture, as guarantors (herein called the
"Guarantors"), and U.S. Bank Trust National Association, as trustee (herein
called the "Trustee," which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee, the
Guarantors and the Holders of the Notes, and of the terms upon which the Notes
are, and are to be, authenticated and delivered. The Notes include the Initial
Notes, the Private Exchange Securities and the Unrestricted Notes (including the
Exchange Notes), issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement. The Initial Notes, the Private Exchange
Securities and the Unrestricted Notes are treated as a single class of
securities under the Indenture.
All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Company or any
Guarantor, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the times, place, and rate, and in
the coin or currency, herein prescribed.
2. GUARANTEES. This Note is initially entitled to the benefits of
the certain senior subordinated Guarantees of the Guarantors and may thereafter
be entitled to certain other senior subordinated Guarantees made for the benefit
of the Holders. Reference is hereby made to Article Twelve of the Indenture and
to the Guarantees endorsed on this Note for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.
3. REDEMPTION. The Notes will be redeemable at the option of the
Company, in whole or in part, at any time on or after May 1, 2003, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid inter-
A-2-4
est thereon, if any, to the date of redemption, if redeemed during the 12-month
period beginning on May 1 of the years indicated below:
Year Redemption Price
---- ----------------
2003 . . . . . . . . . . . . . . . . . . . 104.250%
2004 . . . . . . . . . . . . . . . . . . . 102.833%
2005 . . . . . . . . . . . . . . . . . . . 101.417%
2006 and thereafter. . . . . . . . . . . . 100.000%
On or prior to May 1, 2001, the Company may, at its option, use the
net proceeds of a Public Equity Offering to redeem up to 35% of the originally
issued aggregate principal amount of the Notes, at a redemption price in cash
equal to 108.5% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the date of redemption; PROVIDED, HOWEVER, that at
least $107,250,000 in aggregate principal amount of Notes is outstanding
following such redemption. Notice of any such redemption must be given not
later than 60 days after the consummation of the Public Equity Offering.
4. OFFERS TO PURCHASE. Sections 10.11 and 10.16 of the Indenture
provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to certain conditions and limitations contained
therein, the Company shall make an offer to purchase all or a portion of the
Notes in accordance with the procedures set forth in the Indenture.
5. DEFAULTS AND REMEDIES. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Notes, plus all accrued and
unpaid interest, if any, to and including the date the Notes are paid, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
6. DEFEASANCE. The Indenture contains provisions (which provisions
apply to this Note) for defeasance at any time of (a) the entire indebtedness of
the Company and the Guarantors on this Note and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
7. AMENDMENTS AND WAIVERS. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time Outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Notes at
the time Outstanding, on behalf of the Holders of all the Notes, to waive com-
A-2-5
pliance by the Company with certain provisions of the Indenture and certain past
Defaults and Events of Default under the Indenture and this Note and their
consequences. Any such consent or waiver by or on behalf of the Holder of this
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.
8. DENOMINATIONS, TRANSFER AND EXCHANGE. The Notes are issuable
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes of a different authorized denomination, as requested
by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Note Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company maintained for such purpose in the Borough of
Manhattan in The City of New York, State of New York, or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
9. PERSONS DEEMED OWNERS. Prior to and at the time of due
presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note shall be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
10. TERMINATION OF CERTAIN COVENANTS. After the Notes have been
assigned an Investment Grade Rating by both Rating Agencies, and notwithstanding
that the Notes may later cease to have an Investment Grade Rating, the Company
and the Restricted Subsidiaries will no longer be subject to the provisions of
Sections 10.12, 10.14, 10.15, 10.16, 10.19 and 10.20, clauses (ii) and (iii) of
the first and fourth paragraphs of Section 10.21, and clauses (iii) and (iv) of
the first paragraph of Section 8.01 of the Indenture; PROVIDED, that no Default
or Event of Default has occurred and is continuing at the time the Notes have
been assigned such rating.
A-2-6
11. GOVERNING LAW. THE INDENTURE, THIS NOTE AND EACH NOTE GUARANTEE
SET FORTH BELOW SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAW.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of this Indenture. Requests may be made to:
▇▇▇▇-▇▇▇▇▇ Company, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Secretary.
A-2-7
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
-------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
Date: Your signature:
----------------- -----------------------------------
(Sign exactly as your name appears
on the other side of this Note)
By:
------------------------------
NOTICE: To be executed by an
executive officer
Signature Guarantee:
----------------------
A-2-8
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 10.11 or 10.16 of the Indenture, check the appropriate box:
Section 10.11 / / Section 10.16 / /
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 10.11 or 10.16 of this Indenture, state the amount:
$-------------
-------------
Date: Your signature:
-------------------- -----------------------------------
(Sign exactly as your name appears
on the other side of this Note)
By:
-------------------------------
NOTICE: To be executed by an
executive officer
Signature Guarantee:
---------------------
A-2-9
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF
THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY
A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
B-1
EXHIBIT C
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------------------------------
______________, ____
U.S. Bank Trust National Association
First Trust Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/Assistant Vice President
Re: ▇▇▇▇-▇▇▇▇▇ Company (the "Company")
8-1/2% Senior Subordinated Notes due 2008 (the "Securities")
-------------------------------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a Person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any Person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities;
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(6) if the circumstances set forth in Rule 904(c) under the
Securities Act are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Securities may be offered and sold during the
restricted period specified in Rule 903(c)(2) or (3), as applicable, in
accordance with the provisions of Regulation S; pursuant to registration of
the Securities under the Securities Act; or pursuant to an available
exemption from the registration requirements under the Securities Act; and
(7) if the sale is made during a restricted period and the provisions
of Rule 903(c)(3) are applicable thereto, we confirm that such sale has
been made in accordance with such provisions.
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. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------
Authorized Signature
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EXHIBIT D
FORM OF NOTE GUARANTEE
For value received, the undersigned hereby fully and unconditionally
guarantees to the Holder of this Note the cash payments in United States dollars
of principal of, premium, if any, and interest on this Note in the amounts and
at the time when due and interest on the overdue principal, premium, if any, and
interest, if any, on this Note, if lawful, and the payment or performance of all
other obligations of the Company under the Indenture or the Notes, to the Holder
of this Note and the Trustee, all in accordance with and subject to the terms
and limitations of this Note, Article Twelve of the Indenture and this
Guarantee. This Guarantee will become effective in accordance with Article
Twelve of the Indenture and its terms shall be evidenced therein. The validity
and enforceability of any Guarantee shall not be affected by the fact that it is
not affixed to any particular Note. Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Indenture dated as of
April 24, 1998, by and among ▇▇▇▇-▇▇▇▇▇ Company, the undersigned and U.S. Bank
Trust National Association, as Trustee, as amended or supplemented (the
"Indenture").
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Twelve of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
THIS NOTE GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW. THE SUBSIDIARY GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE NON-
EXCLUSIVE JURISDICTION OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES OR THIS NOTE GUARANTEE.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
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IN WITNESS WHEREOF, the undersigned Guarantor has caused this
Guarantee to be duly executed.
Dated:
[NAME OF GUARANTOR]
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
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EXHIBIT E
[FORM OF INTERCOMPANY NOTE]
,
Evidences of all loans or advances ("Loans") made hereunder shall be
reflected on the grid attached hereto. FOR VALUE RECEIVED, ___________, a
___________ corporation (the "Maker"), HEREBY PROMISES TO PAY ON DEMAND to the
order of ________ (the "Holder) the principal sum of the aggregate unpaid
principal amount of all Loans (plus accrued interest thereon) at any time and
from time to time made hereunder which has not been previously paid.
All capitalized terms used herein that are defined in, or by reference
in, the Indenture among ▇▇▇▇-▇▇▇▇▇ COMPANY, a Delaware corporation (the
"Company"), the Guarantors listed therein and U.S. BANK TRUST NATIONAL
ASSOCIATION, as trustee, dated April 24, 1998 (the "Indenture"), have the
meanings assigned to such terms therein or by reference therein, unless
otherwise defined.
ARTICLE I
TERMS OF INTERCOMPANY NOTE
SECTION 1.01. NOTE NOT FORGIVABLE.
Unless the Maker of the Loan hereunder is the Company or any
Guarantor, the Holder may not forgive any amounts owing under this intercompany
note.
SECTION 1.02. INTEREST; PREPAYMENT.
(a) The interest rate ("Interest Rate") on the Loans shall be a rate
per annum reflected on the grid attached hereto.
(b) The interest, if any, payable on each of the Loans shall accrue
from the date such Loan is made and, subject to Section 2.01, shall be payable
upon demand of the Holder.
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(c) If the principal or accrued interest, if any, of the Loans is not
paid on the date demand is made, interest on the unpaid principal and interest
will accrue at a rate equal to the Interest Rate, if any, plus 100 basis points
per annum from maturity until the principal and interest on such Loans are fully
paid.
(d) Subject to Section 2.01, any amounts hereunder may be repaid at
any time by the Maker.
SECTION 1.03. SUBORDINATION.
All Loans made to the Company or Guarantor shall be subordinated in
right of payment to the payment and performance of the obligations of the
Company, the Guarantors and any Restricted Subsidiary under the Indenture, the
Notes, the Guarantees or any other Indebtedness ranking senior to or pari passu
with the Notes or the Guarantees as provided herein; PROVIDED, that with respect
to a Subsidiary in any specific instance, such Restricted Subsidiary is also an
obligor under the Indenture, the Notes, the Guarantees or such other Senior
Indebtedness or Pari Passu Indebtedness, as the case may be, whether as a
borrower, guarantor or pledgor of collateral.
ARTICLE II
EVENTS OF DEFAULT
SECTION 2.01. EVENTS OF DEFAULT.
If after the date of issuance of this Loan (i) an Event of Default has
occurred under the Indenture, (ii) an Event of Default (as defined) has occurred
under either of the Revolving Credit Facility or any refinancing of the Revolv
ing Credit Facility or (iii) an "event of default" (as defined) has occurred
under any other Indebtedness of the Company or any Guarantor, then (x) in the
event the Maker is not either one of the Company or a Guarantor, all amounts
owing under the Loans hereunder shall be immediately due and payable to the
Holder, and (y) in the event the Maker is either the Company or a Guarantor, the
amounts owing under the Loans hereunder shall not be due and payable; PROVIDED,
HOWEVER, that if such Event of Default or event of default has been waived,
cured or rescinded, such amounts will no longer be due and payable in the case
of clause (x), and such amounts may be payable in the case of clause (y). If
the Holder is a Subsidiary, then the Holder hereby agrees that if it receives
any payments or distributions on any Loan from the Company or a Guarantor which
is not payable pursuant to clause (y) of the prior sentence after any Event of
Default or event of default described in clauses (i), (ii) or (iii) above has
occurred, is continuing and has
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not been waived, cured or rescinded, it will pay over and deliver forthwith to
the Company or such Guarantor, as the case may be, all such payments and
distributions.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. AMENDMENTS, ETC.
No amendment or waiver of any provision of this intercompany note, or
consent to depart herefrom is permitted at any time for any reason, except with
the consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities.
SECTION 3.02. ASSIGNMENT.
No party to this Agreement may assign, in whole or in part, any of its
rights and obligations under this intercompany note, except to its legal
successor in interest.
SECTION 3.03. THIRD-PARTY BENEFICIARIES.
The holders of the Notes, the Guarantees or any other Indebtedness
ranking pari passu with or senior to, the Notes or any Guarantees, shall be
third-party beneficiaries to this intercompany note upon an Event of Default
shall have the right to enforce this intercompany note against the Company or
any of its Subsidiaries.
SECTION 3.04. HEADINGS.
Article and Section headings in this intercompany notes are included
for convenience of reference only and shall not constitute a part of this
intercompany note for any purpose.
SECTION 3.05. ENTIRE AGREEMENT.
This intercompany note sets forth the entire agreement of the parties
with respect to its subject matter and supersedes all previous understandings,
written or oral, in respect thereof.
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SECTION 3.06. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF).
SECTION 3.07. WAIVERS.
The Maker hereby waives presentment, demand for payment, notice of
protest and all other demands and notices in connection with the delivery,
acceptance, performance or enforcement hereof.
By:
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Amount Maturity Amount of Unpaid
of Borrowing/ of Borrowing/ Principal Paid Principal Notation
Date Principal Principal or Prepaid Balance Made by Interest
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