EXHIBIT 4.7
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BRAND SCAFFOLD SERVICES, INC.
AND
[a trustee selected by
BRAND SCAFFOLD SERVICES INC.]
as
Trustee
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Indenture
Dated as of [effective date of exchange]
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$_____________
14.5% JUNIOR SUBORDINATED EXCHANGE DEBENTURES DUE 2008
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions......................................................................1
SECTION 1.02. Other Definitions................................................................5
SECTION 1.03. Incorporation by Reference of Trust Indenture Act................................5
SECTION 1.04. Rules of Construction............................................................6
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating..................................................................6
SECTION 2.02. Execution and Authentication.....................................................7
SECTION 2.03. Registrar and Paying Agent.......................................................8
SECTION 2.04. Paying Agent to Hold Money in Trust..............................................8
SECTION 2.05. Securityholder Lists.............................................................8
SECTION 2.06. Transfer and Exchange............................................................8
SECTION 2.07. Replacement Securities..........................................................10
SECTION 2.08. Outstanding Securities..........................................................10
SECTION 2.09. Securities Held by the Company or an Affiliate..................................11
SECTION 2.10. Temporary Securities............................................................11
SECTION 2.11. Cancellation....................................................................11
SECTION 2.12. Defaulted Interest..............................................................11
ARTICLE 3
REDEMPTION
SECTION 3.01. Redemption; Notices to Trustees and DTC.........................................12
SECTION 3.02. Selection of Securities to Be Redeemed..........................................12
SECTION 3.03. Notice of Redemption............................................................12
SECTION 3.04. Effect of Notice of Redemption..................................................13
SECTION 3.05. Deposit of Redemption Price.....................................................13
SECTION 3.06. Securities Redeemed in Part.....................................................13
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities...........................................................14
SECTION 4.02. Maintenance of Office or Agency.................................................14
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SECTION 4.03. SEC Reports.....................................................................14
SECTION 4.04. Compliance Certificate..........................................................15
SECTION 4.05. Stay, Extension and Usury Laws..................................................15
SECTION 4.06. Corporate Existence.............................................................15
SECTION 4.07. Notice of Default...............................................................16
SECTION 4.08. Change of Control...............................................................16
SECTION 4.09. Maintenance of Properties.......................................................18
SECTION 4.10. Payment of Taxes and Other Claims...............................................19
SECTION 4.11. Restrictions on Becoming an Investment Company..................................19
SECTION 4.12. Limitation on Dividends and Acquisition of Common Stock.........................19
ARTICLE 5
SUCCESSORS
SECTION 5.01. When Company May Merge, etc.....................................................20
SECTION 5.02. Successor Substituted...........................................................20
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default...............................................................21
SECTION 6.02. Acceleration....................................................................23
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by
Trustee...............................................................................23
SECTION 6.04. Other Remedies..................................................................24
SECTION 6.05. Waiver of Past Defaults.........................................................24
SECTION 6.06. Control by Majority.............................................................24
SECTION 6.07. Limitation on Suits.............................................................25
SECTION 6.08. Rights of Holders to Receive Payment............................................25
SECTION 6.09. Trustee May File Proofs of Claim................................................25
SECTION 6.10. Priorities......................................................................26
SECTION 6.11. Undertaking for Costs...........................................................26
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee...............................................................27
SECTION 7.02. Rights of Trustee...............................................................28
SECTION 7.03. Individual Rights of Trustee....................................................28
SECTION 7.04. Trustee's Disclaimer............................................................28
SECTION 7.05. Notice of Defaults..............................................................29
SECTION 7.06. Reports by Trustee to Holders...................................................29
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SECTION 7.07. Compensations and Indemnity.....................................................29
SECTION 7.08. Replacement of Trustee..........................................................30
SECTION 7.09. Successor Trustee by Merger, etc................................................31
SECTION 7.10. Eligibility; Disqualification...................................................31
SECTION 7.11. Preferential Collection of Claims Against Company...............................31
SECTION 7.12. Conflicting Interests...........................................................31
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations ...........................................32
SECTION 8.02. Application of Trust Money......................................................33
SECTION 8.03. Repayment to Company............................................................33
SECTION 8.04. Reinstatement...................................................................33
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders......................................................34
SECTION 9.02. With Consent of Holders.........................................................34
SECTION 9.03. Compliance with Trust Indenture Act.............................................35
SECTION 9.04. Revocation and Effect of Consents...............................................35
SECTION 9.05. Notation on or Exchange of Securities...........................................36
SECTION 9.06. Trustee Protected...............................................................36
ARTICLE 10
SUBORDINATION
SECTION 10.01. Agreement to Subordinate.......................................................37
SECTION 10.02. Certain Definitions............................................................37
SECTION 10.03. Liquidation; Dissolution; Bankruptcy...........................................38
SECTION 10.04. Company Not to Make Payments with Respect to
Securities in Certain Circumstances..........................................38
SECTION 10.05. Acceleration of Securities.....................................................39
SECTION 10.06. When Distribution Must Be Paid Over............................................39
SECTION 10.07. Notice by Company..............................................................40
SECTION 10.08. Subrogation....................................................................40
SECTION 10.09. Subrogation May Not Be Impaired by Company.....................................40
SECTION 10.10. Distribution or Notice to Representative.......................................40
SECTION 10.11. Rights of Trustee and Paying Agent.............................................40
SECTION 10.12. Officers' Certificate..........................................................41
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SECTION 10.13. Obligation of Company Unconditional............................................41
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls...................................................42
SECTION 11.02. Notices........................................................................42
SECTION 11.03. Communication by Holders with Other Holders....................................44
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.............................44
SECTION 11.05. Statements Required in Certificate or Opinion..................................44
SECTION 11.06. Rules by Trustee and Agents....................................................45
SECTION 11.07. Legal Holidays.................................................................45
SECTION 11.08. No Recourse Against Others.....................................................45
SECTION 11.09. Duplicate Originals............................................................45
SECTION 11.10. Governing Law..................................................................45
SECTION 11.11. No Adverse Interpretation of Other Agreements..................................46
SECTION 11.12. Successors.....................................................................46
SECTION 11.13. Separability...................................................................46
SECTION 11.14. Table of Contents, Headings, etc...............................................46
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
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310 (a) (1)..................................................... 7.10
(a) (2)..................................................... 7.10
(a) (3)..................................................... N.A.
(a) (4)..................................................... N.A.
(b)......................................................... 7.08; 7.10; 7.12;11.02
(c)......................................................... N.A.
311 (a)......................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312 (a)......................................................... 2.05
(b)......................................................... 11.03
(c)......................................................... 11.03
313 (a)......................................................... 7.06
(b) (1)..................................................... N.A.
(b) (2)..................................................... N.A.
(c)......................................................... 7.06; 11.02
(d)......................................................... 7.06
314 (a)......................................................... 4.03; 11.02
(b)......................................................... N.A.
(c) (1)..................................................... 11.04
(c) (2)..................................................... 11.04
(c) (3)..................................................... N.A.
(d)......................................................... N.A.
(e)......................................................... 11.05
(f)......................................................... N.A.
315 (a)......................................................... 7.01(b)
(b)......................................................... 7.05; 11.02
(c)......................................................... 7.01 (a)
(d)......................................................... 7.01 (c)
(e)......................................................... 6.11
316 (a) (last sentence)......................................... 2.09
(a) (1) (A)................................................. 6.06
(a) (1) (B)................................................. 6.05
(a) (2)..................................................... N.A.
(b)......................................................... 6.08
(c)......................................................... N.A.
317 (a) (01).................................................... 6.03
(a) (2)..................................................... 6.09
(b)......................................................... 2.04
318 (a)......................................................... 11.01
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N.A. means Not Applicable.
This cross-reference table does not constitute a part of the Indenture.
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INDENTURE dated as of [effective date of exchange], between BRAND
SCAFFOLD SERVICES, INC., a Delaware corporation (the "COMPANY"), and [a trustee
selected by the Company], as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Company's 14.5% Junior
Subordinated Exchange Debentures due 2008 (the "SECURITIES").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"AFFILIATE" shall have the meaning ascribed to such term in the
Shareholders Agreement.
"AGENT" means any Registrar, Paying Agent or co-Registrar.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or
any committee of the Board authorized to act for it hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Corporate Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"CERTIFICATE OF DESIGNATIONS" means the Certificate of Designations,
Preferences and Rights of the 14.5% Senior Exchangeable Preferred Stock.
"CHANGE OF CONTROL" means the occurrence of any of the following
events: (i) any person (including any entity or group deemed to be a "person"
under Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other than any
person or group comprised solely of the Initial Holders, has become the
beneficial owner, by way of merger, consolidation or otherwise, of 40% or more
of the voting power of all classes of voting securities of the Company or of
DLJ Brand Holdings, Inc. and such person or group has become the beneficial
owner of a greater percentage of the voting power of all classes of voting
securities of the Company or of DLJ Brand Holdings, Inc. than that beneficially
owned by the Initial Holders; (ii) a sale or transfer of all or substantially
all of the assets of the Company or of DLJ Brand Holdings, Inc. to any person
or group (other than any group consisting solely of the Initial Holders or
their Affiliates) has been
1
consummated; or (iii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors of the
Company or of DLJ Brand Holdings, Inc. (together with any new directors whose
election was approved by a vote of a majority of the directors then still in
office, who either were directors at the beginning of such period or whose
election or nomination for the election was previously so approved) cease for
any reason to constitute a majority of the directors of the Company or of DLJ
Brand Holdings, Inc. as the case may be, then in office, other than as a result
of election and removal of directors pursuant to the provisions of the
Certificate of Designations or the Shareholders Agreement governing the
election and removal of directors.
"CLOSING DATE" shall have the meaning ascribed to such term in the
Shareholders Agreement.
"COMMON STOCK" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company.
"COMPANY" means the party named as such above and any other obligor
until a successor replaces it pursuant to the applicable provision hereof and
thereafter means such successor.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, President or a Vice President, and by its Chief Financial
Officer, its Corporate Secretary or an Assistant Secretary, and delivered to
the Trustee.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 11.02 or such other address as the Trustee may
give notice of to the Company.
"CREDIT AGREEMENT" means the Credit Agreement dated September 30, 1996
among the Company as Borrower, various financial institutions as Lenders, DLJ
Capital Funding, Inc., as Syndication Agent for the Lenders and Bank of America
National Trust & Savings Association as the Administrative Agent for the
Lenders, as amended from time to time.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
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"DEPOSITARY" means, with respect to Securities issuable in whole or in
part in the form of one or more Global Securities, a clearing agency registered
under the Exchange Act that is designated to act as Depositary for such
Securities.
"DTC" means The Depository Trust Company.
"ELIGIBLE INSTITUTION" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency and whose debt is rated at the highest rating obtainable from
Standard & Poor's Corporation ("S&P") or ▇▇▇▇▇'▇ Investor Services, Inc.
("MOODY'S") at the time as of which any investment or rollover herein is made.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are in effect on the date of the Indenture.
"GLOBAL SECURITY" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Exhibit B.
"GOVERNMENTAL SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America, for the payment of which the full
faith and credit of the United States is pledged.
"HOLDER" or "SECURITYHOLDERS" means a person in whose name a Security
is registered on the Registrar's books.
"INDENTURE" means this Indenture as amended from time to time.
"INITIAL HOLDERS" means the Shareholders (as of the Closing Date), any
employees or consultants who become Shareholders by purchasing the 14.5% Senior
Exchangeable Preferred Stock pursuant to the DLJ Brand Holdings, Inc. Key Team
Member Direct Investment Program, and, in each case, their respective Permitted
Transferees, each as defined in the Shareholders Agreement.
"INITIAL PUBLIC OFFERING" shall have the meaning ascribed to such term
in the Shareholders Agreement.
"MATURITY," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
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declaration of acceleration, call for redemption, occurrence of any Repurchase
Date or otherwise.
"OFFICERS" means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer or the Corporate Secretary of the
Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers or
by an Officer and [insert name of alternate signatory] of the Company.
"OPINION OF COUNSEL" means a written opinion from legal counsel who
may be an employee of or counsel for the Company or other counsel reasonably
acceptable to the Trustee.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or other agency or political subdivision thereof.
"PRINCIPAL" of a debt security (including, without limitation, any
Security) means the principal of the security plus the premium, if any, on the
security.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Securities described above issued under this
Indenture.
"14.5% SENIOR EXCHANGEABLE PREFERRED STOCK" means the 14.5% Senior
Exchangeable Preferred Stock due 2008 of the Company.
"SHAREHOLDERS" shall have the meaning ascribed to such term in the
Shareholders Agreement.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement dated as of
September 30, 1996 among the Company, DLJ Brand Holdings, Inc., DLJ Merchant
Banking Partners, L.P., DLJ International Partners, C.V., DLJ Offshore
Partners, C.V., DLJ Merchant Banking Funding Inc., Carlisle-Brand Investors,
L.P., Rust Industrial Services Inc., and certain other persons named therein.
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
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"SUBSIDIARY" means (i) a corporation a majority of whose capital stock
with voting power, under ordinary circumstances, to elect directors is at the
time, directly or indirectly, owned by the Company, by one or more subsidiaries
of the Company or by the Company and one or more subsidiaries thereof or (ii)
any other person (other than a corporation) in which the Company, one or more
subsidiaries thereof or the Company and one or more subsidiaries thereof,
directly or indirectly, at the date of determination thereof have at least
majority ownership interest.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S. Code
(S)(S) 77aaa-77bbbb) as in effect on the date of this Indenture, except as
provided in Section 9.03.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"TRUST OFFICER" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
SECTION 1.02. Other Definitions.
Term Defined in Section
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"BUSINESS DAY"................................................ 11.07
"EVENT OF DEFAULT"............................................ 6.01
"EXCHANGE ACT"................................................ 4.03
"LEGAL HOLIDAY"............................................... 11.07
"PAYING AGENT"................................................ 2.03
"REGISTRAR"................................................... 2.03
"REPRESENTATIVE".............................................. 10.02
"REPURCHASE DATE"............................................. 4.08
"REPURCHASE PRICE"............................................ 4.08
"REPURCHASE RIGHT"............................................ 4.08
"REPURCHASE RIGHT NOTICE"..................................... 4.08
"SENIOR INDEBTEDNESS"......................................... 10.02
"U.S. GOVERNMENT OBLIGATIONS"................................. 8.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
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"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITYHOLDER" means a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP in effect on the date hereof;
(3) "OR" is not exclusive;
(4) words in the singular include the plural and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) "HEREIN", "HEREOF" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
Subdivision.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form set forth in Exhibit A (with such appropriate
insertions,
6
omissions, substitutions and other variations as are required or permitted by
this Indenture), which Exhibit A is incorporated in and forms a part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of
its authentication.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or
may be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution thereof.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to [insert aggregate liquidation preference
for outstanding shares of 14.5% Senior Exchangeable Preferred Stock at date of
exchange], upon a written order of the Company signed by two Officers or by an
Officer and [insert name of alternate signatory] of the Company. Each order
shall specify the amount of Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated. The aggregate
principal amount of Securities outstanding at any time may not exceed the
amount of Securities issued pursuant to this paragraph except as provided in
Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
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SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented for
registration of transfer or for exchange ("REGISTRAR") and an office or agency
where Securities may be presented for payment ("PAYING AGENT"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may appoint or change one or more co-registrars and one or more
additional paying agents without notice and may act in any such capacity on its
own behalf. The term "PAYING AGENT" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. 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 Agent not a party to this
Indenture. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
The Company initially appoints the Trustee as Paying Agent and
Registrar.
SECTION 2.04. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all moneys held by such Paying Agent for the
payment of principal of or interest on the Securities, and shall notify the
Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
such Paying Agent shall have no further liability for the money. If the Company
acts as Paying Agent, it shall segregate and hold as a separate trust fund all
money held by it as Paying Agent.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or 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
Securityholders.
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SECTION 2.06. Transfer and Exchange.
Where Securities are presented to the Registrar or a co-Registrar with
a request to register the transfer or to exchange them for an equal principal
amount of Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange if the requirements of Section 8-401
of the New York Uniform Commercial Code are met. To permit registrations of
transfer and exchanges, the Trustee shall authenticate Securities at the
Registrar's request. The Company or the Trustee, as the case may be, shall not
be required (a) to issue, authenticate, register the transfer of or exchange
any Security during a period beginning at the opening of business 15 days
before the mailing of a notice of redemption of the Securities selected for
redemption under Section 3.02 and ending at the close of business on the day of
such mailing, or (b) to register the transfer of or exchange any Security so
selected for redemption, in whole or in part, except the unredeemed portion of
Securities being redeemed in part. No service charge shall be made for any
registration of transfer or exchange of Securities, but the Company may require
a Holder to, among other things, furnish appropriate endorsements and transfer
documents and pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer, registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
2.10, 3.06 or 9.05 not involving any transfer.
The provisions of clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the
name of any person other than the Depositary for such Global Security or a
nominee thereof unless (A) such Depositary (i) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the Exchange Act or
(B) there shall have occurred and be continuing an Event of Default with
respect to such Global Security.
(3) Subject to clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued in
9
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section, Section 2.07, 2.10, 3.06 or 9.05 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a person
other than the Depositary for such Global Security or a nominee thereof.
SECTION 2.07. Replacement Securities.
If the Holder of a Security claims that the Security has been
mutilated, lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the New York Uniform Commercial Code are met and, in the case
of a mutilated Security, such mutilated Security is surrendered to the Trustee.
If required by the Trustee or the Company, an indemnity bond must be sufficient
in the judgment of both to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Security is replaced. The Company or
the Trustee may charge for its expenses in replacing a Security.
In case any such mutilated, destroyed or wrongfully taken Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security when due.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company or one of its
subsidiaries or Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it, or a court
holds, that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company) holds on a redemption
date, repurchase date or maturity date money sufficient to pay Securities
payable on that
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date, then on and after that date, such Securities shall be deemed to be no
longer outstanding and interest on them shall cease to accrue.
SECTION 2.09. Securities Held by the Company or an Affiliate.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or a subsidiary or an Affiliate shall be disregarded, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which the
Trustee actually knows are so owned shall be so disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment or cancellation and may destroy canceled
Securities and deliver a certificate of any such destruction to the Company.
The Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If and to the extent the Company defaults in a payment of interest on
the Securities, it shall pay the defaulted interest in any lawful manner plus,
to the extent not prohibited by applicable statute or case law, interest
payable on the defaulted interest. It may pay the defaulted interest to the
persons who are Securityholders on a subsequent special record date. The
Company shall fix such record date and payment date. At least 15 days before
the record date, the Company shall mail to Securityholders a notice that states
the record date, payment date and amount of interest to be paid.
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ARTICLE 3
REDEMPTION
SECTION 3.01. Redemption; Notices to Trustees and DTC.
If the Company wants to redeem Securities pursuant to paragraph 5 of
the Securities, it shall notify the Trustee at least 15 days prior to the date
on which the notice of redemption is mailed to each Holder (unless a shorter
notice period shall be satisfactory to the Trustee) of the redemption date and
the principal amount of Securities to be redeemed.
If the Company wants to redeem Securities pursuant to paragraph 5 of
the Securities and DTC is a Securityholder, the Company shall notify DTC at
least 30 days prior to the redemption date if the operational arrangements of
DTC in effect at the time of any such redemption require such notice period.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed on either a pro rata basis or by lot or
such other method as the Trustee shall deem fair and equitable, but in any
event, in such manner as complies with applicable legal and stock exchange
requirements. The Trustee shall make the selection from Securities outstanding
not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have denominations larger than
$1,000. Securities and portions of them it selects shall be in amounts of
$1,000 or whole multiples of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail by first-class mail, postage prepaid, a notice of
redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities and the principal amount
thereof to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price (including the amount of accrued and
unpaid interest, if any, to be paid on the Securities called
for redemption);
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(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(5) that interest on Securities called for redemption ceases to
accrue on and after the redemption date; and
(6) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date at the redemption
price and, on and after such date (unless the Company shall default in the
payment of the redemption price), such Securities shall cease to bear interest.
Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest, if any, to the redemption date.
SECTION 3.05. Deposit of Redemption Price.
On or before 10:00 a.m., Eastern Time, on the redemption date, the
Company shall deposit with the Paying Agent money in funds immediately
available on the redemption date sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.
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ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest, if any, on the
Securities on the dates and in the manner provided in the Securities. Principal
and interest, if any, shall be considered paid on the date due if the Paying
Agent holds on that date money sufficient to pay all principal and interest, if
any, then due.
SECTION 4.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
SECTION 4.03. SEC Reports.
The Company shall file with the Trustee within 30 days after it files
them with the SEC copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"). The Company also shall
comply with the other provisions of TIA (S) 314(a).
So long as the Securities remain outstanding, the Company shall cause
its annual reports to shareholders and any other financial reports furnished by
it to
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shareholders generally to be mailed to the Holders at their addresses appearing
in the register of Securities maintained by the Registrar.
SECTION 4.04. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate stating whether or
not the signatories know of any Default by the Company in performing any of its
obligations under this Indenture or the Securities. If they do know of any such
Default, the certificate shall describe the Default and its status. One of the
officers signing such certificate shall be the principal executive, principal
financial or principal accounting officer of the Company.
SECTION 4.05. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.06. Corporate Existence.
Subject to Article 5, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate existence of each subsidiary in accordance with the
respective organizational documents of each subsidiary and the rights (charter
and statutory), licenses and franchises to the Company and its subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate existence of any subsidiary, if
in the judgment of the Board of Directors, (i) such preservation or existence
is not material to the conduct of business of the Company and (ii) the loss of
such right, license or franchise or the dissolution of such subsidiary does not
have a material adverse impact on the Holders.
SECTION 4.07. Notice of Default.
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In the event that any Default under Section 6.01 hereof shall occur,
the Company will give prompt written notice of such Default to the Trustee.
SECTION 4.08. Change of Control.
(a) In the event that there shall occur a Change of Control, each
Holder shall have the right (the "REPURCHASE RIGHT") upon receipt of a
Repurchase Right Notice (as defined below), at such Holder's option, to require
the Company to repurchase any Security of such Holder or any portion of the
principal amount thereof which is $1,000 or an integral multiple of $1,000, on
the date (the "REPURCHASE DATE") specified by the Company in its Repurchase
Right Notice, which date shall not be later than 45 days after the date of the
Repurchase Right Notice, or, if such 45th day is a Legal Holiday, the next
subsequent day which is not a Legal Holiday, unless otherwise required by
applicable law, at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, to and including the
Repurchase Date (the "REPURCHASE PRICE"). The right to require the repurchase
of Securities shall not continue after a discharge of the Company from its
obligations with respect to the Securities in accordance with Article 8.
(b) Within 30 days after the occurrence of a Change of Control, the
Company, or, at the request of the Company and at the Company's expense, the
Trustee, shall give notice of the occurrence of the Change of Control and of
the Repurchase Right set forth herein (the "REPURCHASE RIGHT NOTICE") by
first-class mail, postage prepaid, to each Holder at such Holder's address
appearing in the registry books of the Company kept by the Registrar. The
Company shall deliver a copy of the Repurchase Right Notice to the Trustee. The
Company shall also place such notice in a financial newspaper of general
circulation in New York City. No failure of the Company to give the foregoing
notice shall limit any such Holder's right to exercise a Repurchase Right. Any
such notice shall state that a Change of Control has occurred and that such
Holder has the right to require the Company to repurchase such Holder's
Securities and shall contain all instructions and materials necessary to enable
such Holders to deliver Securities pursuant to the Repurchase Right including,
without limitation, the following:
(1) the Repurchase Date;
(2) the date by which the Repurchase Right must be exercised;
(3) the Repurchase Price;
(4) that Securities are to be surrendered for payment of the
Repurchase Price; and
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(5) that the exercise of the Repurchase Right is irrevocable,
unless the Company shall default in making the repurchase
payment when due, in which case Holders who elect to exercise
the Repurchase Right will retain the right to convert
Securities submitted for repurchase until the close of business
on the date such default is cured and such Security is
repurchased.
(c) To exercise a Repurchase Right, a Holder shall deliver to the
Company (if it is acting as its own Paying Agent) or to a Paying Agent
designated by the Company for such purpose in the notice referred to above on
or before the 30th day after the date of the Repurchase Right Notice, or, if
such day is a Legal Holiday, the next subsequent day which is not a Legal
Holiday, (i) written notice (which notice shall be deemed to be delivered when
received) of the Holder's exercise of such right, which notice shall set forth
the name of the Holder, the principal amount of Securities (or portions
thereof) to be repurchased, a statement that an election to exercise the
Repurchase Right is being made thereby and (ii) the Securities with respect to
which the Repurchase Right is being exercised, duly endorsed for transfer to
the Company, and the Holder of such Securities shall be entitled to receive
from the Company (if it is acting as its own Paying Agent) or such Paying Agent
a nontransferable receipt of deposit evidencing such deposit. Such written
notice shall be irrevocable, except as provided in Section 4.08(b) above. If
the Repurchase Date is between a regular record date for the payment of
interest and the next succeeding interest payment date, any Security to be
repurchased must be accompanied by funds equal to the interest payable on such
succeeding interest payment date on the principal amount to be repurchased and
the interest on the principal amount of the Security being repurchased will be
paid on such next succeeding interest payment date to the registered holder of
such Security on the immediately preceding record date. A Security repurchased
on an interest payment date need not be accompanied by any such payment, and
the interest on the principal amount of the Security being repurchased will be
paid on such interest payment date to the registered holder of such Security on
the immediately preceding record date.
(d) In the event a Repurchase Right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid the applicable
Repurchase Price with respect to the Securities as to which the Repurchase
Right shall have been exercised to the Holder on the Repurchase Date.
(e) Prior to a Repurchase Date, the Company shall deposit with the
Trustee or with a Paying Agent (or if the Company is acting as its own Paying
Agent, segregate and hold in trust in accordance with Section 2.04) an amount
of
17
money sufficient to pay the Repurchase Price payable in respect of all of the
Securities which are to be repurchased on that date.
(f) Both the notice of the Company and the notice of the Holder
having been given as specified in this Section 4.08, the Securities so to be
repurchased shall, on the Repurchase Date become due and payable at the
Repurchase Price applicable thereto and from and after such date (unless the
Company shall default in the payment of the Repurchase Price) such Securities
shall cease to bear interest. Upon surrender of any such Security for
repurchase in accordance with said notice, such Security shall be paid by the
Company at the Repurchase Price. If any Security shall not be paid upon
surrender thereof for repurchase, the principal shall, until paid, bear
interest from the Repurchase Date at the rate borne by such Security.
(g) Any Security which is to be submitted for repurchase only in part
shall be delivered pursuant to this Section 4.08 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Security without any service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, of the
same tenor and in aggregate principal amount equal to and in exchange for the
portion of the principal of such Security not submitted for repurchase.
(h) If any repurchase pursuant to the foregoing provisions
constitutes an "ISSUER TENDER OFFER" as defined in Rule 13e-4 under the
Exchange Act, the Company will comply with the requirements of Rule 13e-4, Rule
14e-1 and any other tender offer rules under the Exchange Act which then may be
applicable, including the filing of an Issuer Tender Offer Statement on
Schedule 13E-4 with the SEC and the furnishing of certain information contained
therein to the Holders.
SECTION 4.09. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any subsidiary 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 shall prevent the Company from
discontinuing the
18
operation or maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business or the
business of any subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 4.10. 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, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any subsidiary or
upon the income, profits or property of the Company or any subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 4.11. Restrictions on Becoming an Investment Company.
The Company shall not become an investment company within the meaning
of the Investment Company Act of 1940 as such statute and the regulations
thereunder and any successor statute or regulations thereto may from time to
time be in effect.
SECTION 4.12. Limitation on Dividends and Acquisition of Common
Stock.
The Company will not declare or pay any dividend or make any
distribution on its Common Stock or other capital stock of the Company (other
than dividends or distributions payable in the Company's Common Stock or
options, warrants or other rights to acquire, subscribe for or purchase the
Company's Common Stock) or purchase, redeem or otherwise acquire for value any
shares of its Common Stock or other capital stock of the Company, whether in
cash or property or in obligations of the Company, if, at the time of such
declaration, payment, distribution, purchase, redemption or other acquisition
or, after giving effect thereto, an Event of Default shall have occurred and be
continuing or a Default that with notice or lapse of time or both would
constitute an Event of Default shall have occurred and be continuing.
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ARTICLE 5
SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into, or directly or
indirectly transfer or lease all or substantially all of its assets to, any
person and the Company shall not permit any person to consolidate with or merge
into the Company or transfer all or substantially all of its properties and
assets to the Company unless:
(1) the person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale or
conveyance shall have been made, is a person organized and existing
under the laws of the United States, any State thereof or the District
of Columbia;
(2) the person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale or
conveyance shall have been made, assumes by supplemental indenture all
the obligations of the Company under the Securities and this
Indenture;
(3) immediately before and immediately after giving effect to such
transaction no Default or Event of Default shall have occurred and be
continuing; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
SECTION 5.02. Successor Substituted.
Upon any consolidation or merger or transfer or lease of all or
substantially all of the assets of the Company in accordance with Section 5.01,
the successor person formed by such consolidation or into which the Company is
20
merged or to which such transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, and shall assume
every duty and obligation of, the Company under this Indenture with the same
effect as if such successor corporation had been named as the Company herein.
When the successor corporation assumes all obligations of the Company
hereunder, all obligations of the predecessor corporation shall terminate.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "EVENT OF DEFAULT" occurs if:
(1) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and the default continues for a
period of 15 days, whether or not such payment shall be prohibited by
the provisions of Article 10 hereof;
(2) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at Maturity, whether or
not such payment shall be prohibited by the provisions of Article 10
hereof;
(3) the Company fails to comply with any of its other agreements in
the Securities or this Indenture and the default continues for the
period and after the notice specified below;
(4) an event of default shall have occurred and be continuing under
any mortgage, indenture, instrument or other evidence of indebtedness
under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company or any
subsidiary, whether such indebtedness now exists or is created
hereafter, which event of default results in the acceleration of such
indebtedness prior to its express maturity and such acceleration is
not rescinded or indebtedness is not paid or discharged for the period
and after the notice specified below and the principal amount of such
indebtedness, together with the principal amount of any other such
indebtedness the maturity of which has been accelerated, aggregates
$15 million or more;
21
(5) a final judgment or judgments for the payment of money in excess
of $15 million in the aggregate are rendered against the Company or a
subsidiary and such judgment or judgments remain unstayed, unsatisfied
or undischarged for the period and after the notice specified below;
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company
in furtherance of any such action.
A default under clause (3), (4) or (5) is not an Event of Default
until the Trustee or the Holders of at least 25% in principal amount of the
Securities notify the Company of the default and the Company does not cure the
default within 30 days after receipt of the notice. The notice must specify the
default, demand that it be remedied and state that the notice is a "NOTICE OF
DEFAULT". If the Holders of
22
25% in principal amount of the outstanding Securities request the Trustee to
give such notice on their behalf, the Trustee shall do so.
The Trustee shall not be deemed to have notice of any Default
hereunder unless it shall have actual knowledge of such Default or it shall
have received written notice thereof making specific reference to such Default
as a Default.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(6) or (7)) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in principal amount of the Securities
by notice to the Company and the Trustee, may declare the principal of and
accrued interest on all the Securities to be immediately due and payable. Upon
such declaration such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(6) or (7) occurs,
all unpaid principal and accrued interest on the Securities then outstanding
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholder. The
Holders of a majority in principal amount of the Securities by notice to the
Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration.
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues
for a period of 15 days, or
(2) default is made in the payment of the principal of any Security
at the Maturity thereof, the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and on any
overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
23
If an Event of Default with respect to Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the holders of Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 6.04. Other Remedies.
Notwithstanding any other provision of this Indenture, if an Event of
Default occurs and is continuing, the Trustee may pursue any available remedy
by proceeding at law or in equity to collect the payment of principal of and
interest on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative.
SECTION 6.05. Waiver of Past Defaults.
Subject to Sections 6.08 and 9.02, the Holders of a majority in
principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences. When a Default is waived, it is cured
and ceases.
SECTION 6.06. Control by Majority.
The Holders of a majority in principal amount of the Securities may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture, is unduly prejudicial to the rights of other Securityholders
or would involve the Trustee in personal liability and the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 6.07. Limitation on Suits.
24
Except as provided in Section 6.08, a Securityholder may pursue a
remedy with respect to this Indenture or the Securities only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the Securities
make a written request to the Trustee to institute proceedings in
respect of such Event of Default;
(3) such Holder or Holders offer to the Trustee reasonable indemnity
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the Securities do not give the Trustee a direction
inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.08. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of or interest on such
Security, on or after the respective due dates expressed in such Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee, any predecessor Trustee and the Securityholders allowed in any
judicial proceedings relative to the Company, its creditors or its property.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of the
Securities any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the
25
Trustee to vote in respect of the claim of any Holder of the Securities in
any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to holders of Senior Indebtedness to the extent required by
Article 10;
Third: to Securityholders for amounts due and unpaid on the Securities
for principal and interest ratably, without preference or priority of any kind,
according to the amounts due and payable on or with respect to, the Securities
for principal and interest respectively; and
Fourth: to the Company or as otherwise required by applicable law or a
court of competent jurisdiction.
The Trustee may fix a record date and payment date for any payment by
it to Securityholders pursuant to this Section.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit other than the Trustee of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.08 or a suit by Holders of more than 10%
in principal amount of the Securities.
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ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(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. However, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.06.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
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(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and/or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Certificate or Opinion.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate thereof with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, must comply
with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities; it shall not be accountable for the Company's
use of the proceeds from the Securities; and it shall not be responsible for
any statement in the Securities other than its certificate of authentication.
SECTION 7.05. Notice of Defaults.
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If a Default occurs and is continuing and if it is actually known to
the Trustee or the Trustee has received written notice thereof, the Trustee
shall mail to each Securityholder a notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of or
interest on any Security, the Trustee may withhold the notice if and so long as
it in good faith determines that withholding the notice is in the interests of
Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA (S) 313(a), within 60 days after each [insert date]
beginning with [insert date], the Trustee shall mail to each Securityholder as
required by TIA (S) 313(c) a brief report dated as of such date that complies
with TIA (S) 313(a). The Trustee also shall comply with TIA (S) 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed by the Trustee with the SEC and each stock exchange, if any, on
which the Securities are listed. The Company shall notify the Trustee when the
Securities are listed on or delisted from any stock exchange.
SECTION 7.07. Compensations and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as shall be agreed upon in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable compensation and out-of-pocket expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee against any loss or liability
(including the fees and expenses of counsel) incurred by it in connection with
the administration of this trust and the performance of its duties hereunder.
The Company need not pay for any settlement made without its consent. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnification. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through the Trustee's
negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and the Company and may appoint a successor Trustee with
the Company's consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the Securities may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have
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all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.07.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1). The Trustee shall always have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA (S)
310(b).
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
SECTION 7.12. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
The Company may terminate all of its obligations under this Indenture
if all sums required to be paid hereunder have been paid and all Securities
previously authenticated and delivered (other than mutilated, destroyed, lost
or
31
stolen Securities which have been replaced or paid) have been delivered to
the Trustee for cancellation or if:
(1) the Securities mature within one year or all of them are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for giving the notice of redemption;
(2) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations sufficient to pay principal of and
interest on the Securities to maturity or redemption, as the case may
be. Immediately after making the deposit, the Company shall give
notice of such event to the Securityholders;
(3) the Company has paid or caused to be paid all sums then payable
by the Company to the Trustee hereunder as of the date of such
deposit; and
(4) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied
with. The Company may make the deposit only during the one-year period
and only if Article 10 permits it.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.10, 2.11, 4.01, 4.02, 7.07, 7.08, 8.02, 8.03 and 8.04 shall survive until the
Securities are no longer outstanding. Thereafter the Company's obligations in
Sections 7.07 and 8.03 shall survive.
After a deposit pursuant to this Section 8.01, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under the Securities and this Indenture except for those surviving obligations
specified above.
In order to have money available on a payment date to pay principal of
or interest on the Securities, the U.S. Government Obligations shall be payable
as to principal or interest on or before such payment date in such amounts as
will provide the necessary money.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America for
the payment of which the full faith and credit of the United States of America
is pledged.
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SECTION 8.02. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Securities. Money and securities so held in trust are not subject to the
subordination provisions of Article 10.
SECTION 8.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any time. The
Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal or interest that remains unclaimed
for three years; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may, at the expense of the
Company, cause to be published once in a newspaper of general circulation in
the City of New York or cause to be mailed to each Holder notice stating that
such money remains and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Securityholders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned
property law designates another person.
SECTION 8.04. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01 until
such time as the Trustee or Paying Agent is permitted to apply all such money
or U.S. Government Obligations in accordance with Section 8.01; provided,
however, that if the Company has made any payment of principal of or interest
on any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
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ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders.
The Company, with the consent of the Trustee, may amend or supplement
this Indenture or the Securities without notice to or the consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(4) to make any change that does not materially adversely affect the
rights of any Securityholder.
SECTION 9.02. With Consent of Holders.
The Company, with the consent of the Trustee, may amend or supplement
this Indenture or the Securities without notice to any Securityholder but with
the written consent of the Holders of at least a majority in principal amount
of the Securities then outstanding. Subject to Section 6.08, the Holders of a
majority in principal amount of the Securities then outstanding may waive
compliance by the Company with any provision of this Indenture or the
Securities without notice to any Securityholder. However, without the consent
of each Securityholder affected, an amendment, supplement or waiver, including
a waiver pursuant to Section 6.05, may not:
(1) reduce the percentage of Securities whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal amount of or extend the Stated Maturity of
any Security (including, without limitation, the optional redemption
provisions);
(4) change the place of payment where, or the coin or currency in
which, any Security or interest thereon is payable;
34
(5) waive a default in the payment of principal of or interest on any
Security;
(6) reduce any amount payable on redemption at the option of the
Company or upon exercise of the Repurchase Right thereof or otherwise change
the redemption or Repurchase Right provisions or adversely affect any
repurchase rights, or impair the right of a Holder to institute suit for the
enforcement of any such payment on any Security when due; or
(7) make any change in Section 6.05, Section 6.08 or Section 9.02.
Promptly after an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing the
amendment. However, the failure to give such notice to all Holders, or any
defect therein, will not impair or affect the validity of the amendment.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or supplement,
but it shall be sufficient if such consent approves the substance thereof.
The Indenture may not be amended to alter the subordination of any
outstanding Securities without consent of each holder of Senior Indebtedness
then outstanding that would be adversely affected thereby.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall comply with
the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by such Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver
becomes effective. An amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Securityholder.
After an amendment, supplement or waiver becomes effective with
respect to the Securities, it shall bind every Securityholder unless it makes a
change
35
described in any of clauses (1) through (7) of Section 9.02. In that case the
amendment, supplement or waiver shall bind each Holder who has consented to it
and, provided that notice of such amendment, supplement or waiver is reflected
on a Security that evidences the same debt as the consenting Holder's Security,
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Security about the changed terms and
return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 9.06. Trustee Protected.
The Trustee need not sign any amendment, supplement or waiver
authorized pursuant to this Article that adversely affects the Trustee's
rights. The Trustee shall be entitled to receive and rely upon an Opinion of
Counsel and an Officers' Certificate that any supplemental indenture complies
with the Indenture.
ARTICLE 10
SUBORDINATION
SECTION 10.01. Agreement to Subordinate.
The Company agrees, and each Securityholder by accepting a Security
agrees, that the indebtedness evidenced by the Securities and the payment of
principal thereof and interest thereon are subordinated in right of payment, to
the extent and in the manner provided in this Article 10, to the prior payment
in full of all Senior Indebtedness and that the subordination is for the
benefit of the holders of Senior Indebtedness.
Money and securities held in trust pursuant to Article 8 are not
subject to the subordination provisions of this Article 10.
SECTION 10.02. Certain Definitions.
36
"REPRESENTATIVE" means the indenture trustee or other trustee, agent
or representative for an issue of Senior Indebtedness.
"SENIOR INDEBTEDNESS" means the principal of, premium, if any, and
interest on (a) any and all other indebtedness and obligations of the Company
(including indebtedness of others guaranteed by the Company) other than the
Securities, whether or not contingent and whether outstanding on the date of
this Indenture or thereafter created, incurred or assumed, which (i) is for
money borrowed (including, without limitation, money borrowed under the Credit
Agreement); (ii) is evidenced by any bond, note, debenture or similar
instrument; (iii) represents the unpaid balance on the purchase price of any
property, business or asset of any kind; (iv) is an obligation of the Company
as lessee under any and all leases of property, equipment or other assets
required to be capitalized on the balance sheet of the lessee under GAAP; (v)
is a reimbursement obligation of the Company with respect to letters of credit;
(vi) is an obligation of the Company with respect to interest swap obligations
and foreign exchange agreements; or (vii) is an obligation of others secured by
a lien to which any of the properties or assets (including, without limitation,
leasehold interests and any other tangible or intangible property rights) of
the Company are subject, whether or not the obligations secured thereby shall
have been assumed by the Company or shall otherwise be the Company's legal
liability and (b) any deferrals, amendments, renewals, extensions,
modifications and refundings of any indebtedness or obligations of the types
referred to above; provided, however, that Senior Indebtedness shall not
include (i) the Securities; (ii) any indebtedness or obligation of the Company
which, by its terms or the terms of the instrument creating or evidencing it,
is expressly made or stated to be either pari passu with or subordinated to the
Securities; (iii) any indebtedness or obligation of the Company to any of its
subsidiaries and (iv) any indebtedness or obligation which both is incurred by
the Company in connection with the purchase of assets, materials or services in
the ordinary course of business and constitutes an unsecured trade payable.
SECTION 10.03. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation,
dissolution or winding up of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, whether voluntary or involuntary:
(1) holders of Senior Indebtedness shall be entitled to receive
payment in full of the principal of and interest to the date of
payment on the Senior Indebtedness before Securityholders shall be
entitled to receive any payment of principal of or interest on the
Securities; and
37
(2) until the Senior Indebtedness is paid in full, any distribution
to which Securityholders would be entitled but for this Article 10
shall be made to holders of Senior Indebtedness as their interests may
appear, except the Securityholders may receive securities that are
subordinated to Senior Indebtedness to at least the same extent as the
Securities.
SECTION 10.04. Company Not to Make Payments with Respect to
Securities in Certain Circumstances.
Except for payment in or distribution of securities that are
subordinated to Senior Indebtedness to at least the same extent as the
Securities, the Company shall not make any payment with respect to the
principal of or interest on any of the Securities or make any other payment
with respect to the purchase or other acquisition of any of the Securities:
(a) if there shall have occurred a default in the payment of the
principal of or interest on any Senior Indebtedness; or
(b) if there shall exist at the time of such payment, or such payment
would create, an event of default (or an event which, with the giving of notice
or the passage of time or both, would become an event of default) with respect
to any Senior Indebtedness which would permit the holders (or any specified
proportion of such holders) of such Senior Indebtedness to accelerate the
maturity thereof, and if notification of such default or event of default has
been given to the Company by a holder of such Senior Indebtedness or by a
trustee, agent or Representative for an issue of Senior Indebtedness; provided,
however, that this clause (b) shall not prevent the making of any such payment
(which is not otherwise prohibited by clause (a) of this Section 10.04) for
more than 89 days after a written notice of default shall have been given
unless the Senior Indebtedness in respect of which such event of default exists
has been declared due and payable in its entirety, in which case no such
payment may be made;
unless and until, in each case, whether described in clause (a) or clause (b),
such default or event of default shall have been cured or waived in the manner
required by the instrument relating to such Senior Indebtedness or shall
otherwise have ceased to exist.
Regardless of anything to the contrary herein, nothing shall prevent
(a) any payment by the Trustee to the Securityholders of amounts deposited with
it pursuant to Article 8 or (b) any payment by the Trustee or the Paying Agent
as permitted by Section 10.11.
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SECTION 10.05. Acceleration of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of
the acceleration.
SECTION 10.06. When Distribution Must Be Paid Over.
In the event that the Company shall make any payment to the Trustee of
the principal of or interest on the Securities at a time when such payment is
prohibited by Section 10.03 or 10.04, such payment shall be held by the
Trustee, in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of Senior Indebtedness (pro rata as to each of such
holders on the basis of the respective amounts of Senior Indebtedness held by
them) or their Representative or the trustee under the indenture or other
agreement (if any) pursuant to which Senior Indebtedness may have been issued,
as their respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
If a distribution is made to Securityholders that because of this
Article 10 should not have been made to them, the Securityholders who receive
the distribution shall hold it in trust for holders of Senior Indebtedness and
pay it over to them as their interests may appear.
SECTION 10.07. Notice by Company.
The Company shall promptly notify the Trustee and the Paying Agent in
writing of any facts known to the Company that would cause a payment of
principal of or interest on Securities to violate this Article 10.
SECTION 10.08. Subrogation.
After all Senior Indebtedness is paid in full and until the Securities
are paid in full, Securityholders shall be subrogated to the rights of holders
of Senior Indebtedness to receive distributions applicable to Senior
Indebtedness to the extent that distributions otherwise payable to the
Securityholders have been applied to the payment of Senior Indebtedness. A
distribution made under this Article 10 to holders of Senior Indebtedness which
otherwise would have been made to Securityholders is not, as between the
Company and Securityholders, a payment by the Company on Senior Indebtedness.
39
SECTION 10.09. Subrogation May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the indebtedness evidenced by the Securities shall be impaired
by any act or failure to act by the Company or by its failure to comply with
this Indenture.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative.
SECTION 10.11. Rights of Trustee and Paying Agent.
The Trustee or Paying Agent may continue to make payments on the
Securities until it receives written notice of facts that would cause a payment
of principal of or interest on the Securities to violate this Article 10. Only
the Company, a Representative or a holder of an issue of Senior Indebtedness
that has no Representative may give the notice.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a person representing himself to be a holder of Senior
Indebtedness (or a Representative on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness or a
Representative on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any person who is a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article 10, the Trustee may
request such person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such person, the extent
to which such person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such person under this Article
10, and if such evidence is not furnished the Trustee may defer any payment to
such person pending judicial determination as to the right of such person to
receive such payment or until such time as the Trustee shall be otherwise
satisfied as to the right of such person to receive such payment.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holder if it
shall mistakenly pay over or distribute to Securityholders or the Company or
any other
40
person money or assets to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article 10 or otherwise.
SECTION 10.12. Officers' Certificate.
If there occurs an event referred to in Section 10.03 or 10.04, the
Company shall promptly give to the Trustee an Officers' Certificate (on which
the Trustee may conclusively rely) identifying all holders of Senior
Indebtedness or their Representatives and the principal amount of Senior
Indebtedness then outstanding held by each such holder and stating the reasons
why such Officers' Certificate is being delivered to the Trustee.
SECTION 10.13. Obligation of Company Unconditional.
Nothing contained in this Article 10 or elsewhere in this Indenture or
in any Security is intended to or shall impair, as between the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and interest on the
Securities 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 of the Securities and creditors of the Company other than the holders
of the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 10 of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any distribution of assets of the Company
referred to in this Article 10, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, and the Holders of the Securities shall be entitled to
rely upon any order or decree by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending, or a certificate of the liquidating trustee or agent or other person
making any distribution to the Trustee or the Holders of the Securities, for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
10. Nothing contained in this Article 10 or elsewhere in this Indenture or in
any Security is intended to or shall affect the obligation of the Company to
make, or prevent the Company from making, at any time except during the
pendency of any dissolution, winding up, liquidation or reorganization
proceeding, and except during the continuance of any default specified in
Section 10.04 (not cured or waived), payments at any time of the principal of
or interest on the Securities.
41
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 11.02. Notices.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person, mailed by first-class mail
or by express delivery to the other's address stated in this Section 11.02. The
Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect in
it shall not affect its sufficiency with respect to other Securityholders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications shall be in writing.
The Company's address is:
Brand Scaffold Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer and President
The Trustee's address is:
________________________________
________________________________
42
----------------------------
Attention: ___________________
43
SECTION 11.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S) 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each signer of an Officers' Certificate or an Opinion of Counsel may
(if so stated) rely, effectively, upon an Opinion of Counsel as to legal
matters and an Officers' Certificate as to factual matters if such signer
reasonably and in good faith believes in the accuracy of the document relied
upon.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
44
SECTION 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for their respective functions.
SECTION 11.07. Legal Holidays.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the City of New York, in the State
of New York or in the city in which the Trustee administers its corporate trust
business. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue on that payment for the intervening
period.
A "BUSINESS DAY" is a day other than a Legal Holiday.
SECTION 11.08. No Recourse Against Others.
No past, present or future director, officer, employee, agent,
manager, stockholder, or Affiliate, as such, of the Company shall have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
SECTION 11.09. 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.
SECTION 11.10. Governing Law.
The laws of the State of New York, without regard to principles or
conflicts of law, shall govern this Indenture and the Securities.
45
SECTION 11.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 11.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 11.13. Separability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby
and a Holder shall have no claim therefor against any party hereto.
SECTION 11.14. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
46
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
BRAND SCAFFOLD SERVICES, INC.
By:_________________________________
Title:
_________________, as Trustee
By:_________________________________
Title:
47
EXHIBIT A
REGISTERED [Face of Security] REGISTERED
NUMBER DOLLARS
BRAND SCAFFOLD SERVICES, INC.
14.5% JUNIOR SUBORDINATED EXCHANGE DEBENTURE DUE 2008
BRAND SCAFFOLD SERVICES, INC., a Delaware corporation (herein called
the "COMPANY," which term includes any successor person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________, or registered assigns, the principal sum of _____________
Dollars on March 31, 2008, and to pay interest thereon as provided on the
reverse hereof, until the principal hereof is paid or duly provided for.
Interest Payment Dates: o
Record Dates: o
The provisions on the back of this certificate are incorporated as if
set forth on the face hereof.
IN WITNESS WHEREOF, BRAND SCAFFOLD SERVICES, INC. has
caused this instrument to be duly signed under its corporate seal.
[SEAL] BRAND SCAFFOLD SERVICES, INC.
By:_________________________________
[Title]
By:_________________________________
[Title]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
______________________, as Trustee
By:__________________________
Authorized Signatory
Dated: ________________
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[REVERSE OF SECURITY]
BRAND SCAFFOLD SERVICES, INC.
14.5% JUNIOR SUBORDINATED EXCHANGE DEBENTURE DUE 2008
This Security is one of a duly authorized issue of Securities of the
Company designated as its 14.5% Junior Subordinated Exchange Debentures due
2008 (hereinafter called the "SECURITIES"), limited in aggregate principal
amount to $[Insert an amount equal to the aggregate liquidation preference on
the 14.5% Senior Exchangeable Preferred Stock outstanding immediately prior to
Exchange Date] issued pursuant to the Indenture, dated as of [insert Exchange
Date] (hereinafter called the "INDENTURE"), between the Company and
__________________________________, as Trustee (herein called the "TRUSTEE,"
which term includes any successor trustee under the Indenture).
1. Interest. The Company promises to pay interest on the principal
amount of this Security at the rate per annum shown above. The Company will pay
interest quarterly in arrears on o, o, o and o of each year, commencing [insert
first of such dates to occur after date of Indenture], to the person in whose
name this Security is registered at the close of business on the preceding o,
o, o and o as the case may be. Interest on the Securities will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance of the Securities set forth on the
face of this Security. Interest will be payable to the holders of record as
they appear on the register of the Company kept by the Registrar on such record
dates, provided that holders of Securities called for redemption on a
redemption date falling between an interest payment record date and the
interest payment date shall, in lieu of receiving such interest on the interest
payment date fixed therefor, receive such interest payment together with all
other accrued and unpaid interest on the date fixed for redemption. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Prior
to the later of (i) September 30, 2001 and (ii) the first date on which cash
payment of interest on the Securities is permitted under the terms of the then
outstanding Senior Indebtedness and any other applicable legal or contractual
provisions binding on the Company or any of its subsidiaries (such later date,
the "CASH PAY DATE") the interest will be payable solely in the form of
additional Securities. After the Cash Pay Date, interest will be payable in
cash.
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest) to the persons who are registered Holders of
Securities at the close of business on the record date set forth on the face of
this Security next preceding the applicable interest payment date. Holders must
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surrender Securities to a Paying Agent to collect principal payments. The
Company will pay principal and interest at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York
and at any other office or agency maintained by the Company for such purpose in
money of the United States that at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company, payment of interest on the Securities may be by check payable in
such money and mailed to a Holder's registered address.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without notice. The Company may act in any such capacity.
4. Indenture. The terms of this Security include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbbb) (the
"ACT"), as in effect on the date of the Indenture. This Security is subject to
all such terms, and the holder hereof is referred to the Indenture and the Act
for a statement of such terms. Terms used herein which are defined in the
Indenture have the meanings assigned to them in the Indenture.
5. Optional Redemption. This Security may be redeemed on at least 30
and not more than 60 days' prior notice at the option of the Company on or
after September 30, 2001, in whole at any time or in part from time to time (in
any integral multiple of $1,000), at the redemption prices (expressed as a
percentage of principal amount) set forth below during the 12-month periods
beginning on September 30 of the years shown below, plus in each case an amount
equal to accrued and unpaid interest, if any, to (and including) the redemption
date:
Year Redemption Price
---- ----------------
2001................................. 107.25
2002................................. 104.83
2003................................. 102.42
2004................................. 100.00
2005................................. 100.00
2006................................. 100.00
2007................................. 100.00
In addition, this Security may be redeemed on at least 30 and not more
than 60 days' prior notice at the option of the Company prior to September 30,
1999, in whole at any time or in part from time to time (pro rata from each
Holder), at a redemption price equal to 114.5% of the principal amount plus an
A-4
amount equal to accrued and unpaid interest, if any, to the date of redemption
with the proceeds of an Initial Public Offering.
6. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address. On and after the
redemption date, interest will cease to accrue on Securities called for
redemption.
7. Change of Control. In the event of a Change of Control (as
hereinafter defined),each Holder shall have the right, at the Holder's option,
to require the Company to repurchase such Holder's Securities including any
portion thereof which is $1,000 or any integral multiple thereof on the date
(the "REPURCHASE DATE") that is 45 days after the date of the Repurchase Right
Notice at a purchase price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to and including the Repurchase Date (the
"REPURCHASE PRICE").
Within 30 days after the occurrence of a Change of Control, the
Company is obligated to give notice of the occurrence of such Change of
Control, and of the procedure which such Holder must follow to exercise such
right. To exercise the redemption option, the Holder of a Security must deliver
on or before the 30th day after the date of the Repurchase Right Notice,
written notice to the Company of the Holder's exercise of such option together
with the Security or Securities with respect to which the option is being
exercised, duly endorsed for transfer. Exercise of the Repurchase Right by the
Holder of a Security will be irrevocable, unless the Company shall default in
making the repurchase payment when due, in which case a Holder who elects to
exercise the Repurchase Right will retain the right to convert such Security
into Common Stock until the close of business on the date such default is cured
and such Security is repurchased. If the Repurchase Date falls between any
interest payment record date and the next succeeding interest payment date,
Securities must be accompanied by payment of an amount equal to the interest
thereon which the registered Holder is to receive on such interest payment
date.
If any repurchase pursuant to the foregoing provisions constitutes an
"ISSUER TENDER OFFER" as defined in Rule 13e-4 under the Exchange Act, the
Company will comply with the requirements of Rule 13e-4, Rule 14e-1 and any
other tender offer rules under the Exchange Act which then may be applicable,
including the filing of an Issuer Tender Offer Statement on Schedule 13E-4 with
the SEC and the furnishing of certain information contained therein to the
Holders.
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A "CHANGE OF CONTROL" means the occurrence of any of the following
events: (i) any person (including any entity or group deemed to be a "person"
under Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), other than any
person or group comprised solely of the Initial Holders, has become the
beneficial owner, by way of merger, consolidation or otherwise, of 40% or more
of the voting power of all classes of voting securities of the Company or of
DLJ Brand Holdings, Inc. and such person or group has become the beneficial
owner of a greater percentage of the voting power of all classes of voting
securities of the Company or of DLJ Brand Holdings, Inc. than that beneficially
owned by the Initial Holders; (ii) a sale or transfer of all or substantially
all of the assets of the Company or of DLJ Brand Holdings, Inc. to any person
or group (other than any group consisting solely of the Initial Holders or
their Affiliates) has been consummated; or (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Company or of DLJ Brand Holdings, Inc. (together
with any new directors whose election was approved by a vote of a majority of
the directors then still in office, who either were directors at the beginning
of such period or whose election or nomination for the election was previously
so approved) cease for any reason to constitute a majority of the directors of
the Company or of DLJ Brand Holdings, Inc. as the case may be, then in office,
other than as a result of election and removal of directors pursuant to the
provisions of the Certificate of Designations or the Shareholders Agreement
governing the election and removal of directors. (Capitalized terms have the
meaning ascribed to them in the Indenture.)
8. Subordination. The Securities are subordinated in right of
payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full of all Senior Indebtedness. Each Holder by accepting a
Security agrees to such subordination and authorizes the Trustee to give it
effect.
9. Denominations, Transfer, Exchange. The Securities are in
registered form without coupons in denominations of $1,000 and whole multiples
of $1,000. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents.
No service charge shall be made for any such registration or transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. The Registrar
need not exchange or register the transfer of any Security selected for
redemption. Also, it need not exchange or register the transfer of any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
10. Persons Deemed Owners. The registered Holder of a Security may be
treated as its owner for all purposes.
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11. Merger or Consolidation. The Company may not consolidate with, or
merge into, or directly or indirectly transfer or lease all or substantially
all of its assets to, another person unless, among other things, the person is
a corporation; such corporation assumes by supplemental indenture all the
obligations of the Company under the Securities and the Indenture; and giving
effect to the transaction, no Default or Event of Default (as defined in the
Indenture) shall exist.
12. Amendments and Waivers. Subject to certain exceptions, the
Indenture or the Securities may be amended with the consent of the Holders of
at least a majority in principal amount of the Securities outstanding; and any
existing default may be waived with the consent of the Holders of a majority in
principal amount of the Securities. Without the consent of any Securityholder,
the Indenture or the Securities may be amended to cure any ambiguity, omission,
defect or inconsistency or to provide for uncertificated Securities in addition
to certificated Securities, to comply with Section 5.01 of the Indenture or to
make any change that does not materially adversely affect the rights of any
Securityholder.
13. Defaults and Remedies. An Event of Default is: a continuing
default for 15 days in payment of interest on the Securities; default in
payment of principal of the Securities when due; failure by the Company for 30
days after written notice to the Company by the Trustee or to the Company and
the Trustee by the holders of at least 25% in principal amount of the
outstanding Securities specifying such breach or default and requiring it to be
remedied and stating that such notice is a notice of default hereunder;
acceleration prior to maturity of other indebtedness in excess of an aggregate
of $15 million which acceleration is not rescinded or indebtedness is not paid
or discharged for 30 days after notice; the rendering of a final judgment or
judgments against the Company in excess of $15 million, which is not
discharged, satisfied or stayed within a period of 60 days after notice; and
certain events of bankruptcy or insolvency. If any Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount
of the Securities may declare all the Securities to be due and payable
immediately. The Holders of a majority in principal amount of the Securities by
notice to the Trustee may waive a Default and its consequences. Securityholders
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Securityholders notice of any continuing default (except a default in payment
of principal or
A-7
interest) if it determines that withholding notice is in their interests. The
Company must furnish an annual compliance certificate to the Trustee.
14. Trustee Dealings with Company. The Trustee under the Indenture,
or any banking institution serving as successor Trustee thereunder, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee, agent,
manager, stockholder or Affiliate, as such, of the Company shall not have any
liability for any obligations of the Company under this Security or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and releases are part of the
consideration for the issue of this Security.
16. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
17. Abbreviations. Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenant by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER
UPON WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE
INDENTURE. REQUESTS MAY BE MADE TO: Brand Scaffold Services, Inc.,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Secretary.
A-8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
______________________________________________
(Insert Assignee's Soc. Sec. or Tax I.D. No.)
_________________________________________
_________________________________________
_________________________________________
_________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
_______________________________________________________________________________
Date:___________________________ Signature(s):______________________
___________________________________
(Sign exactly as your name(s)
appear(s) on the other side of
this Security)
Signature(s) guaranteed by: ___________________________________
(All signatures must be guaranteed
by a member of a national securities
exchange or of the National
Association of Securities Dealers,
Inc. or by a commercial bank or
trust company located in the United
States)
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security repurchased by the Company
pursuant to Section 4.08 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security repurchased by
the Company pursuant to Section 4.08 of the Indenture, state the amount to be
repurchased:
$___________________________
(in an integral multiple of $1,000)
Date____________________ Signature(s):______________________
___________________________________
(Sign exactly as your name(s)
appear(s) on the other side of
this Security)
Signature(s) guaranteed by: ___________________________________
(All signatures must be guaranteed
by a member of a national securities
exchange or of the National
Association of Securities Dealers,
Inc. or by a commercial bank or
trust company located in the United
States)
A-10
EXHIBIT B
Form of Legend for Global Securities
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer 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.
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