EXHIBIT 4.2
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▇▇▇▇▇▇, INC.,
as Issuer,
the Guarantors
named herein
and
The Bank of New York,
as Trustee
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INDENTURE
Dated as of June 24, 2002
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10 7/8% Senior Notes due 2009
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
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Section 310(a)(1)............................................................. 7.10
(a)(2) ............................................................ 7.10
(a)(3) ............................................................ N.A.
(a)(4) ............................................................ N.A.
(a)(5)............................................................. 7.10
(b) ............................................................... 7.8; 7.10; 11.2
(c) ............................................................... N.A.
Section 311(a) ............................................................... 7.11
(b) ............................................................... 7.11
(c) ............................................................... N.A.
Section 312(a) ............................................................... 2.5
(b) ............................................................... 11.3
(c) ............................................................... 11.3
Section 313(a) ............................................................... 7.6
(b)(1) ............................................................ 7.6
(b)(2) ............................................................ 7.6
(c) ............................................................... 7.6; 11.2(b)
(d) ............................................................... 7.6
Section 314(a) ............................................................... 4.6; 4.7; 13.2
(b) ............................................................... N.A.
(c)(1) ............................................................ 11.4
(c)(2) ............................................................ 11.4
(c)(3) ............................................................ 11.4
(d) ............................................................... N.A.
(e) ............................................................... 11.5
(f) ............................................................... N.A.
Section 315(a) ............................................................... 7.1(b)
(b) ............................................................... 7.5; 11.2
(c) ............................................................... 7.1(a)
(d) ............................................................... 7.1(c)
(e) ............................................................... 6.11
Section 316(a)(last sentence) ................................................ 2.9
(a)(1)(A) ......................................................... 6.5
(a)(1)(B) ......................................................... 6.4
(a)(2) ............................................................ N.A.
(b) ............................................................... 6.7
(c) ............................................................... 9.4
Section 317(a)(1) ............................................................ 6.8
(a)(2) ............................................................ 6.9
(b) ............................................................... 2.4
Section 318(a) ............................................................... 11.1
(c) ............................................................... 11.1
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the
Indenture.
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions..........................................................................1
SECTION 1.2 Incorporation by Reference of Trust Indenture Act...................................32
SECTION 1.3 Rules of Construction...............................................................33
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.....................................................................34
SECTION 2.2 Execution and Authentication........................................................34
SECTION 2.3 Registrar and Paying Agent..........................................................35
SECTION 2.4 Paying Agent To Hold Money in Trust.................................................36
SECTION 2.5 Securityholder Lists................................................................36
SECTION 2.6 Transfer and Exchange...............................................................36
SECTION 2.7 Replacement Notes...................................................................37
SECTION 2.8 Outstanding Notes...................................................................37
SECTION 2.9 Treasury Notes......................................................................37
SECTION 2.10 Temporary Notes.....................................................................38
SECTION 2.11 Cancellation........................................................................38
SECTION 2.12 Defaulted Interest..................................................................38
SECTION 2.13 CUSIP Number........................................................................39
SECTION 2.14 Book-Entry Provisions for Global Securities.........................................39
SECTION 2.15 Special Transfer Provisions.........................................................40
ARTICLE III
REDEMPTION
SECTION 3.1 Notices to Trustee..................................................................42
SECTION 3.2 Selection of Notes To Be Redeemed...................................................42
SECTION 3.3 Notice of Redemption................................................................43
SECTION 3.4 Effect of Notice of Redemption......................................................43
SECTION 3.5 Deposit of Redemption Price.........................................................44
SECTION 3.6 Notes Redeemed in Part..............................................................44
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ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes....................................................................44
SECTION 4.2 Maintenance of Office or Agency.....................................................45
SECTION 4.3 Corporate Existence.................................................................45
SECTION 4.4 Payment of Taxes and Other Claims...................................................46
SECTION 4.5 Maintenance of Properties; Books and Records; Compliance with Law...................46
SECTION 4.6 Compliance Certificates; Notice of Default..........................................46
SECTION 4.7 Reports.............................................................................47
SECTION 4.8 Limitation on Restricted Payments...................................................48
SECTION 4.9 Limitation on Incurrence of Additional Indebtedness.................................51
SECTION 4.10 Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries........52
SECTION 4.11 Limitation on Liens.................................................................53
SECTION 4.12 Limitation on Asset Sales...........................................................54
SECTION 4.13 Limitations on Transactions with Affiliates.........................................58
SECTION 4.14 Change of Control...................................................................60
SECTION 4.15 Waiver of Stay; Extension of Usury Laws.............................................62
SECTION 4.16 Limitation on Guarantees by Restricted Subsidiaries.................................62
SECTION 4.17 Limitation on Preferred Stock of Subsidiaries.......................................63
SECTION 4.18 Conduct of Business.................................................................63
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 Limitation on Mergers, Consolidations or Sales of Assets............................64
SECTION 5.2 Successor Entity Substituted........................................................66
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default...................................................................66
SECTION 6.2 Acceleration........................................................................68
SECTION 6.3 Other Remedies......................................................................69
SECTION 6.4 Waiver of Past Default..............................................................69
SECTION 6.5 Control by Majority.................................................................70
SECTION 6.6 Limitation on Suits.................................................................70
SECTION 6.7 Rights of Holders To Receive Payment................................................70
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SECTION 6.8 Collection Suit by Trustee..........................................................71
SECTION 6.9 Trustee May File Proofs of Claim....................................................71
SECTION 6.10 Priorities..........................................................................71
SECTION 6.11 Undertaking for Costs...............................................................72
SECTION 6.12 Rights and Remedies Cumulative......................................................72
SECTION 6.13 Delay or Omission Not Waiver........................................................72
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee...................................................................73
SECTION 7.2 Rights of Trustee...................................................................74
SECTION 7.3 Individual Rights of Trustee........................................................75
SECTION 7.4 Trustee's Disclaimer................................................................75
SECTION 7.5 Notice of Defaults..................................................................75
SECTION 7.6 Reports by Trustee to Holders.......................................................76
SECTION 7.7 Compensation and Indemnity..........................................................76
SECTION 7.8 Replacement of Trustee..............................................................77
SECTION 7.9 Successor Trustee by Merger, Etc....................................................78
SECTION 7.10 Eligibility; Disqualification.......................................................78
SECTION 7.11 Preferential Collection of Claims Against Company...................................78
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1 Termination of the Company's Obligations............................................79
SECTION 8.2 Legal Defeasance and Covenant Defeasance............................................80
SECTION 8.3 Conditions to Legal Defeasance or Covenant Defeasance...............................81
SECTION 8.4 Application of Trust Money..........................................................83
SECTION 8.5 Repayment to the Company............................................................83
SECTION 8.6 Reinstatement.......................................................................84
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders..........................................................84
SECTION 9.2 With Consent of Holders.............................................................85
SECTION 9.3 Compliance with Trust Indenture Act.................................................86
SECTION 9.4 Revocation and Effect of Consents...................................................86
SECTION 9.5 Notation on or Exchange of Notes....................................................87
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SECTION 9.6 Trustee To Sign Amendments, Etc.....................................................87
ARTICLE X
GUARANTEE
SECTION 10.1 Unconditional Guarantee.............................................................88
SECTION 10.2 Severability........................................................................89
SECTION 10.3 Release of a Guarantor..............................................................89
SECTION 10.4 Limitation of Guarantor's Liability.................................................89
SECTION 10.5 Consolidation, Merger and Sale of Assets............................................90
SECTION 10.6 Contribution........................................................................90
SECTION 10.7 Waiver of Subrogation...............................................................91
SECTION 10.8 Evidence of Guarantee...............................................................91
SECTION 10.9 Waiver of Stay, Extension or Usury Laws.............................................91
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls........................................................92
SECTION 11.2 Notices.............................................................................92
SECTION 11.3 Communications by Holders with Other Holders........................................93
SECTION 11.4 Certificate and Opinion of Counsel as to Conditions Precedent.......................93
SECTION 11.5 Statements Required in Certificate and Opinion of Counsel...........................94
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar...........................................94
SECTION 11.7 Legal Holidays......................................................................94
SECTION 11.8 Governing Law.......................................................................94
SECTION 11.9 No Recourse Against Others..........................................................95
SECTION 11.10 Successors..........................................................................95
SECTION 11.11 Counterparts........................................................................95
SECTION 11.12 Severability........................................................................95
SECTION 11.13 Table of Contents, Headings, Etc....................................................95
SECTION 11.14 No Adverse Interpretation of Other Agreements.......................................95
SECTION 11.15 Benefits of Indenture...............................................................95
SECTION 11.16 Independence of Covenants...........................................................96
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Exhibit A-1 -- Form of Series A Note
Exhibit A-2 -- Form of Series B Note
Exhibit B -- Form of Legend for Global Securities
Exhibit C -- Transferee Certificate for Non-QIB Accredited Investors
Exhibit D -- Transferee Certificate for Transfers Pursuant to Regulation S
Exhibit E -- Form of Guarantee
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the
Indenture.
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INDENTURE dated as of June 24, 2002, among ▇▇▇▇▇▇, INC., a
corporation duly organized and existing under the laws of the State of Delaware,
as issuer (the "Company"), the Guarantors (as defined herein) and The Bank of
New York, a
New York banking corporation, as Trustee (the "Trustee").
The parties hereto agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Acceleration Notice" shall have the meaning ascribed to such
term in Section 6.2.
"Accrued Bankruptcy Interest" means all interest accruing
subsequent to the occurrence of any events specified in Section 6.1(f) or (g) or
which would have accrued but for any such event.
"Acquired Indebtedness" means Indebtedness (1) of a Person or
any of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or (2) assumed in connection with the acquisition of
assets from such Person, in each case not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such acquisition. Acquired Indebtedness shall be
deemed to have been incurred, with respect to clause (1) of the preceding
sentence, on the date such Person becomes a Restricted Subsidiary of the Company
and, with respect to clause (2) of the preceding sentence, on the date of
consummation of such acquisition of assets.
"Additional Notes" means the 10 7/8% Senior Notes due 2009 of
the Company (other than the Initial Notes and Series B Notes issued in exchange
for the Initial Notes) issued under this Indenture in accordance with Sections
2.2 and 4.9.
"Adjusted Net Assets" shall have the meaning provided in Section
10.6.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing. Notwithstanding the foregoing, no Person (other than the Company or
any Subsidiary of the Company) in whom a Receivables Entity makes an Investment
in connection with a Qualified Receivables Transaction shall be deemed to be an
Affiliate of the Company or any of its Subsidiaries solely by reason of such
Investment.
"Affiliate Transaction" has the meaning ascribed to such term in
Section 4.13.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Members" has the meaning provided in Section 2.14.
"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, 2006 (such redemption price being that
described in the first paragraph of Section 5 of the Notes) plus (2) all
required remaining scheduled interest payments due on such Note through June 15,
2006, 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, HOWEVER,
that such calculation shall not be a duty or obligation of the Trustee.
"A/R Facility" means the Receivables Purchase Agreement dated as
of March 19, 1996, as amended, among the Company, certain subsidiaries of the
Company and BFP Receivables Corporation in each case as such agreement may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the term
thereof, and any successor or replacement agreement, including, without
limitation, any agreement or agreements governing a Qualified Receivables
Transaction.
"Asset Acquisition" means (1) an Investment by the Company or
any Restricted Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Restricted Subsidiary of the Company or of any
Restricted Subsidiary of the Company, or shall be merged with or into the
Company or any Restricted Subsidiary of the Company, or (2) the acquisition by
the Company or any Restricted Subsidiary of the Company of the assets of any
Person (other than a Restricted Subsidiary of the Company) which constitute all
or substantially all of the assets of such Person or comprise any division or
line of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment
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or other disposition for value by the Company or any of its Restricted
Subsidiaries (including any Sale and Leaseback Transaction) to any Person other
than the Company or a Restricted Subsidiary of the Company of: (1) any Capital
Stock of any Restricted Subsidiary of the Company; or (2) any other property or
assets of the Company or any Restricted Subsidiary of the Company other than in
the ordinary course of business; PROVIDED, HOWEVER, that Asset Sales shall not
include:
(a) any transaction or series of related transactions for
which the Company or its Restricted Subsidiaries receive aggregate
consideration of less than $2.5 million;
(b) the sale, lease, conveyance, disposition or other
transfer of all or substantially all of the assets of the Company as
permitted under Article V;
(c) the sale or discount, in each case without recourse, of
accounts receivable arising in the ordinary course of business;
(d) the factoring of accounts receivable arising in the
ordinary course of business pursuant to arrangements customary in the
industry;
(e) the licensing of intellectual property;
(f) disposals or replacements of obsolete equipment in the
ordinary course of business;
(g) the sale, lease, conveyance, disposition or other
transfer by the Company or any Restricted Subsidiary of assets or
property in transactions constituting Permitted Investments or
Restricted Payments that are not prohibited under Section 4.8;
(h) sales of accounts receivable and related assets of the
type specified in the definition of "Qualified Receivables Transaction"
to a Receivables Entity (for the purposes of this clause (h), Purchase
Money Notes shall be deemed to be cash);
(i) transfers of accounts receivable and related assets of
the type specified in the definition of "Qualified Receivables
Transaction" (or a fractional undivided interest therein) by a
Receivables Entity in a Qualified Receivables Transaction;
(j) leases or subleases to third persons not interfering in
any material respect with the business of the Company or any of its
Restricted Subsidiaries; and
(k) the surrender or waiver of contract rights or the
settlement, release or surrender of contract, tort or other claims of
any kind.
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"Bankruptcy Law" means Title 11 of the United States Code
entitled "Bankruptcy," as now and hereafter in effect, or any successor statute
or any other United States federal, state or local law or the law of any other
jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors, whether in effect on the date hereof or
hereafter.
"Bankruptcy Order" means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation, winding
up, dissolution or reorganization, or appointing a custodian of a debtor or of
all or any substantial part of a debtor's property, or providing for the
staying, arrangement, adjustment or composition of indebtedness or other relief
of a debtor.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of
a resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of
New York,
New York or is a day on
which banking institutions therein located are authorized or required by law or
other governmental action to close.
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any
and all shares, interests, participations or other equivalents (however
designated and whether or not voting) of corporate stock, including each
class of Common Stock and Preferred Stock of such Person; and
(2) with respect to any Person that is not a corporation,
any and all partnership, membership or other equity interests of such
Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
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"Cash Equivalents" means:
(1) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or any
member state of the European Union or issued by any agency thereof and
backed by the full faith and credit of the United States or any member
state of the European Union, in each case maturing within one year from
the date of acquisition thereof;
(2) marketable direct obligations issued by any state of the
United States of America or any member state of the European Union or
any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from either Standard & Poor's Ratings
Group ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's");
(3) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a
rating of at least A-1 from S&P or at least P-1 from Moody's;
(4) time deposits, certificates of deposit or bankers'
acceptances (or with respect to foreign banks, similar instruments)
maturing within one year from the date of acquisition thereof issued by
any bank organized under the laws of the United States of America or any
state thereof or the District of Columbia or any member state of the
European Union or any U.S. branch of a foreign bank having at the date
of acquisition thereof combined capital and surplus of not less than
$200.0 million;
(5) certificates of deposit or bankers' acceptances or
similar instruments maturing within one year from the date of
acquisition thereof issued by any foreign bank that is a lender under
the Senior Credit Facility having at the date of acquisition thereof
combined capital and surplus of not less than $500.0 million;
(6) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause
(1) or (2) above entered into with any bank meeting the qualifications
specified in clause (4) above;
(7) demand deposit accounts maintained in the ordinary
course of business; and
(8) investments in money market funds which invest
substantially all their assets in securities of the types described in
clauses (1) through (7) above.
"Change of Control" means the occurrence of one or more of the
following events:
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(1) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially
all of the assets of the Company to any Person or group of related
Persons for purposes of Section 13(d) of the Exchange Act (a "Group"),
together with any Affiliates thereof (other than one or more Permitted
Holders);
(2) the approval by the holders of Capital Stock of the
Company of any plan or proposal for the liquidation or dissolution of
the Company;
(3) any Person or Group (other than one or more Permitted
Holders) shall become the beneficial owner (as defined in Rules 13d-3
and 13d-5 or any successor rule or regulation promulgated under the
Exchange Act), directly or indirectly, of shares representing more than
50% of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of Holdings or the Company;
(4) the occurrence of a "Change of Control" as defined in
the Senior Subordinated Credit Agreement, if at such time any
Indebtedness of the Company is outstanding under such agreement; or
(5) the first day on which a majority of the Board of
Directors of the Company are not Continuing Directors.
"Change of Control Date" has the meaning ascribed to such term
in Section 4.14(a).
"Change of Control Offer" has the meaning ascribed to such term
in Section 4.14(a).
"Change of Control Payment Date" has the meaning ascribed to
such term in Section 4.14(b).
"Common Stock" of any Person means any and all shares, interests
or other participations in, and other equivalents (however designated and
whether voting or non-voting) of such Person's common stock, whether outstanding
on the Issue Date or issued after the Issue Date, and includes, without
limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this Indenture and,
thereafter, means the successor.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of:
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(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been reduced
thereby:
(a) all income taxes of such Person and its
Restricted Subsidiaries paid or accrued in accordance with GAAP
for such period (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses or taxes
attributable to sales or dispositions outside the ordinary
course of business);
(b) Consolidated Interest Expense;
(c) Consolidated Non-cash Charges;
(d) the amount of any restructuring reserve or
charge recorded during such period in accordance with GAAP;
(e) any fees permitted pursuant to clause (b)(10) of
Section 4.13;
(f) amounts paid as a spread payment in connection
with a cashless exercise of options by a director or employee of
Holdings or any of its Restricted Subsidiaries (I.E., a payment
equal to the spread of the then fair market value of Holdings'
Common Stock which may be purchased with such options over the
aggregate exercise price of such options); and
(g) less, without duplication, non-cash items
increasing Consolidated Net Income of such Person and its
Restricted Subsidiaries for such period in each case determined
in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to any Person, the ratio of Consolidated EBITDA of such Person during the four
full fiscal quarters (the "Four Quarter Period") ending on or prior to the date
of the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio for which financial statements are available (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the Four
Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a PRO FORMA basis for the
period of such calculation to:
(1) the incurrence or repayment of any Indebtedness of such
Person or any of its Restricted Subsidiaries (and the application of the
proceeds thereof) giving rise to the need to make such calculation and
any incurrence or repayment of other Indebtedness (and the application
of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital
purposes
-7-
pursuant to working capital facilities, occurring during the Four
Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the
proceeds thereof), occurred on the first day of the Four Quarter Period;
(2) any asset sales or other dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who
becomes a Restricted Subsidiary as a result of the Asset Acquisition)
incurring, assuming or otherwise being liable for Acquired Indebtedness
and also including any Consolidated EBITDA (including PRO FORMA expense
and cost reductions calculated on a basis consistent with Regulation S-X
under the Exchange Act) attributable to the assets which are the subject
of the Asset Acquisition or asset sale during the Four Quarter Period)
occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such asset sale or Asset Acquisition (including
the incurrence, assumption or liability for any such Indebtedness or
Acquired Indebtedness) occurred on the first day of the Four Quarter
Period; and
(3) any asset sales or asset acquisitions (including any
Consolidated EBITDA (including PRO FORMA expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Exchange
Act) attributable to the assets which are the subject of the Asset
Acquisition or asset sale during the Four Quarter Period) that have been
made by any Person that has become a Restricted Subsidiary of the
Company or has been merged with or into the Company or any Restricted
Subsidiary of the Company during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to
the Transaction Date that would have constituted asset sales or Asset
Acquisitions had such transactions occurred when such Person was a
Restricted Subsidiary of the Company or subsequent to such Person's
merger into the Company, as if such asset sale or Asset Acquisition
(including the incurrence, assumption or liability for any Indebtedness
or Acquired Indebtedness in connection therewith) occurred on the first
day of the Four Quarter Period;
PROVIDED that to the extent that clause (2) or (3) of this sentence requires
that PRO FORMA effect be given to an asset sale or Asset Acquisition, such PRO
FORMA calculation shall be based upon the four full fiscal quarters immediately
preceding the Transaction Date of the Person, or division or line of business of
the Person, that is acquired or disposed of for which financial information is
available. If such Person or any of its Restricted Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any Restricted Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness.
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Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of this "Consolidated Fixed Charge Coverage Ratio" interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation of
such agreements.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of:
(1) Consolidated Interest Expense; plus
(2) the product of (x) the amount of all dividend payments
on any series of Preferred Stock of such Person and its Restricted
Subsidiaries (other than dividends paid in Qualified Capital Stock and
dividends paid on Preferred Stock of Unrestricted Subsidiaries) paid,
accrued or scheduled to be paid or accrued during such period times (y)
a fraction, the numerator of which is one and the denominator of which
is one minus the then current effective consolidated federal, state and
local tax rate of such Person, expressed as a decimal; provided that to
the extent that such dividend payments are tax deductible, then this
clause (2) shall equal the amount set forth in clause (x) hereof without
giving effect to clause (y) hereof.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the sum of, without duplication:
(1) the aggregate of all cash and non-cash interest expense
with respect to all outstanding Indebtedness of such Person and its
Restricted Subsidiaries, including the net costs associated with
Interest Swap Obligations for such period determined on a consolidated
basis in conformity with GAAP, but excluding amortization of original
issue discount and amortization of any deferred financing costs; and
(2) the interest component of Capitalized Lease Obligations
paid, accrued and/or scheduled to be paid or accrued by such Person and
its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" of the Company means, for any period,
the aggregate net income (or loss) of the Company and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; PROVIDED that there shall be excluded therefrom:
(1) gains and losses from Asset Sales (without regard to the
$2.5 million limitation set forth in the definition thereof) or
abandonments or reserves relating thereto and the related tax effects
according to GAAP;
-9-
(2) gains and losses due solely to fluctuations in currency
values and the related tax effects according to GAAP;
(3) extraordinary, unusual or nonrecurring gains, losses,
income or expense, and the related tax effects;
(4) the net income (or loss) of any Person acquired in a
"pooling of interests" transaction accrued prior to the date it becomes
a Restricted Subsidiary of the Company or is merged or consolidated with
the Company or any Restricted Subsidiary of the Company;
(5) the net income of any Restricted Subsidiary of the
Company to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is restricted
by a contract, operation of law or otherwise;
(6) the net loss of any Person other than a Restricted
Subsidiary of the Company;
(7) the net income of any Person, other than a Restricted
Subsidiary of the Company, except to the extent of cash dividends or
distributions paid to the Company or to a Restricted Subsidiary of the
Company by such Person unless, in the case of a Restricted Subsidiary of
the Company who receives such dividends or distributions, such
Restricted Subsidiary is subject to clause (5) above;
(8) (A) all non-cash charges (PROVIDED that any cash
payments actually made with respect to the liabilities for which such
cash charges were created shall be deducted from Consolidated Net Income
in the period when made) and (B) all deferred financing costs written
off in connection with the early extinguishment of any Indebtedness, in
each case incurred by the Company or any of its Restricted Subsidiaries
in connection with the recapitalization of Holdings in December 1999 and
the related financing transactions;
(9) non-cash compensation charges, including any arising
from existing stock options resulting from any merger or
recapitalization transition; and
(10) the cumulative effect of a change in accounting
principle.
"Consolidated Non-cash Charges" means, with respect to any
Person, for any period, the aggregate depreciation, amortization and other
non-cash expenses of such Person and its Restricted Subsidiaries reducing
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP (excluding
any such charges constituting an extraordinary item or loss or any such charge
which requires an accrual of or a reserve for cash charges for any future
period).
-10-
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the Issue
Date;
(2) was nominated for election or elected to such Board of
Directors with, or whose election to such Board of Directors was
approved by, the affirmative vote of a majority of the Continuing
Directors who were members of such Board of Directors at the time of
such nomination or election; or
(3) is any designee of a Permitted Holder or was nominated
by a Permitted Holder or any designees of a Permitted Holder on the
Board of Directors.
"Covenant Defeasance" has the meaning provided in Section 8.2.
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration, or such other address as
the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary of the Company against
fluctuations in currency values.
"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, sequestrator or similar official charged
with maintaining possession or control over property for one or more creditors,
whether under any Bankruptcy Law or otherwise.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"Depository" means The Depository Trust Company, its nominees
and successors.
"Disqualified Capital Stock" means that portion of any Capital
Stock which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event which would
constitute a Change of Control), matures (excluding any maturity as the result
of an optional redemption by the issuer thereof) or is mandatorily redeemable,
pursuant
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to a sinking fund obligation or otherwise, or is redeemable at the sole option
of the holder thereof (except, in each case, upon the occurrence of a Change of
Control) on or prior to the final maturity date of the Notes.
"Dollars" or the sign "$" means the lawful money of the United
States of America.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
incorporated or otherwise organized or existing under the laws of the United
States, any state thereof or any territory or possession of the United States.
"ECP" shall mean Evercore Capital Partners L.P., a Delaware
limited partnership.
"ECP Affiliates" shall mean any Affiliate of ECP.
"ECP Investors" shall mean ECP, Evercore Capital Partners (NQ)
L.P. and EBF Group L.L.C., or any limited or general partner, stockholder,
officer or employee of such ECP Investor.
"Equity Investors" shall mean THL, THL Investors, ECP, ECP
Investors and their respective Affiliates, taken as a whole.
"Equity Offering" means any public or private sale of Qualified
Capital Stock of Holdings or the Company or any capital contribution to
Holdings; PROVIDED that, in the event of an Equity Offering by Holdings or any
capital contribution to Holdings, Holdings contributes to the capital of the
Company the portion of the net cash proceeds of such Equity Offering or capital
contribution necessary to pay the aggregate redemption price of the Notes to be
redeemed pursuant to Section 5(b) of the Notes.
"Event of Default" means each of the events set forth in Section
6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"fair market value" means, with respect to any asset or
property, the price which could be negotiated in an arm's-length, free market
transaction, for cash, between a willing seller and a willing and able buyer,
neither of whom is under undue pressure or compulsion to complete the
transaction. Fair market value shall be determined by the Board of Directors of
the Company acting reasonably and in good faith and shall be evidenced by a
Board Resolution of the Board of Directors of the Company delivered to the
Trustee.
"Funding Guarantor" has the meaning ascribed to it in Section
10.6.
-12-
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"Global Security" has the meaning provided in Section 2.2.
"Guarantees" means, collectively, the guarantees of the Notes by
the Guarantors pursuant to Article X which are evidenced by notations of
guarantee substantially in the form of EXHIBIT E.
"Guarantor" means (1) each of the Company's Domestic Restricted
Subsidiaries that is a guarantor under the Senior Credit Facility on the Issue
Date and (2) each of the Company's Domestic Restricted Subsidiaries that in the
future executes a supplemental indenture in which such Domestic Restricted
Subsidiary agrees to be bound by the terms of this Indenture as a Guarantor;
PROVIDED that any Person constituting a Guarantor as described above shall cease
to constitute a Guarantor when its respective Guarantee is released in
accordance with the terms of this Indenture.
"Holder" or "Securityholder" means a Person in whose name a Note
is registered. The Holder of a Note will be treated as the owner of such Note
for all purposes.
"Holdings" means ▇▇▇▇▇▇ Holdings, Inc., a Delaware corporation
and the parent of the Company.
"Indebtedness" means, with respect to any Person, without
duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
and all Obligations under any title retention agreement (but excluding
trade accounts payable and other accrued liabilities arising in the
ordinary course of business);
(5) all Obligations for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit transaction;
-13-
(6) guarantees and other contingent obligations in respect
of Indebtedness referred to in clauses (1) through (5) above and clause
(8) below;
(7) all Obligations of any other Person of the type referred
to in clauses (1) through (6) which are secured by any lien on any
property or asset of such Person, but which Obligations are not assumed
by such Person, the amount of such Obligation being deemed to be the
lesser of the fair market value of such property or asset or the amount
of the Obligation so secured;
(8) all Obligations under currency agreements and interest
swap agreements of such Person; and
(9) all Disqualified Capital Stock issued by such Person
with the amount of Indebtedness represented by such Disqualified Capital
Stock being equal to the greater of its voluntary or involuntary
liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any.
For purposes hereof, (x) the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Capital
Stock as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock and (y) any transfer of accounts receivable or other
assets which constitutes a sale for purposes of GAAP shall not constitute
Indebtedness hereunder. Accrual of interest, accretion or amortization of
original issue discount and the payment of any interest on any Indebtedness in
the form of additional Indebtedness with the same terms will not be deemed to be
an incurrence of Indebtedness for the purposes of Section 4.9.
"Indenture" means this Indenture as amended or supplemented from
time to time pursuant to the terms hereof.
"Initial Notes" means $250.0 million in aggregate principal
amount of 10 7/8% Senior Notes due 2009 of the Company issued on the Issue Date.
"Initial Purchasers" means Deutsche Bank Securities Inc., ▇▇
▇▇▇▇▇▇ Securities Inc., Banc of America Securities LLC and Fleet Securities,
Inc.
"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.
-14-
"Intercompany Indebtedness" means any Indebtedness of the
Company or any Guarantor or Wholly Owned Restricted Subsidiary of the Company
that is not a Guarantor which, in the case of the Company, is owing to any
Guarantor or Wholly Owned Restricted Subsidiary of the Company that is not a
Guarantor and which, in the case of any such Subsidiary, is owing to the Company
or any Guarantor or Wholly Owned Restricted Subsidiary of the Company that is
not a Guarantor; PROVIDED that if as of any date any Person other than the
Company or a Guarantor or Wholly Owned Restricted Subsidiary of the Company that
is not a Guarantor, a lender under the Senior Credit Facility or a creditor
under any interest rate protection or other hedging agreement (or any collateral
agent acting on behalf of such lenders and/or creditors) owns or holds such
Indebtedness, or holds any Lien in respect thereof (other than a Lien in favor
of the Holders, the lenders under the Senior Credit Facility, the creditors
under any interest rate protection or other hedging agreement or any collateral
agent for such lenders and/or creditors), such Indebtedness shall no longer be
Intercompany Indebtedness.
"interest," when used with respect to any Note, means the amount
of all interest accruing on such Note, including all interest accruing
subsequent to the occurrence of any events specified in Sections 6.1(f) and
6.1(g) or which would have accrued but for any such event.
"Interest Payment Date," when used with respect to any Note,
means the stated maturity of an installment of interest specified in such Note.
"Interest Swap Obligations" means the obligations of any Person,
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Investment" by any Person in any other Person means, with
respect to any Person, any direct or indirect loan or other extension of credit
(including, without limitation, a guarantee) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued by, such other Person.
"Investment" shall exclude extensions of trade credit by the Company and its
Restricted Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of the Company or such Restricted Subsidiary, as the case
may be. For the purposes of Section 4.8:
(1) the Company shall be deemed to have made an "Investment"
equal to the fair market value of the net assets of any Restricted
Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary and the aggregate
-15-
amount of Investments made subsequent to the Issue Date shall exclude
(to the extent the designation as an Unrestricted Subsidiary was
included as a Restricted Payment) the fair market value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary, not to exceed the
amount of the Investment deemed made at the date of designation thereof
as an Unrestricted Subsidiary; and
(2) the amount of any Investment shall be the original cost
of such Investment plus the cost of all additional Investments by the
Company or any of its Restricted Subsidiaries, without any adjustments
for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment, reduced by the payment of
dividends or distributions (including tax sharing payments) in
connection with such Investment or any other amounts received in respect
of such Investment; PROVIDED that no such payment of dividends or
distributions or receipt of any such other amounts shall reduce the
amount of any Investment if such payment of dividends or distributions
or receipt of any such amounts would be included in Consolidated Net
Income.
If the Company or any Restricted Subsidiary of the Company sells
or otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, more than 50%
of the outstanding Common Stock of such Restricted Subsidiary, the Company shall
be deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted Subsidiary
not sold or disposed of.
"Issue Date" means June 24, 2002, the date on which the Initial
Notes were originally issued.
"Laws" means all applicable statutes, laws, ordinances,
regulations, rules, orders, judgments, writs, injunctions or decrees of any
state, commonwealth, nation, territory, possession or province, or Tribunal, and
"Law" means each of the foregoing.
"Legal Defeasance" has the meaning provided in Section 8.2.
"Legal Holiday" means any day other than a Business Day.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Maturity Date" means, when used with respect to any Note, the
date specified in such Note as the fixed date on which the final installment of
principal of such Note is due
-16-
and payable (in the absence of any acceleration thereof pursuant to Section 6.2
or any Net Proceeds Offer or Change of Control Offer).
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of:
(1) out-of-pocket expenses and fees relating to such Asset
Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions);
(2) taxes paid or payable after taking into account any
reduction in consolidated tax liability due to available tax credits or
deductions and any tax sharing arrangements;
(3) any relocation expenses and severance, pension and
shutdown costs incurred as a result thereof;
(4) the repayment of Indebtedness that is secured by a Lien
on the property or assets that are subject of such Asset Sale and such
Lien is permitted by this Indenture; and
(5) any portion of cash proceeds which the Company
determines in good faith should be reserved for post-closing
adjustments, it being understood and agreed that on the day that all
such post-closing adjustments have been determined, the amount (if any)
by which the reserved amount in respect of such Asset Sale exceeds the
actual post-closing adjustments payable by the Company or any of its
Subsidiaries shall constitute Net Cash Proceeds on such date; PROVIDED
that, in the case of the sale by the Company of an asset constituting an
Investment made after the Issue Date (other than a Permitted
Investment), the "Net Cash Proceeds" in respect of such Asset Sale shall
not include the lesser of (x) the cash received with respect to such
Asset Sale and (y) the initial amount of such Investment, less, in the
case of clause (y), all amounts (up to an amount not to exceed the
initial amount of such Investment) received by the Company with respect
to such Investment, whether by dividend, sale, liquidation or repayment,
in each case prior to the date of such Asset Sale.
"Net Proceeds Offer" shall have the meaning ascribed to such
term in Section 4.12(a).
"Net Proceeds Offer Amount" shall have the meaning ascribed to
such term in Section 4.12(a).
-17-
"Net Proceeds Offer Payment Date" shall have the meaning
ascribed to such term in Section 4.12(a).
"Net Proceeds Offer Trigger Date" shall have the meaning
ascribed to such term in Section 4.12(a).
"Non-U.S. Person" means a Person who is not a U.S. Person, as
defined in Regulation S.
"Notes" means, collectively, the Initial Notes, the Additional
Notes, if any, and the Series B Notes issued in exchange for the Initial Notes,
treated as a single class of securities, as amended or supplemented from time to
time in accordance with the terms hereof, that are issued pursuant to this
Indenture.
"Obligations" means all obligations for (a) principal, premium,
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law),
penalties, fees and (b) to the extent liquidated and quantifiable at the time of
determination, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Chief Financial Officer, the Controller, the Treasurer, the
Secretary or Assistant Secretary.
"Officers' Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by an Officer.
"Offshore Physical Securities" has the meaning provided in
Section 2.2.
"Opinion of Counsel" means a written opinion from legal counsel
who is reasonably acceptable to the Trustee, which may include outside or
in-house counsel to the Company.
"Paying Agent" has the meaning provided in Section 2.3.
"Payment Restriction" has the meaning ascribed to such term in
Section 4.10.
"Permitted Holders" shall mean and include (i) THL, THL
Affiliates and THL Investors and (ii) ECP, ECP Affiliates and ECP Investors.
"Permitted Indebtedness" means, without duplication, each of the
following:
(1) Indebtedness under the Notes and this Indenture
(including any Guarantees by the Guarantors) in an aggregate principal
amount not to exceed $250.0 million;
-18-
(2) 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)
(including the guarantees made thereunder) in a maximum principal amount
not to exceed in the aggregate the amount equal to $670 million less (x)
the amount of any proceeds from any incurrence by the Company or any of
its Restricted Subsidiaries of Attributed Receivables Facility
Indebtedness (as defined in the Senior Credit Facility as in effect on
the Issue Date) pursuant to the A/R Facility in excess of $150.0 million
and (y) the amount of all mandatory repayments of term loans actually
made under, and permanent commitment reductions actually made in the
revolving credit portion of, the Senior Credit Facility with Net Cash
Proceeds of Asset Sales applied thereto as required by Section 4.12;
(3) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date (including, without
limitation, Indebtedness outstanding under the Senior Subordinated
Credit Agreement after giving effect to the application of the proceeds
from the issuance of the Notes on the Issue Date) reduced by the amount
of any scheduled amortization payments or mandatory prepayments when
actually paid or permanent reductions thereon;
(4) Interest Swap Obligations of the Company or any
Restricted Subsidiary of the Company covering Indebtedness of the
Company or any of its Restricted Subsidiaries; PROVIDED that any
Indebtedness to which any such Interest Swap Obligations correspond is
otherwise permitted to be incurred under this Indenture;
(5) Indebtedness of the Company or any of its Restricted
Subsidiaries under (i) Currency Agreements entered into, in the judgment
of the Company, to protect the Company or such Restricted Subsidiary
from foreign currency exchange rates and (ii) Raw Material Hedge
Agreements;
(6) Intercompany Indebtedness of the Company or any of its
Restricted Subsidiaries;
(7) Acquired Indebtedness of any Restricted Subsidiary of
the Company that is not a Guarantor to the extent the Company could have
incurred such Indebtedness in accordance with the Consolidated Fixed
Charge Coverage Ratio of Section 4.9 on the date such Indebtedness
became Acquired Indebtedness; PROVIDED that such Acquired Indebtedness
was not incurred in connection with, or in anticipation or contemplation
of, such Person becoming a Restricted Subsidiary of the Company;
PROVIDED, further, that the aggregate amount of Indebtedness (including
refinancings thereof) pursuant to this clause (7) and clause (10) shall
not exceed $40.0 million in the aggregate;
-19-
(8) Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the ordinary course of
business;
(9) any refinancing, modification, replacement, renewal,
restatement, refunding, deferral, extension, substitution, supplement,
reissuance or resale of existing or future Indebtedness (other than
pursuant to clauses (2), (4), (5), (6), (7), (8), (10), (11), (12),
(13), (14) and (15) of this definition), including any additional
Indebtedness incurred to pay interest or premiums required by the
instruments governing such existing or future Indebtedness as in effect
at the time of issuance thereof or other premiums to the extent the
Company reasonably determines that such premiums are necessary to effect
the refinancing ("Required Premiums") and fees in connection therewith;
PROVIDED that any such event shall not (1) result in an increase in the
aggregate principal amount of Permitted Indebtedness (except to the
extent such increase is a result of a simultaneous incurrence of
additional Indebtedness (A) to pay Required Premiums and related fees or
(B) otherwise permitted to be incurred under this Indenture) of the
Company and its Restricted Subsidiaries and (2) except for Indebtedness
that refinances Indebtedness under the Senior Subordinated Credit
Agreement which Indebtedness does not have a maturity prior to the
maturity of the Notes, create Indebtedness with a Weighted Average Life
to Maturity at the time such Indebtedness is incurred that is less than
the Weighted Average Life to Maturity at such time of the Indebtedness
being refinanced, modified, replaced, renewed, restated, refunded,
deferred, extended, substituted, supplemented, reissued or resold;
PROVIDED that no Restricted Subsidiary of the Company may refinance any
Indebtedness pursuant to this clause (9) other than its own
Indebtedness;
(10) (x) Indebtedness incurred by the Company and its
Restricted Subsidiaries to finance the purchase, lease or improvement of
property (real or personal) or equipment (whether through the direct
purchase of assets or the Capital Stock of any Person owning such
assets) and (y) Capitalized Lease Obligations in an aggregate principal
amount outstanding for both clauses (x) and (y) (including refinancings
thereof), together with any Indebtedness pursuant to clause (7), not to
exceed $40.0 million at the time of any incurrence thereof;
(11) Indebtedness incurred by the Company or any of its
Restricted Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business,
including, without limitation, letters of credit in respect of workers'
compensation claims or self-insurance, or other Indebtedness with
respect to reimbursement type obligations regarding workers'
compensation claims;
(12) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary of the Company providing for indemnification,
adjustment of purchase
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price, earn out or other similar obligations, in each case, incurred or
assumed in connection with the disposition or acquisition of any
business, assets or a Restricted Subsidiary of the Company;
(13) obligations in respect of performance and surety bonds
and completion guarantees provided by the Company or any Restricted
Subsidiary of the Company in the ordinary course of business;
(14) Indebtedness consisting of guarantees (i) by the Company
of Indebtedness and any other obligation or liability permitted to be
incurred under this Indenture by Restricted Subsidiaries of the Company,
and (ii) subject to the provisions of Section 4.16, by Restricted
Subsidiaries of the Company of Indebtedness and any other obligation or
liability permitted to be incurred by the Company or other Restricted
Subsidiaries of the Company; and
(15) additional Indebtedness of the Company or any Restricted
Subsidiary in an aggregate principal amount not to exceed $35.0 million
at any one time outstanding (which amount may, but need not, be incurred
in whole or in part under the Senior Credit Facility).
Notwithstanding anything in this Indenture to the contrary,
transactions contemplated pursuant to the A/R Facility shall not be deemed to be
the incurrence of Indebtedness by the Company or by any Restricted Subsidiary.
"Permitted Investments" means:
(1) Investments by the Company or any Restricted Subsidiary
of the Company in any Restricted Subsidiary of the Company that is a
Guarantor or any Wholly Owned Subsidiary of the Company that is not a
Guarantor (whether existing on the Issue Date or created thereafter) and
Investments in the Company by any Restricted Subsidiary of the Company;
(2) cash and Cash Equivalents;
(3) Investments existing on the Issue Date;
(4) loans and advances to employees, officers and directors
of the Company and its Restricted Subsidiaries not in excess of $10.0
million at any one time outstanding;
(5) accounts receivable owing to the Company or any
Restricted Subsidiary created or acquired in the ordinary course of
business and payable or dischargeable in
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accordance with customary trade terms; PROVIDED, HOWEVER, that such
trade terms may include concessionary trade terms as the customary trade
terms;
(6) Currency Agreements, Interest Swap Obligations and Raw
Material Hedge Agreements entered into by the Company or any of its
Restricted Subsidiaries for bona fide business reasons and not for
speculative purposes, and otherwise in compliance with this Indenture;
(7) Investments in securities of trade creditors or
customers received pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or
customers;
(8) guarantees by the Company or any of its Restricted
Subsidiaries of Indebtedness otherwise permitted to be incurred by the
Company or any of its Restricted Subsidiaries under this Indenture and
the creation of Liens on the assets of the Company or any of its
Restricted Subsidiaries in compliance with Section 4.11;
(9) Investments by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment (a) such
Person becomes a Restricted Subsidiary of the Company and a Guarantor or
a Wholly Owned Subsidiary of the Company that is not a Guarantor or (b)
such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys all or substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company
that is a Guarantor or any Wholly Owned Subsidiary of the Company that
is not a Guarantor;
(10) additional Investments having an aggregate fair market
value, taken together with all other Investments made pursuant to this
clause (10) that are at the time outstanding, not exceeding $20.0
million at the time of such Investment (with the fair market value of
each Investment being measured at the time made and without giving
effect to subsequent changes in value);
(11) any Investment by the Company or a Restricted Subsidiary
of the Company in a Receivables Entity or any Investment by a
Receivables Entity in any other Person in connection with a Qualified
Receivables Transaction; PROVIDED that any Investment in a Receivables
Entity is in the form of a Purchase Money Note or an equity interest;
(12) Investments received by the Company or its Restricted
Subsidiaries as consideration for asset sales, including Asset Sales;
PROVIDED that such Asset Sale is effected in compliance with Section
4.12; and
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(13) that portion of any Investment where the consideration
provided by the Company is Capital Stock of the Company (other than
Disqualified Capital Stock).
"Permitted Liens" means the following types of Liens:
(1) Liens securing the Notes and the Guarantees;
(2) Liens securing Acquired Indebtedness incurred in
reliance on clause (7) of the definition of "Permitted Indebtedness";
PROVIDED that such Liens do not extend to or cover any property or
assets of the Company or of any of its Restricted Subsidiaries other
than the property or assets that secured the Acquired Indebtedness prior
to the time such Indebtedness became Acquired Indebtedness of the
Company or a Restricted Subsidiary of the Company;
(3) Liens existing on the Issue Date, together with any
Liens securing Indebtedness incurred in reliance on clause (9) of the
definition of "Permitted Indebtedness" in order to refinance the
Indebtedness secured by Liens existing on the Issue Date; PROVIDED that
the Liens securing the refinancing Indebtedness shall not extend to
property other than that pledged under the Liens securing the
Indebtedness being refinanced;
(4) Liens in favor of the Company on the property or assets,
or any proceeds, income or profit therefrom, of any Restricted
Subsidiary;
(5) Liens securing Indebtedness under the Senior Credit
Facility (including, without limitation, Indebtedness in respect of
letters of credit issued thereunder and guarantees thereunder) whether
incurred pursuant to clause (2) of the definition of "Permitted
Indebtedness" or any other clause thereof or pursuant to the
Consolidated Fixed Charge Coverage Ratio;
(6) Liens securing the A/R Facility;
(7) Liens securing Interest Swap Obligations permitted to be
incurred pursuant to clause (4) of the definition of "Permitted
Indebtedness";
(8) Liens securing Currency Agreements and Raw Material
Hedge Agreements permitted to be incurred pursuant to clause (5) of the
definition of "Permitted Indebtedness";
(9) Liens securing Capitalized Lease Obligations and other
Indebtedness permitted to be incurred pursuant to clause (10) of the
definition of "Permitted Indebtedness";
-23-
(10) Liens securing Indebtedness permitted to be incurred
pursuant to clause (11) of the definition of "Permitted Indebtedness";
(11) Liens securing Indebtedness permitted to be incurred
pursuant to clause (15) of the definition of "Permitted Indebtedness";
(12) purchase money Liens to finance property or assets
(whether through the direct purchase of assets or the Capital Stock of
any person owning such assets) of the Company or any Restricted
Subsidiary of the Company acquired or constructed in the ordinary course
of business; PROVIDED, HOWEVER, that (a) the related purchase money
Indebtedness shall not exceed the cost of such property (including
related expenses and taxes) or assets and shall not be secured by any
property or assets of the Company or any Restricted Subsidiary of the
Company other than the property and assets so acquired or constructed
and (b) the Lien securing such Indebtedness shall be created within 180
days of such acquisition or construction;
(13) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due and payable or Liens for taxes,
assessments or governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves have
been established in accordance with GAAP;
(14) Liens arising out of the existence of judgments or
awards not constituting an Event of Default;
(15) Liens (other than any Lien imposed by ERISA) (x)
incurred or deposits made in the ordinary course of business of the
Company and its Restricted Subsidiaries in connection with workers'
compensation, unemployment insurance and other types of social security,
(y) to secure the performance by the Company and its Restricted
Subsidiaries of tenders, statutory obligations (other than excise
taxes), surety, stay, customs and appeal bonds, statutory bonds, bids,
leases, government contracts trade contracts, performance and return of
money bonds and other similar obligations (exclusive of obligations for
the payment of borrowed money) or (z) to secure the performance by the
Company and its Restricted Subsidiaries of leases of real property, to
the extent incurred or made in the ordinary course of business
consistent with past practices;
(16) Liens in favor of customs and revenue authorities
arising as a matter of law or regulation to secure the payment of
customs duties in connection with the importation of goods and deposits
made to secure statutory obligations in the form of excise taxes;
(17) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into
by the Company or any Restricted
-24-
Subsidiary in the ordinary course of business (excluding any general
inventory financing);
(18) Liens imposed by law such as carriers', warehousemen's
and mechanics' liens and other similar Liens on the property of the
Company or any of its Restricted Subsidiaries arising in the ordinary
course of business and securing payment of obligations that are being
contested in good faith by appropriate proceedings;
(19) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in respect
of banker's acceptances issued or created for the account of such Person
to facilitate the purchase, shipment or storage of such inventory or
other goods; and
(20) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements
of the Company or any Restricted Subsidiaries, including rights of
offset and set-off.
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental agency or
political subdivision thereof or any other entity.
"Physical Security" means, collectively, the Offshore Physical
Securities and the U.S. Physical Securities.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"principal" of a debt security means the principal amount of the
security plus, when appropriate, the premium, if any, on the security.
"Private Placement Legend" means the legend initially set forth
on the Series A Notes in the form set forth on Exhibit A-1.
"PRO FORMA" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act as
interpreted by the Company's chief financial officer or Board of Directors in
consultation with its independent certified public accountants.
"Productive Assets" means assets (including Capital Stock) of a
kind used or usable in the businesses of the Company and its Restricted
Subsidiaries as, or related to such business, conducted on the Issue Date or in
businesses reasonably related thereto.
-25-
"Purchase Money Note" means a promissory note of a Receivables
Entity evidencing a line of credit, which may be irrevocable, from the Company
or any Subsidiary of the Company in connection with a Qualified Receivables
Transaction to a Receivables Entity, which note shall be repaid from cash
available to the Receivables Entity, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated receivables.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer to (a) a Receivables Entity (in the case of a
transfer by the Company or any of its Subsidiaries) and (b) any other Person (in
the case of a transfer by a Receivables Entity), or may grant a security
interest in, any accounts receivable (whether now existing or arising in the
future) of the Company or any of its Subsidiaries, and any assets related
thereto including, without limitation, all collateral securing such accounts
receivable, all contracts and all guarantees or other obligations in respect of
such accounts receivable, proceeds of such accounts receivable and other assets
which are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable.
"Raw Material Hedge Agreements" means agreements designed to
hedge against fluctuations in the cost of raw materials entered into in the
ordinary course of business in connection with the operation of the Company's
and its Restricted Subsidiaries' business.
"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 a Wholly Owned Subsidiary of the
Company (or another Person in which the Company or any Subsidiary of the Company
makes an Investment and to which the Company or any Subsidiary of the Company
transfers accounts receivable and related assets) which engages in no activities
other than in connection with the financing of accounts receivable, all proceeds
thereof and all rights (contractual or other), collateral and other assets
relating thereto, and any business or activities incidental or related to
-26-
such business, and which is designated by the Board of Directors of the Company
(as provided below) as a Receivables Entity:
(1) no portion of the Indebtedness or any other Obligations
(contingent or otherwise) of which:
(i) is guaranteed by the Company or any Subsidiary
of the Company (excluding guarantees of Obligations (other than
the principal of, and interest on, Indebtedness) pursuant to
Standard Securitization Undertakings);
(ii) is recourse to or obligates the Company or any
Subsidiary of the Company in any way other than pursuant to
Standard Securitization Undertakings; or
(iii) subjects any property or asset of the Company or
any Subsidiary of the Company, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other
than pursuant to Standard Securitization Undertakings;
(2) with which neither the Company nor any Subsidiary of the
Company has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to the Company or
such Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Company, other than (i) pursuant
to documents which evidence a Qualified Receivables Transaction and (ii)
fees payable in the ordinary course of business in connection with
servicing accounts receivable; and
(3) to which neither the Company nor any Subsidiary of the
Company has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain levels of
operating results other than through the contribution of additional
Receivables, related security and collections thereto and proceeds of
the foregoing.
Any such designation by the Board of Directors of the Company
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the resolution of the Board of Directors of the Company giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Redemption Date" means, with respect to any Note, the Maturity
Date of such Note or the date on which such Note is to be redeemed by the
Company pursuant to the terms of the Notes.
"Reference Date" shall have the meaning ascribed to such term in
Section 4.8(a).
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"Registered Exchange Offer" means an offer to exchange the
Series B Notes for the Initial Notes or Additional Notes in the form of Series A
Notes in accordance with the Registration Rights Agreement.
"Registrar" has the meaning provided in Section 2.3.
"Registration Rights Agreement" means (i) the Registration
Rights Agreement by and among the Company, the Guarantors and the Initial
Purchasers relating to the Notes and dated as of the Issue Date, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof or (ii) any similar agreement entered into in connection
with the issuance of Additional Notes in the form of Series A Notes after the
Issue Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Payment" has the meaning provided in Section 4.8.
"Restricted Security" has the meaning set forth in Rule
144(a)(3) under the Securities Act; PROVIDED that the Trustee shall be entitled
to request and conclusively rely upon an Opinion of Counsel with respect to
whether any Note is a Restricted Security.
"Restricted Subsidiary" of any Person means any Subsidiary of
such Person which at the time of determination is not an Unrestricted
Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such property.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" means Holder.
"Senior Credit Facility" means the Credit Agreement dated as of
December 7, 1999, among the Company, certain of its subsidiaries, the lenders
party thereto in their capacities as lenders thereunder and ▇.▇. ▇▇▇▇▇▇
Securities Inc. (f/k/a Chase Securities Inc.) and Deutsche Bank Securities Inc.,
as Joint Lead Arrangers and Joint Book Managers, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (f/k/a The
Chase Manhattan Bank), as Administrative Agent, Deutsche Bank Trust Company
Americas (f/k/a Bankers Trust Company), as Syndication Agent, Bank of America,
N.A., as Documentation Agent, and various co-agents, together with the related
documents thereto (including, without limitation, any guarantee agreements and
security documents), in each case as such agreements may be amended (including
any amendment and restatement thereof), supplemented or otherwise modified from
time to time, including any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder or adding Restricted Subsidiaries of the Company
as additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"Senior Subordinated Credit Agreement" means the Senior
Subordinated Credit Agreement dated as of December 7, 1999, by and among
Holdings, the Company, the subsidiary guarantors named therein, the lenders
party thereto, and the agent banks named therein, as the same may be amended
from time to time.
"Series A Notes" means collectively, the Initial Notes and any
Additional Notes issued, authenticated and delivered under this Indenture after
the Issue Date substantially in the form set forth in Exhibit A-1.
"Series B Notes" means the 10 7/8% Senior Notes due 2009, Series
B (the terms of which are identical to the Series A Notes except that the Series
B Notes shall be registered under the Securities Act, and shall not contain the
restrictive legend on the face of the form of the Series A Notes) to be issued
in exchange for Series A Notes pursuant to a Registered Exchange Offer and this
Indenture substantially in the form set forth in Exhibit A-2.
"Significant Subsidiary" with respect to any Person, means any
Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Exchange Act.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which, taken as a whole, are reasonably customary in
an accounts receivable transaction (including,
-29-
without limitation, all such representations, warranties, covenants and
indemnities included in the documents evidencing the A/R Facility as in effect
on the Issue Date).
"Subordinated Obligation" means (x) with respect to the Company,
any Indebtedness of the Company (whether outstanding on the Issue Date or
thereafter incurred) which is expressly subordinate in right of payment to the
Notes, pursuant to a written agreement and (y) with respect to a Guarantor, any
Indebtedness of such Guarantor (whether outstanding on the Issue Date or
thereafter incurred) which is expressly subordinate in right of payment to the
Guarantee of such Guarantor, pursuant to a written agreement.
"Subsidiary" with respect to any Person, means:
(1) any corporation of which the outstanding Capital Stock
having at least a majority of the votes entitled to be cast in the
election of directors under ordinary circumstances shall at the time be
owned, directly or indirectly, by such Person; or
(2) any other Person of which at least a majority of the
voting interest under ordinary circumstances is at the time, directly or
indirectly, owned by such Person.
"THL" shall mean ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., a Delaware
limited partnership.
"THL Affiliates" shall mean any Affiliate of THL; PROVIDED that
for purposes of the definition of "Change of Control," the term THL Affiliate
shall not include any portfolio company of either THL or any Affiliate of THL.
"THL Investor" shall mean and include ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund,
IV, L.P., ▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund, IV, L.P., ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund IV,
L.P., 1997 ▇▇▇▇▇▇ ▇. ▇▇▇ Nominee Trust and ▇▇▇▇▇▇ ▇. ▇▇▇ Charitable Investment,
L.P., or any limited or general partner, stockholder, officer or employee of
such THL Investor, or any officer or employee of THL.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture.
"Transaction Date" has the meaning ascribed to such term in the
definition of "Consolidated Fixed Charge Coverage Ratio."
"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 of
similar
-30-
market data)) most nearly equal to the period from such Redemption Date to June
15, 2006; PROVIDED, HOWEVER, that if the period from such Redemption Date to
June 15, 2006, 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 Treasury securities
for which such yields are given, except that if the period from such Redemption
Date to June 15, 2006, 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.
"Tribunal" means any government, any arbitration panel, any
court or any governmental department, commission, board, bureau, agency,
authority or instrumentality of the United States or any state, province,
commonwealth, nation, territory or possession, whether now or hereafter
constituted and/or existing.
"Trustee" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Subsidiary" of any Person means:
(1) any Subsidiary of such Person that at the time of
determination shall be or continue to be designated an Unrestricted
Subsidiary by the Board of Directors of such Person in the manner
provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary (including
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; PROVIDED that:
(1) the Company certifies to the Trustee that such
designation complies with Section 4.8; and
(2) each Subsidiary to be so designated and each of its
Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant
to which the lender has recourse to any of the assets of the Company or
any of its Restricted Subsidiaries.
The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary only if:
-31-
(1) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.9; and
(2) immediately before and immediately after giving effect
to such designation, no Default or Event of Default shall have occurred
and be continuing. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy
of the Board Resolution giving effect to such designation and an
officers' certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which guarantee or obligation the full faith and
credit of the United States is pledged.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"U.S. Physical Securities" means Notes, together with their
related Guarantees, issued in the form of certificated Notes, together with
their related Guarantees, in registered form in substantially the form set forth
in Exhibit A-1 or Exhibit A-2.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" means any Restricted Subsidiary of the
Company all the outstanding voting interests or voting Capital Stock of which
(other than directors' qualifying shares or an immaterial amount of shares
required to be owned by other Persons pursuant to applicable law) are owned,
directly or indirectly, by the Company.
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision shall be deemed incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
(a) "Commission" means the SEC;
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(b) "indenture securities" means the Notes, together with
their related Guarantees;
(c) "indenture security holder" means a Securityholder;
(d) "indenture to be qualified" means this Indenture;
(e) "indenture trustee" or "institutional trustee" means the
Trustee; and
(f) "obligor" on the indenture securities means the Company
or any other obligor on the Notes and the Guarantees.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings so assigned to them therein.
SECTION 1.3 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is exclusive;
(c) words in the singular include the plural, and words in
the plural include the singular;
(d) provisions apply to successive events and transactions;
(e) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other Subdivision; and
(f) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP as in
effect from time to time, applied on a basis consistent with the most
recent audited consolidated financial statements of the Company.
-33-
ARTICLE II
THE SECURITIES
SECTION 2.1 FORM AND DATING.
The Series A Notes and the Series B Notes and the Trustee's
certificate of authentication with respect thereto shall be substantially in the
form set forth in Exhibits A-1 and A-2 annexed hereto, which is hereby
incorporated in and expressly made a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule, usage or agreement to
which the Company is subject. Each Note shall be dated the date of its issuance
and shall show the date of its authentication. The terms and provisions
contained in the Notes and the Guarantees shall constitute, and are expressly
made, a part of this Indenture.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall execute the Notes on behalf of the Company by
either manual or facsimile signature. The Guarantors shall execute the
Guarantees in the manner set forth in Article X.
If a Person whose signature is on a Note as an Officer no longer
holds that office at the time the Trustee authenticates the Note, the Note shall
be valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture. Each Note
shall be dated the date of its authentication.
The Trustee shall authenticate Initial Notes for original issue
on the Issue Date in an aggregate principal amount not to exceed $250 million,
upon receipt of an Officers' Certificate. The Trustee shall authenticate
Additional Notes thereafter (so long as permitted by the terms of this
Indenture) for original issue, upon a written order of the Company in the form
of an Officers' Certificate in an aggregate principal amount as specified in
such order (other than as provided in Section 2.7). In addition, on or prior to
the date of consummation of a Registered Exchange Offer, the Trustee or an
authenticating agent shall authenticate Series B Notes to be issued at the time
of consummation of a Registered Exchange Offer (including with respect to the
Initial Notes) upon receipt of an Officers' Certificate. The aggregate principal
amount of Notes outstanding at any time is unlimited.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. Such authenticating
-34-
agent shall have the same authenticating rights and duties as the Trustee in any
dealings hereunder with the Company or with any Affiliate of the Company.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global notes in registered form,
substantially in the form set forth in Exhibit A-1 ("Global Security"),
deposited with the Trustee, as custodian for the Depository, and shall bear the
legend set forth on Exhibit B. The aggregate principal amount of any Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as custodian for the Depository, as hereinafter
provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued in the form of certificated notes in registered
form set forth in Exhibit A-1 ("Offshore Physical Securities").
SECTION 2.3 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of
New York, State of
New York)
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency (which shall be located in the Borough of
Manhattan, City of
New York, State of
New York) where Notes may be presented for
payment (the "Paying Agent") and an office or agency where notices and demands
to or upon the Company in respect of the Notes and this Indenture may be served.
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent. The Company may act as its own Paying Agent, except that for the purposes
of payments on account of principal on the Notes pursuant to Sections 4.12 and
4.14, neither the Company nor any Affiliate of the Company may act as Paying
Agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.7.
The Company initially appoints the Trustee as Registrar and
Paying Agent and agent for service of notices and demands in connection with the
Notes.
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SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Notes, and shall notify the Trustee
of any default by the Company in making any such payment. Money held in trust by
the Paying Agent need not be segregated except as required by law and in no
event shall the Paying Agent be liable for any interest on any money received by
it hereunder. The Company at any time may require the Paying Agent to pay all
money held by it to the Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any Event of Default specified
in Section 6.1(a) or (b) upon written request to the Paying Agent, require such
Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
SECTION 2.5 SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Securityholders and otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish or cause the Registrar to
furnish to the Trustee before each Interest Payment Date, and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Securityholders.
SECTION 2.6 TRANSFER AND EXCHANGE.
Subject to the provisions of Sections 2.14 and 2.15, when Notes
are presented to the Registrar or a co-Registrar with a request from the Holder
of such Notes to register the transfer or to exchange them for an equal
principal amount of Notes of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested; PROVIDED that every
Note presented or surrendered for registration of transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and execute and the Trustee
shall authenticate new Notes (together with related Guarantees executed by the
Guarantors) evidencing such transfer or exchange. No service charge shall be
made to the Securityholder for any registration of transfer or exchange. The
Company may require from the Securityholder payment of a sum sufficient to cover
any transfer taxes or other governmental charge that may be imposed in relation
to a transfer or exchange, but this provision shall not apply to any exchange
pursuant to Section 2.10, 4.12, 4.14 or 9.5 (in which events the Company will be
responsible for the payment of such taxes). The Registrar or co-Registrar shall
not be required to register the transfer of or exchange of any Note (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice
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of redemption of Notes and ending at the close of business on the day of such
mailing and (ii) selected for redemption in whole or in part pursuant to Article
III, except the unredeemed portion of any Note being redeemed in part.
SECTION 2.7 REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Registrar or the
Trustee or if the Holder of a Note of any series claims that the Note has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Note (together with related Guarantees executed
by the Guarantors) if the Holder of such Note furnishes to the Company and to
the Trustee evidence reasonably acceptable to them of the ownership and the
destruction, loss or theft of such Note. If required by the Trustee or the
Company, an indemnity bond shall be posted, sufficient in the judgment of the
Company or the Trustee, as the case may be, to protect the Company, the Trustee
or any Agent from any loss that any of them may suffer if such Note is replaced.
The Company may charge such Holder for the Company's expenses in replacing such
Note and the Trustee may charge the Company for the Trustee's expenses in
replacing such Note. Every replacement Note shall constitute an additional
obligation of the Company and shall be entitled to the benefits of this
Indenture.
SECTION 2.8 OUTSTANDING NOTES.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation or (c) those described in this Section 2.8 as
not outstanding. A Note does not cease to be outstanding because the Company or
one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a BONA FIDE purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date or on any optional redemption date money sufficient to pay all
accrued interest and principal with respect to such Notes payable on that date
and is not prohibited from paying such money to the Holders thereof pursuant to
the terms of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.9 TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any declaration of acceleration or notice of
default or direction, waiver or consent or any amendment, modification or other
change to this Indenture, Notes owned by the Company or any Subsidiary or an
Affiliate of the Company shall be deemed not to be outstanding, except that for
the purposes of determining whether the Trustee shall be protected in
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relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Notes that the Trustee knows are so
owned shall be so disregarded. The Company shall notify the Trustee, in writing,
when it or any of its Affiliates repurchases or otherwise acquires Notes, of the
aggregate principal amount of such Notes so repurchased or otherwise acquired.
SECTION 2.10 TEMPORARY NOTES.
Until definitive Notes are prepared and ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes (together
with related Guarantees executed by the Guarantors). Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company reasonably considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Notes (together with related Guarantees executed by the Guarantors)
in exchange for temporary Notes. Until such exchange, such temporary Notes shall
be entitled to the same rights, benefits and privileges as the definitive Notes.
SECTION 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall (subject
to the record-retention requirements of the Exchange Act) dispose of canceled
Notes unless the Company directs the Trustee to return such Notes to the
Company. The Company may not reissue or resell, or issue new Notes to replace,
Notes that the Company has redeemed or paid, or that have been delivered to the
Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest, plus, to the extent permitted by law, any
interest payable on the defaulted interest, to the Persons who are
Securityholders on a subsequent special record date. Such record date shall be
the fifteenth day next preceding the date fixed by the Company for the payment
of defaulted interest, whether or not such day is a Business Day. At least 15
days before the subsequent special record date, the Company shall mail (or cause
to be mailed) to each Securityholder a notice that states the record date, the
payment date and the amount of defaulted interest to be paid. Notwithstanding
the foregoing, any interest which is paid prior to the expiration of the 30-day
period set forth in Section 6.1(a) or (b) shall be paid to Holders of Notes as
of the regular record date for the interest payment date for which interest has
not been paid. Notwithstanding the foregoing, the Company may make payment of
any defaulted interest in any other lawful manner not inconsistent with the
requirements of any securities
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exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange.
SECTION 2.13 CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number, and
if so, such CUSIP number shall be included in notices of redemption or exchange
as a convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP 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. The Company will promptly
notify the Trustee of any change in the CUSIP number.
SECTION 2.14 BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) The Global Securities initially shall (i) be registered
in the name of the Depository or the nominee of such Depository, (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear legends
as set forth in Exhibit B.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. U.S. Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in Global
Securities, in accordance with the rules and procedures of the Depository, only
if (i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for any Global Security and a successor depositary is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has received a request
from the Depository to issue U.S. Physical Securities.
(c) In connection with the transfer of Global Securities as
an entirety to beneficial owners pursuant to paragraph (b), the Global
Securities shall be deemed to be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and deliver to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Global Securities, an equal aggregate principal
amount of U.S.
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Physical Securities (together with related Guarantees executed by the
Guarantors) of authorized denominations.
(d) Any U.S. Physical Security constituting a Restricted
Security delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) shall, except as otherwise provided by paragraphs (a)(i)(x) and
(c) of Section 2.15, bear the legend regarding transfer restrictions applicable
to the U.S. Physical Securities set forth in Exhibit A-1.
(e) The Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
SECTION 2.15 SPECIAL TRANSFER PROVISIONS.
(a) 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 constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after second
anniversary of the Issue Date or (y) (1) 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 Registrar a
certificate substantially in the form of Exhibit C hereto or (2) in the
case of a transfer to a Non-U.S. Person, the proposed transferee has
delivered to the Registrar a certificate substantially in the form of
Exhibit D hereto, together, in the case of clause (i)(x) with such other
certifications, legal opinions or other information as the Company or
the Trustee 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; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Security, upon receipt by the Registrar
of (x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Securities)
a decrease in the principal amount of a Global Security in an amount equal to
the principal amount of the beneficial interest in a Global Security to be
transferred, and (b) the Company shall execute and the Trustee
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shall authenticate and deliver one or more Physical Securities (together with
related Guarantees executed by the Guarantors) of like tenor and amount.
(b) TRANSFERS TO QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a Note constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Note stating, or
has otherwise advised the Company and the Registrar in writing, that it
is purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Global Security, upon
receipt by the Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall reflect
on its books and records the date and an increase in the principal
amount of the Global Security in an amount equal to the principal amount
of the Physical Securities to be transferred, and the Trustee shall
cancel the Physical Securities so transferred.
(c) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange
or replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the circumstances contemplated by paragraph (a)(i)(x) of this Section
2.15 exist, (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (iii)
such Note has been sold pursuant to an effective registration statement under
the Securities Act.
(d) 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
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forth in this Indenture and in the Private Placement Legend and agrees that it
will transfer such Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.14 or this Section
2.15. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
ARTICLE III
REDEMPTION
SECTION 3.1 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to Section 5 of
the Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of Notes to be redeemed.
The Company shall give each notice provided for in this Section
3.1 at least 30 but not more than 60 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), together with an Officers'
Certificate stating that such redemption will comply with the conditions
contained herein and in the Notes.
SECTION 3.2 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed, the Trustee
shall select Notes to be so redeemed in compliance with applicable legal
requirements and the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not listed on a
national securities exchange, by lot, pro rata or in such other fair and
appropriate manner chosen at the discretion of the Trustee.
The Trustee shall make the selection from the Notes outstanding
and not previously called for redemption. Notes in denominations of $1,000 or
less may only be redeemed in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Notes that have denominations larger than $1,000. Provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption. The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount of each certificate selected for redemption.
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SECTION 3.3 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause the mailing of a notice of redemption by
first-class mail, postage prepaid, to each Holder of Notes to be redeemed at
such Holder's address as it appears on the Notes register maintained by the
Registrar with a copy to the Trustee and any Paying Agent.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the Redemption Date;
(b) the redemption price to be paid;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price and accrued interest,
if any;
(e) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date and the only remaining right of
the Holders of such Notes is to receive payment of the redemption price
upon surrender to the Paying Agent of the Notes to be redeemed;
(f) if any Note is to be redeemed in part, the portion of
the principal amount (equal to $1,000 or any integral multiple thereof)
of such Note to be redeemed and that, on or after the Redemption Date,
upon surrender of such Note, a new Note or Notes in aggregate principal
amount equal to the unredeemed portion thereof will be issued without
charge to the Securityholder;
(g) if less than all of the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed; and
(h) the CUSIP number, if any.
At the Company's request, made to the Trustee at least 35 days
prior to the Redemption Date, the Trustee shall give the notice of redemption,
in the Company's name and at the Company's expense, in accordance with this
Section 3.3.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Notes called for redemption
become due and payable on the Redemption Date and at the redemption price. Upon
surrender to the Paying
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Agent, such Notes shall be paid at the redemption price plus accrued interest to
the Redemption Date, but interest installments whose Interest Payment Date is on
or prior to such Redemption Date will be payable on the relevant Interest
Payment Dates to the Holders of record at the close of business on the relevant
record dates referred to in the Notes.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m.
New York City time on the Redemption Date,
the Company shall deposit with the Paying Agent in immediately available funds
U.S. Legal Tender sufficient to pay the redemption price of and accrued interest
on all Notes or portions thereof to be redeemed on that date.
If any Note surrendered for redemption in the manner provided in
the Notes shall not be so paid on the Redemption Date due to the failure of the
Company to deposit sufficient funds with the Paying Agent, interest will
continue to accrue from and including the Redemption Date until such payment is
made on the unpaid principal and, to the extent lawful, on any interest not paid
on such unpaid principal, in each case at the date and in the manner provided in
the Notes.
SECTION 3.6 NOTES REDEEMED IN PART.
Upon surrender to the Paying Agent of a Note that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for the
Holder a new Note (together with related Guarantees executed by the Guarantors)
equal in principal amount to the unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF NOTES.
The Company shall pay the principal of and interest on the Notes
on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid
on the date due if the Trustee or Paying Agent (other than the Company or any
Subsidiary of the Company or any Affiliate of any thereof) holds on such date
immediately available funds designated for and sufficient to pay such
installment.
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The Company shall pay interest (including Accrued Bankruptcy
Interest) on overdue principal and on overdue installments of interest, in each
case at the rate per annum specified in the Notes, to the extent lawful.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency, where Notes may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.2.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
PROVIDED that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee set forth in Section 11.2 as an agency of the Company in
accordance with Section 2.3.
SECTION 4.3 CORPORATE EXISTENCE.
Subject to Article V hereof, the Company shall do or cause to be
done, at its own cost and expense, all things necessary to, and will cause each
of its Restricted Subsidiaries to, preserve and keep in full force and effect
the corporate existence and rights (charter and statutory), licenses and/or
franchises of the Company and each of its Restricted Subsidiaries; PROVIDED that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate existence of any of its Restricted Subsidiaries, if
in the judgment of the Board of Directors or management of the Company (i) such
preservation or existence is not desirable in the conduct of business of the
Company or such Restricted Subsidiary and (ii) the loss of such right, license
or franchise or the dissolution of such Restricted Subsidiary is not adverse in
any material respect to the Holders.
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SECTION 4.4 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall and shall cause each of its Subsidiaries to
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all material taxes, assessments and governmental charges levied
or imposed upon its or its Subsidiaries' income, profits or property and (b) all
material lawful claims for labor, materials and supplies which, if unpaid, would
be reasonably likely to by law become a Lien upon its property or the property
of any of its Subsidiaries; PROVIDED that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate negotiations or proceedings and for which disputed
amounts adequate reserves (in the good faith judgment of the Board of Directors
or management of the Company) have been made in accordance with GAAP.
SECTION 4.5 MAINTENANCE OF PROPERTIES; BOOKS AND RECORDS;
COMPLIANCE WITH LAW.
The Company shall and shall cause each of its Restricted
Subsidiaries to at all times cause all properties used or useful in the conduct
of its business to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and supplied with all necessary
equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto; PROVIDED that nothing in
this Section 4.5 shall prevent the Company or any Restricted Subsidiary from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is either (i) in
the ordinary course of business, (ii) in the reasonable and good faith judgment
of the Board of Directors or management of the Company or the Restricted
Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Company or such Restricted Subsidiary, as the case may be, or
(iii) otherwise permitted by this Indenture.
SECTION 4.6 COMPLIANCE CERTIFICATES; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee, within 120
days after the end of its fiscal year, an Officers' Certificate signed by the
principal executive officer, the principal financial officer or the principal
accounting officer complying with TIA Section 314(a)(4) stating (i) that a
review of the activities of the Company and the activities of its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company and the
Guarantors have kept, observed, performed and fulfilled each of their respective
obligations under this Indenture, the Notes and the Guarantees and (ii) that, to
the best knowledge of such Officer after due inquiry, each of the Company and
the Guarantors has kept, observed, performed and fulfilled, in each case in all
material respects, each and every covenant and other obligation contained in
this Indenture,
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the Notes and the Guarantees and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof and has not
failed to comply with any other obligation hereunder (or, if a Default, Event of
Default or failure to comply with any other obligation hereunder shall have
occurred, describing with particularity all such Defaults, Events of Default or
failures to comply with any other obligation hereunder of which such Officer may
have knowledge, including, but not limited to, their status and what action the
Company is taking or proposes to take with respect thereto).
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.7 REPORTS.
(a) The Company shall deliver to the Trustee and mail to
each Holder whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding,
(1) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if the Company were required to file such form
within the time period specified in the SEC's rules and regulations; and
(2) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such
reports, in each case within the time periods specified in the SEC's
rules and regulations.
(b) In addition, following the consummation of the
Registered Exchange Offer with respect to the Initial Notes contemplated by the
Registration Rights Agreement, whether or not required by the rules and
regulations of the SEC, the Company will file a copy of all such information and
reports with the SEC for public availability within the time periods specified
in the SEC's rules and regulations (unless the SEC will not accept such a
filing) and make such information available to securities analysts and
prospective investors upon request. In addition, the Company will furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act if at the time of such request the Company is not
subject to Section 13 or 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained
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therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.8 LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not cause or permit any
of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any distribution
(other than dividends or distributions payable in Qualified Capital
Stock or options, warrants and other rights to purchase the same) on or
in respect of shares of Capital Stock of the Company to holders of such
Capital Stock;
(2) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or any warrants, rights or
options to purchase or acquire shares of any class of such Capital
Stock;
(3) make any principal payment on, purchase, defease,
redeem, prepay or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Subordinated Obligation; or
(4) make any Investment (other than Permitted Investments)
in any other Person (each of the foregoing actions set forth in clauses
(1), (2), (3) and (4) being referred to as a "Restricted Payment")
if at the time of such Restricted Payment or immediately after giving effect
thereto:
(i) a Default or an Event of Default shall have occurred and
be continuing; or
(ii) the Company is not able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.9; or
(iii) the aggregate amount of Restricted Payments made
subsequent to the Issue Date (the amount expended for such purposes, if
other than cash, being the fair market value of such property as
determined in good faith by the Board of Directors of the Company) shall
exceed the sum of (the "Restricted Payment Basket"):
(v) 50% of the cumulative Consolidated Net Income
(or if cumulative Consolidated Net Income shall be a loss, minus
100% of such loss) of the Company earned subsequent to June 30,
2002 and on or prior to the date the Restricted Payment occurs
(the "Reference Date") (treating such period as a single
accounting period); plus
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(w) 100% of the aggregate net cash proceeds received
by the Company from any Person (other than a Subsidiary of the
Company) from the issuance and sale subsequent to the Issue Date
and on or prior to the Reference Date of Qualified Capital Stock
of the Company (including Capital Stock issued upon the
conversion of convertible Indebtedness or in exchange for
outstanding Indebtedness but excluding aggregate net cash
proceeds from the sale of Capital Stock to the extent used to
repurchase or acquire shares of Capital Stock of the Company or
a Subordinated Obligation of the Company or a Guarantor pursuant
to clause (2) of the next succeeding paragraph (b) below); plus
(x) without duplication of any amounts included in
clause (iii)(w) above, 100% of the aggregate net cash proceeds
of any equity contribution received by the Company from a holder
of the Company's Capital Stock subsequent to the Issue Date;
plus
(y) to the extent that any Investment (other than a
Permitted Investment) that was made after the Issue Date is sold
for cash or otherwise liquidated or repaid for cash, the net
cash proceeds received with respect to such sale, liquidation or
repayment of such Investment, but only to the extent not
included in the calculation of Consolidated Net Income.
(b) Notwithstanding the foregoing, the provisions set forth in
paragraph (a) do not prohibit:
(1) the payment of any dividend within 60 days after the
date of declaration of such dividend if the dividend would have been
permitted on the date of declaration;
(2) the acquisition of any shares of Capital Stock of the
Company or the repurchase, redemption or other repayment of any
Subordinated Obligation of the Company or any Guarantor in exchange for
or solely out of the proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company) of shares of Qualified
Capital Stock of the Company;
(3) the repurchase, redemption or other repayment of any
Subordinated Obligation of the Company or any Guarantor in exchange for
or solely out of the proceeds of the substantially concurrent issuance
(other than to a Subsidiary of the Company) of a Subordinated Obligation
of the Company or such Guarantor with no payments of principal required
until at least six months following the maturity date of the Notes;
(4) the making of distributions, loans or advances in an
amount not to exceed (x) $5.0 million to pay the ordinary operating
costs of Holdings (including, without limitation, directors fees,
indemnification obligations, professional fees and expenses)
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related to Holdings' ownership of Capital Stock of the Company (other
than to the Equity Investors or their Affiliates) in any fiscal year
plus (y) any other amounts of corporate overhead expenses payable by
Holdings which were deducted in calculating the Consolidated Net Income
of the Company in accordance with GAAP;
(5) the payment by the Company of cash dividends to Holdings
in the amounts and at the times of any payment by Holdings in respect of
taxes, PROVIDED that (x) the amount of cash dividends paid pursuant to
this clause (5) to enable Holdings to pay federal and state income taxes
at any time shall not exceed the lesser of (A) the amount of such
federal and state income taxes owing by Holdings at such time for the
respective period and (B) the amount of such federal and state income
taxes that would be owing by the Company and its Subsidiaries on a
consolidated basis for such period if determined without regard to
Holdings' ownership of the Company and (y) any refunds shall promptly be
returned by Holdings to the Company;
(6) payments for the purpose of and in an amount equal to
the amount required to permit Holdings to redeem or repurchase Holdings'
common equity or options in respect thereof, in each case in connection
with the repurchase, put or call provisions under employee stock option,
management subscription, retained share or stock purchase agreements or
other agreements to compensate management employees; PROVIDED that such
redemptions or repurchases pursuant to this clause (6) shall not exceed
$10.0 million per annum; PROVIDED that amounts not used pursuant to this
clause (6) in prior years shall not be carried forward for use in future
years;
(7) so long as no Default or Event of Default shall have
occurred and be continuing, payments not to exceed $500,000 in the
aggregate to enable Holdings to make payments to holders of its Capital
Stock in lieu of issuance of fractional shares of its Capital Stock;
(8) so long as no Default or Event of Default shall have
occurred and be continuing, the repurchase, redemption or other
repayment of up to $50.0 million aggregate principal amount of
Indebtedness under the Senior Subordinated Credit Agreement in exchange
for or out of the net proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company) of Indebtedness of the
Company and/or the Guarantors, which Indebtedness does not meet the
requirements set forth in clause (3) above of this paragraph (b);
(9) payments made to the Equity Investors allowed pursuant
to Section 4.13;
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(10) repurchases of Capital Stock deemed to occur upon the
exercise of stock options if such Capital Stock represents a portion of
the exercise price thereof; and
(11) additional Restricted Payments in an aggregate amount
not to exceed $13.0 million.
(c) In determining the aggregate amount of the Restricted
Payment Basket in accordance with clause (iii) of the second preceding
paragraph, amounts expended pursuant to clauses (1), (6) and (11) of paragraph
(b) above shall be included in such calculation.
SECTION 4.9 LIMITATION ON INCURRENCE OF ADDITIONAL
INDEBTEDNESS.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
guarantee, acquire, become liable, contingently or otherwise, with respect to,
or otherwise become responsible for payment of (collectively, "incur") any
Indebtedness (other than Permitted Indebtedness); PROVIDED, HOWEVER, that if no
Default or Event of Default shall have occurred and be continuing at the time or
as a consequence of the incurrence of any such Indebtedness, the Company or any
Guarantor may incur Indebtedness if on the date of the incurrence of such
Indebtedness, after giving effect to the incurrence thereof, the Consolidated
Fixed Charge Coverage Ratio of the Company would have been greater than 2.25 to
1.0 if such Indebtedness is incurred before January 1, 2005, or greater than 2.5
to 1.0 if such Indebtedness is incurred on or after January 1, 2005.
No Indebtedness incurred pursuant to the Consolidated Fixed
Charge Coverage Ratio test of the preceding paragraph (including, without
limitation, Indebtedness under the Senior Credit Facility) shall reduce the
amount of Indebtedness which may be incurred pursuant to any clause of the
definition of Permitted Indebtedness (including, without limitation,
Indebtedness under the Senior Credit Facility pursuant to clause (2) of the
definition of Permitted Indebtedness).
(b) The Company will not, and will not permit any Guarantor
to, directly or indirectly, incur any Indebtedness which by its terms (or by the
terms of any agreement governing such Indebtedness) is subordinated in right of
payment to any other Indebtedness of the Company or such Guarantor, as the case
may be, unless such Indebtedness is also by its terms (or by the terms of any
agreement governing such Indebtedness) made expressly subordinate in right of
payment to the Notes or the Guarantee of such Guarantor, as the case may be, to
the same extent and in the same manner as such Indebtedness is subordinated to
other Indebtedness of the Company or such Guarantor, as the case may be.
(c) For purposes of determining compliance with this
covenant, (1) in the event that an item of Indebtedness meets the criteria of
more than one of the types of Indebtedness described in the definition of
"Permitted Indebtedness", the Company, in its sole discretion,
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will classify such item of Indebtedness at the time of incurrence and will be
entitled to divide and classify an item of Indebtedness in more than one of the
types of Indebtedness described in the definition of "Permitted Indebtedness"
and (2) the Company will be entitled from time to time to reclassify any
Indebtedness incurred pursuant to any clause in the definition of "Permitted
Indebtedness".
SECTION 4.10 LIMITATION ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any consensual encumbrance or restriction on
the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on or in
respect of its Capital Stock;
(2) make loans or advances or to pay any Indebtedness or
other obligation owed to the Company or any other Restricted Subsidiary
of the Company; or
(3) transfer any of its property or assets to the Company or
any other Restricted Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of:
(a) applicable law;
(b) this Indenture or the Senior Subordinated Credit
Agreement or encumbrances or restrictions substantially similar to the
encumbrances and restrictions contained in this Indenture or the Senior
Subordinated Credit Agreement, taken as a whole;
(c) non-assignment provisions of any contract or any lease
entered into in the ordinary course of business;
(d) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to the Company or any
Restricted Subsidiary of the Company, or the properties or assets of any
such Person, other than the Person or the properties or assets of the
Person so acquired; PROVIDED, HOWEVER, that such Acquired Indebtedness
was not incurred in connection with, or in anticipation or
contemplation, of an acquisition by the Company or the Restricted
Subsidiary;
(e) agreements existing on the Issue Date;
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(f) the Senior Credit Facility or the A/R Facility;
(g) restrictions on the transfer of assets subject to any
Lien permitted under this Indenture imposed by the holder of such Lien;
(h) restrictions imposed by any agreement to sell assets
permitted under this Indenture to any Person pending the closing of such
sale;
(i) Indebtedness or other contractual requirements of a
Receivables Entity in connection with a Qualified Receivables
Transaction; PROVIDED that such restrictions apply only to such
Receivables Entity;
(j) agreements governing Indebtedness permitted to be
Incurred pursuant to Section 4.9, PROVIDED that the provisions relating
to such encumbrances or restrictions contained in such Indebtedness are
not materially less favorable to the Company as determined by the Board
of Directors of the Company in their reasonable and good faith judgment
than the provisions contained in the Senior Credit Facility as in effect
on the Issue Date; or
(k) an agreement effecting a refinancing, replacement or
substitution of Indebtedness issued, assumed or Incurred pursuant to an
agreement referred to in clause (b), (d), (e) or (f) above; PROVIDED,
HOWEVER, that the provisions relating to such encumbrance or restriction
contained in any such refinancing, replacement or substitution agreement
are no less favorable to the Company or the Holders in any material
respect as determined by the Board of Directors of the Company than the
provisions relating to such encumbrance or restriction contained in
agreements referred to in such clause (b), (d), (e) or (f).
SECTION 4.11 LIMITATION ON LIENS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur, assume or suffer to exist any Liens
(other than Permitted Liens) of any kind against or upon any of their respective
property or assets, or any proceeds, income or profit therefrom which secure any
Indebtedness of the Company or a Guarantor, unless:
(1) in the case of Liens securing Subordinated Obligations
of the Company, the Notes are secured by a Lien on such property,
assets, proceeds, income or profit that is senior in priority to such
Liens;
(2) in the case of Liens securing Subordinated Obligations
of a Guarantor, such Guarantor's Guarantee is secured by a Lien on such
property, assets, proceeds, income or profit that is senior in priority
to such Liens; and
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(3) in all other cases, the Notes are or such Guarantor's
Guarantee is, as the case may be, equally and ratably secured by a Lien
on such property, assets, proceeds, income or profit.
SECTION 4.12 LIMITATION ON ASSET SALES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as
the case may be, receives consideration at the time of such Asset Sale
at least equal to the fair market value of the assets sold or otherwise
disposed of (as determined in good faith by the Company's Board of
Directors);
(2) at least 75% of the consideration received by the
Company or such Restricted Subsidiary, as the case may be, from such
Asset Sale shall be cash or Cash Equivalents and is received at the time
of such disposition; PROVIDED that the amount of (x) any liabilities (as
shown on the Company's or such Restricted Subsidiary's most recent
balance sheet or in the notes thereto) of the Company or such Restricted
Subsidiary (other than liabilities that are by their terms subordinated
to the Notes and other than liabilities consisting of Disqualified
Capital Stock) (i) that are assumed by the transferee of any such assets
and from which the Company and its Restricted Subsidiaries are
unconditionally released or (ii) in respect of which neither the Company
nor any Restricted Subsidiary following such sale has any obligation and
(y) any notes or other obligations received by the Company or such
Restricted Subsidiary from such transferee that are promptly, but in no
event more than 60 days after receipt, converted by the Company or such
Restricted Subsidiary into cash or Cash Equivalents (to the extent of
the cash or Cash Equivalents received), shall be deemed to be cash for
purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company
shall apply, or cause such Restricted Subsidiary to apply, the Net Cash
Proceeds relating to such Asset Sale within 360 days of receipt thereof
either:
(a) to repay any Indebtedness under the Senior
Credit Facility and, in the case of any such Indebtedness under
any revolving credit facility, effect a permanent reduction in
the availability under such revolving credit facility;
(b) to reinvest in Productive Assets (and to the
extent such reinvestment constitutes an Investment, such
reinvestment complies with Section 4.8); or
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(c) a combination of prepayment and investment
permitted by the foregoing clauses (3)(a) and (3)(b).
On the 361st day after an Asset Sale or such earlier date, if
any, as the Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such Asset Sale as set
forth in clauses (3)(a), (3)(b) and (3)(c) of the immediately preceding sentence
(each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash
Proceeds which have not been applied on or before such Net Proceeds Offer
Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the
immediately preceding sentence (each a "Net Proceeds Offer Amount") shall be
applied by the Company or such Restricted Subsidiary to make an offer to
purchase for cash (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer
Payment Date") not less than 30 nor more than 60 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders on a PRO RATA basis, that
amount of Notes equal to the Net Proceeds Offer Amount at a price in cash equal
to 100% of the principal amount of the Notes to be purchased, plus accrued and
unpaid interest thereon, if any, to the date of purchase; PROVIDED, HOWEVER,
that if at any time any non-cash consideration received by the Company or any
Restricted Subsidiary of the Company, as the case may be, in connection with any
Asset Sale is converted into or sold or otherwise disposed of for cash (other
than interest, dividends or other earnings received with respect to any such
non-cash consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder as of the date of such conversion or
disposition and the Net Cash Proceeds thereof shall be applied in accordance
with this covenant.
(b) Notwithstanding the foregoing, if a Net Proceeds Offer
Amount is less than $20.0 million, the application of the Net Cash Proceeds
constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be
deferred until such time as such Net Proceeds Offer Amount plus the aggregate
amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds
Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all
Asset Sales by the Company and its Restricted Subsidiaries aggregates at least
$20.0 million, at which time the Company or such Restricted Subsidiary shall
apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that
have been so deferred to make a Net Proceeds Offer (the first date the aggregate
of all such deferred Net Proceeds Offer Amounts is equal to $20.0 million or
more shall be deemed to be a Net Proceeds Offer Trigger Date).
(c) Notwithstanding paragraphs (a) and (b) of this Section
4.12, the Company and its Restricted Subsidiaries will be permitted to
consummate an Asset Sale without complying with such paragraphs to the extent
that:
(1) at least 75% of the consideration for such Asset Sale
constitutes Productive Assets (and to the extent any of such Productive
Assets constitutes an Investment, such Investment complies with Section
4.8); and
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(2) such Asset Sale is for at least fair market value (as
determined in good faith by the Company's Board of Directors); PROVIDED
that any consideration not constituting Productive Assets received by
the Company or any of its Restricted Subsidiaries in connection with any
Asset Sale permitted to be consummated under this paragraph shall
constitute Net Cash Proceeds and shall be subject to the provisions of
this covenant with respect to the application of Net Cash Proceeds;
PROVIDED that at the time of entering into such transaction or
immediately after giving effect thereto, no Default or Event of Default
shall have occurred or be continuing or would occur as a consequence
thereof.
(d) Within 25 days following the Net Proceeds Offer Trigger
Date, the Company shall mail or cause the Trustee to mail (in the Company's name
and at its expense) notice of a Net Proceeds Offer to the Holders of the Notes
at their last registered addresses with a copy to the Trustee and the Paying
Agent. The Net Proceeds Offer shall remain open from the time of mailing for at
least 20 Business Days and until the close of business on the third Business Day
prior to the Net Proceeds Offer Payment Date or such longer period as may be
required by Law. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Net Proceeds
Offer. The notice, which shall govern the terms of the Net Proceeds Offer, shall
state:
(i) that the Net Proceeds Offer is being made pursuant to
this Section 4.12;
(ii) the purchase price (including the amount of accrued and
unpaid interest, if any) for each Note and the Net Proceeds Offer
Payment Date;
(iii) that any Note not tendered or accepted for payment will
continue to accrue interest in accordance with the terms thereof;
(iv) that any Note accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Net Proceeds
Offer Payment Date unless the Company shall fail to make payment
therefor;
(v) that Holders electing to have Notes purchased pursuant
to a Net Proceeds Offer will be required to surrender their Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m.,
New York City time, on the third Business Day immediately preceding the
Net Proceeds Offer Payment Date and must complete any form letter of
transmittal proposed by the Company and acceptable to the Trustee and
the Paying Agent;
(vi) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than 5:00 p.m., New York City
time, on the third Business Day immediately preceding the Net Proceeds
Offer Payment Date, a telex or facsimile transmission (confirmed by
overnight delivery of the original thereof) or letter setting
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forth the name of the Holder, the principal amount of Notes the Holder
delivered for purchase, the Note certificate number (if any) and a
statement that such Holder is withdrawing his election to have such
Notes purchased;
(vii) that if Notes in a principal amount in excess of the
Holders' PRO RATA share of the Net Proceeds are tendered pursuant to a
Net Proceeds Offer, the Company shall purchase Notes on a PRO RATA basis
among the Notes tendered (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000
or integral multiples of $1,000 shall be acquired);
(viii) that Holders whose Notes are purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered; and
(ix) the instructions that Holders must follow in order to
tender their Notes.
On or before the Net Proceeds Offer Payment Date, the Company
shall (i) accept for payment, on a PRO RATA basis among the Notes, Notes or
portions thereof tendered pursuant to the Net Proceeds Offer, (ii) deposit with
the Paying Agent money, in immediately available funds, in an amount sufficient
to pay the purchase price of all Notes or portions thereof so tendered and
accepted and (iii) deliver to the Paying Agent the Notes so accepted together
with an Officers' Certificate setting forth the Notes or portions thereof
tendered to and accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to Holders of Notes so accepted payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and
mail or deliver to such Holders a new Note equal in principal amount to any
unpurchased portion of the Note surrendered. Any Notes not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Paying
Agent shall promptly deliver to the Company the balance of any moneys held by
the Paying Agent after payment to the Holders of Notes as aforesaid.
(e) To the extent that the aggregate amount of Notes
tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer
Amount, the Company may use any remaining Net Proceeds Offer Amount for general
corporate purposes. Upon completion of any such Net Proceeds Offer, the Net
Proceeds Offer Amount shall be reset at zero.
(f) In the event of the transfer of substantially all of the
property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Article V, which
transaction does not constitute a Change of Control, the successor Person shall
be deemed to have sold the properties and assets of the Company and its
Subsidiaries not so transferred for purposes of this Section 4.12, and shall
comply with the provisions of clause (a)(3) of this Section 4.12 with respect to
such deemed sale as if it were an Asset Sale.
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(g) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations (including Rule 14e-1 under the Exchange Act) in connection
with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent
that the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.12, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.12 by virtue thereof.
SECTION 4.13 LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates (an
"Affiliate Transaction"), other than (x) Affiliate Transactions permitted under
paragraph (b) below and (y) Affiliate Transactions entered into on terms that
are fair and reasonable to, and in the best interests of, the Company or such
Restricted Subsidiary, as the case may be, as determined in good faith by the
Company's Board of Directors; PROVIDED, HOWEVER, that for a transaction or
series of related transactions with an aggregate value of $5.0 million or more,
at the Company's option (i) such determination shall be made in good faith by a
majority of the disinterested members of the Board of the Directors of the
Company or (ii) the Board of Directors of the Company or any such Restricted
Subsidiary party to such Affiliate Transaction shall have received a favorable
opinion from a nationally recognized investment banking firm that such Affiliate
Transaction is fair from a financial point of view to the Company or such
Restricted Subsidiary; PROVIDED, FURTHER, that for a transaction or series of
related transactions with an aggregate value of $20.0 million or more, the Board
of Directors of the Company shall have received a favorable opinion from a
nationally recognized investment banking firm that such Affiliate Transaction is
fair from a financial point of view to the Company or such Restricted
Subsidiary.
(b) The foregoing restrictions shall not apply to:
(1) transactions exclusively between or among the Company
and any of its Restricted Subsidiaries or exclusively between or among
such Restricted Subsidiaries, PROVIDED such transactions are not
otherwise prohibited by this Indenture;
(2) transactions effected as part of a Qualified Receivables
Transaction;
(3) any agreement as in effect as of the Issue Date or any
amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) or in any replacement agreement
thereto so long as any such amendment or
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replacement agreement is not more disadvantageous to the Holders in any
material respect than the original agreement as in effect on the Issue
Date;
(4) Restricted Payments permitted by this Indenture;
(5) loans or advances to officers, directors or employees of
the Company or its Restricted Subsidiaries not in excess of $10.0
million at any one time outstanding;
(6) Permitted Investments or Permitted Liens;
(7) transactions with Persons solely in their capacity as
holders of Indebtedness or Capital Stock of the Company or any of its
Restricted Subsidiaries, where such Persons are treated no more
favorably than holders of Indebtedness or Capital Stock of the Company
or such Restricted Subsidiary generally;
(8) reasonable and customary fees and compensation paid to,
and indemnity provided on behalf of, officers, directors, consultants or
employees of Holdings or any of its Restricted Subsidiaries (other than
the THL Affiliates and the ECP Affiliates, which are set forth in
clauses (9), (10) and (11) below), as determined by the Board of
Directors of the Company or any such Restricted Subsidiary or the senior
management thereof in good faith, including, without limitations,
issuances of stock, payment of bonuses and other transactions pursuant
to employment or compensation agreements, stock option agreements,
indemnification agreements and other arrangements in effect on the Issue
Date or substantially similar thereto;
(9) the payment, on a quarterly basis, of management fees to
(A) THL and/or the THL Affiliates not to exceed $250,000 in any fiscal
quarter and (B) ECP and/or the ECP Affiliates not to exceed $62,500 in
any fiscal quarter, in each case in accordance with the management
agreement between THL, the THL Affiliates, ECP and/or the ECP Affiliates
and Holdings;
(10) the reimbursement of THL, the THL Affiliates, ECP and/or
the ECP Affiliates for the reasonable out-of-pocket expenses incurred by
them in connection with performing management services to Holdings and
its Restricted Subsidiaries;
(11) the payment of one-time fees to THL, the THL Affiliates,
ECP and/or the ECP Affiliates in connection with acquisition
transactions not prohibited by this Indenture, such fees to be payable
at the time of each such acquisition and not to exceed (for all fees
paid pursuant to this clause (11)) 2.5% of the aggregate consideration
paid by Holdings and its Restricted Subsidiaries for any such
acquisition or such lesser amount as is then permitted pursuant to the
Senior Credit Facility; and
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(12) reasonable and customary fees paid to members of the
Board of Directors of the Company, other than THL, the THL Affiliates,
ECP and the ECP Affiliates.
Notwithstanding the foregoing, the Company shall only pay
one-half of any management or other fees or expenses permitted under clauses
(9), (10) and (11) to the Equity Investors or their Affiliates at a time when a
Default or an Event of Default exists; PROVIDED that such unpaid fees and/or
expenses shall be paid at such time as such Default or Event of Default shall
have been cured or waived.
SECTION 4.14 CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control (the date of
such occurrence, the "Change of Control Date"), each Holder shall have the right
to require that the Company purchase all or a portion of such Holder's Notes
pursuant to an offer to purchase (the "Change of Control Offer") at a purchase
price equal to 101% of the aggregate principal amount thereof plus accrued
interest thereon to the date of repurchase. Prior to the mailing of the notice
to the Holders provided for in paragraph (b) below but in any event within 30
days following the date upon which the Company obtains actual knowledge of any
Change of Control, the Company hereby covenants to (i) repay in full and
terminate all commitments under Indebtedness under the Senior Credit Facility
and any other Indebtedness under interest rate protection and other hedging
agreements that are Primary Obligations (as defined in the U.S. Security
Agreement dated as of December 7, 1999, among Holdings, the Company, certain
subsidiaries of Holdings, and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, as amended, restated or replaced)
then owing to the Secured Creditors (as defined in such agreement) or offer to
repay in full and terminate all commitments under such Indebtedness and to repay
the Indebtedness of each lender which has accepted such offer or (ii) obtain the
requisite consents under the Senior Credit Facility to permit the repurchase of
the Notes as provided for in paragraph (c) below. The Company shall first comply
with the covenant in the immediately preceding sentence before it shall be
required to repurchase the Notes pursuant to this Section 4.14. The Company's
failure to comply with the covenant described in the second preceding sentence
(and any failure to send the notice referred to in clause (b) below as a result
of the prohibition in the second preceding sentence) may (with notice and lapse
of time) constitute an Event of Default described in Section 6.1(c) but shall
not constitute an Event of Default described in Section 6.1(b).
(b) Notice of a Change of Control Offer shall be mailed by
the Company within 30 days following the date upon which the Company obtains
actual knowledge that a Change of Control occurred to the Holders of Notes at
their last registered addresses with a copy to the Trustee and the Paying Agent.
The date on which Notes are purchased pursuant to the Change of Control Offer
shall be a business day that is no earlier than 30 days nor later than 60 days
from the date such notice is mailed (the "Change of Control Payment Date"). The
Change of Control Offer shall remain open from the time of mailing for at least
20 Business Days and until 3:00 p.m., New York City time, on the third Business
Day prior to the
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Change of Control Payment Date. The notice, which shall govern the terms of the
Change of Control Offer, shall include such disclosures as are required by law
and shall state:
(i) that the Change of Control Offer is being made pursuant
to this Section 4.14 and that all Notes will be accepted for payment;
(ii) the purchase price (including the amount of accrued and
unpaid interest, if any) for each Note and the Change of Control Payment
Date;
(iii) that any Note not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(iv) that any Note accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change
of Control Payment Date unless the Company shall fail to make payment
therefor;
(v) that Holders electing to have Notes purchased pursuant
to a Change of Control Offer will be required to surrender their Notes
to the Paying Agent at the address specified in the notice prior to 3:00
p.m., New York City time, on the Change of Control Payment Date and must
complete any form letter of transmittal proposed by the Company and
acceptable to the Trustee and the Paying Agent;
(vi) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 3:00 p.m., New
York City time, on the Business Day prior to the Change of Control
Payment Date, a telex or facsimile transmission (confirmed by overnight
delivery of the original thereof) or letter setting forth the name of
the Holder, the principal amount of Notes the Holder delivered for
purchase, the Note certificate number (if any) and a statement that such
Holder is withdrawing his election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in part will
be issued Notes equal in principal amount to the unpurchased portion of
the Notes surrendered; and
(viii) the instructions that Holders must follow in order to
tender their Notes.
(c) On the Change of Control Payment Date, the Company shall
(i) accept for payment Notes or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Notes or portions thereof so tendered and accepted and
(iii) deliver to the Trustee the Notes so accepted together with an Officers'
Certificate setting forth the Notes or portions thereof tendered to and accepted
for payment by the Company. The Paying Agent shall promptly mail or deliver to
the Holders of Notes so accepted payment in an amount equal to the purchase
price, and the
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Trustee shall promptly authenticate and mail or deliver to such Holders a new
Note equal in principal amount to any unpurchased portion of the Note
surrendered. Any Notes not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company will publicly announce the
results of the Change of Control Offer not later than the first Business Day
following the Change of Control Payment Date.
(d) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act, and any other securities
laws or regulations (including Rule 14e-1 under the Exchange Act) in connection
with the purchase of Notes pursuant to a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with
provisions of this Section 4.14, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.14 by virtue thereof.
SECTION 4.15 WAIVER OF STAY; EXTENSION OF USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it shall not, nor shall it cause or permit any of the Guarantors to, at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law that
would prohibit or forgive the Company or any Guarantor from paying all or any
portion of the principal of or interest on the Notes or the Guarantees, as
applicable, as contemplated herein or in the Notes and the Guarantees, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture; and (to the extent that it may lawfully do
so) each of the Company and the Guarantors 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.
SECTION 4.16 LIMITATION ON GUARANTEES BY RESTRICTED
SUBSIDIARIES.
The Company shall not permit any of its Domestic Restricted
Subsidiaries that is not a Guarantor (whether formed or acquired before or after
the Issue Date), directly or indirectly, by way of the pledge of any
intercompany note or otherwise, to assume, guarantee or in any other manner
become liable with respect to any Indebtedness of the Company (other than: (1)
Indebtedness under Currency Agreements in reliance on clause (5) of the
definition of Permitted Indebtedness; or (2) Interest Swap Obligations incurred
in reliance on clause (4) of the definition of Permitted Indebtedness), unless,
in any such case:
(1) such Restricted Subsidiary executes and delivers a
supplemental indenture to this Indenture providing a guarantee of
payment of the Notes by such Restricted Subsidiary, and
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(2) if any such assumption, guarantee or other liability of
such Restricted Subsidiary is provided in respect of Indebtedness that
is expressly subordinated to the Notes, the guarantee or other
instrument provided by such Restricted Subsidiary in respect of such
Subordinated Obligation shall be subordinated to such Guarantor's
Guarantee of the Notes
Notwithstanding the foregoing, any such Guarantee by a
Restricted Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon:
(1) the unconditional release of such Restricted Subsidiary
from its liability in respect of the Indebtedness in connection with
which such Guarantee was executed and delivered pursuant to the
preceding paragraph and all other Indebtedness which would require that
a Guarantee be executed and delivered pursuant to the preceding
paragraph;
(2) any sale or other disposition (by merger or otherwise)
to any Person which is not a Restricted Subsidiary of the Company of all
of the Company's Capital Stock in, or all or substantially all of the
assets of, such Restricted Subsidiary; PROVIDED that (a) such sale or
disposition of such Capital Stock or assets is otherwise in compliance
with the terms of this Indenture and (b) such assumption, guarantee or
other liability of such Restricted Subsidiary has been released by the
holders of the other Indebtedness of the Company so guaranteed;
(3) the Legal Defeasance of the Notes as described under
Section 8.2; or
(4) such Restricted Subsidiary being designated as an
Unrestricted Subsidiary in compliance with this Indenture.
SECTION 4.17 LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES.
The Company shall not permit any of its Restricted Subsidiaries
that is not a Guarantor to issue any Preferred Stock (other than to the Company
or to a Restricted Subsidiary of the Company) or permit any Person (other than
the Company or a Restricted Subsidiary of the Company) to own any Preferred
Stock of any Restricted Subsidiary of the Company that is not a Guarantor.
SECTION 4.18 CONDUCT OF BUSINESS.
The Company and its Restricted Subsidiaries shall not engage in
any businesses which are not the same, similar, related or ancillary to the
businesses in which the Company and its Restricted Subsidiaries are engaged on
the Issue Date.
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ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 LIMITATION ON MERGERS, CONSOLIDATIONS OR SALES
OF ASSETS.
The Company shall not, in a single transaction or a series of
related transactions, consolidate with or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets to,
another Person or Persons unless:
(1) either:
(a) the Company shall be the surviving or continuing
corporation of such merger or consolidation; or
(b) the surviving Person is a corporation existing
under the laws of the United States, any state thereof or the
District of Columbia and such surviving Person shall expressly
assume all the obligations of the Company under the Notes and
this Indenture;
(2) immediately after giving effect to such transaction (on
a PRO FORMA basis, including any Indebtedness incurred or anticipated to
be incurred in connection with such transaction and the other
adjustments that are referred to in the definition of "Consolidated
Fixed Charge Coverage Ratio"), the Company or the surviving Person is
able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.9;
(3) immediately before and immediately after giving effect
to such transaction (including any Indebtedness incurred or anticipated
to be incurred in connection with the transaction), no Default or Event
of Default shall have occurred and be continuing; and
(4) the Company or the surviving entity, as the case may be,
has delivered to the Trustee an officers' certificate and opinion of
counsel, each stating that such consolidation, merger or transfer
complies with this Indenture, that the surviving Person agrees to be
bound thereby and by the Notes and the Registration Rights Agreement,
and that all conditions precedent in this Indenture relating to such
transaction have been satisfied.
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For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties and assets of one or
more Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
Notwithstanding the foregoing clauses (1), (2) and (3):
(a) any Restricted Subsidiary of the Company may consolidate
with, merge into or transfer all or part of its properties and assets to
the Company; and
(b) the Company may merge with an Affiliate that is (x) a
corporation that has no material assets or liabilities and which was
incorporated solely for the purpose of reincorporating the Company in
another jurisdiction or (y) a Restricted Subsidiary of the Company that
is a Guarantor so long as all assets of the Company and the Restricted
Subsidiaries immediately prior to such transaction are owned by such
Restricted Subsidiary and its Restricted Subsidiaries immediately after
the consummation thereof.
Each Guarantor (other than any Guarantor whose Guarantee is to
be released in accordance with the terms of this Indenture) shall not, and the
Company shall not cause or permit any Guarantor to, consolidate with or merge
with or into any Person other than the Company or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation
or merger (if other than the Guarantor) or to which such sale, lease,
conveyance or other disposition shall have been made is a corporation
organized and existing under the laws of the United States or any State
thereof or the District of Columbia;
(2) such entity assumes by supplemental indenture all of the
obligations of the Guarantor on the Guarantee;
(3) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(4) immediately after giving effect to such transaction and
the use of any net proceeds therefrom on a PRO FORMA basis, the Company
could satisfy the provisions of clause (2) of the first paragraph of
this Section 5.1.
Any merger or consolidation of a Restricted Subsidiary with and
into the Company (with the Company being the surviving entity) or another
Guarantor that is a Wholly Owned Subsidiary of the Company need only comply with
clause (4) of the first paragraph of this Section 5.1.
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SECTION 5.2 SUCCESSOR ENTITY SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance
or other disposition of all or substantially all of the assets of the Company or
any assignment of its obligations under this Indenture in accordance with
Section 5.1 hereof, upon assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of,
premium, if any, and interest on all of the Notes and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
to be performed or observed by the Company, the surviving entity formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition or assignment is made will succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such surviving entity has been
named as the Company herein and such surviving entity may cause to be signed and
may issue in its own name or in the name of the Company, any or all Notes
issuable hereunder and the predecessor Company in the case of a sale, lease,
conveyance or other disposition or assignment, will be released from all
obligations under the Notes.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
"Event of Default", whenever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) the failure to pay interest on any Notes when the same
becomes due and payable and the default continues for a period of 30
days;
(b) the failure to pay the principal of any Notes when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Notes
tendered pursuant to a Change of Control Offer or a Net Proceeds Offer);
(c) a default in the observance or performance of any other
covenant or agreement contained in this Indenture which default
continues for a period of 30 days after the Company receives written
notice specifying the default (and demanding that
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such default be remedied) from the Trustee or the Holders of at least
25% of the outstanding principal amount of the Notes;
(d) the failure to pay at final stated maturity (giving
effect to any applicable grace periods and any extensions thereof) the
principal amount of any Indebtedness of the Company or any Restricted
Subsidiary (other than a Receivables Entity) of the Company, or the
acceleration of the final stated maturity of any such Indebtedness
(which acceleration is not rescinded, annulled or otherwise cured within
30 days of receipt by the Company or such Restricted Subsidiary of
notice of any such acceleration) if the aggregate principal amount of
such Indebtedness, together with the principal amount of any other such
Indebtedness in default for failure to pay principal at final stated
maturity or which has been accelerated (in each case with respect to
which the 30-day period described above has elapsed), aggregates $20.0
million or more at any time;
(e) one or more judgments in an aggregate amount in excess
of $20.0 million shall have been rendered against the Company or any of
its Significant Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or
judgments become final and non-appealable;
(f) a court of competent jurisdiction enters a Bankruptcy
Order under any Bankruptcy Law that:
(1) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case or proceeding,
or
(2) appoints a Custodian of the Company or any of
its Significant Subsidiaries for all or substantially all of its
respective properties, or
(3) orders the liquidation of the Company or any of
its Significant Subsidiaries,
and in each case the order or decree remains unstayed and in effect for
60 consecutive days;
(g) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding, or
(2) consents to the entry of a Bankruptcy Order for
relief against it in an involuntary case or proceeding, or
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(3) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(4) makes a general assignment for the benefit of
its creditors or files a proposal or scheme of arrangement
involving the rescheduling or composition of its indebtedness,
or
(5) consents to the filing of a petition in
bankruptcy against it; or
(h) any Guarantee of a Significant Subsidiary ceases to be
in full force and effect or any Guarantee of a Significant Subsidiary is
declared to be null and void and unenforceable or any Guarantee of a
Significant Subsidiary is found to be invalid or any Guarantor that is a
Significant Subsidiary denies its liability under its Guarantee (other
than by reason of release of a Guarantor in accordance with the terms of
this Indenture).
SECTION 6.2 ACCELERATION.
(a) If an Event of Default (other than an Event of Default
specified in Section 6.1(f) or 6.1(g) above with respect to the Company) shall
occur and be continuing, then, and in every such case, unless the principal of
all the Notes shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the then
outstanding Notes, by notice in writing to the Company, the agent or other
representative under the Senior Credit Facility and to the Trustee (the
"Acceleration Notice"), may declare all of the unpaid principal of, and premium,
if any, and accrued interest thereon to be, and the same (x) shall become
immediately due and payable, or (y) if there are any amounts outstanding under
the Senior Credit Facility, shall become immediately due and payable upon the
first to occur of an acceleration under the Senior Credit Facility or five
business days after receipt by the Company and the agent or other representative
under the Senior Credit Facility of such Acceleration Notice but only if such
Event of Default is then continuing. If an Event of Default specified in Section
6.1(f) or 6.1(g) with respect to the Company occurs and is continuing, all
unpaid principal of, and premium, if any, and accrued interest due and payable
on all the outstanding Notes shall IPSO FACTO become and be immediately due and
payable without any declaration, notice or other act on the part of the Trustee
or any Holder.
(b) At any time after a declaration of acceleration with
respect to the Notes as described in the preceding paragraph, the Holders of a
majority in aggregate principal amount of the Notes, by written notice to the
Company and the Trustee, may rescind and cancel, on behalf of all Holders, such
declaration and its consequences:
(1) if the rescission would not conflict with any judgment
or decree;
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(2) if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due
solely because of the acceleration;
(3) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration,
has been paid;
(4) if the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements
and advances; and
(5) in the event of the cure or waiver of an Event of
Default of the type described in Section 6.1(f) or (g), the Trustee
shall have received an Officers' Certificate to the effect that such
Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
In the event that the maturity of the Notes is accelerated
pursuant to this Section 6.2, 100% of the principal amount thereof plus accrued
interest to the date of payment shall become due and payable.
SECTION 6.3 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding, 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 6.4 WAIVER OF PAST DEFAULT.
Subject to Sections 6.7 and 9.2, prior to the declaration of
acceleration of the maturity of the Notes, the Holder or Holders of not less
than a majority in aggregate principal amount of the Notes at the time
outstanding by written notice to the Company and the Trustee may waive on behalf
of all the Holders any past default or Event of Default under this Indenture and
its consequence, except a default in the payment of principal of or interest on
any
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Note or a default with respect to any covenant or provision which cannot be
modified or amended without the consent of the Holder of each outstanding Note
affected pursuant to Section 9.2.
SECTION 6.5 CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it, including, without limitation, any remedies provided for
in Section 6.3. However, the Trustee may refuse to follow any direction that
conflicts with law, the Notes or this Indenture, or that the Trustee determines
may be unduly prejudicial to the rights of another Securityholder or that may
involve the Trustee in personal liability.
SECTION 6.6 LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Notes unless:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue a
remedy;
(c) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(d) the Trustee does not comply with the request within 30
days after receipt of the request and the offer of indemnity; and
(e) during such 30-day period the Holders of at least a
majority in principal amount of the then outstanding Notes do not give
the Trustee a direction which is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over such
other Securityholder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder to receive payment of principal of and interest on a Note, on or
after the respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after
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such respective dates, is absolute and unconditional and shall not be impaired
or affected without the consent of such Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a) or (b) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company or any other obligor on the
Notes for the whole amount of principal and accrued interest remaining unpaid,
together with interest overdue on principal and, to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the interest rate and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.9 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee shall be entitled and empowered to file such proofs
of claim and other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Securityholders allowed in any judicial proceedings
relative to the Company or any of its Subsidiaries (or any other obligor upon
the Notes), its creditors or its property and shall be entitled and empowered to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Securityholder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Securityholders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agent and counsel, and any other amounts due the Trustee
under Section 7.7. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder 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 Securityholder in
any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article VI,
it shall pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according
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to the amounts due and payable on the Notes for principal and interest,
respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Article VI.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.7, or a suit by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the outstanding
Notes.
SECTION 6.12 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 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 6.13 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 VI 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.
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ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture or the TIA and no others and no
implied covenants or obligations shall be read into this Indenture
against the Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificate or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall examine such certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
(c) Notwithstanding anything to the contrary herein
contained, the Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) This paragraph does not limit the effect of paragraph
(b) of this Section 7.1.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts.
(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 Sections 6.4 and 6.5.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its
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duties hereunder or in the exercise of any of its rights or powers if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this
Section 7.1.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. 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,
debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(b) Before the Trustee acts or refrains from acting with
respect to any matter contemplated by this Indenture, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to
the provisions of Section 11.5. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
(other than the negligence or willful misconduct of an agent who is an
employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith and without negligence which it
reasonably believes to be authorized or within its rights or powers
conferred upon it by this Indenture or the TIA.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have
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offered to the Trustee security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby.
(f) The Trustee may consult with counsel of its selection
and the 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.
(g) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder; and
(h) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed by
any person authorized to sign an Officers' Certificate, including any
person specified as so authorized in any such certificate previously
delivered and not superseded.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual capacity or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company, or
its Subsidiaries and Affiliates with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture, the Notes or the Guarantees, and it shall not be
accountable for the Company's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company in this Indenture, or any
statement in the Notes other than the Trustee's certificate of authentication.
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default or an Event of Default with respect to the Notes
occurs and is continuing and is actually known to a Responsible Officer, the
Trustee shall mail to each Holder a notice of the Default or Event of Default
within 60 days after it occurs or, if later, within 10 days after such Default
or Event of Default becomes known to the Trustee, unless such Default or Event
of Default has been cured. Except in the case of a Default or Event of Default
in the payment of principal of or interest on any Note, including an
acceleration, and the failure
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to make payment when required by Sections 4.12 and 4.14, the Trustee may
withhold the notice to the Holders if and so long as a committee of its
Responsible Officers determines in good faith that withholding the notice is in
the interest of the Holders.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each November 15 beginning with November
15, 2002, the Trustee shall transmit to each Securityholder a report dated as of
May 15 of the relevant year that complies with the requirements of TIA Section
313(a). The Trustee also shall comply with TIA Section 313(b) and TIA Section
313(c) and (d). A copy of such report at the time of its transmission to
Securityholders shall be filed with the SEC, if required, with each stock
exchange, if any, on which the Notes are listed and with the Company.
The Company shall promptly notify the Trustee if the Notes
become listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee, the Paying Agent and the
Registrar from time to time such compensation for their respective services
rendered hereunder as agreed in writing. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable out-of-pocket
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by each of them in connection with the performance of
its duties under this Indenture. Such expenses shall include the reasonable
compensation, reasonable out-of-pocket disbursements and reasonable expenses of
the Trustee's agents and counsel.
The Company shall indemnify and hold harmless the Trustee and
their agents, employees, officers, directors and shareholders against any and
all claims, expenses, loss or liability incurred by it arising out of or in
connection with the administration of its duties under this Indenture. The
Trustee shall notify the Company promptly of any claim asserted against it for
which it may seek indemnity. The Company shall defend the claim with counsel
designated by the Company, who may be outside counsel to the Company, but shall
in all events be reasonably satisfactory to the Trustee, and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel; PROVIDED that the
Company will not be required to pay such fees and expenses if it assumes the
Trustee's defense and there is no conflict of interest between the Company and
the Trustee in connection with such defense. The Company need not pay for any
settlement made without its written consent, which consent may not be
unreasonably withheld. The Company need not reimburse any expense or indemnify
against any loss or liability
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incurred by the Trustee through the Trustee's own willful misconduct, negligence
or bad faith.
To secure the Company's payment obligations in this Section 7.7,
the Trustee shall have a lien prior to the Notes and the Guarantees on all money
or property held or collected by it in its capacity as Trustee, except money or
property held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(f) or 6.1(g) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
This section shall survive the resignation or removal of the
Trustee.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
The Trustee may resign at any time by so notifying the Company
in writing, such resignation to be effective upon the appointment of a successor
Trustee. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee with the Company's consent which consent shall not be
unreasonably withheld. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the Notes may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee (subject to the lien provided in Section 7.7), the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
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If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 25% in principal amount of then outstanding Notes may
petition any court of competent jurisdiction at the expense of the Company for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee; PROVIDED such corporation shall be otherwise
qualified and eligible under this Article VII.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA Section
310(b); PROVIDED that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. The provisions of TIA Section 310 shall apply to the Company,
as obligor of the Notes.
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1 TERMINATION OF THE COMPANY'S OBLIGATIONS.
This Indenture will be discharged and will cease to be of
further effect (except as set forth below) and the Trustee at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when:
(1) either:
(a) all the Notes theretofore authenticated and
delivered (except lost, stolen or destroyed notes which have
been replaced or paid as provided in Section 2.7 and Notes for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the
Trustee for cancellation have become due and payable and the
Company has irrevocably deposited or caused to be deposited with
the Trustee funds in an amount sufficient to pay and discharge
the entire Indebtedness on the Notes not theretofore delivered
to the Trustee for cancellation, for principal of, premium, if
any, and interest on the Notes to the date of deposit together
with irrevocable instructions from the Company directing the
Trustee to apply such funds to the payment thereof at maturity
or redemption, as the case may be;
(2) the Company has paid all other sums payable under this
Indenture by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent under this Indenture relating to the satisfaction and
discharge of the indenture have been complied with.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.5, 2.6, 2.7, 2.10, 7.7, 8.5 and 8.6 shall survive
until the Notes are no longer outstanding pursuant to the last paragraph of
Section 2.8. After the Notes are no longer outstanding, the Company's
obligations in Sections 7.7, 8.5 and 8.6 shall survive.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's and the
Guarantors' obligations under
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the Notes and the Guarantees, as the case may be, and this Indenture except for
those surviving obligations specified above.
SECTION 8.2 LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) The Company may, at its option by Board Resolution of
the Board of Directors, at any time, elect to have either paragraph (b) or (c)
below be applied to all outstanding Notes upon compliance with the conditions
set forth in Section 8.3.
(b) Upon the Company's exercise under paragraph (a) hereof
of the option applicable to this paragraph (b), each of the Company and the
Guarantors shall, subject to the satisfaction of the conditions set forth in
Section 8.3, be deemed to have been discharged from its obligations with respect
to all outstanding Notes on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.4 hereof and the
other Sections of this Indenture referred to in (i) and (ii) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions, which
shall survive until otherwise terminated or discharged hereunder: (i) the rights
of Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.4 hereof, and as more fully set forth in such Section, payments in
respect of the principal of and interest on such Notes when and to the extent
such payments are due, (ii) the Company's obligations with respect to such Notes
under Article II and Section 4.2 hereof, (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligations in
connection therewith, including Section 7.7 hereof and (iv) this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof
of the option applicable to this paragraph (c), each of Holdings, the Company
and the Guarantors shall, subject to the satisfaction of the conditions set
forth in Section 8.3 hereof, be released from its obligations under the
covenants contained in Sections 4.8 through 4.14 and Sections 4.16 through 4.18
and Article V hereof with respect to the outstanding Notes on and after the date
the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Notes, the Company and its Subsidiaries may omit to comply
with and shall have
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no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event or Default under
Section 6.1(c) hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under paragraph (a) hereof of the option applicable to this
paragraph (c), subject to the satisfaction of the conditions set forth in
Section 8.3 hereof, Sections 6.1(c) and 6.1(e) shall not constitute Events of
Default.
SECTION 8.3 CONDITIONS TO LEGAL DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.2(b) or 8.2(c) hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders, U.S. Legal Tender, U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment on
the Notes, U.S. Legal Tender, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if
any, and interest on the Notes on the stated date for payment thereof or
on the applicable redemption date, as the case may be, of such principal
or installment of principal of or interest on the Notes; PROVIDED that
the Trustee shall have received an irrevocable written order from the
Company instructing the Trustee to apply such U.S. Legal Tender or the
proceeds of such U.S. Government Obligations to said payments with
respect to the Notes;
(b) in the case of an election under Section 8.2(b) hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
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(c) in the case of an election under Section 8.2(c) hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
the Holders of the Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) no Default or Event of Default or event which with
notice or lapse of time or both would become a Default or an Event of
Default with respect to the Notes shall have occurred and be continuing
on the date of such deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a portion of the
proceeds of which will be used to defease the Notes pursuant to this
Article VIII concurrently with such incurrence) or insofar as Sections
6.1(f) and 6.1(g) hereof are concerned, at any time in the period ending
on the 91st day after the date of such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of or constitute a default under this
Indenture, the Senior Credit Facility or any other material agreement or
instrument to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or
the Covenant Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that assuming no intervening bankruptcy
or insolvency of the Company between the date of deposit and the 91st
day following the date of deposit and that no Holder is an insider of
the Company, after the 91st day following the date of deposit, the trust
funds will not be subject to the effect of any applicable Bankruptcy
Laws affecting creditors' rights generally.
Notwithstanding the foregoing, the Opinion of Counsel required
by clause (b) above of this Section 8.3 need not be delivered if all Notes not
theretofore delivered to the Trustee for cancellation (i) have become due and
payable, or (ii) will become due and payable
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on the Maturity Date within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name and at
the expense of the Company.
SECTION 8.4 APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall hold in trust U.S. Legal
Tender or U.S. Government Obligations deposited with it pursuant to this Article
VIII, and shall apply the deposited U.S. Legal Tender and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of and interest on the Notes. The Trustee shall be under no obligation
to invest said U.S. Legal Tender or U.S. Government Obligations except as it may
agree with the Company.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.3 hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
Company's request any U.S. Legal Tender or U.S. Government Obligations held by
it as provided in Section 8.3 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
SECTION 8.5 REPAYMENT TO THE COMPANY.
Subject to this Article VIII, the Trustee and the Paying Agent
shall promptly pay to the Company upon request any excess U.S. Legal Tender or
U.S. Government Obligations held by them at any time and thereupon shall be
relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years;
PROVIDED that the Trustee or such Paying Agent, before being required to make
any payment, may at the expense of the Company cause to be published once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person.
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SECTION 8.6 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with this Article VIII by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article VIII until such time as the Trustee or Paying Agent is permitted to
apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with this Article VIII; PROVIDED that if the Company has made any payment of
interest on or principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the U.S. Legal Tender or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the
Guarantors, when authorized by resolutions of their respective Boards of
Directors (copies of which shall be delivered to the Trustee), and the Trustee
may amend or supplement this Indenture, the Notes or the Guarantees without
notice to any Holder for any of the following purposes:
(a) to cure any ambiguity, defect or inconsistency herein;
(b) to add to the covenants of the Company for the benefit
of the Holders, or surrender any right or power herein conferred upon
the Company;
(c) to provide for collateral for the Notes;
(d) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(e) to effect or maintain the qualification of this
Indenture under the TIA;
(f) to evidence the succession in accordance with Article V
hereof of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Notes; or
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(g) to make any other change that does not adversely affect
the rights of any Holder in any material respect; PROVIDED that in
making such change, the Trustee may rely upon an Opinion of Counsel
stating that such change does not adversely affect the rights of any
Holder in any material respect.
SECTION 9.2 WITH CONSENT OF HOLDERS.
Subject to Section 6.7 and the provisions of this Section 9.2,
the Company and the Guarantors, when authorized by resolutions of their
respective Boards of Directors (copies of which shall be delivered to the
Trustee), and the Trustee may amend or supplement this Indenture with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding. Subject to Section 6.7 and the provisions
of this Section 9.2, the Holders of, in the aggregate, at least a majority in
principal amount of the then outstanding Notes affected may waive compliance by
the Company with any provision of this Indenture without notice to any other
Securityholder. However, without the consent of each Securityholder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.4 may
not:
(a) reduce the percentage of principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture or the Notes;
(b) reduce the rate of or change or have the effect of
changing the time for payment of interest, including defaulted interest,
on any Note;
(c) reduce the principal of or change or have the effect of
changing the fixed maturity of any Notes, or change the date on which
any Notes may be subject to redemption or reduce the redemption price
therefor;
(d) make the principal of, or any interest on, any Note
payable in money other than that stated in the Note;
(e) make any change in provisions of this Indenture
protecting the right of each Holder to receive payment of principal of
and interest on such Note on or after the due date thereof or to bring
suit to enforce such payment, or permitting Holders of a majority in
principal amount of Notes to waive Defaults or Events of Default;
(f) after the Company's obligation to purchase Notes arises
thereunder, amend, change or modify any provisions of this Indenture or
the related definitions affecting the Company's obligation to make a
Change of Control Offer in a manner which adversely affects the Holders;
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(g) after the Company's obligation to purchase Notes arises
thereunder, amend, change or modify in any material respect the
obligation of the Company to make and consummate a Net Proceeds Offer
with respect to any Asset Sale that has been consummated or, after such
Asset Sale has been consummated, modify any of the provisions or
definitions with respect thereto; or
(h) release any Guarantor that is a Significant Subsidiary
from any of its obligations under its Guarantee or this Indenture
otherwise than in accordance with the terms of this Indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.2 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 9.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
In connection with any amendment, supplement or waiver under
this Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture, the Notes or
the Guarantees shall be set forth in a supplemental indenture that complies with
the TIA as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS.
Until 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 portion of that Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder may revoke the
consent as to his Note or portion of a Note. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective. Notwithstanding the above,
nothing in this paragraph shall impair the right of any Securityholder under
Section 316(b) of the TIA.
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
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which record date shall be at least 10 days prior to the first solicitation of
such consent. If a record date is fixed, then notwithstanding the second and
third sentences of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to consent to such amendment, supplement or waiver or
to revoke any consent previously given, whether or not such Persons continue to
be Holders after such record date. Such consent shall be effective only for
actions taken within 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder unless it makes a change described in any of
clauses (a) through (l) of Section 9.2. In that case the amendment, supplement
or waiver shall bind each Holder of a Note who has consented to it.
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement or waiver changes the terms of a
Note, the Trustee may (in accordance with the specific direction of the Company)
request the Holder of the Note to deliver it to the Trustee. The Trustee may (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 authenticate a new Note
(together with related Guarantees of the Guarantors) 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.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article IX if the amendment, supplement or waiver
does not adversely affect the rights, duties or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it. In signing any amendment,
supplement or waiver, the Trustee shall be entitled to receive, if requested, an
indemnity reasonably satisfactory to it and to receive, and shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article IX is authorized or permitted by this Indenture.
Neither the Company nor any Guarantor may sign an amendment until its Board of
Directors approves it.
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ARTICLE X
GUARANTEE
SECTION 10.1 UNCONDITIONAL GUARANTEE.
Each Guarantor hereby unconditionally, jointly and severally,
guarantees (each such guarantee to be referred to herein as a "Guarantee"), to
each of the Holders and to the Trustee and their respective successors and
assigns that (i) the principal of and interest on the Notes will be promptly
paid in full when due, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise, and interest on the overdue principal,
if any, and interest on any interest, if any, to the extent lawful, of the Notes
and all other obligations of the Company to the Holders or the Trustee hereunder
or thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (ii) in case of any extension of time of
payment or renewal of any of the Notes or of any such other obligations, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise, subject, however, in
the case of clauses (i) and (ii) above, to the limitations set forth in Section
10.4. Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any of the Holders with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor. Each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes, this Indenture and in
this Guarantee. If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Trustee or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article VI for the purposes of this Guarantee, and
(y) in the event of any acceleration of such obligations as provided in Article
VI, such obligations (whether or not due and payable) shall forthwith become due
and payable by each Guarantor for the purpose of this Guarantee.
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SECTION 10.2 SEVERABILITY.
In case any provision of this Guarantee 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 10.3 RELEASE OF A GUARANTOR.
Upon (i) the unconditional release of a Guarantor from its
liability in respect of the Indebtedness in connection with which such Guarantee
was executed and delivered in accordance with the first paragraph of Section
4.16, (ii) any sale or other disposition (by merger or otherwise) to any Person
which is not a Restricted Subsidiary of the Company of all of the Company's
Capital Stock in, or all or substantially all of the assets of, a Guarantor;
PROVIDED that (a) such sale or disposition of such Capital Stock or assets is
otherwise in compliance with the terms of this Indenture and (b) such
assumption, guarantee or other liability of such Guarantor has been released by
the holders of the other Indebtedness of the Company so guaranteed, (iii) the
Legal Defeasance of the Notes as described under Section 8.2, or (iv) a
Guarantor being designated as an Unrestricted Subsidiary as described under the
definition of "Unrestricted Subsidiary," such Guarantor shall be deemed released
from all obligations under this Article X without any further action required on
the part of the Trustee or any Holder; PROVIDED that any such termination shall
occur only to the extent that all obligations of such Guarantor under all of its
guarantees of, and under all of its pledges of assets or other security
interests which secure, such Indebtedness of the Company shall also terminate
upon such release, sale or transfer.
The Trustee shall promptly deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate certifying as to the compliance with this Section 10.3.
Any Guarantor not so released remains liable for the full amount of principal of
and interest on the Notes as provided in this Article X.
SECTION 10.4 LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and by its acceptance hereof each of the Holders
hereby confirm that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer
or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
state law. To effectuate the foregoing intention, the Holders and such Guarantor
hereby irrevocably agree that the obligations of such Guarantor under the
Guarantee shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Guarantor (including, but not
limited to, the Guarantor Senior Debt of such Guarantor) and after giving effect
to any collections from or payments made by
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or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to Section 10.6, result in the
obligations of such Guarantor under the Guarantee not constituting such
fraudulent transfer or conveyance.
SECTION 10.5 CONSOLIDATION, MERGER AND SALE OF ASSETS.
Upon any consolidation, merger, sale or conveyance of a
Guarantor as permitted by Article V, the Guarantee of such Guarantor set forth
in this Article X, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed by such
Guarantor, shall be expressly assumed (in the event that the Company, the
Guarantor or another Guarantor is not the surviving corporation in the merger),
by an agreement or supplemental indenture reasonably satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the corporation formed by
such consolidation, or into which the Guarantor shall have merged, or by the
corporation that shall have acquired such property. In the case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by an agreement or supplemental indenture executed and
delivered to the Trustee and satisfactory in form and substance to the Trustee
of the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Guarantor, such successor corporation
shall succeed to and be substituted for the Guarantor with the same effect as if
it had been named herein as a Guarantor.
SECTION 10.6 CONTRIBUTION.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, INTER SE, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a PRO RATA amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Obligations. "Adjusted Net Assets" of such
Guarantor at any date shall mean the lesser of (x) the amount by which the fair
value of the property of such Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to
all other fixed and contingent liabilities incurred or assumed on such date
(other than liabilities of such Guarantor under Subordinated Obligation)), but
excluding liabilities under the Guarantee, of such Guarantor at such date and
(y) the amount by which the present fair salable value of the assets of such
Guarantor at such date exceeds the amount that will be required to pay the
probable liabilities of such Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities incurred or assumed on such date and
after giving effect to any collection from any Subsidiary of such Guarantor in
respect of the obligations of such Subsidiary under the Guarantee), excluding
debt in respect of the Guarantee of such Guarantor, as they become absolute and
matured.
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SECTION 10.7 WAIVER OF SUBROGATION.
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Guarantor's
obligations under its 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 against the Company, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including, without limitation,
the right to take or receive from the Company, directly or indirectly, in cash
or other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to any
Guarantor in violation of the preceding sentence and the Notes shall not have
been paid in full, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Holders,
and shall, subject to the provisions of Section 10.2, 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. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 10.7 is knowingly made in contemplation of
such benefits.
SECTION 10.8 EVIDENCE OF GUARANTEE.
To evidence their guarantees to the Holders set forth in this
Article X, each of the Guarantors hereby agrees to execute the notation of
Guarantee in substantially the form included in EXHIBIT E. Each such notation of
Guarantee shall be signed on behalf of each Guarantor by an Officer or an
assistant Secretary.
SECTION 10.9 WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each Guarantor covenants that it will not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law that would prohibit
or forgive such Guarantor from performing its Guarantee as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and each Guarantor 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.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 TRUST INDENTURE ACT CONTROLS.
The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by the above paragraph, the imposed duties
shall control.
SECTION 11.2 NOTICES.
Any notice or communication shall be sufficiently given if in
writing and delivered in Person or mailed by first-class mail or by telecopier,
followed by first-class mail, or by overnight service guaranteeing next-day
delivery, addressed as follows:
(a) if to the Company or any Guarantor:
c/o ▇▇▇▇▇▇, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder,
including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed to
such Holder, first-class postage prepaid, at his address as it appears on the
registration books of the Registrar and shall be sufficiently given to such
Holder if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture,
the Notes or the Guarantees. The Company, the Guarantors, the Trustee, the
Registrar and any other Person shall have the protection of TIA Section 312(c).
SECTION 11.4 CERTIFICATE AND OPINION OF COUNSEL AS TO
CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee
at the request of the Trustee (a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with (which officer signing
such certificate may rely, as to matters of law, on an Opinion of Counsel), (b)
an Opinion of Counsel in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of counsel, all such conditions have been
complied with (which counsel, as to factual matters, may rely on an Officers'
Certificate and certificates of public officials) and (c) where applicable,
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a certificate or opinion by an independent certified public accountant
satisfactory to the Trustee that complies with TIA Section 314(c).
SECTION 11.5 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION
OF COUNSEL.
Each certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that the Person making such certificate or
rendering such Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements contained in such
certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 11.6 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.7 LEGAL HOLIDAYS.
If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.8 GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE
AND THE SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE
SECURITIES.
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SECTION 11.9 NO RECOURSE AGAINST OTHERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or any Guarantor under the
Notes, the Guarantees or this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes and the Guarantees.
SECTION 11.10 SUCCESSORS.
All agreements of the Company and the Guarantors in this
Indenture, the Notes and the Guarantees shall bind their respective successors.
All agreements of the Trustee in this Indenture shall bind its successor.
SECTION 11.11 COUNTERPARTS.
The parties may sign any number of counterparts of this
Indenture. Each such counterpart shall be an original, but all of them together
represent the same agreement.
SECTION 11.12 SEVERABILITY.
In case any provision in this Indenture, the Notes or the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 11.13 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, and are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.14 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.15 BENEFITS OF INDENTURE.
Nothing in this Indenture, the Notes or the Guarantees, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the
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Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture, the Notes or the Guarantees.
SECTION 11.16 INDEPENDENCE OF COVENANTS.
All covenants and agreements in this Indenture shall be given
independent effect so that if any particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or otherwise be within the limitations of, another covenant shall
not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
▇▇▇▇▇▇, INC.,
as Issuer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SUBSIDIARY GUARANTORS:
PRINTCO., INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
WEBCRAFT, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
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WEBCRAFT CHEMICALS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
ENTERON GROUP, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
BIG FLOWER DIGITAL SERVICES
(DELAWARE), INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
BIG FLOWER DIGITAL LLC
By: BIG FLOWER DIGITAL SERVICES
(DELAWARE), INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
Notice Address for all Guarantors:
▇▇▇▇▇▇, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇ ▇-▇
[FORM OF SERIES A SECURITY]
THIS SECURITY 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 BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "ACCREDITED INVESTOR"),
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL
A-1-1
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 MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-1-2
No. $
▇▇▇▇▇▇, INC.
10 7/8% SENIOR NOTE DUE 2009
▇▇▇▇▇▇, INC. promises to pay to or registered assigns
the principal sum of Dollars on June 15, 2009.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
By:
------------------------------------
Authorized Signature
By:
------------------------------------
Authorized Signature
Dated: , 2002
CERTIFICATE OF AUTHENTICATION
This is one of the 10 7/8% Senior Notes due 2009 referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Authorized Signatory
Dated:
A-1-3
(REVERSE OF SECURITY)
10 7/8% SENIOR NOTE DUE 2009
1. INTEREST. ▇▇▇▇▇▇, INC., a Delaware corporation (the
"Company", which term shall include any successor thereto in accordance with the
Indenture), promises to pay, until the principal hereof is paid or made
available for payment, interest (including any Accrued Bankruptcy Interest) on
the principal amount set forth on the reverse side hereof at a rate of 10 7/8%
PER ANNUM. Interest on the Notes will accrue from and including the most recent
date to which interest has been paid or, if no interest has been paid, from and
including the date of issuance of such Notes through but excluding the date on
which interest is paid. Interest shall be payable in arrears on June 15 and
December 15 (each an "Interest Payment Date"). Interest will be computed on the
basis of a 360-day year of twelve full 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on the June 1 or December 1 immediately preceding
the Interest Payment Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. The Company will pay principal, premium, if any, and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. At the Company's option,
interest may be paid by check mailed to the registered address of the Holder of
this Note.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New
York (the "Trustee") will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice.
4. INDENTURE. The Company issued the Notes under an
Indenture dated as of June 24, 2002 (the "Indenture") among the Company, the
Guarantors and the Trustee. This Note is one of an issue of Notes of the Company
issued under the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as amended from time
to time. The Notes are subject to all such terms, and Securityholders are
referred to the Indenture and such Act for a statement of them. Capitalized
terms used herein and not otherwise defined have the meanings set forth in the
Indenture. The Notes are general unsecured obligations of the Company and are
unlimited in aggregate principal amount, $250.0 million of which will be issued
in the offering of the Notes on the Issue Date and Additional Notes may be
issued after the Issue Date, subject to the limitations set forth in Section 4.9
of the Indenture.
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5. (a) OPTIONAL REDEMPTION. The Notes are not redeemable
before June 15, 2006. Thereafter, the Company may redeem the Notes at its
option, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the following redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period commencing
on June 15 of the year set forth below:
Year Percentage
---- ----------
2006..........................................105.4375%
2007..........................................102.7188%
2008 and thereafter...........................100.0000%
In addition, the Company must pay accrued and unpaid interest
on the Notes redeemed.
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time,
or from time to time, on or prior to June 15, 2005, the Company may, at its
option, use the net cash proceeds of one or more Equity Offerings (as defined
below) to redeem up to 35% of the aggregate principal amount of the Notes
(including any Additional Notes) issued under the Indenture at a redemption
price equal to 110.875% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption; PROVIDED that:
(1) at least 65% of the original principal amount of Notes
issued under the Indenture (including any Additional Notes) remains
outstanding immediately after any such redemption; and
(2) the Company makes such redemption not more than 90 days
after the consummation of any such Equity Offering.
"EQUITY OFFERING" means any public or private sale of Qualified
Capital Stock of Holdings or the Company or any capital contribution to
Holdings; PROVIDED that, in the event of an Equity Offering by Holdings or any
capital contribution to Holdings, Holdings contributes to the capital of the
Company the portion of the net cash proceeds of such Equity Offering or capital
contribution necessary to pay the aggregate redemption price of the Notes to be
redeemed pursuant to the preceding paragraph.
(c) OPTIONAL REDEMPTION UPON A CHANGE OF CONTROL. At any
time on or prior to June 15, 2006, 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 date of redemption or purchase (the "Redemption
Date") (subject to the right of Holders of record on the relevant record
A-1-5
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, not less than 30 nor more than 60 days prior
to the Redemption Date (but in no event more than 90 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.
"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, 2006 (such redemption price being that
described in the first paragraph of this "Redemption" section) plus (2) all
required remaining scheduled interest payments due on such Note through June 15,
2006, 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, HOWEVER,
that such calculation shall not be a duty or obligation of the Trustee.
"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 of
similar market data)) most nearly equal to the period from such Redemption Date
to June 15, 2006; PROVIDED, HOWEVER, that if the period from such Redemption
Date to June 15, 2006 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 Treasury securities
for which such yields are given, except that if the period from such Redemption
Date to June 15, 2006 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.
6. NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the redemption date to
each holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption.
A-1-6
7. OFFERS TO PURCHASE. Sections 4.12 and 4.14 of the
Indenture provide that after an Asset Sale, or upon the occurrence of a Change
of Control, and subject to further limitations contained therein, the Company
shall make an offer to purchase certain amounts of Notes in accordance with the
procedures set forth in the Indenture.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. The Registrar need
not transfer or exchange any Note or portion of a Note selected for redemption,
or transfer or exchange any Notes for a period of 15 days before a selection of
Notes to be redeemed.
9. PERSONS DEEMED OWNERS. The registered holder of a Note
may be treated as the owner of it for all purposes.
10. UNCLAIMED MONEY. If money for the payment of principal
or interest remains unclaimed for two years, the Trustee or Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another Person.
11. AMENDMENT, SUPPLEMENT, WAIVER. The Company and the
Trustee may, without the consent of the holders of any outstanding Notes, amend,
waive or supplement the Indenture or the Notes for certain specified purposes,
including, among other things, curing ambiguities, defects or inconsistencies,
maintaining the qualification of the Indenture under the Trust Indenture Act of
1939 or making any other change that does not adversely affect the rights of any
Holder. Other amendments and modifications of the Indenture or the Notes may be
made by the Company, the Guarantors and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount of the
outstanding Notes, subject to certain exceptions requiring the consent of the
Holders of the particular Notes (and, in certain cases, holders of Designated
Senior Debt) to be affected.
12. SUCCESSOR CORPORATION. When a successor corporation
assumes all the obligations of its predecessor under the Notes and the Indenture
and the transaction complies with the terms of Article V of the Indenture, the
predecessor corporation will, subject to certain exceptions, be released from
those obligations.
13. DEFAULTS AND REMEDIES. Events of Default include:
default in payment of principal of or premium on the Notes at maturity, or upon
acceleration, redemption or otherwise; default in payment of interest on any
Note for 30 days; certain defaults under other Indebtedness; failure by the
Company for 30 days after written notice to it from the Trustee or
A-1-7
Holders of at least 25% in principal amount of the then outstanding Notes, to
comply with any of the other agreements or covenants in or provisions of the
Indenture or the Notes; certain events of bankruptcy or insolvency with respect
to the Company and its Significant Subsidiaries; certain final judgments that
remain undischarged for 60 days after being entered; any Guarantee of a
Significant Subsidiary ceases to be in full force and effect; and any Guarantor
that is a Significant Subsidiary shall deny its obligations under its Guarantee.
If an Event of Default occurs and is continuing (and has not been waived in
accordance with the provisions of the Indenture), the Trustee or the Holders of
at least 25% in aggregate principal amount of the then outstanding Notes may
declare all the Notes to be immediately due and payable for an amount equal to
100% of the principal amount of the Notes plus accrued interest to the date of
payment, except that in the case of an Event of Default arising from certain
events of bankruptcy or insolvency, all outstanding Notes become due and payable
immediately without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal amount
of the then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
Default or Event of Default (except a Default or an Event of Default in payment
of principal, premium, if any, or interest) if and so long as a committee of its
Responsible Officers determines in good faith that withholding notice is in
their interests. The Company must furnish an annual compliance certificate to
the Trustee.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, pay dividends and make distributions with respect to or repurchase or
otherwise acquire or retire for value any of their equity interests, make
certain Investments, incur additional Indebtedness, enter into transactions with
Affiliates, incur Liens, sell assets, merge or consolidate with any other Person
and sell, lease, transfer or otherwise dispose of substantially all of their
properties or assets. The limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator or stockholder of the Company, as
such, shall have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. Each Holder by accepting a
A-1-8
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
17. DISCHARGE OF INDENTURE; DEFEASANCE. The Indenture
contains provisions for defeasance at any time, upon compliance with certain
conditions set forth therein, of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants and Events of Default with respect to this
Note.
18. AUTHENTICATION. This Note shall not be valid until the
Trustee signs the certificate of authentication on the other side of this Note.
19. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Securityholder or an assignee, such as: TEN COM (= tenants in
common), TENANT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
20. REGISTRATION RIGHTS. Pursuant to the Registration Rights
Agreement, the Company will be obligated to consummate an exchange offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note for Notes of a separate series issued under the Indenture (or a trust
indenture substantially identical to the Indenture in accordance with the terms
of the Registration Rights Agreement) which have been registered under the
Securities Act, in like principal amount and having identical terms as this
Note. The Holders of the Notes shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
21. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
The provisions of this Note are expressly made subject to the
more detailed provisions set forth in the Indenture and the Registration Rights
Agreement, which shall for all purposes be controlling. The Company will furnish
to any Holder upon written request and without charge a copy of the Indenture.
Requests may be made to:
▇▇▇▇▇▇, INC.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
A-1-9
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date: ________ Your signature: _________________________________________________
(Sign exactly as your name appears on the other
side of this Note)
Signature Guarantee: ___________________________________________________________
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 4.12 or 4.14 of the Indenture, check the Box: / /
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.12 or 4.14 of the Indenture, state the amount:
$_________________
Date: ________ Your signature: _________________________________________________
(Sign exactly as your name appears on the other
side of this Note)
Signature Guarantee: ____________________________
EXHIBIT A-2
[FORM OF SERIES B SECURITIES]
No. $
▇▇▇▇▇▇, INC.
10 7/8% SENIOR NOTE DUE 2009
▇▇▇▇▇▇, INC. promises to pay to or registered assigns
the principal sum of Dollars on June 15, 2009.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
By:
------------------------------------
Authorized Signature
By:
------------------------------------
Authorized Signature
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the 10 7/8% Senior Notes due 2009 referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Authorized Signatory
Dated:
A-2-1
(REVERSE OF SECURITY)
10 7/8% SENIOR NOTE DUE 2009
1. INTEREST. ▇▇▇▇▇▇, INC., a Delaware corporation (the
"Company", which term shall include any successor thereto in accordance with the
Indenture), promises to pay, until the principal hereof is paid or made
available for payment, interest (including any Accrued Bankruptcy Interest) on
the principal amount set forth on the reverse side hereof at a rate of 10 7/8%
PER ANNUM. Interest on the Notes will accrue from and including the most recent
date to which interest has been paid or, if no interest has been paid, from and
including the date of issuance of such Notes through but excluding the date on
which interest is paid. Interest shall be payable in arrears on June 15 and
December15 (each an "Interest Payment Date"). Interest will be computed on the
basis of a 360-day year of twelve full 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the
Notes (except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on the June 1 or December 1 immediately preceding
the Interest Payment Date. Holders must surrender Notes to a Paying Agent to
collect principal payments. The Company will pay principal, premium, if any, and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. At the Company's option,
interest may be paid by check mailed to the registered address of the Holder of
this Note.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New
York (the "Trustee") will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice.
4. INDENTURE. The Company issued the Notes under an
Indenture dated as of June 24, 2002 (the "Indenture") among the Company, the
Guarantors and the Trustee. This Note is one of an issue of Notes of the Company
issued under the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as amended from time
to time. The Notes are subject to all such terms, and Securityholders are
referred to the Indenture and such Act for a statement of them. Capitalized
terms used herein and not otherwise defined have the meanings set forth in the
Indenture. The Notes are general unsecured obligations of the Company and are
unlimited in aggregate principal amount, $250.0 million of which will be issued
in the offering of the Notes on the Issue Date and Additional Notes may be
issued after the Issue Date, subject to the limitations set forth in Section 4.9
of the Indenture.
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5. (a) OPTIONAL REDEMPTION. The Notes are not redeemable
before June 15, 2006. Thereafter, the Company may redeem the Notes at its
option, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the following redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period commencing
on June 15 of the year set forth below:
Year Percentage
---- ----------
2006...................................105.4375%
2007...................................102.7188%
2008 and thereafter....................100.0000%
In addition, the Company must pay accrued and unpaid interest on
the Notes redeemed.
(b) OPTIONAL REDEMPTION UPON EQUITY OFFERINGS. At any time,
or from time to time, on or prior to June 15, 2005, the Company may, at its
option, use the net cash proceeds of one or more Equity Offerings (as defined
below) to redeem up to 35% of the aggregate principal amount of the Notes
(including any Additional Notes) issued under the Indenture at a redemption
price equal to 110.875% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption; PROVIDED that:
(1) at least 65% of the original principal amount of Notes
issued under the Indenture (including any Additional Notes) remains
outstanding immediately after any such redemption; and
(2) the Company makes such redemption not more than 90 days
after the consummation of any such Equity Offering.
"EQUITY OFFERING" means any public or private sale of Qualified
Capital Stock of Holdings or the Company or any capital contribution to
Holdings; PROVIDED that, in the event of an Equity Offering by Holdings or any
capital contribution to Holdings, Holdings contributes to the capital of the
Company the portion of the net cash proceeds of such Equity Offering or capital
contribution necessary to pay the aggregate redemption price of the Notes to be
redeemed pursuant to the preceding paragraph.
(c) OPTIONAL REDEMPTION UPON A CHANGE OF CONTROL. At any
time on or prior to June 15, 2006, 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 date of redemption or purchase (the "Redemption
Date") (subject to the right of Holders of record on the relevant record
A-2-3
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, not less than 30 nor more than 60 days prior
to the Redemption Date (but in no event more than 90 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.
"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, 2006 (such redemption price being that
described in the first paragraph of this "Redemption" section) plus (2) all
required remaining scheduled interest payments due on such Note through June 15,
2006, 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, HOWEVER,
that such calculation shall not be a duty or obligation of the Trustee.
"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 of
similar market data)) most nearly equal to the period from such Redemption Date
to June 15, 2006; PROVIDED, HOWEVER, that if the period from such Redemption
Date to June 15, 2006 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 Treasury securities
for which such yields are given, except that if the period from such Redemption
Date to June 15, 2006 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.
6. NOTICE OF REDEMPTION. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the redemption date to
each holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption.
A-2-4
7. OFFERS TO PURCHASE. Sections 4.12 and 4.14 of the
Indenture provide that after an Asset Sale, or upon the occurrence of a Change
of Control, and subject to further limitations contained therein, the Company
shall make an offer to purchase certain amounts of Notes in accordance with the
procedures set forth in the Indenture.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. The Registrar need
not transfer or exchange any Note or portion of a Note selected for redemption,
or transfer or exchange any Notes for a period of 15 days before a selection of
Notes to be redeemed.
9. PERSONS DEEMED OWNERS. The registered holder of a Note
may be treated as the owner of it for all purposes.
10. UNCLAIMED MONEY. If money for the payment of principal
or interest remains unclaimed for two years, the Trustee or Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment as general creditors unless an
"abandoned property" law designates another Person.
11. AMENDMENT, SUPPLEMENT, WAIVER. The Company, the
Guarantors and the Trustee may, without the consent of the holders of any
outstanding Notes, amend, waive or supplement the Indenture or the Notes for
certain specified purposes, including, among other things, curing ambiguities,
defects or inconsistencies, maintaining the qualification of the Indenture under
the Trust Indenture Act of 1939 or making any other change that does not
adversely affect the rights of any Holder. Other amendments and modifications of
the Indenture or the Notes may be made by the Company, the Guarantors and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount of the outstanding Notes, subject to certain exceptions
requiring the consent of the Holders of the particular Notes (and, in certain
cases, holders of Designated Senior Debt) to be affected.
12. SUCCESSOR CORPORATION. When a successor corporation
assumes all the obligations of its predecessor under the Notes and the Indenture
and the transaction complies with the terms of Article V of the Indenture, the
predecessor corporation will, subject to certain exceptions, be released from
those obligations.
13. DEFAULTS AND REMEDIES. Events of Default include:
default in payment of principal of or premium on the Notes at maturity, or upon
acceleration, redemption or otherwise; default in payment of interest on any
Note for 30 days; certain defaults under other Indebtedness; failure by the
Company or its Subsidiaries for 30 days after written notice to it
A-2-5
from the Trustee or Holders of at least 25% in principal amount of the then
outstanding Notes, to comply with any of the other agreements or covenants in or
provisions of the Indenture or the Notes; certain events of bankruptcy or
insolvency with respect to the Company and its Significant Subsidiaries; certain
final judgments that remain undischarged for 60 days after being entered; any
Guarantee of a Significant Subsidiary ceases to be in full force and effect; and
any Guarantor that is a Significant Subsidiary shall deny its obligations under
its Guarantee. If an Event of Default occurs and is continuing (and has not been
waived in accordance with the provisions of the Indenture), the Trustee or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Notes may declare all the Notes to be immediately due and payable for an amount
equal to 100% of the principal amount of the Notes plus accrued interest to the
date of payment, except that in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes become due and
payable immediately without further action or notice. Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal amount
of the then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders notice of any continuing
Default or Event of Default (except a Default or an Event of Default in payment
of principal, premium, if any, or interest) if and so long as a committee of its
Responsible Officers determines in good faith that withholding notice is in
their interests. The Company must furnish an annual compliance certificate to
the Trustee.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, pay dividends and make distributions with respect to or repurchase or
otherwise acquire or retire for value any of their Equity Interests, make
certain Investments, incur additional Indebtedness, enter into transactions with
Affiliates, incur Liens, sell assets, merge or consolidate with any other Person
and sell, lease, transfer or otherwise dispose of substantially all of their
properties or assets. The limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator or stockholder of the Company, as
such, shall have any liability for any obligations of the Company under the
Notes or the Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. Each Holder by accepting a
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Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes.
17. DISCHARGE OF INDENTURE; DEFEASANCE. The Indenture
contains provisions for defeasance at any time, upon compliance with certain
conditions set forth therein, of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants and Events of Default with respect to this
Note.
18. AUTHENTICATION. This Note shall not be valid until the
Trustee signs the certificate of authentication on the other side of this Note.
19. ABBREVIATIONS. Customary abbreviations may be used in
the name of a Securityholder or an assignee, such as: TEN COM (= tenants in
common), TENANT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
20. GOVERNING LAW. THE INDENTURE AND THIS NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
The provisions of this Note are expressly made subject to the
more detailed provisions set forth in the Indenture, which shall for all
purposes be controlling. The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Requests may be made to:
▇▇▇▇▇▇, INC.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
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ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's social security or tax ID number)____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date: ________ Your signature: _________________________________________________
(Sign exactly as your name appears on the other
side of this Note)
Signature Guarantee: ___________________________________________________________
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 4.12 or 4.14 of the Indenture, check the Box: / /
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.12 or 4.14 of the Indenture, state the amount:
$_________________
Date: ________ Your signature: _________________________________________________
(Sign exactly as your name appears on the other
side of this Note)
Signature Guarantee: ___________________________
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A
SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF
THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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EXHIBIT C
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
________, ____
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: ▇▇▇▇▇▇, INC. (THE "COMPANY") 10 7/8%
SENIOR NOTES DUE 2009 (THE "SECURITIES")
Ladies and Gentlemen:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Securities, we confirm that:
1. We have received such information as we deem necessary
in order to make our investment decision.
2. We understand that any subsequent transfer of
the Securities is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Securities except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
"Securities Act").
3. We understand that the offer and sale of the Securities
have not been registered under the Securities Act, and that the Securities may
not be offered or sold except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell or otherwise transfer any Securities
prior to the date which is two years after the original issuance of the
Securities, we will do so only (i) to the Company or any subsidiary thereof,
(ii) inside the United States in accordance with Rule 144A under the Securities
Act to a person whom we reasonably believe is a "qualified institutional buyer"
(as defined in Rule 144A under the Securities
C-1
Act), (iii) inside the United States to an accredited investor (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to you a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Securities, (iv) outside the United States in an offshore transaction in
accordance with Rule 904 of Regulation S under the Securities Act, (v) pursuant
to the exemption from registration provided by Rule 144 under the Securities Act
(if available), or (vi) pursuant to an effective registration statement under
the Securities Act, and we further agree to provide to any Person purchasing any
of the Securities from us a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
4. We understand that, on any proposed resale of any
Securities, we will be required to furnish to you and the Company such
certification, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us will
bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act)(an "accredited investor") and 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 Securities, and we and any accounts for which we
are acting are each able to bear the economic risk of our or their investment,
as the case may be.
6. We are acquiring the Securities purchased by us for our
account or for one or more accounts (each of which is an accredited investor) as
to each of which we exercise sole investment discretion.
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You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
------------------------------------
Authorized Signature
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EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
___________, ____
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: ▇▇▇▇▇▇, INC. (THE "COMPANY") 10 7/8% SENIOR
NOTES DUE 2009 (THE "SECURITIES")
Dear Sirs:
In connection with our proposed sale of $___________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a Person in
the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any Person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
D-1
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------------------
Authorized Signature
D-2
EXHIBIT E
[FORM OF NOTATION ON NOTE
RELATING TO GUARANTEES]
GUARANTEES
The Guarantors (as defined in the Indenture (the "Indenture")
referred to in the Note upon which this notation is endorsed and each
hereinafter referred to as a "Guarantor") have unconditionally guaranteed on a
senior unsecured basis (such guarantee by each Guarantor being referred to
herein as the "Guarantee") (i) the due and punctual payment of the principal of
and interest on the Notes in full when due, subject to any applicable grace
period, whether at maturity, by acceleration or otherwise and interest on the
overdue principal, if any, and interest on any interest, if any, to the extent
lawful, of the Notes and all other obligations of the Company to the Holders all
in accordance with the terms set forth in of the Indenture and (ii) in case of
any extension of time of payment or renewal of any Notes or of any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, subject to any
applicable grace period, whether at stated maturity, by acceleration or
otherwise.
The obligations of the undersigned to the Holders of the Notes
and to the Trustee pursuant to the Guarantee and the Indenture are expressly set
forth in Article X of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee and all other of the provisions
of the Indenture to which this Guarantee relates.
No past, present or future stockholder, director, officer,
employee or incorporator, as such, of any of the Guarantors shall have any
liability for any obligation of the Guarantors under the Guarantee or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Note by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Guarantees.
SUBSIDIARY GUARANTORS:
PrintCo, Inc.
By:
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Name:
Title:
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Webcraft LLC
By:
----------------------------------------
Name:
Title:
Webcraft Chemicals LLC
By:
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Name:
Title:
Enteron Group LLC
By:
----------------------------------------
Name:
Title:
Big Flower Digital Services (Delaware), Inc.
By:
----------------------------------------
Name:
Title:
Big Flower Digital LLC
By:
----------------------------------------
Name:
Title:
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