U.S. OFFICE PRODUCTS COMPANY,
as Issuer,
the Note Guarantors named herein and from time to time parties hereto,
as Note Guarantors
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
----------
INDENTURE
Dated as of June 10, 1998
----------
9 3/4% Senior Subordinated Notes Due 2008
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Page
Section 101. Definitions.............................................. 2
Section 102. Other Definitions........................................ 36
Section 103. Rules of Construction.................................... 37
Section 104. Incorporation by Reference of TIA........................ 38
Section 105. Conflict with TIA........................................ 39
Section 106. Compliance Certificates and Opinions..................... 39
Section 107. Form of Documents Delivered to Trustee................... 40
Section 108. Acts of Noteholders; Record Dates........................ 40
Section 109. Notices, etc., to Trustee and Company.................... 42
Section 110. Notices to Holders; Waiver............................... 43
Section 111. Effect of Headings and Table of Contents................. 43
Section 112. Successors and Assigns................................... 44
Section 113. Separability Clause...................................... 44
Section 114. Benefits of Indenture.................................... 44
Section 115. GOVERNING LAW............................................ 44
Section 116. Legal Holidays........................................... 44
Section 117. No Personal Liability of Directors, Officers, Employees,
Incorporators and Stockholders....................... 44
Section 118. Exhibits and Schedules................................... 45
Section 119. Counterparts............................................. 45
ARTICLE 2
NOTE FORMS
Section 201. Forms Generally.......................................... 45
Section 202. Form of Trustee's Certificate of Authentication.......... 47
Section 203. Restrictive and Global Note Legends...................... 47
ARTICLE 3
THE NOTES
Section 301. Title and Terms.......................................... 49
Section 302. Denominations............................................ 50
Section 303. Execution, Authentication and Delivery and Dating........ 50
Section 304. Temporary Notes.......................................... 51
Section 305. Registration, Registration of Transfer and Exchange...... 51
Section 306. Mutilated, Destroyed, Lost and Stolen Notes.............. 52
Section 307. Payment of Interest Rights Preserved..................... 53
PAGE
Section 308. Persons Deemed Owners.................................... 54
Section 309. Cancellation............................................. 55
Section 310. Computation of Interest.................................. 55
Section 311. CUSIP Numbers............................................ 55
Section 312. Book-Entry Provisions for Global Notes................... 55
Section 313. Special Transfer Provisions.............................. 57
Section 314. Payment of Additional Interest........................... 61
ARTICLE 4
COVENANTS
Section 401. Payment of Principal, Premium and Interest............... 61
Section 402. Maintenance of Office or Agency.......................... 61
Section 403. Money for Payments To Be Held in Trust................... 62
Section 404. SEC Reports.............................................. 63
Section 405. Statement as to Default.................................. 63
Section 406. Limitation on Indebtedness............................... 64
Section 407. Limitation on Layering................................... 68
Section 408. Limitation on Restricted Payments........................ 68
Section 409. Limitation on Restrictions on Distributions from
Restricted Subsidiaries.............................. 72
Section 410. Limitation on Sales of Assets and Subsidiary Stock....... 74
Section 411. Limitation on Transactions with Affiliates............... 77
Section 412. Limitation on Liens...................................... 79
Section 413. Future Note Guarantors................................... 79
Section 414. Purchase of Notes Upon a Change in Control............... 80
ARTICLE 5
SUCCESSOR COMPANY
Section 501. When the Company May Merge, etc.......................... 81
Section 502. Successor Company Substituted............................ 82
ARTICLE 6
REMEDIES
Section 601. Events of Default........................................ 83
Section 602. Acceleration of Maturity; Rescission and Annulment....... 85
Section 603. Other Remedies; Collection Suit by Trustee............... 86
Section 604. Trustee May File Proofs of Claim......................... 86
Section 605. Trustee May Enforce Claims Without Possession of Notes... 87
Section 606. Application of Money Collected........................... 87
Section 607. Limitation on Suits...................................... 87
Section 608. Unconditional Right of Holders to Receive Principal and
Interest.......................................... 88
PAGE
Section 609. Restoration of Rights and Remedies....................... 88
Section 610. Rights and Remedies Cumulative........................... 88
Section 611. Delay or Omission Not Waiver............................. 88
Section 612. Control by Holders....................................... 89
Section 613. Waiver of Past Defaults.................................. 89
Section 614. Undertaking for Costs.................................... 90
Section 615. Waiver of Stay, Extension or Usury Laws.................. 90
ARTICLE 7
THE TRUSTEE
Section 701. Certain Duties and Responsibilities...................... 91
Section 702. Notice of Defaults....................................... 92
Section 703. Certain Rights of Trustee................................ 92
Section 704. Not Responsible for Recitals or Issuance of Notes........ 93
Section 705. May Hold Notes........................................... 93
Section 706. Money Held in Trust...................................... 93
Section 707. Compensation and Reimbursement........................... 94
Section 708. Conflicting Interests.................................... 94
Section 709. Corporate Trustee Required; Eligibility.................. 94
Section 710. Resignation and Removal; Appointment of Successor........ 95
Section 711. Acceptance of Appointment by Successor................... 96
Section 712. Merger, Conversion, Consolidation or Succession to
Business......................................... 96
Section 713. Preferential Collection of Claims Against the Company.... 97
Section 714. Appointment of Authenticating Agent...................... 97
ARTICLE 8
HOLDERS' LISTS AND REPORTS BY
TRUSTEE AND THE COMPANY
Section 801. The Company to Furnish Trustee Names and Addresses of
Holders.............................................. 97
Section 802. Preservation of Information; Communications to Holders... 98
Section 803. Reports by Trustee....................................... 98
ARTICLE 9
AMENDMENT, SUPPLEMENT OR WAIVER
Section 901. Without Consent of Holders............................... 98
Section 902. With Consent of Holders.................................. 99
PAGE
Section 903. Execution of Amendments, Supplements or Waivers.......... 101
Section 904. Revocation and Effect of Consents........................ 101
Section 905. Conformity with TIA...................................... 101
Section 906. Notation on or Exchange of Notes......................... 102
ARTICLE 10
REDEMPTION OF NOTES
Section 1001. Right of Redemption..................................... 102
Section 1002. Applicability of Article................................ 103
Section 1003. Election to Redeem; Notice to Trustee................... 103
Section 1004. Selection by Trustee of Notes to Be Redeemed............ 104
Section 1005. Notice of Redemption.................................... 104
Section 1006. Deposit of Redemption Price............................. 105
Section 1007. Notes Payable on Redemption Date........................ 105
Section 1008. Notes Redeemed in Part.................................. 106
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 1101. Satisfaction and Discharge of Indenture................. 106
Section 1102. Application of Trust Money.............................. 108
ARTICLE 12
DEFEASANCE OR COVENANT DEFEASANCE
Section 1201. The Company's Option to Elect Defeasance or Covenant
Defeasance......................................... 108
Section 1202. Defeasance and Discharge................................ 108
Section 1203. Covenant Defeasance..................................... 109
Section 1204. Conditions to Defeasance or Covenant Defeasance......... 109
Section 1205. Deposited Money and U.S. Government Obligations To Be
held in Trust; Other Miscellaneous Provisions....... 111
Section 1206. Reinstatement........................................... 111
Section 1207. Repayment to the Company................................ 112
ARTICLE 13
NOTE GUARANTEES
Section 1301. Guarantees Generally.................................... 112
Section 1302. Continuing Guarantees................................... 114
PAGE
Section 1303. Release of Note Guarantees.............................. 114
Section 1304. Agreement to Subordinate................................ 115
Section 1305. Waiver of Subrogation................................... 115
Section 1306. Notation Not Required................................... 115
Section 1307. Successors and Assigns of Note Guarantors............... 115
Section 1308. Execution and Delivery of Note Guarantees............... 115
Section 1309. Notices................................................. 116
ARTICLE 14
SUBORDINATION
Section 1401. Agreement To Subordinate................................ 116
Section 1402. Liquidation, Dissolution, Bankruptcy.................... 116
Section 1403. Default on Senior Indebtedness.......................... 117
Section 1404. Acceleration of Payment of Notes........................ 118
Section 1405. When a Distribution Must Be Paid Over................... 118
Section 1406. Subrogation............................................. 118
Section 1407. Relative Rights......................................... 118
Section 1408. Subordination May Not Be Impaired by the Company........ 119
Section 1409. Rights of Trustee and Paying Agent...................... 119
Section 1410. Distribution or Notice to Representative................ 119
Section 1411. Article 14 Not To Prevent Events of Default or Limit
Right To Accelerate................................. 119
Section 1412. Trust Moneys Not Subordinated........................... 120
Section 1413. Trustee Entitled To Rely................................ 120
Section 1414. Trustee To Effectuate Subordination..................... 120
Section 1415. Trustee Not Fiduciary for Holders of Senior
Indebtedness ....................................... 120
Section 1416. Reliance by Holders of Senior Indebtedness on
Subordination Provisions............................ 121
Section 1417. Trustee's Compensation Not Prejudiced................... 121
ARTICLE 15
SUBORDINATION OF NOTE GUARANTEES
Section 1501. Agreement To Subordinate................................ 121
Section 1502. Liquidation, Dissolution, Bankruptcy.................... 121
Section 1503. Default on Guarantor Senior Indebtedness................ 122
Section 1504. Acceleration of Payment of Notes........................ 123
Section 1505. When a Distribution Must Be Paid Over................... 124
PAGE
Section 1506. Subrogation............................................. 124
Section 1507. Relative Rights......................................... 124
Section 1508. Subordination May Not Be Impaired by Note Guarantors.... 124
Section 1509. Rights of Trustee and Paying Agent...................... 125
Section 1510. Distribution or Notice to Representative................ 125
Section 1511. Article 15 Not To Prevent Events of Default or Limit
Right To Accelerate................................. 125
Section 1512. Trust Moneys Not Subordinated........................... 126
Section 1513. Trustee Entitled To Rely................................ 126
Section 1514. Trustee To Effectuate Subordination..................... 126
Section 1515. Trustee Not Fiduciary for Holders of Guarantor Senior
Indebtedness........................................ 127
Section 1516. Reliance by Holders of Guarantor Senior Indebtedness on
Subordination Provisions............................ 127
Section 1517. Trustee's Compensation Not Prejudiced................... 127
Exhibit A Form of Note
Exhibit B Form of Supplemental Indenture
Exhibit C Form of Regulation S Certificate
Exhibit D Form of Certificate of Beneficial Ownership
Exhibit E Form of Accredited Investor Certificate
Certain Sections of the Indenture relating to Sections 310 through 318
inclusive of the Trust Indenture Act of 1939:
Trust Indenture Act Section Indenture Section
ss.310(a)(1) .......................... 709
(a)(2) .......................... 709
(a)(3) .......................... Not Applicable
(a)(4) .......................... Not Applicable
(b) .......................... 708
ss.311(a) .......................... 713
(b) .......................... 713
(b)(2) .......................... 803
803
ss.312(a) .......................... 801
802
(b) .......................... 802
(c) .......................... 802
ss.313(a) .......................... 803
(b) .......................... 803
(c) .......................... 803
803
(d) .......................... 803
ss.314(a) .......................... 404
(a)(4) .......................... 102
405
(b) .......................... Not Applicable
(c)(1) .......................... 102
(c)(2) .......................... 102
(c)(3) .......................... Not Applicable
(d) .......................... Not Applicable
(e) .......................... 102
Trust Indenture Act Section Indenture Section
ss.315(a) ......................... 701
(b) ......................... 702
803
(c) ......................... 701
(d) ......................... 701
(d)(1) ......................... 701
(d)(2) ......................... 701
(d)(3) ......................... 701
(e) ......................... 614
ss.316(a) ......................... 101
612
(a)(1)(A) 602
612
(a)(1)(B ) 613
(a)(2) ......................... Not Applicable
(b) ......................... 608
(c) ......................... 108
ss.317(a)(1) ......................... 603
(a)(2) ......................... 604
(b) ......................... 403
ss.318(a) ......................... 105
----------------------
This cross-reference table shall not for any purpose be deemed to be part of the
Indenture.
INDENTURE, dated as of June 10, 1998 (as amended, supplemented
or otherwise modified from time to time, the "Indenture"), among U.S. Office
Products Company, a Delaware corporation (as further defined below, the
"Company"), the Note Guarantors (as defined below) named herein and from time to
time parties hereto, and State Street Bank and Trust Company, a Massachusetts
trust company, as trustee (the "Trustee").
RECITALS OF THE COMPANY AND NOTE GUARANTORS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Notes. Each Note Guarantor
party hereto has duly authorized the execution and delivery of this Indenture to
provide for its guarantee of the Notes, as provided in this Indenture. Each Note
Guarantor party hereto has received good and valuable consideration for its
execution and delivery of the Indenture and its guarantee of the Notes.
All things necessary to make the Original Notes, when executed
and delivered by the Company and authenticated and delivered by the Trustee
hereunder and duly issued by the Company, the valid obligation of the Company,
and to make this Indenture a valid agreement of the Company as of the date
hereof, in accordance with the terms of the Original Notes and this Indenture,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually agreed, for the equal and
ratable benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
"Additional Assets" means (i) any property or assets that
replace the property or assets that are the subject of an Asset Disposition;
(ii) any property or assets (other than Indebtedness and Capital Stock) to be
used by the Company or a Restricted Subsidiary in a Related Business; (iii) the
Capital Stock of a Person that is engaged in a Related Business and becomes a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary; or (iv) Capital Stock of any
Person that at such time is a Restricted Subsidiary, acquired from a third
party.
"Additional Notes" means any notes issued under this Indenture
in addition to the Original Notes (other than any Notes issued in respect of
Original Notes pursuant to Section 304, 305, 306, 312(c), 312(d) or 1008).
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"all or substantially all" has the meaning given to such
phrase in the Revised Model Business Corporation Act and commentary thereto.
"Applicable Premium" means, with respect to a Note at any
Redemption Date, the greater of (i) 1.0% of the principal amount of such Note
and (ii) the excess of (A) the present value at such Redemption Date of (1) the
redemption price of such Note on June 15, 2003 (such redemption price being that
described in paragraph (a) of Section 1001) plus (2) all required remaining
scheduled interest payments due on such Note through June 15, 2003, computed
using a discount rate equal to the Treasury Rate plus 50 basis points, over (B)
the principal amount of such Note on such Redemption Date. Calculation of the
Applicable Premium will be made by the Company or on behalf of the Company by
such Person as the Company shall
designate, provided that such calculation shall not be a duty or obligation of
the Trustee.
"Asset Disposition" means any sale, lease, transfer or other
disposition of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares, or (in the case of a Foreign Subsidiary) to the
extent required by applicable law), property or other assets (each referred to
for the purposes of this definition as a "disposition") by the Company or any of
its Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction), other than (i) a disposition to the
Company or a Restricted Subsidiary, (ii) a disposition in the ordinary course of
business, (iii) any disposition or series of related dispositions for aggregate
consideration of less than $5.0 million, (iv) the sale or discount (with or
without recourse, and on customary or commercially reasonable terms) of accounts
receivable or notes receivable arising in the ordinary course of business, or
the conversion or exchange of accounts receivable for notes receivable, (v) a
Restricted Payment Transaction, (vi) a disposition that is governed by the
provisions described under Article 5 hereof, (vii) any Financing Disposition,
(viii) any "fee in lieu" or other disposition of assets to any governmental
authority or agency that continue in use by the Company or any Restricted
Subsidiary, so long as the Company or any Restricted Subsidiary may obtain title
to such assets upon reasonable notice by paying a nominal fee, (ix) any exchange
of like property pursuant to Section 1031 (or any successor section) of the
Code, (x) any financing transaction with respect to property built or acquired
by the Company or any Restricted Subsidiary after the Issue Date, including
without limitation any sale/leaseback transaction or asset securitization, (xi)
any disposition arising from foreclosure, condemnation or similar action with
respect to any property or other assets, (xii) any disposition of Capital Stock,
Indebtedness or other securities of an Unrestricted Subsidiary, (xiii) a
disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement
or other obligation with or to a Person (other than the Company or a Restricted
Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such
Restricted Subsidiary acquired its business and assets (having been newly formed
in connection with such acquisition), entered into in connection with such
acquisition, or (xiv) a disposition of not more than 5% of the outstanding
Capital Stock of a Foreign Subsidiary that has been approved by the Board of
Directors.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 714 to act on behalf of the Trustee to authenticate
Notes of one or more series.
"Average Life" means, as of the date of determination, with
respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the sum
of the products of the numbers of years from the date of determination to the
dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Bank Indebtedness" means any and all amounts, whether
outstanding on the Issue Date or thereafter incurred, payable under or in
respect of the Senior Credit Facility, including without limitation principal,
premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company or
any Restricted Subsidiary whether or not a claim for post-filing interest is
allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees, other monetary obligations of any nature and all other
amounts payable thereunder or in respect thereof.
"Board of Directors" means the board of directors or other
governing body of the Company or, if the Company is owned or managed by a single
entity, the board of directors or other governing body of such entity, or, in
either case, any committee thereof duly authorized to act on behalf of such
board or governing body (or, for purposes of clause (i) of paragraph (a) of
Section 410, a committee of Officers of the Company designated by such board or
governing body).
"Borrowing Base" means the sum (determined as of the end of
the most recently ended fiscal quarter for which consolidated financial
statements of the Company are available) of (1) 60% of Inventory of the Company
and its Restricted Subsidiaries and (2) 80% of Receivables of the Company and
its Restricted Subsidiaries.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banking institutions are authorized or required by
law to close in New York City.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Capitalized Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accor dance with GAAP. The Stated Maturity of any
Capitalized Lease Obligation shall
be the date of the last payment of rent or any other amount due under the
related lease.
"Cash Equivalents" means any of the following: (a) securities
issued or fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof, (b) time deposits, certificates of deposit or
bankers' acceptances of (i) any lender under the Senior Credit Agreement or (ii)
any commercial bank having capital and surplus in excess of $500,000,000 and the
commercial paper of the holding company of which is rated at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by ▇▇▇▇▇'▇
(or if at such time neither is issuing ratings, then a comparable rating of
another nationally recognized rating agency), (c) commercial paper rated at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by ▇▇▇▇▇'▇ (or if at such time neither is issuing ratings, then a
comparable rating of another nationally recognized rating agency) and (d)
investments in money market funds complying with the risk limiting conditions of
Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of
1940, as amended.
"CDR" means ▇▇▇▇▇▇▇, Dubilier & Rice, Inc.
"CDR Agreements" means, collectively, (i) the Investment
Agreement, dated January 12, 1998, as amended, between the Company and the
Investor, (ii) the Registration Rights Agreement, dated as of June 10, 1998,
between the Company and the Investor, and (iii) the Consulting Agreement and the
Indemnification Agreement, each dated as of June 10, 1998, each between the
Company and CDR (and its permitted successors and assigns thereunder); as each
such CDR Agreement may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms thereof and of the Indenture.
"CDR Fund V" means ▇▇▇▇▇▇▇, Dubilier & Rice Fund V Limited
Partnership, a Cayman Islands exempted limited partnership, and any successor in
interest thereto.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means:
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange
Act), directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company, provided that so long as the
Company is a Subsidiary of a Parent, no Person shall be deemed to be
or become a "beneficial owner" of more than 50% of the total voting
power of the Voting Stock of the Company unless such Person shall be
or become a "beneficial owner" of more than 50% of the total voting
power of the Voting Stock of such Parent;
(ii) the Company merges or consolidates with or into, or sells
or transfers (in one or a series of related transactions) all or
substantially all of the assets of the Company and its Restricted
Subsidiaries to, another Person (other than one or more Permitted
Holders) and any "person" (as defined in clause (i) above), other than
one or more Permitted Holders, is or becomes the "beneficial owner" (as
so defined), directly or indirectly, of more than 50% of the total
voting power of the Voting Stock of the surviving Person in such merger
or consolidation, or the transferee Person in such sale or transfer of
assets, as the case may be, provided that so long as such surviving or
transferee Person is a Subsidiary of a parent Person, no Person shall
be deemed to be or become a "beneficial owner" of more than 50% of the
total voting power of the Voting Stock of such surviving or transferee
Person unless such Person shall be or become a "beneficial owner" of
more than 50% of the total voting power of the Voting Stock of such
parent Person; or
(iii) during any period of two consecutive years (during which
period the Company has been a party to this Indenture), individuals who
at the beginning of such period were members of the board of directors
of the Company (together with any new members thereof whose election by
such board of directors or whose nomination for election by holders of
Capital Stock of the Company was approved by one or more Permitted
Holders or by a vote of a majority of the members of such board of
directors then still in office who were either members thereof at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of such board of directors then in office.
"Change of Control Triggering Event" means the occurrence
after the Issue Date of both (a) a Change of Control and (b) the failure of the
Notes to have, on the 30th day after such Change of Control, a rating of at
least "BBB-" (or equivalent successor rating) by S&P and a rating of at least
"Baa3" (or equivalent successor rating) by ▇▇▇▇▇'▇.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means U.S. Office Products Company, a Delaware
corporation, and any successor in interest thereto.
"Company Request," "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by an Officer of the Company.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of Consolidated EBITDA of the
Company and its Restricted Subsidiaries for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination for
which consolidated financial statements of the Company are available to (ii)
Consolidated Interest Expense for such four fiscal quarters (in each case,
determined, for each fiscal quarter (or portion thereof) of the four fiscal
quarters ending prior to the Issue Date, on a pro forma basis to give effect to
the Strategic Restructuring as if it had occurred at the beginning of such
four-quarter period); provided, that
(1) if since the beginning of such period the Company or any
Restricted Subsidiary has Incurred any Indebtedness that remains
outstanding on such date of determination or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an
Incurrence of Indebtedness, Consolidated EBITDA and Con solidated
Interest Expense for such period shall be calculated after giving
effect on a pro forma basis to such Indebtedness as if such
Indebtedness had been Incurred on the first day of such period (except
that in making such computation, the amount of Indebtedness under any
revolving credit facility outstanding on the date of such calculation
shall be computed based on (A) the average daily balance of such In
debtedness during such four fiscal quarters or such shorter period for
which such facility was outstanding or (B) if such facility was created
after the end of such four fiscal quarters, the average daily balance
of such Indebtedness during the period from the date of creation of
such facility to the date of such calculation),
(2) if since the beginning of such period the Company or any
Restricted Subsidiary has repaid, repurchased, redeemed, defeased or
otherwise acquired, retired or discharged any Indebtedness (each, a
"Discharge") or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio involves a Discharge of In debtedness
(in each case other than Indebtedness Incurred under any revolving
credit facility unless such Indebtedness has been
permanently repaid), Consolidated EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving effect on a
pro forma basis to such Discharge of such Indebtedness, including with
the proceeds of such new Indebtedness, as if such Discharge had
occurred on the first day of such period,
(3) if since the beginning of such period the Company or any
Restricted Subsidiary shall have disposed of any company, any business
or any group of assets constituting an operating unit of a business
(any such disposition, a "Sale"), the Consolidated EBITDA for such
period shall be reduced by an amount equal to the Consolidated EBITDA
(if positive) attributable to the assets that are the subject of such
Sale for such period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such period
and Consolidated Interest Expense for such period shall be reduced by
an amount equal to (A) the Consolidated Interest Expense attributable
to any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, redeemed, defeased or otherwise acquired, retired or
discharged with respect to the Company and its continuing Restricted
Subsidiaries in connection with such Sale for such period (including
but not limited to through the assumption of such Indebtedness by
another Person) plus (B) if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period
attributable to the Indebtedness of such Restricted Subsidiary to the
extent the Company and its con tinuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such Sale,
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger, consolidation or otherwise) shall
have made an Investment in any Person that thereby becomes a Restricted
Subsidiary, or otherwise acquired any company, any business or any
group of assets constituting an operating unit of a business, including
any such Investment or acquisition occurring in connection with a
transaction causing a calculation to be made hereunder (any such
Investment or acquisition, a "Purchase"), Consolidated EBITDA and
Consolidated Interest Expense for such period shall be calculated after
giving pro forma effect thereto (including the Incurrence of any
related Indebtedness) as if such Purchase occurred on the first day of
such period, and
(5) if since the beginning of such period any Person became a
Restricted Subsidiary or was merged or consolidated with or into the
Company or any Restricted Subsidiary, and since the beginning of such
period such Person shall have Discharged any Indebtedness or made any
Sale or Purchase that would
have required an adjustment pursuant to clause (2), (3) or (4) above if
made by the Company or a Restricted Subsidiary during such period,
Consolidated EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto as if such
Discharge, Sale or Purchase occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is
to be given to any Sale, Purchase or other transaction, or the amount of income
or earnings relating thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness Incurred or repaid, repurchased, redeemed,
defeased or otherwise acquired, retired or discharged in connection therewith,
the pro forma calculations in respect thereof (including without limitation in
respect of anticipated cost savings or synergies relating to any such Sale,
Purchase or other transaction) shall be as determined in good faith by a
responsible financial or accounting Officer of the Company. If any Indebtedness
bears a floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account any Interest Rate Agreement applicable to such
Indebtedness to the extent of the remaining term of such Interest Rate
Agreement). If any Indebtedness bears, at the option of the Company or a
Restricted Subsidiary, a rate of interest based on a prime or similar rate, a
eurocurrency interbank offered rate or other fixed or floating rate, and such
Indebtedness is being given pro forma effect, the interest expense on such
Indebtedness shall be calculated by applying such optional rate as the Company
or such Restricted Subsidiary may designate. If any Indebtedness that is being
given pro forma effect was Incurred under a revolving credit facility, the
interest expense on such Indebtedness shall be computed based upon the average
daily balance of such Indebtedness during the applicable period. Interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
determined in good faith by a responsible financial or accounting officer of the
Company to be the rate of interest implicit in such Capitalized Lease Obligation
in accordance with GAAP.
"Consolidated EBITDA" means, for any period, the Consolidated
Net Income for such period, plus the following to the extent deducted in
calculating such Consolidated Net Income: (i) provision for all taxes (whether
or not paid, estimated or accrued) based on income, profits or capital, (ii)
Consolidated Interest Expense and any Receivables Fees, (iii) depreciation,
amortization (including but not limited to amortization of goodwill and
intangibles and amortization and write-off of financing costs) and all other
non-cash charges or non-cash losses, (iv) any expenses or charges related to any
Equity Offering, Investment or Indebtedness permitted by this Indenture
(whether or not consummated or incurred) and (v) the amount of any minority
interest expense.
"Consolidated Interest Expense" means, for any period, (i) the
total interest expense of the Company and its Restricted Subsidiaries to the
extent deducted in calculating Consolidated Net Income, net of any interest
income of the Company and its Restricted Subsidiaries, including without
limitation any such interest expense consisting of (a) interest expense
attributable to Capitalized Lease Obligations, (b) amortization of debt
discount, (c) the interest portion of any deferred payment obligation, and (d)
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, plus (ii) Preferred Stock dividends
paid in cash in respect of Disqualified Stock of the Company held by Persons
other than the Company or a Restricted Subsidiary and minus (iii) to the extent
otherwise included in such interest expense referred to in clause (i) above,
Receivables Fees and amortization or write-off of financing costs, in each case
under clauses (i) through (iii) as determined on a Consolidated basis in
accordance with GAAP; provided that gross interest expense shall be determined
after giving effect to any net payments made or received by the Company and its
Restricted Subsidiaries with respect to Interest Rate Agreements.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Company and its Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP and before any reduction in respect
of Preferred Stock dividends; provided that there shall not be included in such
Consolidated Net Income:
(i) any net income (loss) of any Person if such Person is not
a Restricted Subsidiary, except that (A) subject to the limitations
contained in clause (iv) below, the Company's equity in the net income
of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount actually dis
tributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other dis tribution to a Restricted
Subsidiary, to the limitations contained in clause (iii) below) and (B)
the Company's equity in the net loss of such Person shall be included
to the extent of the aggregate Investment of the Company or any of its
Restricted Subsidiaries in such Person,
(ii) any net income (loss) of any Person acquired by the
Company or a Re stricted Subsidiary in a pooling of interests
transaction for any period prior to the date of such acquisition,
(iii) any net income (loss) of any Restricted Subsidiary that
is not a Note Guarantor if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or
the making of similar distributions by such Restricted Subsidiary,
directly or indirectly, to the Company by operation of the terms of
such Restricted Subsidiary's charter or any agreement, instrument,
judgment, decree, order, statute or governmental rule or regulation
applicable to such Restricted Subsidiary or its stockholders (other
than (x) restrictions that have been waived or otherwise released, (y)
restrictions pursuant to the Notes or this Indenture and (z)
restrictions in effect on the Issue Date with respect to a Restricted
Subsidiary and other restrictions with respect to such Restricted
Subsidiary that taken as a whole are not materially less favorable to
the Noteholders than such restrictions in effect on the Issue Date),
except that (A) sub ject to the limitations contained in clause (iv)
below, the Company's equity in the net income of any such Restricted
Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of any dividend or distribution that
was or that could have been made by such Restricted Subsidiary during
such period to the Company or another Restricted Subsidiary (subject,
in the case of a dividend that could have been made to another
Restricted Subsidiary, to the limitation contained in this clause) and
(B) the net loss of such Restricted Subsidiary shall be included to the
extent of the aggregate Investment of the Company or any of its other
Restricted Subsidiaries in such Restricted Subsidiary,
(iv) any gain or loss realized upon the sale or other
disposition of any asset of the Company or any Restricted Subsidiary
(including pursuant to any sale/leaseback transaction) that is not sold
or otherwise disposed of in the ordinary course of business (as
determined in good faith by the Board of Directors),
(v) any item classified as an extraordinary, unusual or
nonrecurring gain, loss or charge (including without limitation (a) any
compensation expense for stock options that will be cashed out,
converted, exchanged or otherwise retired in connection with the
Strategic Restructuring, (b) any charge or expense incurred for
employee bonuses in connection with the Strategic Restructuring, and
(c) fees, expenses and charges associated with the Strategic
Restructuring or any acquisition, merger or consolidation after the
Issue Date),
(vi) the cumulative effect of a change in accounting
principles,
(vii) all deferred financing costs written off and premiums
paid in connection with any early extinguishment of Indebtedness,
(viii) any unrealized gains or losses in respect of Currency
Agreements,
(ix) any unrealized foreign currency transaction gains or
losses in respect of Indebtedness of any Person denominated in a
currency other than the functional currency of such Person, and
(x) any non-cash compensation charge arising from any grant of
stock, stock options or other equity-based awards.
In the case of any unusual or nonrecurring gain, loss or
charge not included in Consolidated Net Income pursuant to clause (v) above in
any determination thereof, the Company will deliver an Officer's Certificate to
the Trustee promptly after the date on which Consolidated Net Income is so
determined, setting forth the nature and amount of such unusual or nonrecurring
gain, loss or charge.
"Consolidated Total Assets" means, as of any date of
determination, the total assets shown on the consolidated balance sheet of the
Company and its Restricted Subsidiaries as of the most recent date for which
such a balance sheet is available, determined on a consolidated basis in
accordance with GAAP (and, in the case of any determination relating to any
Incurrence of Indebtedness or any Investment, on a pro forma basis including any
property or assets being acquired in connection therewith), provided that for
purposes of paragraph (b) of Section 406 and the definition of "Permitted
Investment," Consolidated Total Assets shall not be less than $2,006 million.
"Consolidation" means the consolidation of the accounts of
each of the Restricted Subsidiaries with those of the Company in accordance with
GAAP; provided that "Consolidation" will not include consolidation of the
accounts of any Unrestricted Subsidiary, but the interest of the Company or any
Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an
investment. The term "Consolidated" has a correlative meaning.
"Convertible Notes" means, collectively, the Company's 5 1/2%
Convertible Subordinated Notes due 2001 and its 5 1/2% Convertible Subordinated
Notes due 2003.
"Corporate Trust Office" means the principal office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office on the Issue Date is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Currency Agreement" means, in respect of a Person, any
foreign exchange contract, currency swap agreement or other similar agreement or
arrangement (including derivative agreements or arrangements), as to which such
Person is a party or a beneficiary.
"Default" means any event or condition that is, or after
notice or passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees
and successors.
"Designated Senior Indebtedness" means (i) the Bank
Indebtedness and (ii) any other Senior Indebtedness that, at the date of
determination, has an aggregate principal amount equal to or under which, at the
date of determination, the holders thereof are committed to lend up to, at least
$25.0 million and is specifically designated by the Company in an agreement or
instrument evidencing or governing such Senior Indebtedness as "Designated
Senior Indebtedness" for purposes of this Indenture.
"Disinterested Director" means, with respect to any Affiliate
Transaction, a member of the Board of Directors having no material direct or
indirect financial interest in or with respect to such Affiliate Transaction. A
member of the Board of Directors shall not be deemed to have such a financial
interest by reason of such member's holding Capital Stock of the Company or a
Parent or any options, warrants or other rights in respect of such Capital
Stock.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock (other than Management Stock) that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable) or upon the happening of any event (other than following the
occurrence of a Change of Control or other similar event described under such
terms as a "change of control," or an Asset Disposition) (i) matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii)
is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii)
is redeemable at the option of the holder thereof (other than following the
occurrence of a Change of Control or other similar event described under such
terms as a "change of control," or an Asset Disposition), in whole or in part,
in each case on or prior to the final Stated Maturity of the Notes.
"Domestic Subsidiary" means any Restricted Subsidiary of the
Company other than a Foreign Subsidiary.
"Equity Offering" means a sale of Capital Stock (other than
Disqualified Stock) (x) that is a sale of Capital Stock of the Company, or (y)
proceeds of which in an amount equal to or exceeding the Redemption Amount are
contributed to the Company or any of its Restricted Subsidiaries.
"Equity Tender Offer" means the self-tender offer by the
Company to purchase shares of its common stock (or options therefor) as part of
the Strategic Restructuring.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Company's 9 3/4% Senior
Subordinated Notes Due 2008, containing terms substantially identical to the
Initial Notes or any Initial Additional Notes (except that (i) such Exchange
Notes shall not contain terms with respect to transfer restrictions and shall be
registered under the Securities Act, and (ii) certain provisions relating to an
increase in the stated rate of interest thereon shall be eliminated), that are
issued and exchanged for (a) the Initial Notes, as provided for in a
registration rights agreement relating to such Initial Notes and this Indenture,
or (b) such Initial Additional Notes as may be provided in any registration
rights agreement relating to such Additional Notes and this Indenture (including
any amendment or supplement hereto).
"Excluded Contribution" means Net Cash Proceeds, or the fair
value, as determined in good faith by the Board of Directors, of property or
assets, received by the Company as capital contributions to the Company after
the Issue Date or from the issuance or sale (other than to a Restricted
Subsidiary) of Capital Stock (other than Disqualified Stock) of the Company, in
each case to the extent designated as an Excluded Contribution pursuant to an
Officer's Certificate of the Company and not previously included in the
calculation set forth in subparagraph (a)(3)(B)(x) of Section 408 for purposes
of determining whether a Restricted Payment may be made.
"Financing Disposition" means any sale, transfer, conveyance
or other disposition of property or assets by the Company or any Subsidiary
thereof to any Receivables Entity, or by any Receivables Subsidiary, in each
case in connection with
the Incurrence by a Receivables Entity of Indebtedness, or obligations to make
payments to the obligor on Indebtedness, which may be secured by a Lien in
respect of such property or assets.
"Foreign Subsidiary" means (a) any Restricted Subsidiary of
the Company that is not organized under the laws of the United States of America
or any state thereof or the District of Columbia and (b) any Restricted
Subsidiary of the Company that has no material assets other than securities of
one or more Foreign Subsidiaries, and other assets relating to an ownership
interest in any such securities or Subsidiaries.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect on the Issue Date (for purposes of the
definitions of the terms "Con solidated Coverage Ratio," "Consolidated EBITDA,"
"Consolidated Interest Expense," "Consolidated Net Income" and "Consolidated
Total Assets," all defined terms in this Indenture to the extent used in or
relating to any of the foregoing definitions, and all ratios and computations
based on any of the foregoing definitions) and as in effect from time to time
(for all other purposes of this Indenture), including those set forth in the
opinions and pro nouncements 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 approved by a significant segment of the accounting profession.
All ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person; provided that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor Designated Senior Indebtedness" means, with respect
to any Note Guarantor, (i) the Indebtedness of such Note Guarantor in respect of
Bank Indebtedness and (ii) any other Guarantor Senior Indebtedness of such Note
Guarantor that, at the date of determination, has an aggregate principal amount
equal to or under which, at the date of determination, the holders thereof are
committed to lend up to, at least $25.0 million and is specifically designated
by such Note Guarantor in an agreement or instrument evidencing or governing
such Guarantor Senior Indebtedness as "Guarantor Designated Senior Indebtedness"
for purposes of this Indenture.
"Guarantor Senior Indebtedness" means, with respect to any
Note
Guarantor, the following obligations, whether outstanding on the date of this
Indenture or thereafter issued, without duplication: (i) any Guarantee of Bank
Indebtedness by such Note Guarantor and all other Guarantees by such Note
Guarantor of Senior Indebtedness of the Company or Guarantor Senior Indebtedness
of any other Note Guarantor; (ii) all obligations in respect of any Receivables
Financing; and (iii) all obligations consisting of the principal of and premium,
if any, and accrued and unpaid interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Note Guarantor regardless of whether post-filing interest is allowed in such
proceeding) on, and fees and other amounts owing in respect of, all other
Indebtedness of the Note Guarantor, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that the obligations in respect of such Indebtedness are not
senior in right of payment to the obligations of such Note Guarantor under its
Note Guarantee; provided, however, that Guarantor Senior Indebtedness shall not
include (1) any obligations of such Note Guarantor to the Company or any other
Subsidiary of the Company, (2) any liability for Federal, state, local, foreign
or other taxes owed or owing by such Note Guarantor, (3) any accounts payable or
other liability to trade creditors arising in the ordinary course of business
(including Guarantees thereof or instruments evidencing such liabilities), (4)
any Indebtedness of such Note Guarantor (or Guarantee by such Note Guarantor of
Indebtedness) that is expressly subordinated in right of payment to any other
Indebtedness of such Note Guarantor (or Guarantee by such Note Guarantor of
Indebtedness), (5) any Capital Stock of such Note Guarantor or (6) that portion
of any Indebtedness of such Note Guarantor that is Incurred by such Note
Guarantor in violation of Section 406 (but no such violation shall be deemed to
exist for purposes of this clause (6) if any holder of such Indebtedness or such
holder's repre sentative shall have received an Officer's Certificate to the
effect that such Incurrence of such Indebtedness does not (or that the
Incurrence by such Note Guarantor of the entire committed amount thereof at the
date on which the initial borrowing thereunder is made would not) violate such
covenant). If any Guarantor Senior Indebtedness is disallowed, avoided or
subordinated pursuant to the provisions of Section 548 of Title 11 of the United
States Code or any applicable state fraudulent conveyance law, such Guarantor
Senior Indebtedness never theless will constitute Guarantor Senior Indebtedness.
"Guarantor Senior Subordinated Indebtedness" means, with
respect to a Note Guarantor, (i) the obligations of such Note Guarantor under
its Note Guarantee and (ii) any other Indebtedness of such Note Guarantor that
ranks pari passu in right of payment with the obligations of such Note Guarantor
under its Note Guarantee.
"Guarantor Subordinated Obligations" means, with respect to a
Note
Guarantor, any Indebtedness of such Note Guarantor (whether outstanding on the
Issue Date or thereafter Incurred) that is expressly subordinated in right of
payment to the obligations of such Note Guarantor under the Note Guarantee
pursuant to a written agreement.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered in the Note Register.
"Holding Company Expenses" means (i) costs (including all
professional fees and expenses) incurred by a Parent to comply with its
reporting obligations under federal or state laws or under this Indenture,
including any reports filed with respect to the Securities Act, Exchange Act or
the respective rules and regulations promulgated thereunder, (ii) in
demnification obligations of a Parent owing to directors, officers, employees or
other Persons under its charter or by-laws or pursuant to written agreements
with any such Person, (iii) fees and expenses payable by a Parent in connection
with the Transactions, (iv) other operational expenses of a Parent incurred in
the ordinary course of business not to exceed $1.0 million in any fiscal year,
and (v) expenses incurred by a Parent in connection with any public offering of
Capital Stock or Indebtedness (x) where the net proceeds of such offering are
intended to be received by or contributed or loaned to the Company or a
Restricted Subsidiary, or (y) in a prorated amount of such expenses in
proportion to the amount of such net proceeds intended to be so received,
contributed or loaned, or (z) otherwise on an interim basis prior to completion
of such offering so long as a Parent shall cause the amount of such expenses to
be repaid to the Company or the relevant Restricted Subsidiary out of the
proceeds of such offering promptly if completed.
"Incur" means issue, assume, enter into any Guarantee of,
incur or otherwise become liable for; provided, however, that any Indebtedness
or Capital Stock of a Person existing at the time such Person becomes a
Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be
deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary.
Accrual of interest, the accretion of accreted value and the payment of interest
in the form of additional Indebtedness will not be deemed to be an Incurrence of
Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on
which interest is payable through the issuance of additional Indebtedness) shall
be deemed Incurred at the time of original issuance of the Indebtedness at the
initial accreted amount thereof.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed
money,
(ii) the principal of obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments,
(iii) all reimbursement obligations of such Person in respect
of letters of credit or other similar instruments (the amount of such
obligations being equal at any time to the aggregate then undrawn and
unexpired amount of such letters of credit or other instruments plus
the aggregate amount of drawings thereunder that have not then been
reimbursed),
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property (except Trade Payables), which
purchase price is due more than one year after the date of placing such
property in final service or taking final delivery and title thereto,
(v) all Capitalized Lease Obligations of such Person,
(vi) the redemption, repayment or other repurchase amount of
such Person with respect to any Disqualified Stock of such Person or
(if such Person is a Subsidiary of the Company other than a Note
Guarantor) any Preferred Stock of such Subsidiary, but excluding, in
each case, any accrued dividends (the amount of such obligation to be
equal at any time to the maximum fixed involuntary redemption,
repayment or re purchase price for such Capital Stock, or if less (or
if such Capital Stock has no such fixed price), to the involuntary
redemption, repayment or repurchase price therefor calculated in
accordance with the terms thereof as if then redeemed, repaid or re
purchased, and if such price is based upon or measured by the fair
market value of such Capital Stock, such fair market value shall be as
determined in good faith by the Board of Directors or the board of
directors or other governing body of the issuer of such Capital Stock),
(vii) all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed
by such Person; provided that the amount of Indebtedness of such Person
shall be the lesser of (A) the fair market value of such asset at such
date of determination (as
determined in good faith by the Company) and (B) the amount of such
Indebtedness of such other Persons,
(viii) all Indebtedness of other Persons to the extent
Guaranteed by such Person, and
(ix) to the extent not otherwise included in this definition,
net Hedging Obligations of such Person (the amount of any such
obligation to be equal at any time to the termination value of such
agreement or arrangement giving rise to such Hedging Obligation that
would be payable by such Person at such time).
The amount of Indebtedness of any Person at any date shall be
determined as set forth above or otherwise provided in this Indenture, or
otherwise shall equal the amount thereof that would appear on a balance sheet of
such Person (excluding any notes thereto) prepared in accordance with GAAP.
"Initial Additional Notes" means Additional Notes issued in an
offering not registered under the Securities Act.
"Initial Notes" means the Company's 9 3/4% Senior Subordinated
Notes Due 2008, issued on the Issue Date (and any Notes issued in respect
thereof pursuant to Section 304, 305, 306, 312(c), 312(d) or 1008).
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Interest Payment Date" means, when used with respect to any
Note and any installment of interest thereon, the date specified in such Note as
the fixed date on which such installment of interest is due and payable, as set
forth in such Note.
"Interest Rate Agreement" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement (including derivative agreements or
arrangements), as to which such Person is party or a beneficiary.
"Inventory" means goods held for sale or lease by a Person in
the
ordinary course of business, net of any reserve for goods that have been
segregated by such Person to be returned to the applicable vendor for credit, as
determined in accordance with GAAP.
"Investment" in any Person by any other Person means any
direct or indirect advance, loan or other extension of credit (other than to
customers, suppliers, directors, officers or employees of any Person in the
ordinary course of business) or capital contribution (by means of any transfer
of cash or other property to others or any payment for property or services for
the account or use of others) to, or any purchase or acquisition of Capital
Stock, Indebtedness or other similar instruments issued by, such Person. For
purposes of the definition of "Unrestricted Subsidiary" and Section 408, (i)
"Investment" shall include the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary, provided that upon a redesignation of such Subsidiary
as a Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount (if positive)
equal to (x) the Com pany's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation, (ii) any property transferred to
or from an Unrestricted Subsidiary shall be valued at its fair market value at
the time of such transfer, and (iii) in each case under clause (i) or (ii)
above, fair market value shall be as determined in good faith by the Board of
Directors. Guarantees shall not be deemed to be Investments. The amount of any
Investment outstanding at any time shall be the original cost of such
Investment, reduced (at the Company's option) by any dividend, distribution,
interest payment, return of capital, repayment or other amount or value received
in respect of such Investment; provided that, to the extent that the amount of
Restricted Payments outstanding at any time is so reduced by any portion of any
such amount or value that would otherwise be included in the calculation of
Consolidated Net Income, such portion of such amount or value shall not be so
included for purposes of calculating the amount of Restricted Payments that may
be made pursuant to paragraph (a) of Section 408.
"Investor" means CDR-PC Acquisition, L.L.C., a Delaware
limited liability company, and its successors and assigns.
"Issue Date" means the first date on which Initial Notes are
issued.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien
or charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Management Advances" means (1) loans or advances made to
directors, officers or employees of a Parent, the Company or any Restricted
Subsidiary (x) in respect of travel, entertainment or moving-related expenses
incurred in the ordinary course of business, (y) in respect of moving-related
expenses incurred in connection with any closing or con solidation of any
facility, or (z) in the ordinary course of business and (in the case of this
clause (z)) not exceeding $5.0 million in the aggregate outstanding at any time,
(2) promissory notes of Management Investors acquired in connection with the
issuance of Management Stock to such Management Investors, (3) loans to
Management Investors of funds applied to purchase Management Stock, (4)
Management Guarantees, or (5) other Guarantees of borrowings by Management
Investors in connection with the purchase of Management Stock, which Guarantees
are permitted under Section 406.
"Management Guarantees" means guarantees (x) of up to an
aggregate principal amount of $25.0 million of borrowings by Management
Investors in connection with their purchase of Management Stock or (y) made on
behalf of, or in respect of loans or advances made to, directors, officers or
employees of a Parent, the Company or any Restricted Subsidiary (1) in respect
of travel, entertainment and moving-related expenses incurred in the ordinary
course of business, or (2) in the ordinary course of business and (in the case
of this clause (2)) not exceeding $5.0 million in the aggregate outstanding at
any time.
"Management Investors" means the officers, directors,
employees and other members of the management of a Parent, the Company or any of
their respective Subsidiaries, or family members or relatives thereof, or trusts
or partnerships for the benefit of any of the foregoing, or any of their heirs,
executors, successors and legal representatives, who at any date beneficially
own or have the right to acquire, directly or indirectly, Capital Stock of the
Company or a Parent.
"Management Stock" means Capital Stock of the Company or a
Parent (including any options, warrants or other rights in respect thereof) held
by any of the Manage ment Investors.
"Material Domestic Subsidiary" means a Domestic Subsidiary of
the Company that, as of the end of any fiscal quarter of the Company ending
after the Issue Date, has tangible assets of more than $3.0 million as reflected
in the consolidated
balance sheet of the Company as of such date.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its
successors.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring person of Indebtedness or other
obligations relating to the properties or assets that are the subject of such
Asset Disposition or received in any other non-cash form) therefrom, in each
case net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred, and all Federal, state, provincial, foreign
and local taxes required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition (including as a consequence of any
transfer of funds in connection with the application thereof in accordance with
Section 410), (ii) all payments made, and all installment payments required to
be made, on any Indebtedness that is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon such assets, or that
must by its terms, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law, be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of such
Asset Disposition, or to any other Person (other than the Company or a
Restricted Subsidiary) owning a beneficial interest in the assets disposed of in
such Asset Disposition and (iv) any liabilities or obligations associated with
the assets disposed of in such Asset Disposition and retained by the Company or
any Restricted Subsidiary after such Asset Disposition, including without
limitation pension and other post-employment benefit liabilities, liabilities
related to environmental matters, and liabilities relating to any
indemnification obligations associated with such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of
any securities of the Company or any Subsidiary by the Company or any
Subsidiary, or any capital con tribution, means the cash proceeds of such
issuance, sale or contribution net of attorneys' fees, accountants' fees,
underwriters' or placement agents' fees, discounts or commissions and brokerage,
consultant and other fees actually incurred in connection with such issuance,
sale or contribution and net of taxes paid or payable as a result thereof.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Note Guarantee" means any of (i) the Guarantee of the Notes
by the Domestic Subsidiaries to be entered into on the Issue Date, as provided
in Section 1301, and (ii) any Guarantee that may from time to time be entered
into by a Restricted Subsidiary of the Company pursuant to Section 413.
"Note Guarantor" means any Restricted Subsidiary of the
Company that enters into a Note Guarantee.
"Notes" means the Initial Notes, any Additional Notes, and the
Exchange Notes.
"Officer" means, with respect to the Company or any other
obligor upon the Notes, the Chairman of the Board, the President, the Chief
Executive Officer, the Chief Financial Officer, any Vice President, the
Controller, the Treasurer or the Secretary (a) of such Person or (b) if such
Person is owned or managed by a single entity, of such entity.
"Officer's Certificate" means, with respect to the Company or
any other obligor upon the Notes, a certificate signed by one Officer of such
Person.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Original Notes" means the Initial Notes and any Exchange
Notes issued in exchange therefor.
"Outstanding" when used with respect to Notes means, as of the
date of determination, all Notes theretofore authenticated and delivered under
this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Notes, provided that, if
such Notes are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor reason ably
satisfactory to the Trustee has been
made; and
(iii) Notes in exchange for or in lieu of which other Notes
have been authen ticated and delivered pursuant to this Indenture.
A Note does not cease to be Outstanding because the Company or
any Affiliate of the Company holds the Note, provided that in determining
whether the Holders of the re quisite amount of Outstanding Notes have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Notes owned by the Company or any Affiliate of the Company shall be disregarded
and deemed not to be Outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which the
Trustee actually knows are so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the reasonable satisfaction of the Trustee the pledgee's right to
act with respect to such Notes and that the pledgee is not the Company or an
Affiliate of the Company.
"Parent" means any Person of which the Company at any time is
or becomes a Subsidiary after the Issue Date.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Notes on behalf of
the Company.
"Permitted Holder" means any of the following: (i) any of the
Investor, Management Investors, CDR, CDR Fund V and their respective Affiliates;
(ii) any investment fund or vehicle managed, sponsored or advised by CDR; (iii)
any limited or general partners of, or other investors in, any of the Investors
and their respective Affiliates, or any such investment fund or vehicle; and
(iv) any Person acting in the capacity of an underwriter in connection with a
public or private offering of Capital Stock of a Parent or the Company.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in, or consisting of, any of the following:
(i) a Restricted Subsidiary, the Company, or a Person that
will, upon the making of such Investment, become a Restricted
Subsidiary;
(ii) another Person if as a result of such Investment such
other Person is
merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, or is liquidated into, the Company or
a Restricted Subsidiary;
(iii) Temporary Cash Investments or Cash Equivalents;
(iv) receivables owing to the Company or any Restricted
Subsidiary, if created or acquired in the ordinary course of business;
(v) any securities or other Investments received as
consideration in, or retained in connection with, sales or other
dispositions of property or assets, including Asset Dispositions made
in compliance with Section 410;
(vi) securities or other Investments received in settlement of
debts created in the ordinary course of business and owing to the
Company or any Restricted Sub sidiary, or as a result of foreclosure,
perfection or enforcement of any Lien, or in satisfaction of judgments,
including in connection with any bankruptcy proceeding or other
reorganization of another Person;
(vii) Investments in existence or made pursuant to legally
binding written commitments in existence on the Issue Date;
(viii) Currency Agreements, Interest Rate Agreements and
related Hedging Obligations, which obligations are Incurred in
compliance with Section 406;
(ix) pledges or deposits (x) with respect to leases or
utilities provided to third parties in the ordinary course of business
or (y) otherwise described in the definition of "Permitted Liens" or
made in connection with Liens permitted under Section 412;
(x) Notes;
(xi) any Investment to the extent made using Capital Stock of
the Company (other than Disqualified Stock), or Capital Stock of a
Parent, as consideration;
(xii) any Investment in a joint venture or similar entity that
is not a Restricted Subsidiary, or in any Related Business, in an
aggregate amount outstanding at any time not to exceed 5% of
Consolidated Total Assets;
(xiii) (1) Investments in any Receivables Subsidiary, or in
connection with
a Financing Disposition by or to any Receivables Entity, including
Investments of funds held in accounts permitted or required by the
arrangements governing such Financing Disposition or any related
Indebtedness, or (2) any promissory note issued by the Company or a
Parent, provided that if such Parent receives cash from the relevant Re
ceivables Entity in exchange for such note, an equal cash amount is
contributed by such Parent to the Company;
(xiv) bonds secured by assets leased to and operated by the
Company or any Restricted Subsidiary that were issued in connection
with the financing of such assets so long as the Company or any
Restricted Subsidiary may obtain title to such assets at any time by
paying a nominal fee, canceling such bonds and terminating the
transaction;
(xv) Management Advances; and
(xvi) other Investments in an aggregate amount outstanding at
any time not to exceed 2.5% of Consolidated Total Assets.
"Permitted Liens" means:
(a) Liens for taxes, assessments or other governmental charges
not yet de linquent or the nonpayment of which in the aggregate would
not reasonably be expected to have a material adverse effect on the
Company and its Restricted Subsidiaries, or that are being contested in
good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Company or a Sub
sidiary thereof, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, re pairmen's or other like Liens arising in the ordinary
course of business in respect of obligations that are not overdue for a
period of more than 60 days, or that are bonded or that are being
contested in good faith and by appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers'
compensation, unemployment insurance and other social security and
other similar legislation or other insurance-related obligations
(including, without limitation, pledges or deposits securing liability
to insurance carriers under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of
bids, tenders, trade, government or other contracts (other than for
borrowed money), obligations for utilities, leases, licenses, statutory
obligations, completion guarantees, surety, judg ment, appeal or
performance bonds, other similar bonds, instruments or obligations, and
other obligations of a like nature incurred in the ordinary course of
business;
(e) easements (including reciprocal easement agreements),
rights-of-way, building, zoning and similar restrictions, utility
agreements, covenants, reservations, restrictions, encroachments,
changes, and other similar encumbrances or title defects incurred, or
leases or subleases granted to others, in the ordinary course of
business, which do not in the aggregate materially interfere with the
ordinary conduct of the business of the Company and its Subsidiaries,
taken as a whole;
(f) Liens existing on, or provided for under written
arrangements existing on, the Issue Date, or (in the case of any such
Liens securing Indebtedness of the Company or any of its Subsidiaries
existing or arising under written arrangements existing on the Issue
Date) securing any Refinancing Indebtedness in respect of such
Indebtedness so long as the Lien securing such Refinancing Indebtedness
is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or distributions in
respect thereof) that secured (or under such written arrangements could
secure) the original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions,
encumbrances or any other matters of record that have been placed by
any developer, landlord or other third party on property over which the
Company or any Restricted Subsidiary of the Com pany has easement
rights or on any leased property and subordination or similar
agreements relating thereto and (ii) any condemnation or eminent domain
proceedings affecting any real property;
(h) Liens securing Hedging Obligations, Purchase Money
Obligations or Capitalized Lease Obligations Incurred in compliance
with Section 406;
(i) Liens arising out of judgments, decrees, orders or awards
in respect of which the Company shall in good faith be prosecuting an
appeal or proceedings for review, which appeal or proceedings shall not
have been finally terminated, or
if the period within which such appeal or proceedings may be initiated
shall not have expired;
(j) leases, subleases, licenses or sublicenses to third
parties;
(k) Liens securing (1) Indebtedness Incurred in compliance
with clause (b)(i), (b)(iv), (b)(v), (b)(vii), (b)(viii)(E) or (b)(x)
of Section 406, or clause (b)(iii) thereof (other than Refinancing
Indebtedness Incurred in respect of Indebtedness described in paragraph
(a) thereof), (2) Bank Indebtedness, (3) commercial bank Indebtedness,
(4) Indebtedness of any Restricted Subsidiary that is not a Note
Guarantor, (5) the Notes or (6) Indebtedness or other obligations of
any Receivables Entity;
(l) Liens existing on property or assets of a Person at the
time such Person becomes a Subsidiary of the Company (or at the time
the Company or a Restricted Subsidiary acquires such property or
assets); provided, however, that such Liens are not created in
connection with, or in contemplation of, such other Person becoming
such a Subsidiary (or such acquisition of such property or assets), and
that such Liens are limited to all or part of the same property or
assets (plus improvements, accessions, proceeds or dividends or
distributions in respect thereof) that secured (or, under the written
arrangements under which such Liens arose, could secure) the
obligations to which such Liens relate;
(m) Liens on Capital Stock or other securities of an
Unrestricted Subsidiary that secure Indebtedness or other obligations
of such Unrestricted Subsidiary;
(n) any encumbrance or restriction (including, but not limited
to, put and call agreements) with respect to Capital Stock of any joint
venture or similar arrangement pursuant to any joint venture or similar
agreement; and
(o) Liens securing Refinancing Indebtedness Incurred in
respect of any Indebtedness secured by, or securing any refinancing,
refunding, extension, renewal or replacement (in whole or in part) of
any other obligation secured by, any other Permitted Liens, provided
that any such new Lien is limited to all or part of the same property
or assets (plus improvements, accessions, proceeds or dividends or dis
tributions in respect thereof) that secured (or, under the written
arrangements under which the original Lien arose, could secure) the
obligations to which such Liens relate.
"Permitted Parent Payments" means loans, advances, dividends
or distributions to a Parent or other payments by the Company or any Restricted
Subsidiary (A) to permit such Parent to satisfy obligations under the CDR
Agreements or (B) to pay or permit such Parent to pay any Holding Company
Expenses or any Related Taxes.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means a city or any political subdivision
thereof referred to in Article 3 and initially designated under Section 402.
"Predecessor Notes" of any particular Note means every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in lieu of a mutilated, destroyed,
lost or stolen Note shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Note.
"Preferred Stock" as applied to the Capital Stock of any
corporation means Capital Stock of any class or classes (however designated)
that by its terms is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over shares of Capital Stock of any other class
of such corporation.
"Purchase Money Obligations" means any Indebtedness Incurred
to finance or refinance the acquisition, leasing, construction or improvement of
property (real or personal) or assets, and whether acquired through the direct
acquisition of such property or assets or the acquisition of the Capital Stock
of any Person owning such property or assets, or otherwise.
"QIB" or "Qualified Institutional Buyer" means a "qualified
institutional buyer," as that term is defined in Rule 144A under the Securities
Act.
"Receivable" means a right to receive payment arising from a
sale or lease of goods or services by a Person pursuant to an arrangement with
another Person pursuant to which such other Person is obligated to pay for goods
or services under terms that permit the purchase of such goods and services on
credit, as determined in accordance with GAAP.
"Receivables Entity" means (x) any Receivables Subsidiary or
(y) any other Person that is engaged in the business of acquiring, selling,
collecting, financing or refinancing Receivables, accounts (as defined in the
Uniform Commercial Code as in effect in any jurisdiction from time to time),
other accounts and/or other receivables, and/or related assets.
"Receivables Fees" means distributions or payments made
directly or by means of discounts with respect to any participation interest
issued or sold in connection with, and other fees paid to a Person that is not a
Restricted Subsidiary in connection with, any Re ceivables Financing.
"Receivables Financing" means any financing of Receivables of
the Company or any Restricted Subsidiary that have been transferred to a
Receivables Entity in a Financing Disposition.
"Receivables Subsidiary" means a Subsidiary of the Company
that (a) is engaged solely in the business of acquiring, selling, collecting,
financing or refinancing Receivables, accounts (as defined in the Uniform
Commercial Code as in effect in any jurisdiction from time to time) and other
accounts and receivables (including any thereof constituting or evidenced by
chattel paper, instruments or general intangibles), all proceeds thereof and all
rights (contractual and other), collateral and other assets relating thereto,
and any business or activities incidental or related to such business, and (b)
is designated as a "Receivables Subsidiary" by the Board of Directors.
"Redemption Date" when used with respect to any Note to be
redeemed or purchased means the date fixed for such redemption or purchase by or
pursuant to this Indenture and the Notes.
"Redemption Price" when used with respect to any Note to be
redeemed or purchased means the price at which it is to be redeemed or purchased
pursuant to this Indenture and the Notes.
"refinance" means refinance, refund, replace, renew, repay,
modify, restate, defer, substitute, supplement, reissue, resell or extend
(including pursuant to any defeasance or discharge mechanism); and the terms
"refinances," "refinanced" and "refinancing" as used for any purpose in this
Indenture shall have a correlative meaning.
"Refinancing Indebtedness" means Indebtedness that is Incurred
to
refinance any Indebtedness existing on the Issue Date or Incurred in compliance
with this Indenture (including Indebtedness of the Company that refinances
Indebtedness of any Restricted Subsidiary (to the extent permitted in this
Indenture) and Indebtedness of any Restricted Subsidiary that refinances
Indebtedness of another Restricted Subsidiary) including Indebtedness that
refinances Refinancing Indebtedness; provided that (1) if the Indebtedness being
refinanced is Subordinated Obligations or Guarantor Subordinated Obligations,
the Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of
the Indebtedness being refinanced, (2) such Refinancing Indebtedness is Incurred
in an aggregate principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the sum of (x) the
aggregate principal amount (or if issued with original issue discount, the
aggregate accreted value) then outstanding of the Indebtedness being refinanced,
plus (y) fees, under writing discounts, premiums and other costs and expenses
incurred in connection with such Refinancing Indebtedness and (3) Refinancing
Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that
is not a Note Guarantor that refinances Indebtedness of the Company that was
incurred by the Company pursuant to paragraph (a) of Section 406 or (y)
Indebtedness of the Company or a Restricted Subsidiary that refinances
Indebtedness of an Unrestricted Subsidiary.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified for that purpose in Section 301.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially
in the form attached hereto as Exhibit C.
"Related Business" means those businesses in which the Company
or any of its Subsidiaries is engaged on the date of this Indenture, or that are
related, complementary, incidental or ancillary thereto or extensions,
developments or expansions thereof.
"Related Taxes" means (x) any taxes, charges or assessments,
including but not limited to sales, use, transfer, rental, ad valorem,
value-added, stamp, property, consumption, franchise, license, capital, net
worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges
or assessments (other than federal, state or local taxes measured by income and
federal, state or local withholding imposed on payments made by a Parent),
required to be paid by such Parent by virtue of its being incorporated or having
Capital Stock outstanding (but not by virtue of owning stock or
other equity interests of any corporation or other entity other than the Company
or any of its Subsidiaries), or being a holding company parent of the Company or
having received Capital Stock of the Company as a capital contribution, or
receiving dividends from or other distributions in respect of the Capital Stock
of the Company, or having guaranteed any obligations of the Company or any
Subsidiary thereof, or having made any payment in respect of any of the items
for which the Company is permitted to make payments to such Parent pursuant to
Section 408, or (y) any other federal, state, foreign, provincial or local taxes
measured by income for which such Parent is liable up to an amount not to exceed
with respect to such federal taxes the amount of any such taxes that the Company
would have been required to pay on a separate company basis or on a consolidated
basis if the Company had filed a consolidated return on behalf of an affiliated
group (as defined in Section 1504 of the Code, or an analogous provision of
state, local or foreign law) of which it were the common parent, or with respect
to state and local taxes, on a combined basis if the Company had filed a
combined return on behalf of an affiliated group consisting only of the Company
and its Subsidiaries.
"Representative" means the trustee, agent or representative
(if any) for an issue of Senior Indebtedness.
"Resale Restriction Termination Date" means, with respect to
any Note, the date that is two years (or such other period as may hereafter be
provided under Rule 144(k) under the Securities Act or any successor provision
thereto as permitting the resale by non-affiliates of Restricted Securities
without restriction) after the later of the original issue date in respect of
such Note and the last date on which the Company or any Affiliate of the Company
was the owner of such Note (or any Predecessor Note thereto).
"Responsible Officer" when used with respect to the Trustee
means any officer in the corporate trust department of the Trustee, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"Restricted Payment Transaction" means any Restricted Payment
permitted pursuant to Section 408, any Permitted Payment, any Permitted
Investment, or any transaction specifically excluded from the definition of the
term "Restricted Payment."
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee
shall be entitled
2
to receive, at its request, and conclusively rely on an Opinion of Counsel with
respect to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary. For purposes of clause (i) of the
definition of the term "Consolidated Net Income," ▇▇▇▇▇▇ Stationery Limited, a
company organized under the laws of England and Wales, and any successor
thereto, shall be deemed to be a Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Agreement" means the credit agreement dated as
of June 9, 1998, among the Company, the lenders named therein, The Chase
Manhattan Bank, as administrative agent, Bankers Trust Company, as syndication
agent, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as documentation agent, as such
agreement may be assumed by any successor in interest, and as such agreement may
be amended, supplemented, waived or otherwise modified from time to time, or
refunded, refinanced, restructured, replaced, renewed, repaid, increased or
extended from time to time (whether in whole or in part, whether with the
original agent and lenders or other agents and lenders or otherwise, and whether
provided under the original Senior Credit Agreement or otherwise).
"Senior Credit Facility" means the collective reference to the
Senior Credit Agreement, any Credit Documents (as defined therein), any notes
and letters of credit issued pursuant thereto and any guarantee and collateral
agreement, patent and trademark security agreement, mortgages, letter of credit
applications and other security agreements and collateral documents, and other
instruments and documents, executed and delivered pursuant to or in connection
with any of the foregoing, in each case as the same may be amended,
supplemented, waived or otherwise modified from time to time, or refunded,
refinanced, restructured, replaced, renewed, repaid, increased or extended from
time to time (whether in whole or in part, whether with the original agent and
lenders or other agents and lenders or otherwise, and whether provided under the
original Senior Credit Agreement or one or more other credit agreements,
indentures (including this Indenture) or financing agreements or otherwise).
Without limiting the generality of the foregoing, the term "Senior Credit
Facility" shall include any agreement (i) changing the maturity of any
Indebtedness
incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the
Company as additional borrowers or guarantors thereunder, (iii) increasing the
amount of Indebtedness incurred thereunder or available to be borrowed
thereunder or (iv) otherwise altering the terms and conditions thereof.
"Senior Indebtedness" means, with respect to the Company, the
following obligations, whether outstanding on the date of this Indenture or
thereafter issued, without duplication: (i) all Bank Indebtedness, (ii) all
obligations in respect of any Receivables Financing, and (iii) all obligations
consisting of the principal of and premium, if any, and accrued and unpaid
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company regardless of whether
post-filing interest is allowed in such proceeding) on, and fees and other
amounts owing in respect of, all other Indebtedness of the Company, unless, in
the instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is expressly provided that the obligations in respect of such
Indebtedness are not senior in right of payment to the Notes; provided, however,
that Senior Indebtedness shall not include (1) any obligation of the Company to
any Subsidiary, (2) any liability for Federal, state, foreign, local or other
taxes owed or owing by the Company, (3) any accounts payable or other liability
to trade creditors arising in the ordinary course of business (including
Guarantees thereof or instruments evidencing such liabilities), (4) any
Indebtedness of the Company (or Guarantee by the Company of any Indebtedness)
that is expressly subordinated in right of payment to any other Indebtedness of
the Company (or Guarantee by the Company of any Indebtedness), (5) the
Convertible Notes, (6) any Capital Stock of the Company or (7) that portion of
any Indebtedness of the Company that is Incurred by the Company in violation of
Section 406 (but no such violation shall be deemed to exist for purposes of this
clause (7) if any holder of such Indebtedness or such holder's representative
shall have received an Officer's Certificate of the Company to the effect that
such Incurrence of such Indebtedness does not (or that the Incurrence by the
Company of the entire committed amount thereof at the date on which the initial
borrowing thereunder is made would not) violate Section 406). If any Senior
Indebtedness is disallowed, avoided or subordinated pursuant to the provisions
of Section 548 of Title 11 of the United States Code or any applicable state
fraudulent conveyance law, such Senior Indebtedness nevertheless will constitute
Senior Indebtedness.
"Senior Subordinated Indebtedness" means the Notes and any
other In debtedness of the Company that ranks pari passu with the Notes.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a
"significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC, as in effect on the Issue Date.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"S&P" means Standard & Poor's Ratings Service, a division of
The ▇▇▇▇▇▇- ▇▇▇▇ Companies, Inc., and its successors.
"Spin-off Distributions" means the formation and distribution
by the Company to its stockholders of Capital Stock of four separate companies
that will hold certain technology solutions, print management, education
supplies and corporate travel services businesses previously operated by the
Company.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency).
"Strategic Restructuring" means the comprehensive
restructuring of the Company, involving the Equity Tender Offer, the Spin-off
Distributions, the equity investment by the Investor, and related financing and
other transactions.
"Subordinated Obligations" means any Indebtedness of the
Company (whether outstanding on the date of this Indenture or thereafter
Incurred) that is expressly subordinated in right of payment to the Notes
pursuant to a written agreement. Indebtedness in respect of the Convertible
Notes shall not be deemed to be Subordinated Obligations.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other equity interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person
or (ii) one or more Subsidiaries of such Person.
"Successor Company" shall have the meaning assigned thereto in
clause (i) of Section 501.
"Temporary Cash Investments" means any of the following: (i)
any investment in (x) direct obligations of the United States of America or any
agency or instrumentality thereof or obligations Guaranteed by the United States
of America or any agency or in strumentality thereof or (y) direct obligations
of any foreign country recognized by the United States of America rated at least
"A" by S&P or "A-1" by ▇▇▇▇▇'▇ (or, in either case, the equivalent of such
rating by such organization or, if no rating of S&P or ▇▇▇▇▇'▇ then exists, the
equivalent of such rating by any nationally recognized rating organization),
(ii) overnight bank deposits, and investments in time deposit accounts,
certificates of deposit, bankers' acceptances and money market deposits (or,
with respect to foreign banks, similar instruments) maturing not more than one
year after the date of acquisition thereof issued by (x) any lender under the
Senior Credit Agreement or (y) a bank or trust company that is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital and surplus
aggregating in excess of $250 million (or the foreign currency equivalent
thereof), (iii) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (i) or (ii) above entered
into with a bank meeting the qualifications described in clause (ii) above, (iv)
Investments in commercial paper, maturing not more than one year after the date
of acquisition, with a rating at the time as of which any Investment therein is
made of "P-2" (or higher) according to ▇▇▇▇▇'▇ or "A-2" (or higher) according to
S&P (or, in either case, the equivalent of such rating by such organization or,
if no rating of S&P or ▇▇▇▇▇'▇ then exists, the equivalent of such rating by any
nationally recognized rating organization), (v) Investments in securities
maturing not more than one year after the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by S&P or "A" by ▇▇▇▇▇'▇ (or, in either case, the equivalent of
such rating by such organization or, if no rating of S&P or ▇▇▇▇▇'▇ then exists,
the equivalent of such rating by any nationally recognized rating organization),
(vi) investment funds investing 95% of their assets in securities of the type
described in clauses (i)-(v) above (which funds may also hold reasonable amounts
of cash pending investment and/or distribution), (vii) any money market deposit
accounts issued or offered by a domestic commercial bank or a commercial bank
organized and located in a country recognized by the United States of America,
in each case, having capital and surplus in excess of $250 million (or the
foreign currency equivalent thereof), or investments in money market funds
complying with the risk limiting conditions of Rule 2a-7 (or any successor rule)
of the SEC under the Investment Company Act of 1940, as amended, and (viii)
similar short-term investments approved by the Board of Directors in the
ordinary course of business.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Trade Payables" means, with respect to any Person, any
accounts payable or any indebtedness or monetary obligation to trade creditors
created, assumed or guaranteed by such Person arising in the ordinary course of
business in connection with the acquisition of goods or services.
"Transactions" means, collectively, the Strategic
Restructuring, the initial equity investment by the Investor, the offering and
issuance of the Initial Notes, the initial borrowings under the Senior Credit
Facility, the Equity Tender Offer, the Spin-off Distributions, the 2003 Note
Tender Offer, the 2001 Note Exchange Offer, and all other transactions relating
to the Strategic Restructuring or the financing thereof.
"Treasury Rate" means, with respect to a Redemption Date, the
yield to maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two Business Days prior to such Redemption Date (or, if such
Statistical Release is no longer published, any publicly available source or
similar market data)) most nearly equal to the period from such Redemption Date
to June 15, 2003; provided, however, that if the period from such Redemption
Date to June 15, 2003 is not equal to the constant maturity of the United States
Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States securities for which
such yields are given, except that if the period from such Re demption Date to
June 15, 2003 is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable pro visions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"2001 Note Exchange Offer" means the offer by the Company to
exchange shares of its common stock for its outstanding 5 1/2% Convertible
Subordinated Notes due 2001.
"2003 Note Tender Offer" means the offer by the Company to
purchase any and all of its outstanding 5 1/2% Convertible Subordinated Notes
due 2003.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination is an Unrestricted Subsidiary, as
designated by the Board of Directors in the manner provided below, and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Company or any other
Restricted Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided that either (A) the Subsidiary to be so designated
has total consolidated assets of $1,000 or less or (B) if such Subsidiary has
consolidated assets greater than $1,000, then such designation would be
permitted under Section 408. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately
after giving effect to such designation either (x) the Company could incur at
least $1.00 of additional Indebtedness under paragraph (a) of Section 406 or (y)
the Consolidated Coverage Ratio would be greater than it was immediately prior
to giving effect to such designation. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the Trustee
a copy of the resolution of the Company's Board of Directors giving effect to
such designation and an Officer's Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligation" means (x) any security that is
(i) a direct obligation of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case under the preceding clause (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation that
is specified in clause (x) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation that is so specified
and held, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
"Vice President" when used with respect to any Person means
any vice president of such Person, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock" of an entity means all classes of Capital Stock
of such entity then outstanding and normally entitled to vote in the election of
directors or all interests in such entity with the ability to control the
management or actions of such entity.
Section 102. Other Definitions.
Defined in
Term Section
"Act" .................................................... 108
"Affiliate Transaction"...................................... 411
"Agent Members".............................................. 312
"Amendment".................................................. 409
"Authentication Order"....................................... 303
"Bankruptcy Law"............................................. 601
"Blockage Notice"............................................ 1403
"Covenant Defeasance"........................................ 1203
"Custodian".................................................. 601
"Defaulted Interest"......................................... 307
"Defeasance"................................................. 1202
"Defeased Notes"............................................. 1201
"Event of Default"........................................... 601
"Expiration Date"............................................ 108
"Global Notes"............................................... 201
"Guaranteed Obligations"..................................... 1301
"Guarantor Blockage Notice".................................. 1503
"Guarantor Non-payment Default".............................. 1503
"Guarantor Payment Blockage Period".......................... 1503
"Guarantor Payment Default".................................. 1503
"Initial Agreement".......................................... 409
"Initial Lien"............................................... 412
"Non-payment Default"........................................ 1403
"Note Register" and "Note Registrar" ........................ 305
"Offer"...................................................... 410
"Offshore Global Note"....................................... 201
"Offshore Note Exchange Date"................................ 313
"Offshore Physical Note"..................................... 201
"pay its Note Guarantee"..................................... 1503
"pay the Notes".............................................. 1403
"Payment Blockage Period".................................... 1403
"Payment Default"............................................ 1403
"Permitted Payment".......................................... 408
"Physical Notes"............................................. 201
"Private Placement Legend"................................... 203
"Redemption Amount".......................................... 1001
"Refinancing Agreement"...................................... 409
"Restricted Payment"......................................... 408
"Sale" .................................................... 101
"Successor Company".......................................... 501
"Unitary Global Note"........................................ 201
"U.S. Global Note"........................................... 201
"U.S. Physical Notes"........................................ 201
"Voluntary Note Guarantor"................................... 413
Section 103. Rules of Construction. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Indenture have the meanings
assigned to them in this Indenture;
(2) "or" is not exclusive;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision;
(5) all references to "$" or "dollars" shall refer to the
lawful currency of the United States of America;
(6) the words "include," "included" and "including" as used
herein shall be deemed in each case to be followed by the phrase
"without limitation," if not expressly followed by such phrase or the
phrase "but not limited to";
(7) words in the singular include the plural, and words in the
plural include the singular; and
(8) any reference to a Section or Article refers to such
Section or Article of this Indenture unless otherwise indicated.
Section 104. Incorporation by Reference of TIA. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. This Indenture is subject to the
mandatory provisions of the TIA, which are incorporated by reference in and made
a part of this Indenture. Any terms incorporated by reference in this Indenture
that are defined by the TIA, defined by any TIA reference to another statute or
defined by SEC rule under the TIA, have the meanings so assigned to them
therein. The following TIA terms have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, any
Note Guarantor and any other obligor on the indenture securities.
Section 105. Conflict with TIA. If any provision hereof
limits, qualifies or conflicts with a provision of the TIA that is required
under the TIA to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded, the latter provision
shall be deemed (i) to apply to this Indenture as so modified or (ii) to be
excluded, as the case may be.
Section 106. Compliance Certificates and Opinions. Upon any
application or request by the Company or by any other obligor upon the Notes
(including any Note Guar antor) to the Trustee to take any action under any
provision of this Indenture, the Company or such other obligor upon the Notes,
as the case may be, shall furnish to the Trustee such certificates and opinions
as may be required under the TIA. Each such certificate or opinion shall be
given in the form of one or more Officer's
Certificates, if to be given by an Officer, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the TIA and any
other requirements set forth in this Indenture. Notwithstanding the foregoing,
in the case of any such request or application as to which the furnishing of any
Officer's Certificate or Opinion of Counsel is specifically required by any
provision of this Indenture relating to such particular request or application,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 405) shall include:
(1) a statement that the individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or in vestigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or
she made such examination or investigation as is necessary to enable
him or her to express an in formed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
Section 107. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an Officer or Officers to the
effect
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more appli cations, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 108. Acts of Noteholders; Record Dates. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 701) conclusive in favor of the Trustee, the Company and
any other obligor upon the Notes, if made in the manner provided in this Section
108.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership or
other entity, on behalf of such corporation or partnership or other entity, such
certificate or affidavit shall also constitute sufficient proof of such Person's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the person executing the same, may also be proved in any
other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind the Holder
of every Note issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suf fered to be done by the
Trustee, the Company or any other obligor
upon the Notes in reliance thereon, whether or not notation of such action is
made upon such Note.
(e) (i) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Notes entitled to give, make
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders of Notes, provided that the Company may not set a record date
for, and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to in
paragraph (e)(ii) of this Section 108. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Notes on such record date (or their
duly designated proxies), and no other Holders, shall be entitled to take the
relevant action, whether or not such Persons remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Notes on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Notes on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Notes in the manner set forth in
Section 110.
(ii) The Trustee may set any day as a record date for the
purpose of deter mining the Holders of Outstanding Notes entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇) any request to institute
proceedings referred to in Section 607(2) or (iv) any direction referred to in
Section 612, in each case with respect to Notes. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Notes on such record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Notes on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously
set shall automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Notes on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Notes in the manner set forth in Section 110.
(iii) With respect to any record date set pursuant to this
Section 108, the party hereto that sets such record dates may designate any day
as the "Expiration Date" and from time to time may change the Expiration Date to
any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the Company or the
Trustee, whichever such party is not setting a record date pursuant to this
Section 108(e) in writing, and to each Holder of Notes in the manner set forth
in Section 110, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party hereto that set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
(iv) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Note may do
so with regard to all or any part of the principal amount of such Note or by one
or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
Section 109. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any other
obligor upon the Notes shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Trustee at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Department (telephone: (617) ▇▇▇- ▇▇▇▇;
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), or at any other address furnished in
writing to the Company by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder if in writing and delivered in
person or mailed, first-class postage prepaid, to the Company at 1025
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇,
Attention: Chief Financial Officer (telephone: (202) ▇▇▇- ▇▇▇▇;
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), with copies to ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇,
Esq. (telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopier: (▇▇▇) ▇▇▇-▇▇▇▇) and to
Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq. (telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇), or at any other address previously
furnished in writing to the Trustee by the Company.
Section 110. Notices to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be deemed to have
been given (i) upon the mailing by first class mail, postage prepaid, of such
notices to Holders of Notes at their registered addresses as recorded in the
Note Register and (ii) for so long as the Notes are listed on the Luxembourg
Stock Exchange, upon publication in a leading newspaper of general circulation
in Luxembourg, in each case, not later than the latest date, and not earlier
than the earliest date, prescribed herein for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail notice of any
event as required by any provision of this Indenture, then such notification as
shall be made with the approval of the Trustee (such approval not to be
unreasonably withheld) shall constitute a sufficient notification for every
purpose hereunder.
Section 111. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 112. Successors and Assigns. All covenants and
agreements in
this Indenture by the Company shall bind its respective successors and assigns,
whether so expressed or not.
Section 113. Separability Clause. In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 114. Benefits of Indenture. Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any Paying Agent and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture, except as provided in Article 14 and Article 15.
Section 115. GOVERNING LAW. THIS INDENTURE AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT
THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. THE TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND
(BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS, AGREE TO SUBMIT TO THE
JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH
OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 116. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Note shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Notes) payment of interest or principal and premium
(if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity.
Section 117. No Personal Liability of Directors, Officers,
Employees, Incorporators and Stockholders. No director, officer, employee,
incorporator or stockholder, as such, of the Company, any Note Guarantor or any
Subsidiary of any thereof shall have any liability for any obligation of the
Company or any Note Guarantor under this Indenture, the Notes or any Note
Guarantee, or for any claim based on, in respect of, or by reason of, any such
obligation or its creation. Each Noteholder, by
accepting the Notes, waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
Section 118. Exhibits and Schedules. All exhibits and
schedules attached hereto are by this reference made a part hereof with the same
effect as if herein set forth in full.
Section 119. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
ARTICLE 2
NOTE FORMS
Section 201. Forms Generally. The Notes and the Trustee's
certificate of authentication relating thereto shall be in substantially the
forms set forth, or referenced, in this Article 2 and Exhibit A annexed hereto,
which Exhibit is hereby incorporated in and expressly made a part of this
Indenture. The Notes may have such appropriate insertions, omissions,
substitutions, notations, legends, endorsements, identifications and other
variations as are required or permitted by law, stock exchange rule or
depository rule or usage, agreements to which the Company is subject, if any, or
other customary usage, or as may consistently herewith be determined by the
Officer or member of the Company executing such Notes, as evidenced by such
execution (provided always that any such notation, legend, endorsement,
identification or variation is in a form acceptable to the Company). Each Note
shall be dated the date of its authentication. The terms of the Notes set forth
in Exhibit A are part of the terms of this Indenture. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
Initial Notes and any Additional Notes offered and sold in
reliance on Rule 144A under the Securities Act shall, unless the Company
otherwise notifies the Trustee in writing, be issued in the form of one or more
permanent global Notes in substantially the form set forth in Exhibit A (each, a
"U.S. Global Note"), deposited with the Trustee, as custodian for the Depositary
or its nominee, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and shall contain the Private Placement Legend as set forth
in Section 203. The aggregate principal amount of a U.S. Global Note may from
time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary or its
nominee, as provided in Sections 312 and 313.
Initial Notes and Additional Notes offered and sold in
offshore transactions in reliance on Regulation S under the Securities Act shall
be issued (a) in the form of one or more permanent global Notes in substantially
the form set forth in Exhibit A (each, an "Offshore Global Note"), deposited
with the Trustee, as custodian for the Depositary or its nominee, duly executed
by the Company and authenticated by the Trustee as hereinafter provided or (b)
at the Company's option (in the case of Additional Notes), in the form of and as
part of a U.S. Global Note that has been designated by the Company as a "Unitary
Global Note" (any U.S. Global Note that has been so designated, a "Unitary
Global Note") and, in each case, shall contain the Private Placement Legend as
set forth in Section 203. The aggregate principal amount of an Offshore Global
Note, if any, may from time to time be increased or decreased by adjustments
made in the records of the Trustee, as custodian for the Depositary or its
nominee, as provided in Sections 312 and 313.
Initial Notes and Initial Additional Notes offered and sold in
reliance on any exemption under the Securities Act other than Regulation S and
Rule 144A thereunder shall be issued, and (with the consent of the Company)
Notes offered and sold in reliance on Rule 144A may be issued, in the form of
permanent certificated Notes substantially in the form set forth in Exhibit A
and shall contain the Private Placement Legend as set forth in Section 203 (the
"U.S. Physical Notes").
Subject to the limitations on the issuance of certificated
Notes set forth in Sections 312 and 313, Initial Notes and any Initial
Additional Notes issued pursuant to Section 305 in exchange for, or upon
transfer of beneficial interests in, (x) a U.S. Global Note or a U.S. Physical
Note shall be in the form of a U.S. Physical Note or (y) an Offshore Global Note
(if any), on or after the Offshore Note Exchange Date with respect to such
Offshore Global Note, or an Offshore Physical Note shall be in the form of
permanent certificated Notes substantially in the form set forth in Exhibit A
(the "Offshore Physical Notes"), respectively, as hereinafter provided.
The Offshore Physical Notes and the U.S. Physical Notes,
together with any other certificated Notes in registered form, are sometimes
collectively herein referred to as the "Physical Notes." The U.S. Global Note
and the Offshore Global Note are sometimes collectively referred to as the
"Global Notes." Physical Notes may initially be registered in the name of the
Depositary or a nominee of such Depositary and be delivered to the Trustee as
custodian for such Depositary. Beneficial owners of Physical Notes, however, may
request registration of such Physical Notes in their
names or the names of their nominees.
Exchange Notes shall be issued substantially in the form set
forth in Exhibit A and, subject to Section 312(b), shall be in the form of one
or more Global Notes.
Section 202. Form of Trustee's Certificate of Authentication.
This is one of the Notes referred to in the within-mentioned Indenture.
--------------------------------
as Trustee
By
-----------------------------
Authorized Officer
Dated:
If an appointment of an Authenticating Agent is made pursuant
to Section 714, the Notes may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternative certificate of authentication in
the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
-----------------------------------
As Trustee
By
-----------------------------
As Authenticating Agent
By
-----------------------------
Authorized Officer
Dated:
Section 203. Restrictive and Global Note Legends. Each Global
Note and Physical Note shall bear the following legend set forth below (the
"Private Placement Legend") on the face thereof until the Private Placement
Legend is removed
in accordance with Section 313(4):
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME
PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT
ON THE DATE OF THE TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE
WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR (OR A NON-U.S. PERSON (IN EITHER CASE, THAT IS NOT A QUALIFIED
INSTITUTIONAL BUYER)), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH
TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Initial Note, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRE SENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK COR PORATION ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTIONS 312 AND 313 OF THE INDENTURE.
ARTICLE 3
THE NOTES
Section 301. Title and Terms. The aggregate principal amount
of Notes that may be authenticated and delivered and Outstanding under this
Indenture is not limited, except as provided in Section 406 and except as may be
limited by applicable law. The Initial Notes will be issued in an aggregate
principal amount of $400,000,000. All the Original Notes shall vote and consent
together on all matters as one class, and none of the Original Notes will have
the right to vote or consent as a class separate from one another on any matter.
Additional Notes (including any Exchange Notes issued in exchange therefor) may
vote (or consent) as a class with the other Notes and otherwise be treated as
Notes for all purposes of this Indenture.
The Notes shall be known and designated as the "9 3/4% Senior
Subordinated Notes Due 2008" of the Company. The final Stated Maturity of the
Notes shall be June 15, 2008. Interest on the Outstanding principal amount of
Notes will accrue at the rate of 9 3/4% per annum and will be payable
semi-annually in arrears on June 15 and December 15 in each year, commencing on
December 15, 1998, to holders of record on the immediately preceding June 1 and
December 1, respectively (each such June 1 and December 1, a "Regular Record
Date"). Interest on the Original Notes will accrue from the most recent date to
which interest has been paid or duly provided for or, if no interest has been
paid, from the Issue Date; and interest on any Additional Notes (and Exchange
Notes issued in exchange therefor) will accrue from the most recent date to
which interest has been paid or duly provided for or, if no interest has been
paid on such Additional Notes, from the date of issuance of such Additional
Notes; provided, that if any Note is surrendered for exchange on or after a
record date for an Interest Payment Date that will occur on or after the date of
such exchange, interest on the Note received in exchange thereof will accrue
from the date of such Interest Payment Date.
The principal of, and premium, if any, and interest, on the
Notes shall be payable at the Corporate Trust Office or at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, The City
of New York (each, a "Place of Payment") and, for so long as the Notes are
listed on the Luxembourg Stock Exchange, Notes may be presented or surrendered
for payment at an office or agency of the Company maintained for that purpose in
Luxembourg; provided, however, that at the option of the Company payment of
interest on a Note may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the
Note Register.
Section 302. Denominations. The Notes shall be issuable only
in registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof.
Section 303. Execution, Authentication and Delivery and
Dating. The Notes shall be executed on behalf of the Company by one Officer of
the Company. The signature of such Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of an
individual who was at any time a proper Officer of the Company shall bind the
Company, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of such Notes or did not hold such
office at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication; and the Trustee shall authenticate
and deliver (i) Initial Notes for original issue in the aggregate principal
amount not to exceed $400,000,000 and (ii) Additional Notes from time to time
for original issue in aggregate principal amounts specified by the Company not
to exceed $200,000,000 and (iii) Exchange Notes from time to time for issue in
exchange for a like principal amount of Initial Notes or Initial Additional
Notes, in each case specified in clauses (i) through (iii) above, upon a written
order of the Company in the form of an Officer's Certificate of the Company (an
"Authentication Order"). Such Officer's Certificate shall specify the amount of
Notes to be authenticated and the date on which the Notes are to be
authenticated, whether the Notes are to be Initial Notes, Additional Notes or
Exchange Notes and whether the Notes are to be issued as one or more Global
Notes or Physical Notes and such other information as the Company may include or
the Trustee may reasonably request.
All Notes shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
Section 304. Temporary Notes. Until definitive Notes are ready
for delivery, the Company may prepare and upon receipt of an Authentication
Order the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. If temporary Notes are
issued, the Company will cause definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Company in a Place of Payment, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and upon receipt of an Authentication
Order the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Notes of authorized denominations. Until so
exchanged the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes of the same series and tenor.
Section 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Trustee is hereby appointed
"Note Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided.
Upon surrender for transfer of any Note at the office or
agency of the Company in a Place of Payment, in compliance with all applicable
requirements of this Indenture and applicable law, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes, of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes, of any authorized denominations and of a like tenor and aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so sur rendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Notes that the
Holder making the exchange is entitled to receive.
All Notes issued upon any transfer or exchange of Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same
benefits under this Indenture, as the Notes surrendered upon such transfer or
exchange.
Every Note presented or surrendered for transfer or exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed, by the Holder thereof or such
Holder's attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange
of Notes, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Notes under this Section 305.
The Company shall not be required (i) to issue, transfer or
exchange any Note during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption (or purchase) of Notes
selected for redemption (or purchase) under Section 1004 and ending at the close
of business on the day of such mailing, or (ii) to transfer or exchange any Note
so selected for redemption (or purchase) in whole or in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes. If
(i) any mutilated Note is surrendered to the Trustee, or the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Note has
been acquired by a bona fide purchaser, the Company shall execute and upon
receipt of an Authentication Order the Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Note, a new Note of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the
fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 306 in lieu of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and ratably with
any and all other Notes duly issued hereunder.
The provisions of this Section 306 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 307. Payment of Interest Rights Preserved. Interest on
any Note that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Note (or
one or more Predecessor Notes) is registered at the close of business on the
Regular Record Date for such interest specified in Section 301.
Any interest on any Note that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder; and such Defaulted Interest shall be paid by the Company, as
provided in clause (1) or clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Note and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements reasonably satisfactory
to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as provided in this
clause (1). Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
nor less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest, the amount thereof and the Special Record Date and payment
date therefor to be mailed, first class postage prepaid, to each Holder
at such Holder's address as it appears in the Note Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective Predecessor
Notes) are registered on such Special Record Date and shall no longer
be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause (2), such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Note delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Note shall carry the rights to interest accrued and unpaid,
and to accrue, that were carried by such other Note.
Section 308. Persons Deemed Owners. The Company, any Note
Guarantor, the Trustee and any agent of any of them may treat the Person in
whose name any Note is registered as the owner of such Note for the purpose of
receiving payment of principal of (and premium, if any), and (subject to Section
307) interest on, such Note and for all other purposes whatsoever, whether or
not such Note be overdue, and neither the Company, any Note Guarantor, the
Trustee nor any agent of any of them shall be affected by notice to the
contrary.
Section 309. Cancellation. All Notes surrendered for payment,
redemption, transfer, exchange or conversion shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Notes previously authenticated and
delivered hereunder that the Company may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes
shall be authenticated in lieu of
or in exchange for any Notes cancelled as provided in this Section 309, except
as expressly permitted by this Indenture. All cancelled Notes held by the
Trustee shall be disposed of as directed by a Company Order of the Company and
in accordance with Section 313.
Section 310. Computation of Interest. Interest on the Notes
shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers. The Company in issuing the Notes
may use "CUSIP", "CINS" and "ISIN" numbers (if then generally in use), and if
so, the Trustee may use such numbers in notices of redemption or exchange as a
convenience to Holders; provided, however, that (x) any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP,
CINS or ISIN number printed in the notice or on the Notes, and that reliance may
be placed only on the other identification numbers printed on the Notes and (y)
failure to use CUSIP, CINS or ISIN numbers in any notice of redemption,
repurchase, exchange or otherwise shall not affect the validity or sufficiency
of such notice.
Section 312. Book-Entry Provisions for Global Notes. (a) Each
Global Note initially shall (i) be registered in the name of the Depositary for
such Global Note or the nominee of such Depositary and (ii) be delivered to the
Trustee as custodian for such De positary. Neither the Company nor any agent of
the Company shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of beneficial ownership
interests of, a Global Note, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note, and the Depositary may be treated by the Company, any other obligor upon
the Notes, the Trustee and any agent of any of them as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstand ing the foregoing,
nothing herein shall prevent the Company, any other obligor upon the Notes, the
Trustee or any agent of any of them from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a beneficial owner
of any Note. The registered holder of a Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action that a Holder is
entitled to take under this Indenture or the Notes.
(b) Transfers of a Global Note shall be limited to transfers
of such Global Note in whole, but, subject to the immediately succeeding
sentence, not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in a Global Note may not be transferred
or exchanged for Physical Notes, unless (i) the Company has consented thereto in
writing, or such transfer or exchange is made pursuant to the next sentence, and
(ii) such transfer or exchange is in accordance with the applicable rules and
procedures of the Depositary and the provisions of Sections 305 and 313. Subject
to the limitation on issuance of Physical Notes set forth in Section 313(3),
U.S. Physical Notes or Offshore Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in the relevant
U.S. Global Note or the relevant Offshore Global Note, respectively, if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for the applicable Global Note or the Depositary ceases to be a
"Clearing Agency" registered under the Exchange Act and a successor depositary
is not appointed by the Company within 90 days, (ii) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of Physical
Notes under this Indenture or (iii) an Event of Default has occurred and is
continuing and the Note Registrar has received a written request from the
Depositary to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners for Physical
Notes pursuant to paragraph (b) of this Section 312, the Note Registrar shall
record on its books and records (and make a notation on the Global Note of) the
date and a decrease in the principal amount of such Global Note in an amount
equal to the beneficial interest in the Global Note being transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and principal amount of authorized
denominations.
(d) In connection with a transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b) of this Section 312, the applicable
Global Note shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and deliver,
to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the applicable Global Note, an equal aggregate principal
amount of U.S. Physical Notes (in the case of any U.S. Global Note) or Offshore
Physical Notes (in the case of any Offshore Global Note), as the case may be, of
authorized denominations.
(e) The transfer and exchange of a Global Note or beneficial
interests therein shall be effected through the Depositary, in accordance with
this Indenture (including applicable restrictions on transfer set forth in
Section 313) and the
procedures of the Depositary therefor. Any beneficial interest in one of the
Global Notes that is transferred to a Person who takes delivery in the form of
an interest in a different Global Note will, upon transfer, cease to be an
interest in such Global Note and become an interest in the other Global Note
and, accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other
Global Note for as long as it remains such an interest. A transferor of a
beneficial interest in a Global Note shall deliver to the Note Registrar a
written order given in accordance with the Depositary's procedures containing
information regarding the participant account of the Depositary to be credited
with a beneficial interest in the relevant Global Note. Subject to Section 313,
the Note Registrar shall, in accordance with such instructions, instruct the
Depositary to credit to the account of the Person specified in such instructions
a beneficial interest in such Global Note and to debit the account of the Person
making the transfer of the beneficial interest in the Global Note being
transferred.
(f) Any Physical Note delivered in exchange for an interest in
a Global Note pursuant to paragraph (b) of this Section 312 shall, unless such
exchange is made on or after the Resale Restriction Termination Date applicable
to such Note and except as otherwise provided in Section 203 and Section 313,
bear the Private Placement Legend.
(g) The Company, any other obligor upon the Notes or the
Trustee, in the discretion of any of them, may treat as the Act of a Holder any
instrument or writing of any Person that is identified by the Depositary as the
owner of a beneficial interest in the Global Note, provided that the fact and
date of the execution of such instrument or writing is proved in accordance with
Section 108(b).
Section 313. Special Transfer Provisions. (1) Transfers to
Non-QIB Institutional Accredited Investors and Non-U.S. Persons. The following
provisions shall apply with respect to the registration of any proposed transfer
of a Note that is a Restricted Security to any Institutional Accredited Investor
which is not a QIB or to any Non-U.S. Person: The Note Registrar shall register
such transfer if it complies with all other applicable requirements of this
Indenture (including Section 305) and,
(a) if (x) such transfer is after the relevant Resale
Restriction Termination Date with respect to such Note or (y) (A) in
the case of a transfer to an Institutional Accredited Investor which is
not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Note Registrar a Certificate substantially in the form
of Exhibit E or (B) the distribution compliance
period set forth in Regulation S has expired and the proposed
transferor has delivered to the Note Registrar a Regulation S
Certificate and in either case of clause (A) or (B), unless otherwise
agreed by the Company and the Trustee, the Trustee and the Company have
received an opinion of counsel, certifications and other information
satisfactory to the Company and the Trustee, and
(b) if the proposed transferor is or is acting through an
Agent Member holding a beneficial interest in a Global Note, upon
receipt by the Note Registrar of (x) the certificate, opinion,
certifications and other information, if any, required by clause (a)
above and (y) written instructions given in accordance with the
Depositary's and the Note Registrar's procedures;
whereupon (i) the Note Registrar shall reflect on its books and records (and
make a notation on the relevant Global Note of) the date and (if the transfer
does not involve a transfer of any Outstanding Physical Note) a decrease in the
principal amount of the relevant Global Note in an amount equal to the principal
amount of the beneficial interest in the relevant Global Note to be transferred,
and (ii) either (A) if the proposed transferee is a Non-U.S. Person and is or is
acting through an Agent Member holding a beneficial interest in a relevant
Offshore Global Note, the Trustee shall reflect on its books and records (and
make a notation on the relevant Global Note of) the date and an increase in the
principal amount of such Offshore Global Note in an amount equal to the
principal amount of the beneficial interest being so transferred or (B)
otherwise the Company shall execute and the Trustee shall authenticate and
deliver one or more Physical Notes of like tenor and amount.
(2) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a Note that is a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons): The Note
Registrar shall register such transfer if it complies with all other applicable
requirements of this Indenture (including Section 305) and,
(a) if such transfer is being made by a proposed transferor
who has checked the box provided for on the form of such Note stating,
or has otherwise certified to the Company and the Note Registrar in
writing, that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has signed the certification provided
for on the form of such Note stating, or has otherwise certified to the
Company and the Note Registrar in writing, that it is purchasing such
Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a QIB within the meaning of Rule 144A, and is aware that the sale to
it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing representations
in order to claim the exemption from registration provided by Rule
144A; and
(b) if the proposed transferee is or is acting through an
Agent Member, and the Note to be transferred consists of a Physical
Note that after transfer is to be evidenced by an interest in a Global
Note or consists of a beneficial interest in a Global Note that after
the transfer is to be evidenced by an interest in a different Global
Note, upon receipt by the Note Registrar of written instructions given
in accordance with the Depositary's and the Note Registrar's
procedures, whereupon the Note Registrar shall reflect on its books and
records (and make a notation on the relevant Global Note of) the date
and an increase in the principal amount of the transferee Global Note
in an amount equal to the principal amount of the Physical Note or such
beneficial interest in such transferor Global Note to be transferred,
and the Trustee shall cancel the Physical Note so transferred or
reflect on its books and records (and make a notation on the relevant
Global Note of) the date and a decrease in the principal amount of such
transferor Global Note, as the case may be.
(3) Limitation on Issuance of Physical Notes. No Physical Note
shall be exchanged for a beneficial interest in any Global Note, except in
accordance with Section 312 and this Section 313.
A beneficial owner of an interest in a Unitary Global Note or
an Offshore Global Note shall not be permitted to exchange such interest for a
Physical Note until a date, which must be after the expiration of the
distribution compliance period set forth in Regulation S, on which the Company
receives a certificate of beneficial ownership substantially in the form of
Exhibit D from such beneficial owner (a "Certificate of Beneficial Ownership").
Such date, as it relates to an Offshore Global Note, is herein referred to as
the "Offshore Note Exchange Date."
(4) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Note
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Note Registrar shall deliver only Notes that bear the
Private Placement Legend, unless (i) the requested transfer is after the
relevant Resale Restriction Termination Date with respect
to such Notes, or (ii) upon written request of the Company after there is
delivered to the Note Registrar an opinion of counsel (which opinion and counsel
are satisfactory to the Company and the Trustee) to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act, or (iii) with
respect to an Offshore Global Note or Offshore Physical Note only, with the
agreement of the Company on or after the Offshore Note Exchange Date with
respect to such Note, or (iv) such Notes are sold or exchanged pursuant to an
effective registration statement under the Securities Act.
(5) Other Transfers. The Note Registrar shall effect and
register, upon receipt of a written request from the Company to do so, a
transfer not otherwise permitted by this Section 313, such registration to be
done in accordance with the otherwise applicable pro visions of this Section
313, upon the furnishing by the proposed transferor or transferee of a written
opinion of counsel (which opinion and counsel are satisfactory to the Company
and the Trustee) to the effect that, and such other certifications or
information as the Company may require to confirm that, the proposed transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act.
A Note that is a Restricted Security may not be transferred
other than as provided in this Section 313. A beneficial interest in a Global
Note that is a Restricted Security may not be exchanged for a beneficial
interest in another Global Note other than through a transfer in compliance with
this Section 313.
(6) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Note Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 312 or this
Section 313 (including all Notes received for transfer pursuant to this Section
313). The Company shall have the right to require the Note Registrar to deliver
to the Company, at the Company's expense, copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Note Registrar.
In connection with any transfer of any Note, the Trustee, the
Note Registrar and the Company shall be entitled to receive, shall be under no
duty to inquire into, may con clusively presume the correctness of, and shall be
fully protected in relying upon the cer tificates, opinions and other
information referred to herein (or in
the forms provided herein, attached hereto or to the Notes, or otherwise)
received from any Holder and any transferee of any Note regarding the validity,
legality and due authorization of any such transfer, the eligibility of the
transferee to receive such Note and any other facts and circumstances related to
such transfer.
Section 314. Payment of Additional Interest. (a) Under certain
circumstances the Company will be obligated to pay certain additional amounts of
interest to the Holders of certain Initial Notes, as more particularly set forth
in such Initial Notes.
(b) Under certain circumstances the Company may be obligated
to pay certain additional amounts of interest to the Holders of certain Initial
Additional Notes, as may be more particularly set forth in such Initial
Additional Notes.
ARTICLE 4
COVENANTS
Section 401. Payment of Principal, Premium and Interest. The
Company will duly and punctually pay the principal of (and premium, if any) and
interest on the Notes in accordance with the terms of the Notes and this
Indenture. An installment of principal (and premium, if any) or interest shall
be considered paid on the date it is due if the Trustee or Paying Agent or
Paying Agents hold on that date money designated for and sufficient to pay the
installment.
Section 402. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company hereby designates the office of State Street Bank and Trust Company,
N.A., ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, as an initial Place of
Payment and as such office of the Company in the Borough of Manhattan, the City
of New York. The Company will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office or agency. If at any
time the Company shall fail to maintain such 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 hereby designates the Corporate Trust Office as an initial
Place of Payment and appoints the Trustee its agent to receive
all such presentations, surrenders, notices and demands so long as such
Corporate Trust Office remains a Place of Payment.
In addition, for so long as the Notes are listed on the
Luxembourg Stock Exchange, the Company will maintain an office or agency where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served.
Section 403. Money for Payments To Be Held in Trust. If the
Company shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal of (and premium, if any) or interest on, any of
the Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
If the Company is not acting as its own Paying Agent, it will,
prior to each due date of the principal of (and premium, if any) or interest on,
any Notes, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
If the Company is not acting as its own Paying Agent, the
Company will cause any Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section 403, that such Paying
Agent will:
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Notes in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any such payment of
principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default,
upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture and TIA relating to the duties,
rights and liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Note and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid in the appropriate proportion to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
Section 404. SEC Reports. Notwithstanding that the Company may
not be required to be or remain subject to the reporting requirements of Section
13(a) or 15(d) of the Exchange Act, the Company will file with the SEC (unless
such filing is not permitted under the Exchange Act or by the SEC), so long as
Notes are outstanding, the quarterly and annual reports, information, documents
and other reports that the Company is required to file with the Commission
pursuant to such Section 13(a) or 15(d) or would be so required to file if the
Company were so subject. The Company will also, within 15 days after the date on
which the Company was so required to file or would be so required to file if the
Company were so subject, transmit by mail to all Holders, as their names and
addresses appear in the Note Register, and to the Trustee, copies of any such
information, documents and reports (without exhibits) so required to be filed.
The Company will be deemed to have satisfied such requirements if a Parent files
and provides reports, documents and information of the types otherwise so
required, in each case within the applicable time periods, and the Company is
not required to file such reports, documents and information separately under
the
applicable rules and regulations of the SEC (after giving effect to any
exemptive relief) because of the filings by such Parent. The Company also will
comply with the other provisions of TIA ss. 314(a). For so long as the Notes are
listed on the Luxembourg Stock Exchange, the Company will make all such reports
sent to Holders available at an office or agency of the Company maintained for
such purpose in Luxembourg.
Section 405. Statement as to Default. The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officer's Certificate, to the effect that to
the best knowledge of the signer thereof the Company is or is not in default in
the performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or re quirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which such signer may have
knowledge. To the extent required by the TIA, each Note Guarantor shall comply
with TIA ss. 314(a)(4). The individual signing any certificate given by any
Person pursuant to this Section 405 shall be the principal executive or
financial or accounting officer of such Person, in compliance with TIA ss.
314(a)(4).
Section 406. Limitation on Indebtedness. (a) The Company will
not, and will not permit any Restricted Subsidiary to, Incur any Indebtedness;
provided, however, that the Company or any Note Guarantor may Incur Indebtedness
if on the date of the Incurrence of such Indebtedness, after giving effect to
the Incurrence thereof, the Consolidated Coverage Ratio would be greater than
1.75:1.00 if such Indebtedness is Incurred prior to June 15, 2001 or 2.00:1.00
if such Indebtedness is Incurred thereafter.
(b) Notwithstanding the foregoing paragraph (a) of this
Section 406, the Company and its Restricted Subsidiaries may Incur the following
Indebtedness:
(i) Indebtedness Incurred pursuant to the Senior Credit
Facility (including but not limited to Indebtedness in respect of
letters of credit or bankers' acceptances issued or created thereunder)
and Indebtedness of any Foreign Subsidiary Incurred other than under
the Senior Credit Facility, and (without limiting the foregoing), in
each case, any Refinancing Indebtedness in respect thereof, in a
maximum principal amount at any time outstanding not exceeding in the
aggregate the amount equal to (A) $1,350.0 million, plus (B) the
amount, if any, by which the Borrowing Base exceeds $400.0 million,
plus (C) in the case of any refinancing of the Senior Credit Facility
or any portion thereof, the aggregate amount of fees, underwriting
discounts, premiums and other costs and expenses incurred in connection
with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the
Company or (B) of the Company or any Restricted Subsidiary to any
Restricted Subsidiary; provided that any subsequent issuance or
transfer of any Capital Stock of such Restricted Subsidiary to which
such Indebtedness is owed, or other event, that results in such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
other subsequent transfer of such Indebtedness (except to the Company
or a Restricted Subsidiary) will be deemed, in each case, an Incurrence
of such Indebtedness by the issuer thereof;
(iii) Indebtedness represented by the Notes (other than any
Additional Notes), any Indebtedness (other than the Indebtedness
described in clauses (i) or (ii) above) outstanding on the Issue Date
and any Refinancing Indebtedness Incurred in respect of any
Indebtedness described in this clause (iii) or paragraph (a) of this
Section 406;
(iv) Purchase Money Obligations and Capitalized Lease
Obligations, and any Refinancing Indebtedness with respect thereto, in
an aggregate principal amount at any time outstanding not exceeding an
amount equal to 3.5% of Consolidated Total Assets at any time
outstanding;
(v) Indebtedness of any Foreign Subsidiary Incurred for
working capital purposes;
(vi) (A) Guarantees by the Company or any Restricted
Subsidiary of In debtedness or any other obligation or liability of the
Company or any Restricted Subsidiary (other than any Indebtedness
Incurred by the Company or such Restricted Subsidiary, as the case may
be, in violation of this Section 406), or (B) without limiting Section
412, Indebtedness of the Company or any Restricted Subsidiary arising
by reason of any Lien granted by or applicable to such Person securing
Indebtedness of the Company or any Restricted Subsidiary (other than
any Indebtedness Incurred by the Company or such Restricted Subsidiary,
as the case may be, in violation of this Section 406);
(vii) Indebtedness of the Company or any Restricted Subsidiary
(A) arising from the honoring of a check, draft or similar instrument
of such Person drawn against insufficient funds, provided that such
Indebtedness is extinguished within five Business Days of its
incurrence, or (B) consisting of guarantees, indemnities, obligations
in respect of earnouts or other purchase price adjustments, or similar
obligations, Incurred in connection with the
acquisition or disposition of any business, assets or Person (including
pursuant to the Strategic Restructuring);
(viii) Indebtedness of the Company or any Restricted
Subsidiary in respect of (A) letters of credit, bankers' acceptances or
other similar instruments or obligations issued, or relating to
liabilities or obligations incurred, in the ordinary course of business
(including those issued to governmental entities in connection with
self-insurance under applicable workers' compensation statutes), or (B)
completion guar antees, surety, judgment, appeal or performance bonds,
or other similar bonds, instruments or obligations, provided, or
relating to liabilities or obligations incurred, in the ordinary course
of business, or (C) Hedging Obligations entered into for bona fide
hedging purposes in the ordinary course of business, or (D) Management
Guarantees, or (E) the financing of insurance premiums in the ordinary
course of business;
(ix) Indebtedness of a Receivables Subsidiary secured by a
Lien on all or part of the assets disposed of in, or otherwise incurred
in connection with, a Financing Disposition;
(x) Indebtedness of any Person that is assumed by the Company
or any Restricted Subsidiary in connection with its acquisition of
assets from such Person or any Affiliate thereof or is issued and
outstanding on or prior to the date on which such Person was acquired
by the Company or any Restricted Subsidiary or merged or consolidated
with or into any Restricted Subsidiary (other than Indebtedness
Incurred to finance, or otherwise in connection with, such
acquisition), provided that on the date of such acquisition, merger or
consolidation, after giving effect thereto, (x) with respect to any
such Indebtedness of the Company, any Foreign Subsidiary or any Note
Guarantor, (A) the Company could Incur at least $1.00 of additional
Indebtedness pursuant to paragraph (a) of this Section 406 or (B) the
Consolidated Coverage Ratio is greater than it was on such date
immediately prior to giving effect to such acquisition and (y) with
respect to any such Indebtedness of any Domestic Subsidiary that is not
a Note Guarantor, the Company could Incur at least $1.00 of additional
Indebtedness pursuant to paragraph (a) of this Section 406; and any
Refinancing Indebtedness with respect to any such Indebtedness;
(xi) Indebtedness of any Restricted Subsidiary in an aggregate
principal amount at any time outstanding for all such Indebtedness not
exceeding (A) an amount equal to 5% of Consolidated Total Assets,
provided that either on the date of Incurrence of such Indebtedness
after giving effect thereto, the Company
could Incur at least $1.00 of additional Indebtedness pursuant to
paragraph (a) above, or such Indebtedness is Refinancing Indebtedness
in respect of any such Indebtedness initially so Incurred, or (B)
otherwise, an amount equal to 2.5% of Consolidated Total Assets;
(xii) Indebtedness of the Company or any Restricted Subsidiary
in an amount at any time outstanding not exceeding twice the amount of
Excluded Contributions made after the Issue Date; provided that the
proceeds of such Indebtedness and the related amount of such Excluded
Contributions are used to finance the acquisition of assets of any
Person in a Related Business or the merger or consolidation of such a
Person into or with the Company or any Restricted Subsidiary (including
but not limited to payment of any related fees and expenses), or to
refinance any such acquisition, merger or consolidation with such
Indebtedness being Incurred for such refinancing within nine months of
the closing of such acquisition, merger or consolidation; and any Re
financing Indebtedness with respect to any such Indebtedness; and
(xiii) Indebtedness of the Company or any Restricted
Subsidiary in an aggregate principal amount at any time outstanding not
exceeding an amount equal to 5% of Consolidated Total Assets.
(c) For purposes of determining compliance with, and the
outstanding principal amount of any particular Indebtedness Incurred pursuant
to, and in compliance with, this Section 406, (i) any other obligation of the
obligor on such Indebtedness (or of any other Person who could have Incurred
such Indebtedness under this Section 406) arising under any Guarantee, Lien or
letter of credit, bankers' acceptance or other similar instrument or obligation
supporting such Indebtedness shall be disregarded to the extent that such
Guarantee, Lien or letter of credit, bankers' acceptance or other similar
instrument or obligation secures the principal amount of such Indebtedness; (ii)
in the event that Indebtedness meets the criteria of more than one of the types
of Indebtedness described in paragraph (b) of this Section 406, the Company, in
its sole discretion, shall classify such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of such
clauses; and (iii) the amount of Indebtedness issued at a price that is less
than the principal amount thereof shall be equal to the amount of the liability
in respect thereof determined in accordance with GAAP.
(d) For purposes of determining compliance with any
Dollar-denominated restriction on the Incurrence of Indebtedness denominated in
a foreign currency, the
Dollar-equivalent principal amount of such Indebtedness Incurred pursuant
thereto shall be calculated based on the relevant currency exchange rate in
effect on the date that such Indebtedness was Incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness,
provided that (x) the Dollar-equivalent principal amount of any such In
debtedness outstanding on the Issue Date shall be calculated based on the
relevant currency exchange rate in effect on the Issue Date, (y) if such
Indebtedness is Incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable
Dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such refinancing, such
Dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced and (z) the
Dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency and Incurred pursuant to the Senior Credit Facility shall be calculated
based on the relevant currency exchange rate in effect on, at the Company's
option, (i) the Issue Date, (ii) any date on which any of the respective
commitments under the Senior Credit Facility shall be reallocated between or
among facilities or subfacilities thereunder, or on which such rate is otherwise
calculated for any purpose thereunder, or (iii) the date of such Incurrence. The
principal amount of any Indebtedness Incurred to refinance other Indebtedness,
if Incurred in a different currency from the Indebtedness being refinanced,
shall be calculated based on the currency exchange rate applicable to the
currencies in which such respective Indebtedness is denominated that is in
effect on the date of such refinancing.
Section 407. Limitation on Layering. The Company shall not
Incur any Indebtedness that is expressly subordinated in right of payment to any
Senior Indebtedness of the Company, unless such Indebtedness so Incurred ranks
pari passu in right of payment with the Notes, or is subordinated in right of
payment to the Notes. No Note Guarantor shall Incur any Indebtedness that is
expressly subordinated in right of payment to any Guarantor Senior Indebtedness
of such Note Guarantor, unless such Indebtedness so Incurred ranks pari passu in
right of payment with such Note Guarantor's Note Guarantee, or is subordinated
in right of payment to such Note Guarantor's Note Guarantee. Unsecured
Indebtedness is not deemed to be subordinate or junior to secured Indebtedness
merely because it is unsecured, and In debtedness that is not guaranteed by a
particular Person is not deemed to be subordinate or junior to Indebtedness that
is so guaranteed merely because it is not so guaranteed.
Section 408. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to (i) declare or
pay any dividend or make any distribution on or in respect of its Capital Stock
(including any such payment in connection with any merger or consolidation to
which the Company is a party) except (x) dividends or distributions payable
solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or
distributions payable to the Company or any Restricted Subsidiary (and, in the
case of any such Restricted Subsidiary making such dividend or distribution, to
other holders of its Capital Stock on no more than a pro rata basis, measured by
value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital
Stock of the Company held by Persons other than the Company or a Restricted
Subsidiary, (iii) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, sched uled repayment or scheduled
sinking fund payment, any Subordinated Obligations (other than a purchase,
redemption, defeasance or other acquisition or retirement for value in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of such acquisition
or retirement) or (iv) make any Investment (other than a Permitted Investment)
in any Person (any such dividend, distribution, purchase, redemption,
repurchase, defeasance, other acquisition or retirement or Investment being
herein referred to as a "Restricted Payment"), if at the time the Company or
such Restricted Sub sidiary makes such Restricted Payment and after giving
effect thereto:
(1) a Default shall have occurred and be continuing (or would
result there from);
(2) the Company could not incur at least an additional $1.00
of Indebtedness pursuant to paragraph (a) of Section 406; or
(3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in
cash, to be as determined in good faith by the Board of Directors,
whose determination shall be conclusive) declared or made subsequent to
the Issue Date and then outstanding would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from April 25,
1998 to the end of the most recent fiscal quarter ending prior
to the date of such Restricted Payment for which consolidated
financial statements of the Company are available (or, in case
such Consolidated Net Income shall be a negative number, 100%
of such negative number);
(B) the aggregate Net Cash Proceeds, and fair value
(as determined in good faith by the Board of Directors) of
property or assets,
received (x) by the Company as capital contributions to the
Company after the Issue Date or from the issuance or sale
(other than to a Restricted Subsidiary) of its Capital Stock
(other than Disqualified Stock) after the Issue Date (other
than Excluded Contributions) or (y) by the Company or any
Restricted Subsidiary from the issuance and sale by the
Company or any Restricted Subsidiary after the Issue Date of
Indebtedness that shall have been converted into or exchanged
for Capital Stock of the Company (other than Disqualified
Stock), plus the amount of cash, property or assets
(determined as provided above) received by the Company or any
Restricted Subsidiary upon such conversion or exchange;
(C) the aggregate amount equal to the net reduction
in Investments in Unrestricted Subsidiaries resulting from (i)
dividends, distributions, interest payments, return of
capital, repayments of Investments or other transfers of
assets to the Company or any Restricted Subsidiary from any
Unrestricted Subsidiary, or (ii) the redesignation of any
Unrestricted Subsidiary as a Re stricted Subsidiary (valued in
each case as provided in the definition of "In vestment"), not
to exceed in the case of any such Unrestricted Subsidiary the
aggregate amount of Investments (other than Permitted
Investments) made by the Company or any Restricted Subsidiary
in such Unrestricted Subsidiary after the Issue Date;
(D) in the case of any disposition or repayment of
any Investment constituting a Restricted Payment (without
duplication of any amount deducted in calculating the amount
of Investments at any time outstanding included in the amount
of Restricted Payments), an amount in the aggregate equal to
the lesser of the return of capital, repayment or other
proceeds with respect to all such Investments and the initial
amount of all such Investments; and
(E) the aggregate exercise price of all options
attributable to shares of Capital Stock purchased in the
Equity Tender Offer.
(b) The provisions of paragraph (a) of this Section 408 will
not prohibit any of the following (each, a "Permitted Payment"):
(i) any purchase, redemption, repurchase, defeasance or other
acquisition or retirement of Capital Stock of the Company or
Subordinated
Obligations made by exchange (including any such exchange pursuant to
the exercise of a conversion right or privilege in connection with
which cash is paid in lieu of the issuance of fractional shares) for,
or out of the proceeds of the substantially concurrent issuance or sale
of, Capital Stock of the Company (other than Disqualified Stock and
other than Capital Stock issued or sold to a Subsidiary) or a
substantially concurrent capital contribution to the Company; provided
that the Net Cash Proceeds from such issuance, sale or capital
contribution shall be excluded in subsequent calculations under clause
(3)(B) of the preceding paragraph (a) of this Section 408 and shall not
constitute an Excluded Contribution;
(ii) any purchase, redemption, repurchase, defeasance or other
acquisition or retirement of Subordinated Obligations (x) made by
exchange for, or out of the proceeds of the substantially concurrent
issuance or sale of, Indebtedness of the Company or Refinancing
Indebtedness Incurred in compliance with Section 406, (y) from Net
Available Cash to the extent permitted under Section 410 or (z) to the
extent required by the agreement governing such Subordinated
Obligations, following the occurrence of a Change of Control (or other
similar event described therein as a "change of control"), but only if
the Company shall have complied with Section 414 and, if required,
purchased all Notes tendered pursuant to the offer to repurchase all
the Notes required thereby, prior to purchasing or repaying such
Subordinated Obligations;
(iii) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with the preceding paragraph (a) of this Section 408;
(iv) Investments in an aggregate amount outstanding at any
time not to exceed the amount of Excluded Contributions (excluding the
amount of Excluded Contributions used to Incur Indebtedness pursuant to
clause (xii) of paragraph (b) of Section 406);
(v) payments by the Company to repurchase or otherwise acquire
Capital Stock (including any options, warrants or other rights in
respect thereof) from Management Investors (including loans, advances,
dividends or distributions by the Company to a Parent to permit such
Parent to make any such repurchase or other acquisition), such
payments, loans, advances, dividends or distributions not to exceed an
amount (net of repayments of any such loans or advances) equal to (1)
$25.0 million, plus (2) $3.0 million multiplied by the number of
calendar years that have commenced since the Issue Date (not to exceed
$9.0
million in the aggregate), plus (3) the Net Cash Proceeds received by
the Company since the Issue Date from, or as a capital contribution
from, the issuance or sale to Management Investors of Capital Stock
(including any options, warrants or other rights in respect thereof),
to the extent such Net Cash Proceeds are not included in any
calculation under clause (3)(B)(x) of the preceding paragraph (a) of
this Section 408 and do not constitute an Excluded Contribution;
(vi) the payment by the Company of (or loans, advances,
dividends or dis tributions by the Company to a Parent to pay)
dividends on the common stock or equity of the Company (or such Parent)
following a public offering of such common stock or equity, in an
amount not to exceed in any fiscal year 6% of the aggregate gross
proceeds received by the Company in or from such public offering;
(vii) Restricted Payments (including loans or advances) in an
aggregate amount outstanding at any time not to exceed $20.0 million
(net of repayments of any such loans or advances);
(viii) payments by the Company or any Restricted Subsidiary to
satisfy obligations under the CDR Agreements; and Permitted Parent
Payments;
(ix) payments by the Company, or loans, advances, dividends or
distributions by the Company to a Parent to make payments, to holders
of Capital Stock of the Company or such Parent in lieu of issuance of
fractional shares of such Capital Stock, not to exceed $100,000 in the
aggregate outstanding at any time;
(x) dividends or other distributions of Capital Stock,
Indebtedness or other securities of Unrestricted Subsidiaries;
(xi) the Transactions; and
(xii) any purchase, redemption, retirement or other
acquisition of Capital Stock (x) that is used as consideration in
making any Investment that involves an acquisition of a Person,
business or assets and that is permitted as a Restricted Payment
Transaction or (y) deemed to occur upon the exercise of options if such
Capital Stock represents a portion of the exercise price thereof;
provided that (A) in the case of clauses (iii), (vi), (vii) and (ix), the net
amount of any
such Permitted Payment shall be included in subsequent calculations of the
amount of Restricted Payments, (B) in the case of clause (v), at the time of any
calculation of the amount of Restricted Payments, the net amount of Permitted
Payments that have then actually been made under clause (v) that is in excess of
50% of the total amount of Permitted Payments then permitted under clause (v)
shall be included in such calculation of the amount of Restricted Payments, (C)
in all cases other than pursuant to clauses (A) and (B) immediately above, the
net amount of any such Permitted Payment shall be excluded in subsequent
calculations of the amount of Restricted Payments and (D) solely with respect to
clause (vii), no Default or Event of Default shall have occurred or be
continuing at the time of any such Permitted Payment after giving effect
thereto.
Section 409. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause to exist or become effective
any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its Capital
Stock or pay any Indebtedness or other obligations owed to the Company, (ii)
make any loans or advances to the Company or (iii) transfer any of its property
or assets to the Company, except any encumbrance or restriction:
(1) pursuant to an agreement or instrument in effect at or
entered into on the Issue Date (including, without limitation, the
Senior Credit Facility), this Indenture or the Notes;
(2) pursuant to any agreement or instrument of a Person, or
relating to Indebtedness or Capital Stock of a Person, which Person is
acquired by or merged or consolidated with or into the Company or any
Restricted Subsidiary, or which agree ment or instrument is assumed by
the Company or any Restricted Subsidiary in connection with an
acquisition of assets from such Person, as in effect at the time of
such acquisition, merger or consolidation (except to the extent that
such Indebtedness was incurred to finance, or otherwise in connection
with, such acquisition, merger or consolidation), provided that for
purposes of this clause (2), if another Person is the Successor
Company, any Subsidiary thereof or agreement or instrument of such
Person or any such Subsidiary shall be deemed acquired or assumed, as
the case may be, by the Company or a Restricted Subsidiary, as the case
may be, when such Person becomes the Successor Company;
(3) pursuant to an agreement or instrument (a "Refinancing
Agreement") effecting a refinancing of Indebtedness Incurred pursuant
to, or that otherwise
extends, renews, refunds, refinances or replaces, an agreement or
instrument referred to in clause (1) or (2) of this Section 409 or this
clause (3) (an "Initial Agreement") or contained in any amendment,
supplement or other modification to an Initial Agreement (an
"Amendment"); provided, however, that the encumbrances and restrictions
contained in any such Refinancing Agreement or Amendment are not
materially less favorable to the Holders of the Notes taken as a whole
than encumbrances and re strictions contained in the Initial Agreement
or Initial Agreements to which such Refinancing Agreement or Amendment
relates (as determined in good faith by the Company);
(4) (A) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a
lease, license or similar contract, or the assignment or transfer of
any lease, license or other contract, (B) by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Restricted Subsidiary not
otherwise pro hibited by this Indenture, (C) contained in mortgages,
pledges or other security agreements securing Indebtedness of a
Restricted Subsidiary to the extent restricting the transfer of the
property or assets subject thereto, (D) pursuant to customary
provisions restricting dispositions of real property interests set
forth in any reciprocal easement agreements of the Company or any
Restricted Subsidiary, (E) pursuant to Purchase Money Obligations that
impose encumbrances or restrictions on the property or assets so
acquired, (F) on cash or other deposits or net worth imposed by
customers under agreements entered into in the ordinary course of
business, (G) pursuant to customary provisions contained in agreements
and instruments entered into in the ordinary course of business
(including but not limited to leases and joint venture and other
similar agreements entered into in the ordinary course of business) or
(H) that arises or is agreed to in the ordinary course of business and
does not detract from the value of property or assets of the Company or
any Restricted Subsidiary in any manner material to the Company or such
Restricted Subsidiary;
(5) with respect to a Restricted Subsidiary (or any of its
property or assets) imposed pursuant to an agreement entered into for
the direct or indirect sale or disposition of all or substantially all
the Capital Stock or assets of such Restricted Subsidiary (or the
property or assets that are subject to such restriction) pending the
closing of such sale or disposition;
(6) required by any applicable law, rule, regulation or order
or by any regu latory authority having jurisdiction over the Company or
any Restricted
Subsidiary or any of their businesses; or
(7) pursuant to an agreement or instrument (A) relating to any
Indebtedness permitted to be Incurred subsequent to the Issue Date
pursuant to the provisions of Section 406 if the Company determines
that such encumbrance or restriction will not cause the Company not to
have the funds necessary to pay the principal of or interest on the
Notes, (B) relating to any sale of receivables by a Foreign Subsidiary
or (C) relating to Indebtedness of or a Financing Disposition to or by
any Receivables Entity.
Section 410. Limitation on Sales of Assets and Subsidiary
Stock. (a) The Company will not, and will not permit any Restricted Subsidiary
to, make any Asset Dis position unless
(i) the Company or such Restricted Subsidiary receives
consideration (including by way of relief from, or by any other Person
assuming responsibility for, any liabilities, contingent or otherwise)
at the time of such Asset Disposition at least equal to the fair market
value of the shares and assets subject to such Asset Disposition, as
such fair market value may be determined (and shall be determined, to
the extent such Asset Disposition involves aggregate consideration in
excess of $10.0 million) in good faith by the Board of Directors, whose
determination shall be conclusive (including as to the value of all
noncash consideration),
(ii) in the case of any Asset Disposition having a fair market
value of $10.0 million or more, at least 75% of the consideration
therefor (excluding, in the case of an Asset Disposition of assets, any
consideration by way of relief from, or by any other Person assuming
responsibility for, any liabilities, contingent or otherwise, that are
not Indebtedness) received by the Company or such Restricted Subsidiary
is in the form of cash, and provided that this clause (ii) shall not
apply to any Asset Disposition involving assets that accounted for less
than two percent of Consolidated EBITDA during the period of the most
recent four consecutive fiscal quarters ending prior to the date of
such Asset Disposition for which consolidated financial statements of
the Company are available, and
(iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company (or any Restricted
Subsidiary, as the case may be) as follows:
(A) first, either (x) to the extent the Company
elects (or is required by the terms of any Senior Indebtedness
or Indebtedness of a Restricted Sub sidiary), to prepay, repay
or purchase Senior Indebtedness or such Indebtedness of a
Restricted Subsidiary (in each case other than Indebtedness
owed to the Company or a Restricted Subsidiary) within 365
days after the date of such Asset Disposition, or (y) to the
extent the Company or such Restricted Sub sidiary elects, to
reinvest in Additional Assets (including by means of an
investment in Additional Assets by a Restricted Subsidiary
with Net Available Cash received by the Company or another
Restricted Subsidiary) within 365 days from the date of such
Asset Disposition, or, if such reinvestment in Additional
Assets is a project that is authorized by the Board of
Directors that will take longer than such 365 days to
complete, the period of time necessary to complete such
project;
(B) second, to the extent of the balance of such Net
Available Cash after application in accordance with clause (A)
above (such balance, the "Excess Proceeds"), to make an offer
to purchase Notes and (to the extent the Company or such
Restricted Subsidiary elects, or is required by the terms
thereof) to purchase, redeem or repay any other Senior
Subordinated Indebtedness or Guarantor Senior Subordinated
Indebtedness, pursuant and subject to Section 410(b) and
Section 410(c) and the agreements governing such other
Indebtedness; and
(C) third, to the extent of the balance of such Net
Available Cash after application in accordance with clauses
(A) and (B) above, to fund (to the extent consistent with any
other applicable provision of this Indenture) any general
corporate purpose (including but not limited to the
repurchase, repayment or other acquisition or retirement of
any Subordinated Obligations);
provided, however, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to clause (A)(x) or (B) above, the Company or such
Restricted Sub sidiary will retire such Indebtedness and will cause the related
loan commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section 410,
the Company and the Restricted Subsidiaries shall not be required to apply any
Net Available Cash in accordance with this Section 410 except to the extent that
the
aggregate Net Available Cash from all Asset Dispositions that is not applied
in accordance with this Section 410 exceeds $15.0 million. If the aggregate
principal amount of Notes, Senior Subordinated Indebtedness and Guarantor Senior
Subordinated Indebtedness validly tendered and not withdrawn (or otherwise
subject to purchase, redemption or repayment) in connection with an offer
pursuant to clause (B) above exceeds the Excess Proceeds, the Excess Proceeds
will be apportioned between the Notes and such Senior Subordinated Indebtedness
and Guarantor Senior Subordinated Indebtedness, with the portion of the Excess
Proceeds payable in respect of the Notes to equal the lesser of (x) the Excess
Proceeds amount multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Notes and the denominator of which is the
sum of the outstanding principal amount of the Notes and the outstanding
principal amount of the relevant Senior Subordinated Indebtedness and Guarantor
Senior Subordinated Indebtedness, and (y) the aggregate principal amount of
Notes validly tendered and not withdrawn.
For the purposes of clause (ii) of paragraph (a) of this
Section 410, the following are deemed to be cash: (1) Temporary Cash Investments
and Cash Equivalents, (2) the assumption of Indebtedness of the Company (other
than Disqualified Stock of the Company) or any Restricted Subsidiary and the
release of the Company or such Restricted Subsidiary from all liability on
payment of such Indebtedness in connection with such Asset Disposition, (3)
Indebtedness of any Restricted Subsidiary that is no longer a Restricted
Subsidiary as a result of such Asset Disposition, to the extent that the Company
and each other Restricted Subsidiary is released from any Guarantee of payment
of such Indebtedness in connection with such Asset Disposition, (4) securities
received by the Company or any Restricted Subsidiary from the transferee that
are converted by the Company or such Restricted Subsidiary into cash and (5)
consideration consisting of Indebtedness of the Company or any Restricted
Subsidiary.
(b) In the event of an Asset Disposition that requires the
purchase of Notes pursuant to clause (iii)(B) of paragraph (a) of this Section
410, the Company will be required to purchase Notes tendered pursuant to an
offer by the Company for the Notes (the "Offer") at a purchase price of 100% of
their principal amount plus accrued and unpaid interest to the purchase date in
accordance with the procedures (including prorating in the event of
oversubscription) set forth in this Indenture. If the aggregate purchase price
of the Notes tendered pursuant to the Offer is less than the Net Available Cash
allotted to the purchase of Notes, the remaining Net Available Cash will be
available to the Company for use in accordance with clause (iii)(B) of paragraph
(a) of this Section 410 (to repay Senior Subordinated Indebtedness or Guarantor
Senior Subordinated Indebtedness) or clause (iii)(C) of paragraph (a) of this
Section 410. The
Company shall not be required to make an Offer for Notes pursuant to this
Section 410 if the Net Available Cash available therefor (after application of
the proceeds as provided in clause (iii)(A) of paragraph (a) of this Section
410) is less than $15.0 million for any particular Asset Disposition (which
lesser amounts shall be carried forward for purposes of determining whether an
Offer is required with respect to the Net Available Cash from any subsequent
Asset Disposition).
(c) The Company will, not later than 45 days after the Company
becomes obligated to make an Offer pursuant to this Section 410, mail a notice
to each Holder with a copy to the Trustee (and publish notice in Luxembourg in
accordance with Section 110) stating: (1) that an Asset Disposition that
requires the purchase of a portion of the Notes has occurred and that such
Holder has the right (subject to the prorating described below) to require the
Company, to purchase a portion of such Holder's Notes at a purchase price in
cash equal to 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of purchase (subject to Section 307); (2) the
circumstances and relevant facts and financial information regarding such Asset
Disposition; (3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); (4) the instructions
determined by the Company, consistent with this Section 410, that a Holder must
follow in order to have its Notes purchased; and (5) the amount of the Offer.
If, upon the expiration of the period for which the Offer remains open, the
aggregate principal amount of Notes surrendered by Holders exceeds the amount of
the Offer, the Company will select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000 or integral multiples thereof, shall be
purchased).
(d) The Company will comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to this
Section 410. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 410, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 410 by virtue
thereof.
Section 411. Limitation on Transactions with Affiliates. (a)
The Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction or series of related
transactions (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Company (an "Affiliate
Transaction") unless (i) the terms of such Affiliate Transaction are not
materially less favorable to the Company or such Restricted
Subsidiary, as the case may be, than those that could be obtained at the time in
a transaction with a Person who is not such an Affiliate and (ii) if such
Affiliate Transaction involves aggregate consideration in excess of $10.0
million, the terms of such Affiliate Transaction have been approved by a
majority of the Disinterested Directors. For purposes of this Section 411(a),
any Affiliate Transaction shall be deemed to have satisfied the requirements set
forth in this Section 411(a) if (x) such Affiliate Transaction is approved by a
majority of the Disinterested Directors or (y) in the event there are no
Disinterested Directors, a fairness opinion is provided by a nationally
recognized appraisal or investment banking firm with respect to such Affiliate
Transaction.
(b) The provisions of the preceding paragraph (a) of this
Section 411 will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1) the entering into, maintaining or performance of any
employment contract, collective bargaining agreement, benefit plan,
program or arrangement, related trust agreement or any other similar
arrangement for or with any employee, officer or director heretofore or
hereafter entered into in the ordinary course of business, including
vacation, health, insurance, deferred compensation, severance,
retirement, savings or other similar plans, programs or arrangements,
(2) the payment of compensation, performance of indemnification or
contribution obligations, or any issuance, grant or award of stock,
options, other equity-related interests or other securities, to
employees, officers or directors in the ordinary course of business,
(3) the payment of fees to directors of the Company or any of its
Subsidiaries, (4) any transaction with an officer or director in the
ordinary course of business not involving more than $250,000 in any one
case, or (5) Management Advances and payments in respect thereof,
(iii) any transaction with the Company, any Restricted
Subsidiary, or any Receivables Entity,
(iv) any transaction arising out of agreements or instruments
in existence on the Issue Date, and any payments made pursuant thereto,
(v) execution, delivery and performance of the CDR Agreements,
including (1) payment to CDR or any Affiliate of CDR of a fee of $15.0
million
plus out-of-pocket expenses in connection with the Transactions, and
(2) payment to CDR or any Affiliate of CDR of fees of up to $1.0
million in any fiscal year plus all out-of-pocket expenses incurred by
CDR or any such Affiliate in connection with its performance of
management consulting, monitoring, financial advisory or other services
with respect to the Company and its Restricted Subsidiaries,
(vi) the Transactions, all transactions in connection
therewith (including but not limited to the financing thereof), and all
fees or expenses paid or payable in connection with the Transactions,
(vii) any transaction in the ordinary course of business on
terms not materially less favorable to the Company or the relevant
Restricted Subsidiary than those that could be obtained at the time in
a transaction with a Person who is not an Affiliate of the Company, and
(viii) any transaction in the ordinary course of business, or
approved by a majority of the Board of Directors, between the Company
or any Restricted Subsidiary and any Affiliate of the Company
controlled by the Company that is a joint venture or similar entity.
Section 412. Limitation on Liens. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, create or
permit to exist any Lien (other than Permitted Liens) on any of its property or
assets (including Capital Stock of any other Person), whether owned on the Issue
Date or thereafter acquired, securing any Indebtedness of the Company or any
Note Guarantor that by its terms is expressly subordinated in right of payment
to or ranks pari passu in right of payment with the Notes or such Note
Guarantor's Note Guarantee (the "Initial Lien"), unless contemporaneously
therewith effective provision is made to secure the Indebtedness due under this
Indenture and the Notes or, in respect of Liens on any Restricted Subsidiary's
property or assets, any Note Guarantee of such Restricted Subsidiary, equally
and ratably with such obligation for so long as such obligation is so secured by
such Initial Lien. Any such Lien thereby created in favor of the Notes or any
such Note Guarantee will be automatically and unconditionally released and
discharged upon (i) the release and discharge of the Initial Lien to which it
relates, or (ii) any sale, exchange or transfer to any Person (other than a
Restricted Subsidiary of the Company) of the property or assets secured by such
Initial Lien, or of all of the Capital Stock held by the Company or any
Restricted Subsidiary in, or all or substantially all the assets of, any
Restricted Subsidiary creating such Lien.
Section 413. Future Note Guarantors. After the Issue Date, the
Company will cause each Material Domestic Subsidiary that guarantees payment by
the Company of Bank Indebtedness to execute and deliver to the Trustee a
supplemental indenture or other instrument pursuant to which such Subsidiary
will guarantee payment of the Notes, whereupon such Subsidiary will become a
Note Guarantor for all purposes under this Indenture. In addition, the Company
may cause any Subsidiary that is not a Note Guarantor so to guarantee payment of
the Notes and become a Note Guarantor (any such Note Guarantor being herein
called a "Voluntary Note Guarantor").
Section 414. Purchase of Notes Upon a Change in Control. (a)
Upon a Change of Control Triggering Event, each Holder will have the right to
require the Company to repurchase all or any part of such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the date of repurchase (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date); provided, however, that, the Company
shall not be obligated to repurchase Notes pursuant to this Section 414 in the
event that it has exercised its right to redeem all of the Notes pursuant to
Article 10.
(b) In the event that, at the time of such Change of Control
Triggering Event, the terms of the Bank Indebtedness restrict or prohibit the
repurchase of Notes pursuant to this Section 414, then prior to the mailing of
the notice to Holders provided for in paragraph (c) of this Section 414, but in
any event not later than 30 days following the date the Company obtains actual
knowledge of any Change of Control Triggering Event (unless the Company has
exercised its right to redeem all the Notes as provided in Article 10), the
Company shall (i) repay in full all Bank Indebtedness or offer to repay in full
all Bank Indebtedness and repay the Bank Indebtedness of each lender who has
accepted such offer or (ii) obtain the requisite consent under the agreements
governing the Bank Indebtedness to permit the repurchase of the Notes as
provided for in paragraph (c) of this Section 414. The Company shall first
comply with the provisions of the immediately preceding sentence before it shall
be required to repurchase Notes pursuant to the provisions of paragraph (c) of
this Section 414. The Company's failure to comply with the provisions of (x) the
first sentence of this paragraph (b) or (y) paragraph (c) of this Section 414
shall constitute an Event of Default described in clause (4) and not in clause
(2) under Section 601.
(c) Unless the Company has exercised its right to redeem all
the Notes as set forth in Article 10, the Company shall, not later than 30 days
following the date the Company obtains actual knowledge of any Change of Control
Triggering Event having occurred, mail a notice to each Holder with a copy to
the Trustee (and publish notice in Luxembourg in accordance with Section 110)
stating: (1) that a Change of
Control Triggering Event has occurred or may occur and that such Holder has, or
upon such occurrence will have, the right to require the Company to purchase
such Holder's Notes at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the date of
purchase (subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date); (2) the
circumstances and relevant facts and financial information regarding such Change
of Control; (3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); (4) the instructions
determined by the Company, consistent with this Section 414, that a Holder must
follow in order to have its Notes purchased; and (5) if such notice is mailed
prior to the occurrence of a Change of Control or Change of Control Triggering
Event, that such offer is conditioned on the occurrence of such Change of
Control Triggering Event.
(d) The Company will comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to this
Section 414. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 414, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 414, by virtue
thereof.
ARTICLE 5
SUCCESSOR COMPANY
Section 501. When the Company May Merge, etc. The Company will
not consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Company") will be a Person organized and existing under the
laws of the United States of America, any State thereof or the District
of Columbia and the Successor Company (if not the Company) will
expressly assume all the obligations of the Company under the Notes and
this Indenture by executing and delivering to the Trustee a
supplemental indenture or one or more other documents or instruments in
form reasonably satisfactory to the Trustee;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness that becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default will have
occurred and be continuing;
(iii) immediately after giving effect to such transaction,
either (A) the Suc cessor Company could Incur at least $1.00 of
additional Indebtedness pursuant to paragraph (a) of Section 406, or
(B) the Consolidated Coverage Ratio of the Successor Company would
equal or exceed the Consolidated Coverage Ratio of the Company
immediately prior to giving effect to such transaction;
(iv) each Note Guarantor (other than any party to any such
consolidation or merger) shall have delivered a supplemental indenture
or other document or instrument in form reasonably satisfactory to the
Trustee, confirming its Note Guarantee; and
(v) the Company will have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each to the effect
that such consolidation, merger or transfer complies with the
provisions described in this paragraph of this Section 501, provided
that (x) in giving such opinion such counsel may rely on an Officer's
Certificate as to compliance with the foregoing clauses (ii) and (iii)
and as to any matters of fact, and (y) no Opinion of Counsel will be
required for a consolidation, merger or transfer described in the last
paragraph of this Section 501.
Any Indebtedness that becomes an obligation of the Company or
any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted
Subsidiary that becomes a Restricted Subsidiary) as a result of any such
transaction undertaken in compliance with this Section 501, and any Refinancing
Indebtedness with respect thereto, shall be deemed to have been Incurred in
compliance with Section 406.
Clauses (ii) and (iii) of the first paragraph of this Section
501 will not apply to any transaction in which (1) any Restricted Subsidiary
consolidates with, merges into or transfers all or part of its assets to the
Company or (2) the Company consolidates or merges with or into or transfers all
or substantially all its assets to (x) an Affiliate incorporated or organized
for the purpose of reincorporating or reorganizing the Company in another
jurisdiction or changing its legal structure to an entity other than a
corporation (or, if the Company is then not a corporation, to a corporation) or
(y) a
Restricted Subsidiary of the Company so long as all assets of the Company
and the Restricted Subsidiaries immediately prior to such transaction (other
than Capital Stock of such Restricted Subsidiary) are owned by such Restricted
Subsidiary and its Restricted Subsidiaries immediately after the consummation
thereof.
Section 502. Successor Company Substituted. Upon any
transaction involving the Company in accordance with Section 501, in which the
Company is not the Successor Company, the Successor Company will succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture, and thereafter the predecessor Company shall be relieved of all
obligations and covenants under this Indenture.
ARTICLE 6
REMEDIES
Section 601. Events of Default. An "Event of Default" occurs
if:
(1) the Company defaults in any payment of interest on any
Note when due whether or not such payment shall be prohibited by
Article 14, and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Note when the same becomes due, at its Stated Maturity, upon
optional redemption, upon required purchase, upon declaration of
acceleration or otherwise, whether or not such payment shall be
prohibited by Article 14;
(3) the Company fails to comply with Article 5 and such
failure continues for 30 days after the notice specified in the
penultimate paragraph of this Section 601;
(4) the Company fails to comply with Section 414 (other than a
failure to purchase the Notes), and such failure continues for 30 days
after the notice specified in the penultimate paragraph of this Section
601;
(5) the Company fails to comply with any of its agreements in
the Notes or this Indenture (other than those referred to in (1), (2),
(3) and (4) above) and such failure continues for 60 days after the
notice specified in the penultimate
paragraph of this Section 601;
(6) the Company or any Significant Subsidiary fails to pay any
issue or issues of Indebtedness within any applicable grace period
after final maturity or the acceleration of any such Indebtedness by
the holders thereof because of a default, if the total amount of such
Indebtedness unpaid or accelerated exceeds $25,000,000 or its foreign
currency equivalent;
(7) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an in voluntary case;
(C) consents to the appointment of a Custodian of it
or for any sub stantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its
property; or
(C) orders the winding up or liquidation of the
Company or any Sig nificant Subsidiary;
and the order or decree remains unstayed and in effect for 60 days;
(9) there is rendered any judgment or decree for the payment
of money in an amount (net of any insurance or indemnity payments
actually received in respect thereof prior to or within 90 days from
the entry thereof, or to be received in respect thereof in the event
any appeal thereof shall be unsuccessful) in excess of $25,000,000 or
its foreign currency equivalent against the Company or a Significant
Subsidiary by a court or other adjudicatory authority of competent
jurisdiction that is not discharged, or bonded or insured by a third
Person, if such judgment or decree remains outstanding for a period of
90 days following such judgment or decree and is not discharged, waived
or stayed; or
(10) any Note Guarantee by a Note Guarantor that is a
Significant Subsidiary fails to be in full force and effect (except as
contemplated by the terms thereof or of this Indenture) or any Note
Guarantor that is a Significant Subsidiary denies or disaffirms in
writing its obligations under this Indenture or its Note Guarantee
(other than by reason of the termination of this Indenture or such Note
Guarantee or the release of such Note Guarantee in accordance with such
Note Guarantee or this Indenture), if such Default continues for 10
days.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code,
or any similar Federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
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 Outstanding Notes notify the Company (and the Trustee in the case of a
notice by Holders) of the Default and the Company does not cure such Default
within the time specified therein after receipt of such notice. Such notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default." When a Default or an Event of Default is cured, it ceases.
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officer's Certificate
of any Event of Default under clause (6) or (9) and any event that with the
giving of notice or the lapse of time would become an Event of Default under
clause (3), (4) or (5), its status and what action the Company is taking or
proposes to take with respect thereto.
Section 602. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default (other than an Event of Default specified in
clause (7) or (8) of Section 601 with respect to the Company) occurs and is
continuing, the Trustee by notice to the
Company, or the Holders of at least a majority in principal amount of the
Outstanding Notes by notice to the Company and the Trustee, in either case
specifying in such notice the respective Event of Default and that such notice
is a "notice of acceleration," may declare the principal of and accrued but
unpaid interest on all the Notes to be due and payable, provided that so long as
any Designated Senior Indebtedness shall be outstanding, such acceleration shall
not be effective until the earlier to occur of (x) five Business Days following
delivery of a written notice of such acceleration of the Notes to the Company
and the holders of all Designated Senior Indebtedness or each Representative
thereof and (y) the acceleration of any Designated Senior Indebtedness. Upon the
effectiveness of such a declaration, such principal and interest will be due and
payable immediately. Notwithstanding the foregoing, if an Event of Default
specified in clause (7) or (8) of Section 601 with respect to the Company occurs
and is continuing, then the principal of and any accrued interest on all the
Outstanding Notes will ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the Outstanding Notes by notice
to the Company and 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 non-payment of
principal or interest that has become due solely because of such acceleration.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Notwithstanding the foregoing, in the event of a declaration
of acceleration in respect of the Notes because an Event of Default specified in
clause (6) of Section 601 shall have occurred and be continuing, such
declaration of acceleration of the Notes and such Event of Default and all
consequences thereof (including without limitation any acceleration or resulting
payment default) shall be annulled, waived and rescinded, automatically and
without any action by the Trustee or the Holders, and be of no further effect,
if within 60 days after such Event of Default arose (x) the Indebtedness that is
the basis for such Event of Default has been discharged, or (y) the holders
thereof have rescinded or waived the acceleration, notice or action (as the case
may be) giving rise to such Event of Default, or (z) the default in respect of
such Indebtedness that is the basis for such Event of Default has been cured.
Section 603. Other Remedies; Collection Suit by Trustee. If an
Event of Default occurs and is continuing, the Trustee may, but is not obligated
under this Section 603 to, pursue any available remedy to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture. If an Event of Default specified in
Section 601(1) or 601(2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an
express trust against the Company for the whole amount then due and owing
(together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 707.
Section 604. 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 and the Holders allowed in
any judicial proceedings relative to the Company or any other obligor upon the
Notes, its creditors or its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 707.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 605. Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.
Section 606. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article 6 shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
First: to the payment of all amounts due the Trustee under
Section 707;
Second: to holders of Senior Indebtedness to the extent
required by Article 14;
Third: to the payment of the amounts then due and unpaid upon
the Notes for principal (and premium, if any) and interest, in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal (and premium, if
any) and interest, respectively; and
Fourth: to the Company.
Section 607. Limitation on Suits. No Holder may pursue any
remedy with respect to this Indenture or the Notes unless:
(1) such Holder has previously given the Trustee written
notice that an Event of Default is continuing;
(2) Holders of at least 25% in principal amount of the
Outstanding Notes have requested the Trustee in writing to pursue the
remedy;
(3) such Holder or Holders have offered to the Trustee
reasonable security or indemnity against any loss, liability or
expense;
(4) the Trustee has not complied with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Outstanding Notes have not given the Trustee a direction inconsistent
with the request within such 60-day period.
A Holder may not use this Indenture to affect, disturb or
prejudice the rights of another Holder, to obtain a preference or priority over
another Holder or to enforce any right under this Indenture except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 608. Unconditional Right of Holders to Receive
Principal and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Note shall have the absolute and unconditional right to
receive payment of the principal of
and all (subject to Section 307) interest on such Note on the respective Stated
Maturity or Interest Payment Dates expressed in such Note and to institute suit
for the enforcement of any such payment on or after such respective Stated
Maturity or Interest Payment Dates, and such right shall not be impaired without
the consent of such Holder.
Section 609. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture or any Note and such proceeding has been
discontinued or abandoned for any reason, or has been deter mined adversely to
the Trustee or to such Holder, then and in every such case the Company, any
other obligor upon the Notes, the Trustee and the Holders shall, subject to any
determina tion in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 610. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 611. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 612. Control by Holders. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Notes shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or, subject to Section 701, that
the Trustee determines is unduly prejudicial to the rights of other Holders
or would involve the Trustee in personal liability; provided, however, that
the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. Prior to taking any action under this
Indenture, the Trustee shall be entitled to indemnification satisfactory to
it in its sole discretion against all losses and expenses caused by taking or
not taking such action. This Section 612 shall be in lieu of Section
316(a)(1)(A) of the TIA, and such Section 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
Section 613. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of the Outstanding Notes may on
behalf of the Holders of all the Notes waive any past Default hereunder and its
consequences, except a Default
(1) in the payment of the principal of (or premium, if any) or
interest on any Note (which may only be waived with the consent of each
Holder of Notes affected), or
(2) in respect of a covenant or provision hereof that pursuant
to the second paragraph of Section 902 cannot be modified or amended
without the consent of the Holder of each Outstanding Note affected.
Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereon. In case of any such waiver, the Company, any other
obligor upon the Notes, the Trustee and the Holders shall be restored to
their former positions and rights hereunder and under the Notes,
respectively. This paragraph of this Section 613 shall be in lieu of Section
316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
Section 614. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance thereof
shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or the Notes, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant. This Section 614 shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Note on or after the respective Stated Maturity or Interest Payment Dates
expressed in such Note.
Section 615. Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other similar
law wherever enacted, now or at any time hereafter in force, that would prohibit
or forgive the Company from paying all or any portion of the principal of (or
premium, if any) or interest on the Notes contemplated herein or in the Notes or
that 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 hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
THE TRUSTEE
Section 701. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the re quirements of this Indenture; but in
the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture, but need not
verify the contents thereof.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that (i) this
paragraph does not limit the effect of paragraph (a) of this Section 701; (ii)
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; and (iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 612.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties here under or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
Sections 701 and 703 hereof.
Section 702. Notice of Defaults. Within 90 days after the
occurrence of any Default, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Note Register, notice of such Default
hereunder known to the Trustee unless such Default shall have been cured or
waived; provided, however, that, except in the case of a Default in the payment
of the principal of, premium (if any) or interest on, any Note, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of Responsible Officers
of the Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders.
Section 703. Certain Rights of Trustee. Subject to the
provisions of Section 701:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
thereof, and any resolution of any Person's board of directors shall be
sufficiently evidenced if certified by an Officer of such Person as
having been duly adopted and being in full force and effect on the date
of such certificate;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically pre scribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate of the Company;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note, other evidence of indebtedness or other
paper or document; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 704. Not Responsible for Recitals or Issuance of
Notes. The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
and the Note Guarantors, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes, except that the Trustee represents that it is duly authorized to execute
and deliver this Indenture, authenticate the Notes and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company and the Note Guarantors in
connection with the registration of any Notes and any Note Guarantees issued
hereunder are and will be true and accurate subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Notes or the proceeds
thereof.
Section 705. May Hold Notes. The Trustee, any Authenticating
Agent, any Paying Agent, any Note Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of
Notes and, subject to Section 708 and Section 713, may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Note Registrar or such other agent.
Section 706. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
Section 707. Compensation and Reimbursement. The Company
agrees,
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable out-of-pocket
expenses incurred by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on the Trustee's part, arising out of or in connection with
the administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
The Company need not pay for any settlement made without its consent.
Section 708. Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of the TIA, the Trustee
shall either eliminate such conflicting interest, apply to the SEC for
permission to continue as Trustee with such conflicting interest, or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
TIA and this Indenture. To the extent permitted by such Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Original Notes and Additional Notes, or a trustee
under any other indenture between the Company and the Trustee.
Section 709. Corporate Trustee Required; Eligibility. There
shall at all times be one (and only one) Trustee hereunder. The Trustee shall be
a Person that is eligible pursuant to the TIA to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
709 and to the extent permitted by the TIA, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
709, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
Section 710. Resignation and Removal; Appointment of
Successor. No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 711.
The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 711 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Notes, delivered to the
Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 708 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 709
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company may remove the Trustee, or (B) subject
to Section 614, any Holder who has been a bona fide Holder of a Note for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company shall promptly appoint a successor Trustee and shall comply with the
applicable requirements of Section 711. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Notes delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 711, become the successor Trustee and to that extent supersede the
successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 711, then, subject to Section 614,
any Holder who has been a bona fide Holder of a Note for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 110. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Section 711. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Trustee, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or con veyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to above.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article 7.
Section 712. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article 7, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
Section 713. Preferential Collection of Claims Against the
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the TIA regarding the collection of claims against the Company (or
any such other obligor).
Section 714. Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent acceptable to the Company to authenticate
the Notes. Any such appointment shall be evidenced by an instrument in writing
signed by a Trust Officer, a copy of which instrument shall be promptly
furnished to the Company. Unless limited by the terms of such appointment, an
Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication (or execution of a certificate of
authentication) by the Trustee includes authentication (or execution of a
certificate of authen tication) by such Authenticating Agent. An Authenticating
Agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
ARTICLE 8
HOLDERS' LISTS AND REPORTS BY
TRUSTEE AND THE COMPANY
Section 801. The Company to Furnish Trustee Names and
Addresses of Holders. The Company will furnish or cause to be furnished to the
Trustee
(1) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Note
Registrar, no such list need be furnished pursuant to this Section 801.
Section 802. Preservation of Information; Communications to
Holders. The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list, if any, furnished to the Trustee as provided in Section 801 and the names
and addresses of Holders received by the Trustee in its capacity as Note
Registrar; provided, however, that if and so long as the Trustee shall be the
Note Registrar, the Note Register shall satisfy the requirements relating to
such list. None of the Company, any Note Guarantor or the Trustee or any other
Person shall be under any responsibility with regard to the accuracy of such
list. The Trustee may destroy any list furnished to it as provided in Section
801 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Notes, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
TIA.
Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the TIA.
Section 803. Reports by Trustee. The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the TIA at the times and in the manner provided
pursuant thereto. A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Notes are listed, with the SEC and with the Company. The Company will
notify the Trustee when any Notes are listed on any stock exchange.
ARTICLE 9
AMENDMENT, SUPPLEMENT OR WAIVER
Section 901. Without Consent of Holders. Without the consent
of any Holder, the Company, the Trustee and (as applicable) any Note Guarantor
may enter into one or more indentures supplemental hereto, for any of the
following purposes:
(1) to cure any ambiguity, omission, defect or inconsistency,
(2) to provide for the assumption by a successor of the
obligations of the Company under this Indenture,
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes,
(4) to add Guarantees with respect to the Notes, to secure the
Notes, to confirm and evidence the release, termination or discharge of
any Guarantee or Lien with respect to or securing the Notes when such
release, termination or discharge is pro vided for under this
Indenture,
(5) to add to the covenants of the Company for the benefit of
the Noteholders or to surrender any right or power conferred upon the
Company,
(6) to provide that any Indebtedness that becomes or will
become an obligation of a Successor Company or a Note Guarantor
pursuant to a transaction governed by Article 5 (and that is not a
Subordinated Obligation) is Senior Subordinated In debtedness or
Guarantor Senior Subordinated Indebtedness for purposes of this
Indenture,
(7) to provide for or confirm the issuance of Additional
Notes,
(8) to make any change that does not adversely affect the
rights of any Holder under the Notes or this Indenture, or
(9) to comply with any requirement of the SEC in connection
with the quali fication of this Indenture under the TIA or otherwise.
Section 902. With Consent of Holders. Subject to Section 608,
the Company, the Trustee and (if applicable) any Note Guarantor may amend or
supplement this Indenture or the Notes with the written consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for Notes), and the Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes by written notice to the Trustee
(including consents obtained in connection with a tender offer or exchange offer
for Notes) may waive any existing Default or Event of Default or compliance by
the Company or any Note Guarantor with any provision of this Indenture, the
Notes or any Note Guarantee.
Notwithstanding the provisions of this Section 902, without
the consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 613, may not:
(i) reduce the principal amount of the Notes whose Holders
must consent to an amendment or waiver;
(ii) reduce the rate of or extend the time for payment of
interest on any Note;
(iii) reduce the principal or extend the Stated Maturity of
any Note;
(iv) reduce the premium payable upon the redemption of any
Note or change the date on which any Note may be redeemed as described
in Section 1001;
(v) make any Note payable in money other than that stated in
the Note;
(vi) make any change in Article 14 or Article 15 that
adversely affects the rights of any Holder in any material respect;
(vii) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment
on or with respect to such Holder's Notes; or
(viii) make any change in the amendment or waiver provisions
described in this sentence.
Notwithstanding Section 901 and the foregoing provisions of
this Section 902, no amendment to Article 14 or Article 15 of this Indenture or
the definitions relating thereto that adversely affects the rights of any Holder
of Senior Indebtedness at the time outstanding (which Senior Indebtedness has
been previously designated in writing by the Company to the Trustee for this
purpose) may be made unless the holders of such Senior Indebtedness (or any
group or representative thereof authorized to give a consent) consent in writing
to such amendment.
It shall not be necessary for the consent of the Holders under
this Section 902 to approve the particular form of any proposed amendment,
supplement or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section
902 becomes effective, the Company shall mail to the Holders of each Note
affected thereby, with a copy to the Trustee, a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any supplemental indenture or the effectiveness of any such
amendment, supplement or waiver.
Section 903. Execution of Amendments, Supplements or Waivers.
The Trustee shall sign any amendment, supplement or waiver authorized pursuant
to this Article 9 if the amendment, supplement or waiver does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, supplement or waiver, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Officer's Certificate and an
Opinion of Counsel to the effect that the execution of such amendment,
supplement or waiver has been duly authorized, executed and delivered by the
Company and that, subject to applicable bankruptcy, insolvency, fraudulent
transfer, fraudulent conveyance, reorganization, ▇▇▇▇ torium and other laws now
or hereinafter in effect affecting creditors' rights or remedies generally and
the general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding at law or at equity, such amendment, supplement or waiver is a
valid and binding agreement of the Company, enforceable against it in accordance
with its terms.
Section 904. Revocation and Effect of Consents. Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of that Note
or any Note that evidences all or any part of the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. Subject
to the following paragraph of this Section 904, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Note by notice to the Trustee
or the Company received by the Trustee or the Company, as the case may be,
before the date on which the Trustee receives an Officer's Certificate
certifying that the Holders of the requisite principal amount of Notes have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver. The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent to
any amendment, supplement or waiver as set forth in Section 108.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder of Notes, unless it makes a change described in any of
clauses
(i) through (viii) of the second paragraph of Section 902. In that case,
the amendment, supplement or waiver shall bind each Holder of a Note who has
consented to it and every subsequent Holder of such Note or any Note that
evidences all or any part of the same debt as the consenting Holder's Note.
Section 905. Conformity with TIA. Every amendment or
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
Section 906. Notation on or Exchange of Notes. If an
amendment, supplement or waiver changes the terms of a Note, the Trustee shall
(if required by the Company and in accordance with the specific direction of the
Company) request the Holder of the Note to deliver it to the Trustee. The
Trustee shall (if required by the Company and in accordance with the specific
direction of the Company) place an appropriate notation on the Note 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 Note shall issue and the
Trustee shall authen ticate a new Note that reflects the changed terms. Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
ARTICLE 10
REDEMPTION OF NOTES
Section 1001. Right of Redemption. (a) Except as set forth in
this Section 1001, the Notes will not be redeemable at the option of the Company
prior to June 15, 2003. Thereafter, the Notes will be redeemable, at the
Company's option, in whole or in part, and from time to time on and after June
15, 2003 and prior to maturity. Such redemption may be made upon notice mailed
by first-class mail to each Holder's registered address and upon publication in
Luxembourg in accordance with Section 1005. Any such redemption and notice may,
in the Company's discretion, be subject to the satisfaction of one or more
conditions precedent. The Notes will be so redeemable at the following
Redemption Prices (expressed as a percentage of principal amount), plus accrued
interest, if any, to the relevant Redemption Date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), if redeemed during the 12-month period
commencing on June 15 of the years set forth below:
Redemption
Year Price
---- ------------
2003............................................... 104.875%
2004............................................... 103.250%
2005............................................... 101.625%
2006 and thereafter................................ 100.000%
(b) In addition, at any time and from time to time prior to
June 15, 2001, the Company at its option may redeem the Notes in an aggregate
principal amount equal to up to 35% of the original aggregate principal amount
of the Notes (including the principal amount of any Additional Notes), with
funds in an aggregate amount (the "Redemption Amount") not exceeding the
aggregate proceeds of one or more Equity Offerings, at a Redemption Price
(expressed as a percentage of principal amount thereof) of 109.750% plus accrued
interest, if any, to the Redemption Date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that an aggregate principal amount of
the Notes equal to at least 65% of the original aggregate principal amount of
the Notes (including the principal amount of any Additional Notes) must remain
outstanding after each such redemption. The Company may make such redemption
upon notice mailed by first-class mail to each Holder's registered address and
upon publication in Luxembourg in accordance with Section 1005 (but in no event
more than 90 days after the completion of the related Equity Offering). Any such
notice may be given prior to the completion of the related Equity Offering, and
any such redemption or notice may, at the Company's discretion, be subject to
the satisfaction of one or more conditions precedent, including but not limited
to the completion of the related Equity Offering.
(c) At any time on or prior to June 15, 2003, the Notes may
also be redeemed or purchased (by the Company or any other Person) in whole but
not in part, at the Company's option, upon the occurrence of a Change of
Control, at a price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date). Such
redemption or purchase may be made upon notice mailed by first-class mail to
each Holder's registered address and upon publication in Luxembourg in
accordance with Section 1005 (but in no event more than 180 days after the
occurrence of such Change of Control). The Company may provide in such notice
that payment of the Redemption Price and performance of the Company's
obligations with respect to such redemption or purchase may be performed by
another Person. Any such notice may be given prior to the occurrence of the
related Change of Control,
and any such redemption, purchase or notice may, at the Company's discretion, be
subject to the satisfaction of one or more conditions precedent, including but
not limited to the occurrence of the related Change of Control.
Section 1002. Applicability of Article. Redemption or purchase
of Notes as permitted by Section 1001 shall be made in accordance with this
Article 10.
Section 1003. Election to Redeem; Notice to Trustee. In case
of any re demption at the election of the Company of less than all of the Notes,
the Company shall, at least 30 days prior to the Redemption Date initially fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of Notes
to be redeemed.
Section 1004. Selection by Trustee of Notes to Be Redeemed. In
the case of any partial redemption, selection of the Notes for redemption will
be made not more than 60 days prior to the Redemption Date by the Trustee on a
pro rata basis, by lot or by such other method as the Trustee in its sole
discretion shall deem to be fair and appropriate, although no Note of $1,000 in
original principal amount or less will be redeemed in part, provided that, in
the case of any partial redemption of any Global Note, selection for redemption
will be made by the Depositary in accordance with the procedures of the
Depositary therefor.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. On and after
the Redemption Date, interest will cease to accrue on Notes or portions thereof
called for redemption.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part, to the
portion of the principal of such Note that has been or is to be redeemed.
Section 1005. Notice of Redemption. Notice of redemption or
purchase as provided in Section 1001 shall be deemed to have been given (i) upon
the mailing by first class mail, postage prepaid, of such notice to each Holder
of Notes to be redeemed, at his registered address as recorded in the Note
Register and (ii) for so long as the Notes are listed on the Luxembourg Stock
Exchange, upon publication in a leading newspaper of general circulation in
Luxembourg, in each case, not later than 30 nor more than 60 days prior to the
Redemption Date.
Any such notice shall state:
(1) the expected Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note, and that, unless the
Company defaults in making such redemption payment or any Paying Agent
is prohibited from making such payment pursuant to the terms of this
Indenture, interest thereon shall cease to accrue from and after said
date,
(5) the place where such Notes are to be surrendered for
payment of the Redemption Price and the name and address of the Paying
Agent or Paying Agents,
(6) the CUSIP and other security identification numbers, if
any, subject to Section 311 hereof, and
(7) the section of this Indenture pursuant to which the Notes
are to be redeemed.
In addition, if such redemption, purchase or notice is subject to satisfaction
of one or more conditions precedent, as permitted by Section 1001, such notice
shall describe each such condition, and if applicable, shall state that, in the
Company's discretion, the Redemption Date may be delayed until such time as any
or all such conditions shall be satisfied, or such redemption or purchase may
not occur and such notice may be rescinded in the event that any or all such
conditions shall not have been satisfied by the Redemption Date, or by the
Redemption Date as so delayed.
Notice of such redemption or purchase of Notes to be so
redeemed or purchased at the election of the Company shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
The notice if mailed in the manner herein provided shall be
conclusively
presumed to have been given, whether or not the Holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice to the
Holder of any Note designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Note.
Section 1006. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, the Company shall
segregate and hold in trust as provided in Section 403) an amount of money
sufficient to pay the Redemption Price of, and any accrued and unpaid interest
on, all the Notes or portions thereof which are to be redeemed on that date.
Section 1007. Notes Payable on Redemption Date. Notice of
redemption having been given as provided in this Article 10, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price herein specified and from and after such date (unless Company shall
default in the payment of the Redemption Price or any Paying Agent is prohibited
from paying the Redemption Price pursuant to the terms of this Indenture) such
Notes shall cease to bear interest. Upon surrender of such Notes for redemp tion
in accordance with such notice, such Notes shall be paid by the Company at the
Re demption Price. Installments of interest whose Interest Payment Date is on or
prior to the Redemption Date shall be payable to the Holders of such Notes
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.
On and after any Redemption Date, if money sufficient to pay
the Redemption Price of and any accrued and unpaid interest on Notes called for
redemption shall have been made available in accordance with Section 1006, the
Notes (or the portions thereof) called for redemption will cease to accrue
interest and the only right of the Holders of such Notes (or portions thereof)
will be to receive payment of the Redemption Price of and subject to the last
sentence of the preceding paragraph of this Section 1007, any accrued and unpaid
interest on such Notes (or portions thereof) to the Redemption Date. If any Note
(or portion thereof) called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Note (or portion
thereof).
Section 1008. Notes Redeemed in Part. Any Note that is to be
redeemed only in part shall be surrendered at a Place of Payment (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 deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized de nomination as
requested by such Holder in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Note so surrendered.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 1101. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving rights
of conversion or transfer or exchange of Notes herein expressly provided for),
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 306, and (ii) Notes for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 403)
have been delivered to the Trustee cancelled or for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee
cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements reasonably satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
(2) the Company has irrevocably deposited or caused to be
deposited with the Trustee an amount in United States dollars, U.S.
Government Obligations, or a combination thereof, sufficient to pay and
discharge the entire Indebtedness on such Notes not theretofore
delivered to the Trustee cancelled or for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in the
case of Notes that have become due and payable), or to the Stated
Maturity or Redemption Date, as the case may be;
(3) the Company has paid or caused to be paid all other sums
then payable hereunder by the Company; and
(4) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each to the effect that all
conditions precedent provided for in this Section 1101 relating to the
satisfaction and discharge of this Indenture have been complied with,
provided that any such counsel may rely on any Officer's Certificate as
to matters of fact (including as to compliance with the foregoing
clauses (1), (2) and (3)).
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 707 and,
if money shall have been deposited with the Trustee pursuant to clause (2) of
this Section 1101, the obligations of the Trustee under Section 1102, shall
survive.
Section 1102. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 403, all money deposited with the
Trustee pursuant to Section 1101 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest on the Notes; but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE 12
DEFEASANCE OR COVENANT DEFEASANCE
Section 1201. The Company's Option to Elect Defeasance or
Covenant Defeasance. The Company may, at its option, at any time, elect to have
terminated
the obligations of the Company with respect to the Outstanding Notes and to have
terminated the obligations of any or all Note Guarantors with respect to the
Note Guarantees, in each case as set forth in this Article 12, and elect to have
either Section 1202 or Section 1203 be applied to all of the Outstanding Notes
(the "Defeased Notes"), upon compliance with the conditions set forth in Section
1204. Either Section 1202 or Section 1203 may be applied to the Defeased Notes
to any Redemption Date or the Stated Maturity of the Notes.
Section 1202. Defeasance and Discharge. Upon the Company's
exercise under Section 1201 of the option applicable to this Section 1202, the
Company shall be deemed to have been released and discharged from its
obligations with respect to the Defeased Notes on the date the relevant
conditions set forth in Section 1204 below are satisfied (hereinafter,
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Defeased Notes, which shall thereafter be deemed to be "Outstanding" only for
the purposes of Section 1205 and the other Sections of this Indenture referred
to in clauses (a) and (b) below, and the Company and each of the Note Guarantors
shall be deemed to have satisfied all other obligations under such Notes and
this Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following, which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of Holders of Defeased Notes to receive,
solely from the trust fund described in Section 1204 and as more fully set forth
in such Section, payments in respect of the principal of and premium, if any,
and interest on such Notes when such payments are due, (b) the Company's
obligations with respect to such Defeased Notes under Sections 304, 305, 306,
402 and 403, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, including the Trustee's rights under Section 707, and (d)
this Article 12. Subject to compliance with this Article 12, the Company may, at
its option and at any time, exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203 with respect
to the Notes.
Section 1203. Covenant Defeasance. Upon the Company's exercise
under Section 1201 of the option applicable to this Section 1203, (a) the
Company and any Note Guarantors shall be released from their respective
obligations under any covenant or provision contained in Section 404 and
Sections 406 through 414 and the provisions of clauses (iii), (iv) and (v) of
Section 501 shall not apply, and (b) the occurrence of any event specified in
clause (3) (with respect to clauses (iii), (iv) and (v) of Section 501), (4) and
(5) (with respect to Section 404, Sections 406 through 414,
inclusive, and any such covenants provided pursuant to Section 901(5)),
inclusive, (6), (7) and (8) (with respect to Subsidiaries), or (9) of Section
601 shall be deemed not to be or result in an Event of Default, in each case
with respect to the Defeased Notes on and after the date the conditions set
forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes
shall thereafter be deemed not to be "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the conse
quences of any thereof) in connection with such covenants or provisions, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such Covenant Defeasance means that, with respect to the
Outstanding Notes, the Company and any Note Guarantors may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant or provision, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or provision or by
reason of any reference in any such covenant or provision to any other provision
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under Section 601, but, except as specified
above, the remainder of this Indenture and such Outstanding Notes shall be
unaffected thereby.
Section 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1202 or
Section 1203 to the Outstanding Notes:
(1) The Company shall have irrevocably deposited or caused to
be deposited with the Trustee in trust cash, in United States dollars, or U.S.
Government Obligations or a combination thereof, in amounts as will be
sufficient, in the opinion of a nationally recognized accounting or investment
banking firm expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the principal of, and premium, if any, and
interest on the Defeased Notes on the Stated Maturity or relevant Redemption
Date in accordance with the terms of this Indenture and the Notes;
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Section 601(7) or 601(8)
is concerned, at any time during the period ending on the ninety-first day after
the date of such deposit;
(3) Such deposit shall not result in a breach or violation of,
or constitute a Default or Event of Default under, this Indenture or any other
material agreement or in strument to which the Company is a party or by which it
is bound;
(4) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that (x)
the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling or (y) since the Issue Date, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm to the effect that, the Holders of the Outstanding
Notes will not recognize income, gain or loss for Federal income tax purposes as
a result of such Defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Defeasance had not occurred;
(5) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Out standing Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such Covenant Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred; and
(6) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each to the effect that all
conditions precedent provided for in this Section 1204 relating to either the
Defeasance under Section 1202 or the Covenant Defeasance under Section 1203, as
the case may be, have been complied with. In rendering such Opinion of Counsel,
counsel may rely on any Officer's Certificate as to compliance with the
foregoing clauses (1), (2) and (3) of this Section 1204 or as to any matters of
fact.
From and after the time of any deposit pursuant to clause (1)
of the first paragraph of this Section 1204, the money or U.S. Government
Obligations so deposited shall not be subject to the rights of the holders of
Senior Indebtedness or Guarantor Senior In debtedness pursuant to the
subordination provisions of Article 14 or Article 15.
Section 1205. Deposited Money and U.S. Government Obligations
To Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions
of the last paragraph of Section 403, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or such other
Person that would qualify to act as successor trustee under Article 7,
collectively and solely for purposes of this Section 1205, Section 1412 and
Section 1512, the "Trustee") pursuant to Section 1204 in respect of the Defeased
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Notes of all sums due and
to become due thereon in respect of principal, premium, if any, and interest,
but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee and its agents
and hold them harmless against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
1204 or the principal, premium, if any, and interest received in respect
thereof, other than any such tax, fee or other charge that by law is for the
account of the Holders of the Defeased Notes.
Anything in this Article 12 to the contrary notwithstanding,
the Trustee shall deliver to the Company from time to time upon Company Request
any money or U.S. Government Obligations held by it as provided in Section 1204
hereof that, in the opinion of a nationally recognized accounting or investment
banking firm expressed in a written cer tification thereof to the Trustee, are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance. Subject to Article 7,
the Trustee shall not incur any liability to any Person by relying on such
opinion.
Section 1206. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 1202 or 1203, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the obligations of the Company and any Note
Guarantor under this Indenture, the Notes and any Note Guarantees shall be
revived and reinstated as though no deposit had occurred pursuant to Section
1202 or 1203, as the case may be, until such time as the Trustee or Paying Agent
is permitted to apply all such money and U.S. Government Obligations in
accordance with Section 1202 or 1203, as the case may be; provided, however,
that if either the Company and any Note Guarantor makes any payment of
principal, premium, if any, or interest on any Note following the reinstatement
of its obligations, then the Company and any Note Guarantor shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money and U.S. Government Obligations held by the Trustee or Paying Agent.
Section 1207. Repayment to the Company. The Trustee shall pay
to the Company upon Company Request any money held by it for the payment of
principal or interest that remains unclaimed for two years. After payment to the
Company, Holders entitled to money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
Person and all liability of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
ARTICLE 13
NOTE GUARANTEES
Section 1301. Guarantees Generally. (a) Note Guarantees. Each
Note Guarantor, as primary obligor and not merely as surety, hereby jointly and
severally, irrevocably and fully and unconditionally Guarantees, on a senior
subordinated basis, the punctual payment when due, whether at Stated Maturity,
by acceleration or otherwise, of all monetary obligations of the Company under
this Indenture and the Notes, whether for principal of or interest on the Notes,
expenses, indemnification or otherwise (all such obligations guaranteed by such
Note Guarantors being herein called the "Guaranteed Obligations").
Any term or provision of this Indenture notwithstanding, each
Note Guarantee shall not exceed the maximum amount that can be guaranteed by the
applicable Note Guarantor without rendering the Note Guarantee, as it relates to
such Note Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
(b) Further Agreements of Each Note Guarantor. (i) Each Note
Guarantor hereby agrees that (to the fullest extent permitted by law) its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of this Indenture, the Notes or the obligations of
the Company or any other Note Guarantor to the Holders or the Trustee hereunder
or thereunder, the absence of any action to enforce the same, any waiver or
consent by any Holder with respect to any provisions hereof or thereof, any
release of any other Note Guarantor, the recovery of any judgment against the
Company, any action to enforce the same, whether or not a notation concerning
its respective Note Guarantee is made on any particular Note, or any other
circumstance that might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
(ii) Each Note Guarantor hereby waives (to the fullest extent
permitted by law) the benefit of diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that (except as otherwise
provided in Section 1303) its Note Guarantee will not be discharged except by
complete performance of the obligations contained in the Notes, this Indenture,
and its Note Guarantee. Such Note Guarantee is a guarantee of payment and not of
collection. Each Note Guarantor further agrees (to the fullest extent
permitted by law) that, as between it, on the one hand, and the Holders of Notes
and the Trustee, on the other hand, subject to this Article 13 and Article 15,
(1) the maturity of the obligations guaranteed by its Note Guarantee may be
accelerated as and to the extent provided in Article 6 for the purposes of such
Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed by such
Note Guarantee, and (2) in the event of any acceleration of such obligations as
provided in Article 6, such obligations (whether or not due and payable) shall
forthwith become due and payable by such Note Guarantor in accordance with the
terms of this Section 1301 for the purpose of such Note Guarantee. Neither the
Trustee nor any other Person shall have any obligation to enforce or exhaust any
rights or remedies or to take any other steps under any security for the
Guaranteed Obligations or against the Company or any other Person or any
property of the Company or any other Person before the Trustee is entitled to
demand payment and performance by any or all Note Guarantors of their
obligations under their respective Note Guarantees or under this Indenture.
(iii) Until terminated in accordance with Section 1303, each
Note Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on such Notes, whether as a "voidable preference," "fraudulent
transfer" or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Notes shall, to the fullest extent permitted by law,
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
(c) Each Note Guarantor that makes a payment or distribution
under its Note Guarantee shall have the right to seek contribution from the
Company or any non-paying Note Guarantor that has also Guaranteed the Guaranteed
Obligations in respect of which such payment or distribution is made, so long as
the exercise of such right does not impair the rights of the Holders under this
Note Guarantee.
(d) Each Note Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and
that its Note Guarantee and the waiver set forth in Section 1305 is knowingly
made in contemplation of such benefits.
(e) Each Note Guarantor also hereby agrees to pay any and all
reasonable out-of-pocket expenses (including reasonable counsel fees and
expenses) incurred by the Trustee or the Holders in enforcing any rights under
its Note Guarantee.
Section 1302. Continuing Guarantees. Each Note Guarantee shall
be a continuing Guarantee and shall (i) remain in full force and effect until
payment in full of the principal amount of all outstanding Notes (whether by
payment at maturity, purchase, redemption, defeasance, retirement or other
acquisition) and all other Guaranteed Obligations then due and owing, unless
earlier terminated as provided in Section 1303, (ii) be binding upon such Note
Guarantor and (iii) inure to the benefit of and be enforceable by the Trustee,
the Holders and their permitted successors, transferees and assigns.
Section 1303. Release of Note Guarantees. Notwithstanding the
provisions of Section 1302, any Note Guarantee will be subject to termination
and discharge under the circumstances described in this Section 1303:
(a) Any Note Guarantor will automatically and unconditionally
be released from all obligations under its Note Guarantee, and such
Note Guarantee shall thereupon terminate and be discharged and of no
further force or effect, (i) concurrently with any sale or disposition
(by merger or otherwise) of any Note Guarantor or any interest therein
in accordance with the terms of the Indenture (including Section 410)
by the Company or a Restricted Subsidiary, following which such Note
Guarantor is no longer a Restricted Subsidiary of the Company, (ii)
pursuant to the terms of its Note Guarantee (in the case of any
Voluntary Note Guarantor), (iii) at any time that such Note Guarantor
is released from all of its obligations under all of its Guarantees of
payment by the Company of Bank Indebtedness of the Company, (iv) upon
the merger or consolidation of any Note Guarantor with and into the
Company or another Note Guarantor that is the surviving Person in such
merger or consolidation, (v) upon legal or covenant defeasance of the
Company's obligations, or satisfaction and discharge of this Indenture
as provided in Article 11 or Article 12, or (vi) subject to clause
(b)(iii) of Section 1301, upon payment in full of the aggregate
principal amount of all Notes then outstanding and all other Guaranteed
Obligations then due and owing.
(b) Upon 30 days' notice by the Company to the Trustee, any
Voluntary Note Guarantor shall be unconditionally released from all
obligations under its
Note Guarantee, and such Note Guarantee shall thereupon terminate and
be discharged and of no further force or effect.
Upon any such occurrence specified in this Section 1303, the
Trustee shall execute any documents reasonably required in order to evidence
such release, discharge and termination in respect of such Note Guarantee.
Section 1304. Agreement to Subordinate. Each Note Guarantee
is, to the extent and in the manner set forth in Article 15, subordinated and
subject in right of payment to the prior payment in full of all Guarantor Senior
Indebtedness of the relevant Note Guarantor giving such Note Guarantee and each
Note Guarantee is made subject to such provisions of this Indenture.
Section 1305. Waiver of Subrogation. Each Note Guarantor
hereby irrevocably waives any claim or other rights that it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of the Company's obligations under the Notes and this Indenture
or such Note Guarantor's obligations under its Note Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, and any right to participate in any
claim or remedy of any Holder of Notes against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, until this Indenture is discharged and all of the Notes are discharged and
paid in full. If any amount shall be paid to a Note Guarantor in violation of
the preceding sentence and the Notes shall not have been paid in full, such
amount shall have been deemed to have been paid to such Note Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the Notes, and
shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Notes, whether matured or unmatured, in accordance
with the terms of this Indenture.
Section 1306. Notation Not Required. Neither the Company nor
any Note Guarantor shall be required to make a notation on the Notes to reflect
any Note Guarantee or any such release, termination or discharge thereof.
Section 1307. Successors and Assigns of Note Guarantors. All
covenants and agreements in this Indenture by each Note Guarantor shall bind its
respective successors and assigns, whether so expressed or not.
Section 1308. Execution and Delivery of Note Guarantees. The
Company shall cause each Material Domestic Subsidiary that is required to become
a
Note Guarantor pursuant to Section 413, and each Subsidiary of the Company
that the Company causes to become a Note Guarantor pursuant to Section 413, to
promptly execute and deliver to the Trustee a supplemental indenture
substantially in the form set forth in Exhibit B to this Indenture, or otherwise
in form and substance reasonably satisfactory to the Trustee, evidencing its
Note Guarantee on substantially the terms set forth in this Article 13.
Concurrently therewith, the Company shall deliver to the Trustee an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee to the
effect that such supplemental indenture has been duly authorized, executed and
delivered by such Restricted Subsidiary and that, subject to the applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and other laws now or hereafter in effect affecting
creditors' rights or remedies generally and the general principles of equity
(including standards of materiality, good faith, fair dealing and
reasonableness), whether considered in a proceeding at law or at equity such
supplemental indenture is a valid and binding agreement of such Restricted
Subsidiary, enforceable against such Restricted Subsidiary in accordance with
its terms.
Section 1309. Notices. Notice to any Note Guarantor shall be
sufficient if addressed to such Note Guarantor care of the Company at the
address, place and manner provided in Section 109.
ARTICLE 14
SUBORDINATION
Section 1401. Agreement To Subordinate. The Company agrees,
and each Noteholder by accepting a Note agrees, that the Indebtedness evidenced
by the Notes is subordinated in right of payment, to the extent and in the
manner provided in this Article 14, to the prior payment in full (when due) of
all existing and future Senior Indebtedness and that the subordination is for
the benefit of and enforceable by the holders of Senior Indebtedness of the
Company. The Notes shall in all respects rank pari passu with all other Senior
Sub ordinated Indebtedness of the Company and only Indebtedness of the Company
that is Senior Indebtedness shall rank senior to the Notes in accordance with
the provisions set forth herein. All provisions of this Article 14 shall be
subject to Section 1412.
Section 1402. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company upon a total or partial
liquidation or dissolution or reorganization of or similar proceeding relating
to the Company or its
property, or in a bankruptcy, insolvency, receivership or similar proceeding
relating to the Company or its property, (i) the holders of Senior Indebtedness
will be entitled to receive payment in full of the Senior Indebtedness before
the Noteholders are entitled to receive any payment, and (ii) until the Senior
Indebtedness is paid in full, any payment or distribution to which Noteholders
would be entitled but for this Article 14 will be made to holders of the Senior
Indebtedness as their interests may appear, except that Noteholders may receive
shares of stock and any debt securities that are subordinated to at least the
same extent as the Notes.
Section 1403. Default on Senior Indebtedness. The Company may
not pay principal of, or premium (if any) or interest on, the Notes or make any
deposit pursuant to the provisions of Article 12 and may not otherwise purchase,
redeem or otherwise retire any Notes (collectively, "pay the Notes") if (i) any
Senior Indebtedness is not paid when due in cash or Cash Equivalents or (ii) any
other default on Senior Indebtedness occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms (either such event, a
"Payment Default") unless, in either case, (x) the Payment Default has been
cured or waived and any such acceleration has been rescinded in writing or (y)
such Senior Indebtedness has been paid in full in cash or Cash Equivalents;
provided that the Company may pay the Notes without regard to the foregoing if
the Company and the Trustee receive written notice approving such payment from
the Representative for the Designated Senior Indebtedness with respect to which
the Payment Default has occurred and is continuing.
In addition, during the continuance of any default (other than
a Payment Default) with respect to any Designated Senior Indebtedness pursuant
to which the maturity thereof may be accelerated immediately without further
notice (except such notice as may be required to effect such acceleration) or
the expiration of any applicable grace period (a "Nonpayment Default"), the
Company may not pay the Notes for the period specified as follows (a "Payment
Blockage Period"). The Payment Blockage Period shall commence upon the receipt
by the Trustee (with a copy to the Company) of written notice (a "Blockage
Notice") of such Non-payment Default from the Representative for such Designated
Senior Indebtedness specifying an election to effect a Payment Blockage Period
and shall end on the earliest to occur of the following events: (i) 179 days
shall have elapsed since such receipt of such Blockage Notice, (ii) the
Non-payment Default giving rise to such Blockage Notice is no longer continuing
(and no other Payment Default or Non-payment Default is then continuing), (iii)
such Designated Senior Indebtedness shall have been discharged or repaid in full
in cash or Cash Equivalents or (iv) such Payment Blockage Period shall have been
terminated by written notice to the Trustee and the Company from the Person or
Persons who gave
such Blockage Notice. The Company shall promptly resume payments on the Notes,
including any missed payments, after such Payment Blockage Period ends, unless
the holders of such Designated Senior Indebtedness or the Representative of such
holders have accelerated the maturity of such Designated Senior Indebtedness, or
any Payment Default otherwise exists. Not more than one Blockage Notice may be
given in any 360 consecutive day period, irrespective of the number of defaults
with respect to Designated Senior Indebtedness during such period, except that
if any Blockage Notice within such 360-day period is given by or on behalf of
any holders of Designated Senior Indebtedness other than Bank Indebtedness, a
Representative of holders of Bank Indebtedness may give another Blockage Notice
within such period. In no event may the total number of days during which any
Payment Blockage Period is in effect extend beyond 179 days from the date of
receipt by the Trustee of the relevant Blockage Notice, and there must be a 181
consecutive day period during any 360 consecutive day period during which no
Payment Blockage Period is in effect.
Section 1404. Acceleration of Payment of Notes. If payment of
the Notes is accelerated because of an Event of Default, the Company or the
Trustee shall promptly notify the holders of the Designated Senior Indebtedness
(or their Representative) of the acceleration. If any Designated Senior
Indebtedness is outstanding, such acceleration will not be effective and the
Company may not pay the Notes until five Business Days after such holders or the
Representative of each Designated Senior Indebtedness receive notice of such
acceleration and, thereafter, the Company may pay the Notes only if this Article
14 otherwise permits payment.
Section 1405. When a Distribution Must Be Paid Over. If a
distribution is made to Noteholders that because of provisions of this Article
14 should not have been made to them, the Noteholders who received the
distribution are required to hold it in trust for the holders of Senior
Indebtedness and pay it over to them as their interests may appear.
Section 1406. Subrogation. After all Senior Indebtedness of
the Company is paid in full and until the Notes are paid in full, Holders shall
be subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to such Senior Indebtedness. For purposes of such
subrogation, a distribution made under this Article 14 to holders of Senior
Indebtedness that otherwise would have been made to Holders is not, as between
the Company, its creditors other than the holders of such Senior Indebtedness
and Holders, a payment by the Company on such Senior Indebtedness, it being
understood that the provisions of this Article 14 are and are intended solely
for the purpose of defining the relative rights of the Holders, on the one hand,
and the holders of Senior Indebtedness of the Company, on the other hand.
Section 1407. Relative Rights. This Article 14 defines the
relative rights of Holders and holders of Senior Indebtedness. Nothing in this
Indenture shall:
(i) impair, as between the Company and Holders, the obligation
of the Com pany which is absolute and unconditional, to pay principal
of and interest on the Notes in accordance with their terms; or
(ii) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness to receive distributions otherwise payable to
Holders.
Section 1408. Subordination May Not Be Impaired by the
Company. No right of any holder of Senior Indebtedness of the Company to enforce
the subordination of the Indebtedness evidenced by the Notes shall be impaired
by any act or failure to act by the Company or by its failure to comply with
this Indenture.
Section 1409. Rights of Trustee and Paying Agent. The Company
shall give prompt written notice to the Trustee of any fact known to the Company
that would prohibit the making of any payment to or by the Trustee in respect of
the Notes. Failure to give such notice shall not affect the subordination of the
Notes to Senior Indebtedness of the Company. Notwithstanding Section 1403, the
Trustee or Paying Agent may continue to make payments on the Notes and shall not
be charged with knowledge of the existence of facts that would prohibit the
making of any such payments unless, not less than two Business Days prior to the
date of such payment, a Trust Officer of the Trustee receives notice
satisfactory to it that payments may not be made under this Article 14. The
Company, the Registrar or co-registrar, the Paying Agent, or a Representative or
holder of Senior Indebtedness may give the notice; provided, however, that, if
an issue of Senior Indebtedness has a Representative, only the 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 or itself to be a holder of
any Senior Indebtedness (or a Representative of such holder) to establish that
such notice has been given by a holder of such Senior Indebtedness or
Representative thereof.
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.
The Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 14 with respect to any Senior Indebtedness that may at any time be held
by it, to the same extent as any other holder of Senior Indebtedness; and
nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 14 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 707.
Section 1410. Distribution or Notice to Representative.
Whenever a dis tribution 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 (if any).
Section 1411. Article 14 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the Notes
by reason of any provision in this Article 14 shall not be construed as
preventing the occurrence of a Default. Subject to Section 1404, nothing in this
Article 14 shall have any effect on the right of the Holders or the Trustee to
accelerate the maturity of the Notes.
Section 1412. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 12 by the Trustee for
the payment of principal of and premium, if any, and interest on the Notes shall
not be subordinated to the prior payment of any Senior Indebtedness of the
Company or subject to the restrictions set forth in this Article 14, and none of
the Holders shall be obligated to pay over any such amount to the Company or any
holder of Senior Indebtedness of the Company or any other creditor of the
Company.
Section 1413. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 14, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 1402
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Senior Indebtedness
for the purpose of ascertaining the Persons entitled to participate in such
payment or 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 14. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to par ticipate in any payment or distribution pursuant to
this Article 14, 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 other facts pertinent to the rights of such
Person under this Article 14, 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. The provisions of Sections 701 and
703 shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article 14.
Section 1414. Trustee To Effectuate Subordination. Each Holder
by accepting a Note authorizes and directs the Trustee on such Holder's behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of the Company as provided in this Article 14 and appoints the
Trustee as attorney-in-fact for any and all such purposes.
Section 1415. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to Holders or the
Company or any other Person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article 14 or otherwise. With
respect to the holders of Senior Indebtedness of the Company, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article 14 or Article 15 and no implied
covenants or obligations with respect to holders of Senior Indebtedness of the
Company shall be read into this Indenture against the Trustee.
Section 1416. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness of
the Company, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Notes, to acquire and continue to hold, or to continue
to hold, such Senior Indebtedness and such holder of Senior Indebtedness shall
be deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Senior
Indebtedness.
Section 1417. Trustee's Compensation Not Prejudiced. Nothing
in this Article 14 shall apply to amounts due to the Trustee pursuant to other
Sections of this Indenture.
ARTICLE 15
SUBORDINATION OF NOTE GUARANTEES
Section 1501. Agreement To Subordinate. (a) Each Note
Guarantor agrees, and each Noteholder by accepting a Note agrees, that all
payments pursuant to such Note Guarantor's Note Guarantee made by or on behalf
of such Note Guarantor are subordinated in right of payment, to the extent and
in the manner provided in this Article 15, to the prior payment in full (when
due) of all existing and future Guarantor Senior Indebtedness of such Note
Guarantor and that the subordination is for the benefit of and enforceable by
the holders of Guarantor Senior Indebtedness of such Note Guarantor. Such Note
Guarantee shall in all respects rank pari passu with all other Guarantor Senior
Subordinated Indebtedness of such Note Guarantor and only Indebtedness of such
Note Guarantor that is Guarantor Senior Indebtedness shall rank senior to such
Note Guarantee in accordance with the provisions set forth herein.
(b) All provisions of this Article 15 shall be subject to
Section 1512.
Section 1502. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of a Note Guarantor upon a total or
partial liquidation or dissolution or reorganization of or similar proceeding
relating to such Note Guarantor or its property, or in a bankruptcy, insolvency,
receivership or similar proceeding relating to such Note Guarantor or its
property,
(i) the holders of Guarantor Senior Indebtedness of such Note
Guarantor will be entitled to receive payment in full of such Guarantor
Senior Indebtedness before the Noteholders are entitled to receive any
payment from such Note Guarantor; and
(ii) until the Guarantor Senior Indebtedness of such Note
Guarantor is paid in full, any payment or distribution from such Note
Guarantor to which Noteholders would be entitled but for this Article
15 will be made to holders of such Guarantor Senior Indebtedness as
their interests may appear, except that Noteholders may receive shares
of stock and any debt securities that are subordinated to such
Guarantor Senior Indebtedness to at least the same extent as the Note
Guarantee of such Note Guarantor.
Section 1503. Default on Guarantor Senior Indebtedness. No
Note Guarantor may make any payment pursuant to its Note Guarantee and may not
otherwise purchase, redeem or otherwise retire or defease any Notes
(collectively, "pay its Note Guarantee") if (i) any Guarantor Senior
Indebtedness of such Note Guarantor is not paid when due or (ii) any other
default on Guarantor Senior Indebtedness of such
Note Guarantor occurs and the maturity of such Guarantor Senior Indebtedness is
accelerated in accordance with its terms (either such event, a "Guarantor
Payment Default") unless, in either case, (x) the Guarantor Payment Default has
been cured or waived and any such acceleration has been rescinded in writing or
(y) such Guarantor Senior Indebtedness has been paid in full; provided, however,
a Note Guarantor may pay its Note Guarantee without regard to the foregoing if
such Note Guarantor and the Trustee receive written notice approving such
payment from the Representative for the Designated Senior Indebtedness with
respect to which the Guarantor Payment Default has occurred and is continuing.
In addition, no Note Guarantor may pay its Note Guarantee
during the continuance of a Payment Blockage Period after receipt by the Company
and the Trustee of a Blockage Notice under Section 1403. Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions of the first paragraph of this Section 1503), a Note Guarantor shall
promptly resume payments, if any are required, pursuant to its Note Guarantee,
including any missed payments, after such Payment Blockage Period ends, unless
the holders of such Designated Senior Indebtedness or the Representative of such
holders have accelerated the maturity of such Designated Senior Indebtedness, or
any Payment Default otherwise exists.
In addition, during the continuance of any default (other than
a Guarantor Payment Default) with respect to any Guarantor Designated Senior
Indebtedness of a Note Guarantor pursuant to which the maturity thereof may be
accelerated immediately without further notice except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
period (a "Guarantor Non-payment Default"), such Note Guarantor may not pay its
Note Guarantee for the period specified as follows (a "Guarantor Payment
Blockage Period"). The Guarantor Payment Blockage Period shall commence upon the
receipt by the Trustee (with copy to such Note Guarantor) of written notice (a
"Guarantor Blockage Notice") of such Guarantor Non-payment Default from the
Representative for such Guarantor Designated Senior Indebtedness specifying an
election to effect a Guarantor Payment Blockage Period and shall end on the
earliest to occur of the following events: (i) 179 days shall have elapsed since
such receipt of such Guarantor Blockage Notice, (ii) the Guarantor Non-payment
Default giving rise to such Blockage Notice is no longer continuing (and no
other Guarantor Payment Default or Guarantor Non-payment Default is then con
tinuing), (iii) such Guarantor Designated Senior Indebtedness shall have been
discharged or repaid in full in cash or Cash Equivalents or (iv) such Guarantor
Payment Blockage Period shall have been terminated by written notice to the
Trustee and such Note Guarantor from the Person or Persons who gave such
Guarantor Blockage Notice. A Note Guarantor may pay its Note Guarantee, after
such Guarantor Payment Blockage Period ends, unless the holders of such
Guarantor Designated Senior Indebtedness or the Representative of such holders
have accelerated the maturity of such Guarantor Designated Senior Indebtedness,
or any Guarantor Payment Default otherwise exists. Not more than one Guarantor
Blockage Notice to a Note Guarantor in the aggregate may be given in any 360
consecutive day period, irrespective of the number of defaults with respect to
Guarantor Designated Senior Indebtedness of such Note Guarantor during such
period, except that if any Guarantor Blockage Notice within such 360-day period
is given by or on behalf of any holders of Guarantor Designated Senior
Indebtedness of such Note Guarantor other than Bank Indebtedness, a
Representative of holders of Bank Indebtedness that is Guaranteed by such Note
Guarantor may give another Guarantor Blockage Notice within such period. In no
event may the total number of days during which any Guarantor Payment Blockage
Period is in effect extend beyond 179 days from the date of receipt by the
Trustee of the relevant Guarantor Blockage Notice, and there must be a 181
consecutive day period during any 360 consecutive day period during which no
Guarantor Payment Blockage Period is in effect.
Section 1504. Acceleration of Payment of Notes. If payment of
the Notes is accelerated because of an Event of Default, the relevant Note
Guarantor or the Trustee shall promptly notify the holders of the Guarantor
Designated Senior Indebtedness of such Note Guarantor (or the Representative of
such holders) of the acceleration. If any Guarantor Designated Senior
Indebtedness of a Note Guarantor is outstanding, any demand for payment under
such Note Guarantor's Note Guarantee will not be effective with respect to such
Note Guarantor, and such Note Guarantor may not pay its Note Guarantee, until
five Business Days after such holders or the Representative of each Designated
Senior Indebtedness of such Note Guarantor receive notice of such demand and,
thereafter, such Note Guarantor may pay its Note Guarantee only if this Article
15 otherwise permits payment. If a demand for payment is made on such Note
Guarantor pursuant to Article 13, the Trustee shall promptly notify the holders
of the Guarantor Designated Senior Indebtedness of such Note Guarantor (or their
Representatives) of such demand.
Section 1505. When a Distribution Must Be Paid Over. If a
distribution from a Note Guarantor is made to Holders that because of the
provisions of this Article 15 should not have been made to them, the Holders who
receive the distribution shall hold it in trust for holders of Guarantor Senior
Indebtedness of such Note Guarantor and pay it over to them as their interests
may appear.
Section 1506. Subrogation. After all Guarantor Senior
Indebtedness of a Note Guarantor is paid in full and until the Notes are paid in
full, Holders shall be subrogated to the rights of holders of Guarantor Senior
Indebtedness of such Note Guarantor to receive distributions applicable to such
Guarantor Senior Indebtedness. For purposes of such subrogation, a distribution
made under this Article 15 to holders of Guarantor Senior Indebtedness of a Note
Guarantor that otherwise would have been made to Holders is not, as between such
Note Guarantor, its creditors other than the holders of such Guarantor Senior
Indebtedness, and Holders, a payment by such Note Guarantor on such Guarantor
Senior Indebtedness, it being understood that the provisions of this Article 15
are and are intended solely for the purpose of defining the relative rights of
the Holders, on the one hand, and the holders of Guarantor Senior Indebtedness
of such Note Guarantors, on the other hand.
Section 1507. Relative Rights. This Article 15 defines the
relative rights of Holders and holders of Guarantor Senior Indebtedness of each
Note Guarantor. Nothing in this Indenture shall:
(i) impair, as between a Note Guarantor and Holders, the
obligation of such Note Guarantor to pay the Guaranteed Obligations in
accordance with the terms of its respective Note Guarantee; or
(ii) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Guarantor Senior Indebtedness of a Note Guarantor to receive
distributions otherwise payable to Holders.
Section 1508. Subordination May Not Be Impaired by Note
Guarantors. No right of any holder of Guarantor Senior Indebtedness of a Note
Guarantor to enforce the subordination of the payments pursuant to such Note
Guarantor's respective Note Guarantee shall be impaired by any act or failure to
act by such Note Guarantor or by its failure to comply with this Indenture.
Section 1509. Rights of Trustee and Paying Agent. A Note
Guarantor shall give prompt written notice to the Trustee of any fact known to
it that would prohibit the making of any payment to or by the Trustee in respect
of its Note Guarantee. Failure to give such notice shall not affect the
subordination of the payments pursuant to its Note Guarantee to Guarantor Senior
Indebtedness of such Note Guarantor. Notwithstanding Section 1503, the Trustee
or Paying Agent may continue to make payments pursuant to such Note Guarantee
and shall not be charged with knowledge of the existence of facts that would
prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article 15. The Company or any Note Guarantor, the Registrar
or co-registrar, the Paying Agent, or a Representative or holder of Guarantor
Senior Indebtedness of any Note Guarantor may give the notice; provided, that,
if an issue of Guarantor Senior Indebtedness of a Note Guarantor has a
Representative, only the 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 or itself to be a holder of any Guarantor Senior
Indebtedness of a Note Guarantor (or a Representative of such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or Representative thereof.
The Trustee in its individual or any other capacity may hold
Guarantor Senior Indebtedness of a Note Guarantor with the same rights it would
have if it were not Trustee. The Registrar and co-registrar and the Paying Agent
may do the same with like rights. The Trustee shall be entitled to all the
rights set forth in this Article 15 with respect to any Guarantor Senior
Indebtedness of a Note Guarantor which may at any time be held by it, to the
same extent as any other holder of Guarantor Senior Indebtedness of such Note
Guarantor; and nothing in Article 7 shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article 15 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 707.
Section 1510. Distribution or Notice to Representative.
Whenever a distribu tion is to be made or a notice given to holders of Guarantor
Senior Indebtedness of a Note Guarantor, the distribution may be made and the
notice given to their Representative (if any).
Section 1511. Article 15 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to a Note
Guarantee by reason of any provision in this Article 15 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 15 shall have
any effect on the right of the Holders or the Trustee to accelerate the maturity
of the Notes or make a demand for payment on a Note Guarantor pursuant to
Article 13 or the relevant Note Guarantee.
Section 1512. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 12 by the Trustee for
the payment of principal, premium, if any, or interest on the Notes shall not be
subordinated to the prior payment of any Guarantor Senior Indebtedness of any
Note Guarantor or subject to the
restrictions set forth in this Article 15, and none of the Holders shall be
obligated to pay over any such amount to any Note Guarantor or any holder of
Guarantor Senior Indebtedness or any other creditor of any Note Guarantor.
Section 1513. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 15, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 1502
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Guarantor Senior
Indebtedness or any Note Guarantor for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Guarantor Senior Indebtedness and other Indebtedness of such Note Guarantor, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 15. In the
event that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of such Guarantor Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 15, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Guarantor Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 15, 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. The
provisions of Sections 701 and 703 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article 15.
Section 1514. Trustee To Effectuate Subordination. Each Holder
by accepting a Note authorizes and directs the Trustee on such Holder's behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders and the holders of Guarantor
Senior Indebtedness of any Note Guarantor as provided in this Article 15 and
appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 1515. Trustee Not Fiduciary for Holders of Guarantor
Senior In debtedness. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Guarantor Senior Indebtedness of any Note Guarantor and shall
not be liable to any such holders if it shall mistakenly pay over or distribute
to Holders or the Company or any other Person, money or assets to which any
holders of Guarantor Senior Indebtedness shall be entitled by virtue of this
Article 15 or otherwise. With
respect to the holders of Guarantor Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article 15 and no implied covenants or
obligations with respect to holders of Guarantor Senior Indebtedness of any Note
Guarantor shall be read into this Indenture against the Trustee.
Section 1516. Reliance by Holders of Guarantor Senior
Indebtedness on Subordination Provisions. Each Holder by accepting a Note
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any
Guarantor Senior Indebtedness of any Note Guarantor, whether such Guarantor
Senior Indebtedness was created or acquired before or after the issuance of the
Notes, to acquire and continue to hold, or to continue to hold, such Guarantor
Senior Indebtedness and such holder of such Guarantor Senior Indebtedness shall
be deemed conclusively to have relied on such subordination provisions in
acquiring and continuing to hold, or in continuing to hold, such Guarantor
Senior Indebtedness.
Section 1517. Trustee's Compensation Not Prejudiced. Nothing
in this Article 15 shall apply to amounts due to the Trustee pursuant to other
Sections of this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
U.S. OFFICE PRODUCTS COMPANY,
as Issuer
By:
---------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
---------------------------------
Name:
Title:
ACTION WHOLESALE SERVICE, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
AFFORDABLE INTERIOR SYSTEMS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
AMERICAN LOOSE LEAF/BUSINESS
PRODUCTS, INC., as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇ OFFICE SUPPLY & EQUIPMENT
CO., as a Note Guarantor
By:
---------------------------------
Name:
Title:
BINDERY SYSTEMS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ OFFICE SUPPLY CO.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇-COURTENAY, LLC,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
CAROLINA OFFICE EQUIPMENT COMPANY,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
CENTRAL TEXAS OFFICE PRODUCTS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇▇ HOLDINGS, LLC,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇-▇▇▇▇, INC., as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ COMPANY, LIMITED,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇ OFFICE FURNITURE COMPANY,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
EXPERT OFFICE SERVICES, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
FORT ▇▇▇▇▇ OFFICE SUPPLY, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
FORTY-FIFTEEN ▇▇▇▇▇ REDEVELOPMENT
CORPORATION, as a Note Guarantor
By:
---------------------------------
Name:
Title:
GENERAL OFFICE PRODUCTS COMPANY,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
GLOBAL MAILBOX EXPRESS, LLC,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇▇ CO., INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
KENTWOOD OFFICE FURNITURE, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
LANDMARK INDUSTRIES INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇ ACQUISITION CORP.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
MAIL BOXES, ETC., as a Note Guarantor
By:
---------------------------------
Name:
Title:
MAIL BOXES ETC., USA, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇'▇, INC., as a Note Guarantor
By:
---------------------------------
Name:
Title:
MILE HIGH OFFICE SUPPLY, LLC,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ BUSINESS PRODUCTS, INC., as
a Note Guarantor
By:
---------------------------------
Name:
Title:
MODERN FOODS SYSTEMS, INC., as a Note
Guarantor
By:
---------------------------------
Name:
Title:
MODERN VENDING, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇ OFFICE MACHINES, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
NATIONAL OFFICE SUPPLY, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
NEW MEXICO OFFICE SOLUTIONS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
PEAR COMMERCIAL INTERIORS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
PRICE MODERN, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
RADAR BUSINESS SYSTEMS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
RAINEN BUSINESS INTERIORS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
SAGOT OFFICE INTERIORS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇ VENDING SERVICE, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
STURGIS ACQUISITION CORP.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇'▇ OFFSET SERVICES, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
BUSINESSWORKS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
THE ▇.▇. ▇▇▇▇ COMPANY,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
THE ▇. ▇▇▇▇▇▇ COMPANY, LLC,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
THE OFFICE FURNITURE STORE, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
THE OFFICE WORKS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
THE SYSTEMS HOUSE, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
USOP MERCHANDISING COMPANY,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
U.S. OFFICE FURNITURE, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
U.S. OFFICE FURNITURE RENTALS, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
U.S. OFFICE PRODUCTS-GREAT LAKES, INC.,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
U.S. OFFICE PRODUCTS-MIDWEST, LLC, as a
Note Guarantor
By:
---------------------------------
Name:
Title:
U.S. OFFICE PRODUCTS OF NORTHERN
WISCONSIN, INC., as a Note Guarantor
By:
---------------------------------
Name:
Title:
U.S. OFFICE PRODUCTS SOUTHERN
CALIFORNIA, as a Note Guarantor
By:
---------------------------------
Name:
Title:
VEND-RITE SERVICE CORPORATION,
as a Note Guarantor
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇▇▇, INC., as a Note Guarantor
By:
---------------------------------
Name:
Title:
EXHIBIT A
FORM OF NOTE(1)
U.S. OFFICE PRODUCTS COMPANY,
Issuer
9 3/4% Senior Subordinated Notes Due 2008
No. CUSIP No. [_______](2) [_______](3)
$_________
U.S. Office Products Company, a Delaware corporation (and
its successors and assigns) (the "Company"), promises to pay to ,
or registered assigns, the principal sum of $( United States Dollars)
on June 15, 2008 [(or such lesser or greater amount as shall be outstanding
hereunder from time to time in accordance with Sections 312 and 313 of the
Indenture referred to on the reverse hereof)](4).
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Note are set forth on the
other side of this Note.
--------
1. Insert any applicable legends from Article 2.
2. Include this or other appropriate CUSIP Number for Initial Note that is
not registered under the Securities Act.
3. Include this or other appropriate CUSIP Number for Exchange Note or
Initial Note that is registered under the Securities Act.
4. Include only if the Note is issued in global form, and only if applicable.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
U.S. OFFICE PRODUCTS COMPANY, as Issuer
By:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to in the within-named Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
----------------------------------
Name:
Title:
[FORM OF REVERSE SIDE OF NOTE]
9 3/4% Senior Subordinated Note Due 2008
1. Interest
The Company promises to pay interest on the principal
amount of this Note semi-annually on June 15 and December 15 in each year,
commencing December 15, 1998, at the rate of 9 3/4% per annum [(subject to
adjustment as provided below)](5) [, except that interest accrued on this
Note for periods prior to the date on which the Initial Note was surrendered
in exchange for this Note will accrue at the rate or rates borne by such
Initial Note from time to time during such periods](6), until such principal
amount is paid or made available for payment. [Interest on this Note will
accrue from the most recent date to which interest on this Note or any of its
Predecessor Notes has been paid or duly provided for or, if no interest has
been paid, from the Issue Date.](7) []Interest on this Note will accrue from
the most recent date to which interest on this Note or any of its Predecessor
Notes has been paid or duly provided for or, if no such interest has been
paid, from [_________, ____](8).](9) Interest on the Notes shall be computed
on the basis of a 360-day year of twelve 30-day months. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
June 1 or December 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at
the close of business on
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5. Include only for Initial Note when additional interest provisions, set
forth in the next paragraph, are included.
6. Include only for Exchange Note.
7. Include only for Original Notes.
8. Insert first date of issuance of Additional Note and its Predecessor
Notes.
9. Include only for Additional Notes (and Exchange Notes issued in the
exchange therefor).
a Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes not more than 15
days nor less than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
[The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement (the "Registration Rights Agreement"), dated June
5, 1998, among U.S. Office Products Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, BT Alex. ▇▇▇▇▇ Incorporated
and Chase Securities Inc. Until (i) the date on which this Note has been
exchanged for an Exchange Note (as defined in the Registration Rights Agreement)
in the Exchange Offer (as defined in the Registration Rights Agreement), (ii)
the date on which this Note has been effectively registered under the Securities
Act in accordance with the Shelf Registration Statement (as defined in the
Registration Rights Agreement), or (iii) the date on which such Note is
distributed to the public pursuant to Rule 144 of the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act (or otherwise is
eligible for resale pursuant to Rule 144 (or any successor provision) under the
Securities Act without volume restriction, if any): From and including the date
on which a Registration Default (as defined below) shall occur to but excluding
the date on which such Registration Default has been cured, additional interest
will accrue on this Note at the rate of (a) prior to March 10, 1999 (for so long
as such period is continuing), 0.25% per annum and (b) thereafter (for so long
as such period is continuing), 0.50% per annum. Any such additional interest
shall not exceed such respective rates for such respective periods, and shall
not in any event exceed 0.50% per annum in the aggregate, regardless of the
number of Registration Defaults that shall have occurred and be continuing. Any
such additional interest shall be paid in the same manner and on the same dates
as interest payments in respect of this Note. Following the cure of all
Registration Defaults, the accrual of such additional interest will cease. All
Registration Defaults shall be deemed cured upon the consummation of the
Exchange Offer. For purposes of the foregoing, each of the following events is a
"Registration Default": (i) the Exchange Offer is not consummated on or before
December 10, 1998 or (ii) if a Shelf Registration Statement is required to be
filed under the Registration Rights Agreement, (A) the Shelf Registration
Statement is not declared effective by the SEC on December 10, 1998 (or, in the
case of a Shelf Registration Statement required to be filed in response to any
change in applicable interpretation of the SEC, if later, on or
before the 90th day after the publication of such change) or (B) after such
Shelf Registration Statement is declared effective and during the time that the
Company is required to use its reasonable best efforts to keep the Shelf
Registration Statement in effect, such Shelf Registration Statement ceases to be
effective and continues not to be effective (other than in connection with the
consummation of the Exchange Offer).](10)(11)
2. Method of Payment
Payment of the principal of (and premium, if any) and interest
on this Note will be made at the office or agency of the Company maintained for
that purpose, in accordance with Articles 3 and 4 of the Indenture.
3. Paying Agent and Registrar
Initially, State Street Bank and Trust Company, a
Massachusetts trust company, the Trustee, will act as Paying Agent and
Registrar. The Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company or any domestically incorporated
subsidiary of the Company may act as Paying Agent, Registrar or co-registrar.
4. Indenture
This Note is one of the duly authorized issue of 9 3/4% Senior
Subordinated Notes Due 2008 of the Company (herein called the "Notes"), issued
under an Indenture, dated as of June 10, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Indenture," which term shall have the
meanings assigned to it in such instrument), among U.S. Office Products Company,
the Note Guarantors (which term has the meaning ascribed thereto in the
Indenture) named therein and from time to time parties thereto and State Street
Bank and Trust Company, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the
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10. Include only for Initial Note when required by the Registration Rights
Agreement.
11. For an Initial Additional Note, add any similar provision, if any, as
may be agreed by the Company with respect to additional interest on
such Initial Additional Note.
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, any other obligor upon this Note, the Trustee and the Holders of
the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The terms of the Notes include those stated in the
Indenture and those made a part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended, as in effect from time to time (the "TIA").
The Notes are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of such terms. Additional Notes may be
issued under the Indenture which may vote (or consent) as a class with the Notes
and otherwise be treated as Notes for all purposes of the Indenture.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Note is entitled to the benefits of the certain senior
subordinated Note Guarantees of the Note Guarantors and may hereafter be
entitled to certain other senior subordinated Note Guarantees made for the
benefit of the Holders. Reference is made to Article Thirteen of the Indenture
and to the Note Guarantees for terms relating to such Note Guarantees, including
the release, termination and discharge thereof. Neither the Company nor any Note
Guarantor shall be required to make any notation on this Note to reflect any
Note Guarantee or any such release, termination or discharge.
5. Optional Redemption
(a) The Notes will be redeemable, at the Company's option, in
whole or in part, and from time to time on and after June 15, 2003 and prior to
maturity. Such redemption may be made upon notice mailed by first-class mail to
each Holder's registered address and upon publication in Luxembourg in
accordance with the Indenture. Any such redemption and notice may, in the
Company's discretion, be subject to the satisfaction of one or more conditions
precedent. The Notes will be so redeemable at the following Redemption Prices
(expressed as a percentage of principal amount), plus accrued interest, if any,
to the relevant Redemption Date (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date) if redeemed during the 12-month period commencing on June 15 of
the years set forth below:
Redemption
Year Price
---- ------------
2003............................................... 104.875%
2004............................................... 103.250%
2005............................................... 101.625%
2006 and thereafter................................ 100.000%
(b) In addition, at any time and from time to time prior to
June 15, 2001, the Company at its option may redeem the Notes in an aggregate
principal amount equal to up to 35% of the original aggregate principal amount
of the Notes (including the principal amount of any Additional Notes), with
funds in an aggregate amount not exceeding the aggregate proceeds of one or more
Equity Offerings, at a Redemption Price (expressed as a percentage of principal
amount thereof) of 109.750% plus accrued interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, however,
that an aggregate principal amount of the Notes equal to at least 65% of the
original aggregate principal amount of the Notes (including the principal amount
of any Additional Notes) must remain outstanding after each such redemption. The
Company may make such redemption upon notice mailed by first-class mail to each
Holder's registered address and upon publication in Luxembourg in accordance
with the Indenture (but in no event more than 90 days after the completion of
the related Equity Offering). Any such notice may be given prior to the
completion of the related Equity Offering, and any such redemption or notice
may, at the Company's discretion, be subject to the satisfaction of one or more
conditions precedent, including but not limited to the completion of the related
Equity Offering.
(c) At any time on or prior to June 15, 2003, the Notes may
also be redeemed or purchased (by the Company or any other Person), in whole but
not in part, at the Company's option, upon the occurrence of a Change of
Control, at a price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date). Such
redemption or purchase may be made upon notice mailed by first-class mail to
each Holder's registered address and upon publication in Luxembourg in
accordance with the Indenture (but in no event more than 180 days after the
occurrence of such Change of Control). The Company may provide in such notice
that payment of such price and performance of the Company's obligations with
respect to such redemption or purchase may be performed by another Person. Any
such notice may be given prior to the occurrence of
the related Change of Control, and any such redemption, purchase or notice may,
at the Company's discretion, be subject to the satisfaction of one or more
conditions precedent, including but not limited to the occurrence of the related
Change of Control.
6. No Sinking Fund
The Notes will not be entitled to the benefit of a sinking
fund.
7. Subordination
The Notes are subordinated to Senior Indebtedness of the
Company, and the Note Guarantees are subordinated to Guarantor Senior
Indebtedness of the relevant Note Guarantor. To the extent provided in the
Indenture, Senior Indebtedness and Guarantor Senior Indebtedness must be paid
before the Notes or the relevant Note Guarantee, as the case may be, may be
paid. The Company and the Note Guarantors agree, and each Noteholder by
accepting a Note agrees, to the subordination provisions contained in the
Indenture and authorizes the Trustee to give it effect and appoints the Trustee
as attorney-in-fact for such purposes.
8. Put Provisions
The Indenture provides that, upon the occurrence of a Change
of Control Triggering Event, each Holder will have the right to require that the
Company repurchase all or any part of such Holder's Notes at a repurchase price
in cash equal to 101% of the aggregate principal amount thereof, plus accrued
and unpaid interest, if any, to the date of such repurchase (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date); provided, however, that the Company
shall not be obligated to purchase Notes in the event it has exercised its right
to redeem all of the Notes.
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Notes in accordance with the Indenture and subject to certain
limitations set forth therein. No service charge shall be made for any
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. The Company shall not be required (i) to issue, transfer
or exchange any Note during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption (or purchase) of
Notes selected for redemption (or purchase) under Section 1004 of the Indenture
and ending at the close of business on the day of such mailing, or (ii) to
transfer or exchange any Note so selected for redemption (or purchase) in whole
or in part.
10. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner
of it for all purposes.
11. Unclaimed Money
The Trustee shall pay to the Company upon a Company Request
any money held by it for the payment of principal (and premium, if any) or
interest that remains unclaimed for two years. After payment to the Company,
Holders entitled to money must look to the Company for payment as general
creditors and all liability of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Notes and the Indenture if
the Company deposits with the Trustee money or U.S. Government Obligations for
the payment of principal of, premium (if any) and interest on the Notes to
redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions, (i) the Indenture may be
amended with the consent of the Holders of a majority in principal amount of
the Notes then outstanding and (ii) any past default or compliance with any
provisions may be waived with the consent of the Holders of a majority in
principal amount of the Notes then outstanding (including in each case,
consents obtained in connection with a tender offer or exchange offer for
Notes). In certain instances provided in the Indenture, the Indenture may be
amended without the consent of any Holder.
14. Defaults and Remedies
If an Event of Default with respect to the Notes occurs and is
continuing, the Notes may be declared due and payable immediately in the manner
and with the effect provided in the Indenture.
15. No Recourse Against Others
No director, officer, employee, incorporator, member or
stockholder, as such, of the Company, any Note Guarantor or any subsidiary of
any thereof shall have any liability for any obligation of the Company, or any
Note Guarantor on the Notes under this Indenture, the Notes, or any Note
Guarantee, or for any claim based on, in respect of, or by reason of, any such
obligation or its creation. Each Noteholder, by accepting the Notes, waives and
releases all such liability. This waiver and release are part of the
consideration for issuance of the Notes.
16. Governing Law.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION
OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. THE TRUSTEE, THE
COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF
THE NOTES) THE HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES
FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR
THE NOTES.
17. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Notes or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed hereon.
[FORM OF TRANSFER NOTICE]
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance
with (a) above and documents are being furnished which comply
with the conditions of transfer set forth in this Note and the
Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Note
Registrar shall not be obligated to register this Note in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 313 of the Indenture
shall have been satisfied.](12)
Date:
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12. Include only for an Initial Note or an Initial Additional Note that
bears the Private Placement Legend, in accordance with the Indenture.
NOTICE: The signature to
this assignment must
correspond with the name as
written upon the face of the
within-mentioned instrument
in every particular, without
alteration or any change
whatsoever.
Signature Guarantee:
-----------------------------
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
[TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
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--------------------------------
NOTICE: To be executed by an
executive officer](13)
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13. Include only for an Initial Note or an Initial Additional Note
that bears the Private Placement Legend, in accordance with the
Indenture.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by
the Company pursuant to Section 410 or 414 of the Indenture, check the box: [ ].
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 410 or 414 of the Indenture, state
the amount (in principal amount):
$
Date: Signed:
------------------------- --------------------------------------
(Sign exactly as your name appears on the
other side of the Note)
Signature Guarantee:
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Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Date of Amount of Amount of Principal amount Signature
Exchange decreases in increases in of this Global of authorized
Principal Principal Note following officer or Trustees
Amount of this Amount of this such decreases of Securities
Global Note Global Note or increases Custodian
EXHIBIT B
Form of Supplemental Indenture in Respect of Note Guarantee
SUPPLEMENTAL INDENTURE, dated as of [_________] (this
"Supplemental Indenture"), among [name of [New Note Guarantor[s](14)] (the "New
Note Guarantor[s]"), U.S. Office Products Company (the "Company"), [any] [the]
[each other] then existing Note Guarantor[s] under the Indenture referred to
below (the "Existing Guarantor[s]") and State Street Bank and Trust Company, as
Trustee (the "Trustee") under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, [the] [any] Existing Guarantor[s] and
the Trustee have heretofore become parties to an Indenture, dated as of June 10,
1998, as amended (as amended, supplemented, waived or otherwise modified, the
"Indenture"), providing for the issuance of 9 3/4% Senior Subordinated Notes Due
2008 of the Company (the "Notes");
WHEREAS, Section 1308 of the Indenture provides that the
Company is required to, or may cause the New Note Guarantor[s] to, execute and
deliver to the Trustee a supplemental indenture pursuant to which the New Note
Guarantor[s] shall guarantee the Notes pursuant to a Note Guarantee on the terms
and conditions set forth herein and in Article Thirteen of the Indenture;
WHEREAS, [the][each] New Note Guarantor desires to enter into
this Supplemental Indenture for good and valuable consideration, including
substantial economic benefit in that the financial performance and condition of
such New Note Guarantor is dependent on the financial performance and condition
of the Company and on [the] [such] New Note Guarantor's access to working
capital through the Company's access to revolving credit borrowings under the
Senior Credit Agreement; and
WHEREAS, pursuant to Section 901 of the Indenture, the parties
hereto are authorized to execute and deliver this Supplemental Indenture to
amend the Indenture, without the consent of any Holder;
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14. Insert as appropriate.
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the New Note Guarantor[s], the Company, [the Existing
Guarantor[s]] and the Trustee mutually covenant and agree for the benefit of the
Holders of the Notes as follows:
1. Defined Terms. As used in this Supplemental Indenture,
terms defined in the Indenture or in the preamble or recital hereto are used
herein as therein defined. The words "herein," "hereof" and "hereby" and other
words of similar import used in this Supplemental Indenture refer to this
Supplemental Indenture as a whole and not to any particular section hereof.
2. Agreement to Guarantee. [The] [Each] New Note Guarantor
hereby agrees, jointly and severally with [all] [any] other New Note
Guarantor[s] and [all] [any] Existing Guarantor[s], fully and unconditionally,
to guarantee the Guaranteed Obligations under the Indenture and the Notes on the
terms and subject to the conditions set forth in Article Thirteen of the
Indenture and to be bound by (and shall be entitled to the benefits of) all
other applicable provisions of the Indenture as a Note Guarantor. The Note
Guarantee of each New Note Guarantor is subject to the subordination provisions
of the Indenture.
3. Termination, Release and Discharge. [The] [Each] New Note
Guarantor's Note Guarantee shall terminate and be of no further force or effect,
and [the] [each] New Note Guarantor shall be released and discharged from all
obligations in respect of such Note Guarantee, as and when provided in Section
1303 of the Indenture.
4. Parties. Nothing in this Supplemental Indenture is intended
or shall be construed to give any Person, other than the Holders and the
Trustee, any legal or equitable right, remedy or claim under or in respect of
[the] [each] New Note Guarantor's Note Guarantee or any provision contained
herein or in Article Thirteen of the Indenture.
5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT
THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. THE TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND
(BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS, AGREE TO SUBMIT TO THE
JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT
LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
6. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby. The Trustee makes
no representation or warranty as to the validity or sufficiency of this
Supplemental Indenture.
7. Counterparts. The parties hereto may sign one or more
copies of this Supplemental Indenture in counterparts, all of which together
shall constitute one and the same agreement.
8. Headings. The section headings herein are for convenience
of reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NAME OF NEW NOTE GUARANTOR],(15)
as New Note Guarantor
By:
-------------------------------
Name:
Title:
U.S. OFFICE PRODUCTS COMPANY,
as Issuer
By:
-------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
-------------------------------
Name:
Title:
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15. Add a signature block for each New Note Guarantor.
EXHIBIT C
Form of Regulation S Certificate
Regulation S Certificate
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: U.S. OFFICE PRODUCTS COMPANY (the "Company")
9 3/4% Senior Subordinated Notes Due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $_____ aggregate
principal amount of Notes, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S ("Regulation S") under the Securities Act
of 1933, as amended (the "Securities Act"), and accordingly, we hereby certify
as follows:
1. The offer of the Notes was not made to a person in the
United States (unless such person or the account held by it for which
it is acting is excluded from the definition of "U.S. person" pursuant
to Rule 902(k) of Regulation S under the circumstances described in
Rule 902(h)(3) of Regulation S) or specifically targeted at an
identifiable group of U.S. citizens abroad.
2. Either (a) at the time the buy order was originated, the
buyer was outside the United States or we and any person acting on our
behalf reasonably believed that the buyer was outside the United States
or (b) the transaction was executed in, on or through the facilities of
a designated offshore securities market, and neither we nor any person
acting on our behalf knows that the transaction was pre-arranged with a
buyer in the United States.
3. No directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a)(2) or Rule
904(a)(2) of Regulation S, as applicable.
4. The proposed transfer of Notes is not part of a plan or
scheme to evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling
concession or other fee or remuneration in respect of the Notes, and
the proposed transfer takes place before the Offshore Note Exchange
Date referred to in the Indenture, dated as of June 10, 1998, among the
Company, the Note Guarantors (which term has the meaning ascribed
thereto in the Indenture) named therein and from time to time parties
thereto and the Trustee, or we are an officer or director of the
Company or a distributor, we certify that the proposed transfer is
being made in accordance with the provisions of Rules 903 and 904 of
Regulation S.
6. We have advised the transferee of the transfer restrictions
applicable to the Notes.
You, the Company and counsel for the Company are entitled to
rely upon this Certificate and are irrevocably authorized to produce this
Certificate or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[NAME OF SELLER]
By:----------------------
Name:
Title:
Address:
Date of this Certificate: _________________, 199_
EXHIBIT D
Form of Certificate of Beneficial Ownership
On or after July 21, ▇▇▇▇
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Attention: Corporate Trust Department
Re: U.S. OFFICE PRODUCTS COMPANY (the "Company")
9 3/4% Senior Subordinated Notes Due 2008 (the "Notes")
Ladies and Gentlemen:
This letter relates to $___________ principal amount of Notes
represented by the offshore global note certificate (the "Offshore Global
Note"). Pursuant to Section 313(4) of the Indenture dated as of June 10, 1998
relating to the Notes (the "Indenture"), we hereby certify that (1) we are the
beneficial owner of such principal amount of Notes represented by the Offshore
Global Note and (2) we are either (i) a Non-U.S. Person to whom the Notes could
be transferred in accordance with Rule 904 of Regulation S ("Regulation S")
promulgated under the Securities Act of 1933, as amended (the "Act") or (ii) a
U.S. Person who purchased securities in a transaction that did not require
registration under the Act. Accordingly, you are hereby requested to issue an
Offshore Physical Note representing the undersigned's interest in the principal
amount of Notes represented by the Offshore Global Note, all in the manner
provided by the Indenture.
You, the Company and counsel for the Company are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
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Authorized Signature
EXHIBIT E
Form of Accredited Investor Certificate
Transferee Letter of Representation
State Street Bank & Trust Company, as Trustee
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Ladies and Gentlemen:
In connection with our proposed purchase of $ aggregate
principal amount of the 9 3/4% Senior Subordinated Notes due 2008 (the "Notes")
of U.S. Office Products Company (the "Issuer"), we confirm that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of
1933, as amended (the "Securities Act"), purchasing for our own account or for
the account of such an institutional "accredited investor", and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and any
account for which we are acting are each able to bear the economic risk of our
or its investment.
2. We understand and acknowledge that the Notes have not been
registered under the Securities Act or any other applicable securities law, and
that the Notes may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any account for which we
are acting, that if we should sell any Notes within the time period referred to
in Rule 144(k) of the Securities Act, we will do so only (A) to the Issuer or
any subsidiary thereof, (B) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined therein), (C) to an
institutional "accredited investor" (as defined above) that, prior to such
transfer, furnishes to the Trustee under the Indenture a signed letter
containing certain representations and agreements relating to the restrictions
on transfer of the Notes (the form of which letter can be obtained from the
Trustee) and, if such transfer is in respect of an aggregate principal amount of
less than $100,000, an opinion of counsel acceptable to the Issuer that such
transfer is in compliance with the Securities Act, (D) outside the Untied States
in accordance with Rule 904 of Regulation S under the Securities Act, (E)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available) or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we
will be required to furnish to the Issuer and the Trustee such certifications,
legal opinions and other information as the Issuer and the Trustee may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are acquiring the Notes purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
5. We are acquiring the Notes for investment purposes and not
with a view to distribution thereof or with any present intention of offering or
selling any Notes, except as permitted above; provided that the disposition of
our property and property of any accounts for which we are acting as fiduciary
will remain at all times within our control.
You and the Issuer are entitled to rely upon this letter and
you are irrevocably authorized to produce this letter or a copy hereto to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PRINCIPLES THEREOF, OTHER THAN ANY MANDATING THE APPLICATION OF SUCH LAWS).
Very truly yours,
(Name of Purchaser)
By:
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Name:
Title:
Date:
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Upon transfer, the Notes would be registered in the name of
the new beneficial owner as follows:
By:
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Date:
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Taxpayer ID number:
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