EXHIBIT 4.1
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
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Supplemental Indenture
No. 2
Dated as of May 27, 2003
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7.25% Notes due 2013
TABLE OF CONTENTS
PAGE
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ARTICLE 1
RELATION TO THE BASE INDENTURE; DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.01. Relation to the Base Indenture...................................................1
Section 1.02. Definitions and Other Provisions of General Application..........................1
Section 1.03. Other Definitions...............................................................17
ARTICLE 2
THE SERIES OF NOTES
Section 2.01. Title...........................................................................17
Section 2.02. Principal Amount................................................................18
Section 2.03. Form of Notes...................................................................18
Section 2.04. Denomination and Date of Securities; Payment of Interest........................18
Section 2.05. Depository......................................................................18
ARTICLE 3
REDEMPTION
Section 3.01. Optional Redemption.............................................................18
ARTICLE 4
EVENTS OF DEFAULT
Section 4.01. Additional Events of Default Applicable to the Notes............................19
ARTICLE 5
COVENANTS
Section 5.01. Reports.........................................................................20
Section 5.02. Limitations upon Liens..........................................................20
Section 5.03. Limitations on Additional Indebtedness and Subsidiary Preferred Stock...........22
Section 5.04. Limitations on Restricted Payments..............................................25
Section 5.05. Limitations on Restrictions on Distributions from Subsidiaries..................26
Section 5.06. Limitations on Asset Sales......................................................28
Section 5.07. Repurchase of Notes upon a Change of Control Prior to the Fall-Away Event.......32
Section 5.08. Limitations upon Sales and Leasebacks...........................................34
Section 5.09. Restrictions on Funded Debt of Restricted Subsidiaries..........................34
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ARTICLE 6
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 6.01. Consolidation, Merger, Sale of Assets, Etc. Prior to Fall-Away Event............35
ARTICLE 7
MODIFICATION, AMENDMENT AND WAIVER
Section 7.01. Modification, Amendment and Waiver..............................................36
ARTICLE 8
DEFEASANCE
Section 8.01. Defeasance......................................................................36
Section 8.02. Covenant Defeasance.............................................................36
Section 8.03. Additional Covenant Defeasance..................................................36
ARTICLE 9
MISCELLANEOUS
Section 9.01. Supplemental Indenture..........................................................36
Section 9.02. Counterparts....................................................................36
Section 9.03. Governing Law...................................................................37
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SUPPLEMENTAL INDENTURE NO. 2 dated as of May 27, 2003 between ▇▇▇▇▇▇ &
▇▇▇▇▇ Corporation, a Tennessee corporation (the "COMPANY") and The Bank of New
York, a New York banking corporation, as Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company and the Trustee have executed and delivered an Indenture
dated as of August 1, 1998 (the "BASE INDENTURE" and, as supplemented by this
Supplemental Indenture No. 2, the "INDENTURE") to provide for the issuance from
time to time of the Company's Securities.
Sections 2.01 and 3.01 of the Base Indenture provide that the form and
terms of Securities of any series may be established pursuant to an indenture
supplemental to the Base Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and under the Base Indenture
and duly issued by the Company and to make this Supplemental Indenture No. 2 a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, this Supplemental Indenture No. 2 WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the Holders of the Securities of the series
hereby established, as follows:
ARTICLE 1
RELATION TO THE BASE INDENTURE; DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.01 Relation to the Base Indenture. This Supplemental
Indenture constitutes an integral part of the Base Indenture.
Section 1.02 Definitions and Other Provisions of General Application.
For all purposes of this Supplemental Indenture unless otherwise specified
herein:
(a) all terms used in this Supplemental Indenture which are not
otherwise defined herein shall have the meanings they are given in the Base
Indenture;
(b) the provisions of general application stated in Section 1.01 of the
Base Indenture shall apply to this Supplemental Indenture, except that the words
"HEREIN," "HEREOF," "HERETO" and "HEREUNDER" and other words of similar import
refer to this Supplemental Indenture as a whole and not to the Base Indenture or
any particular Article, Section or other subdivision of the Base Indenture or
this Supplemental Indenture;
(c) Section 1.01 of the Base Indenture is amended by inserting the
following additional defined terms in their appropriate alphabetical positions:
"ACCOUNTS RECEIVABLE" of any Person means any and all accounts,
contract rights, chattel paper, instruments, documents, general intangibles and
other obligations of any kind relating to the sale or lease of goods and the
rendering of services by such Person, all rights relating thereto, all deposit
accounts containing the proceeds thereof, all books and records relating thereto
and the proceeds thereof.
"ACQUIRED INDEBTEDNESS" means (i) with respect to any Person that
becomes a Subsidiary of the Company after the Original Issue Date of the Notes,
Indebtedness of such Person and its Subsidiaries existing at the time such
Person becomes a Subsidiary of the Company and (ii) with respect to the Company
or any of its Subsidiaries, any Indebtedness assumed by the Company or any of
its Subsidiaries in connection with the acquisition of an asset from another
Person.
"ASSET SALE" for any Person means the sale, lease, conveyance or other
disposition (including, without limitation, by merger or consolidation, and
whether by operation of law or otherwise) of any of such Person's assets
(including, without limitation, the sale or other disposition of Capital Stock
of any Subsidiary of such Person, whether by such Person or by such Subsidiary),
whether owned on the Original Issue Date of the Notes or subsequently acquired,
in one transaction or a series of related transactions, in which such Person or
its Subsidiaries sell, lease, convey or otherwise dispose of:
(1) all or substantially all of the Capital Stock of any of
such Person's Subsidiaries;
(2) assets that constitute all or substantially all of any
division or line of business of such Person or any of its Subsidiaries;
or
(3) any other assets of such Person or any of its
Subsidiaries, other than in the ordinary course of business, provided
that the Fair Market Value of the assets is at least $10,000,000;
provided, however, that the following will not constitute Asset Sales:
(i) transactions between the Company and any of its Wholly
Owned Subsidiaries or among the Company's Wholly Owned Subsidiaries;
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(ii) any transaction not prohibited by Section 5.04 hereof or
that constitutes a Permitted Investment;
(iii) any transfer of assets (including Capital Stock) that is
governed by and in accordance with Article 8 of the Base Indenture and
Section 6.01 hereof or the creation of any Lien not prohibited by
Section 5.02 hereof;
(iv) the sale or lease of equipment, inventory, accounts
receivable or other assets in the ordinary course of business;
(v) sales of damaged, worn-out or obsolete equipment or assets
that, in the Company's reasonable judgment, are no longer either used
or useful in the business of the Company or its Subsidiaries;
(vi) the sale at any time, but not more than one such
transaction, of Voting Stock in a Person (other than a Subsidiary of
the Company); or
(vii) one or more transactions during any twelve-month period
with an aggregate Fair Market Value of less than $25,000,000,
determined without regard to whether such transactions are related, but
excluding sales of Capital Stock of the Company's Subsidiaries.
"ATTRIBUTABLE DEBT" means, as to any particular lease under which any
Person is at the time liable for a term of more than 12 months, at any date as
of which the amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the remaining term of
such lease (excluding any subsequent renewal or other extension options held by
the lessee), discounted from the respective due dates of the rental payments to
such date at the interest rate inherent in such lease (the discount rate to be
determined by any two of the following: the President, any Vice President, the
Treasurer and the Controller of the Company), compounded annually. The net
amount of rent required to be paid under any such lease for any such period
should be the aggregate amount of the rent payable by the lessee with respect to
such period after excluding amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments, water rates
and similar charges and contingent rents (such as those based on sales). In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount of rent should include the lesser of (i) the total
discounted net amount of rent required to be paid from the later of the first
date upon which such lease may be so terminated or the date of the determination
of such amount of rent, as the case may be, and (ii) the amount of such penalty
(in which event no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated).
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligation of such
Person to pay rent or other amounts under a lease that is required to be
capitalized
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for financial reporting purposes in accordance with GAAP, and the amount of such
obligation will be the capitalized amount of such obligation determined in
accordance with GAAP.
"CAPITAL STOCK" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interest in (however designated) the
equity (including without limitation common stock, Preferred Stock and
partnership, joint venture and limited liability company interests) of such
Person (excluding any debt securities that are convertible into, or exchangeable
for, such equity).
"CHANGE OF CONTROL" means the following:
(i) a third Person, including a "GROUP" as such term is used
in Section 13(d)(3) of the Securities Exchange Act of 1934, becomes the
beneficial owner, directly or indirectly, of 50.0% or more of the
combined voting power of the Company's outstanding voting securities
ordinarily having the right to vote for the election of the Company's
directors; or
(ii) individuals who, as of May 21, 2003, constitute the board
of directors of the Company (the "BOARD" generally and, as of May 21,
2003, the "INCUMBENT BOARD") cease for any reason to constitute at
least a majority of the board, provided that any Person becoming a
director subsequent to May 21, 2003 whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at
least three-quarters of the directors comprising the incumbent board
(other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of the Company's directors,
as such terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Securities Exchange Act of 1934) will be considered as though
such Person were a member of the incumbent board; or
(iii) the consummation of (A) any consolidation, share
exchange, merger or amalgamation of the Company as a result of which
the individuals and entities who were the respective beneficial owners
of the Company's outstanding common stock and its voting securities
immediately prior to such consolidation, share exchange, merger or
amalgamation do not beneficially own, immediately after such
consolidation, share exchange, merger or amalgamation, directly or
indirectly, more than 50%, respectively, of the common stock and
combined voting power of the voting securities entitled to vote of the
company resulting from such consolidation, share exchange, merger or
amalgamation or (B) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all the assets or earning power of the Company; or
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(iv) the approval by the shareholders of a plan of complete
liquidation or dissolution of the Company.
"CONSOLIDATED AMORTIZATION EXPENSE" of any Person for any period means
the amortization expense of such Person and its Subsidiaries for such period (to
the extent included in the computation of Consolidated Net Income of such
Person), determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED CASH FLOW" of any Person means, with respect to any
determination date, Consolidated Net Income, plus (i) Consolidated Income Tax
Expense, plus (ii) Consolidated Depreciation Expense, plus (iii) Consolidated
Amortization Expense, plus (iv) Consolidated Interest Expense, plus (v) all
other unusual non-cash items or non-recurring non-cash items reducing
Consolidated Net Income of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, to the extent applicable, and less
all non-cash items increasing Consolidated Net Income of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, to the
extent applicable, in each case, for such Person's prior four full fiscal
quarters for which financial results have been reported immediately preceding
the determination date.
"CONSOLIDATED DEPRECIATION EXPENSE" of any Person means the
depreciation expense of such Person and its Subsidiaries for such period (to the
extent included in the computation of Consolidated Net Income of such Person),
determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INCOME TAX EXPENSE" means, for any Person for any period,
the provision for taxes based on income and profits of such Person and its
Subsidiaries to the extent its provision for income taxes was deducted in
computing Consolidated Net Income of such Person for such period, determined on
a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" of any Person for any four-quarter
period means, without duplication, (i) the Interest Expense of such Person and
its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, plus (ii) (to the extent not otherwise included within the
definition of Interest Expense as imputed interest) one-third of the rental
expense on Attributable Debt of such Person for such period determined on a
consolidated basis, plus (iii) the Interest Expense on Indebtedness of another
Person that is guaranteed by such Person or any of its Subsidiaries or secured
by a Lien on assets of such Person or one of its Subsidiaries, whether or not
the guarantee or Lien is called upon, plus (iv) the dividend requirements of
such Person and its Subsidiaries with respect to Disqualified Stock and with
respect to all other Preferred Stock of Subsidiaries of such Person (in each
case whether in cash or otherwise (except dividends payable solely in shares of
Capital Stock (other than Disqualified Stock) of such Person or Subsidiary))
paid, accrued or accumulated during such period times a fraction the numerator
of which is one and the
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denominator of which is one minus the then effective consolidated federal, state
and local tax rate of such Person, expressed as a decimal.
"CONSOLIDATED INTEREST EXPENSE COVERAGE RATIO" with respect to any
four-quarter period means the ratio of (i) Consolidated Cash Flow of the Company
to (ii) the aggregate amount of Consolidated Interest Expense of the Company for
such period; provided, however, that if any calculation of the Company's
Consolidated Interest Expense Coverage Ratio requires the use of any quarter
prior to the Original Issue Date of the Notes, such calculation shall be made on
a pro forma basis, giving effect to the issuance of the Notes and the use of the
net proceeds from them as if the same had occurred at the beginning of the
four-quarter period used to make such calculation; and provided further that if
any such calculation requires the use of any quarter prior to the date that any
Asset Sale was consummated, or that any Indebtedness was incurred, or that any
acquisition of any assets purchased outside the ordinary course of business was
effected, by the Company or any of its Subsidiaries, such calculation shall be
made on a pro forma basis, giving effect to each such Asset Sale, incurrence of
Indebtedness or acquisition, as the case may be, and the use of any proceeds
therefrom, as if the same had occurred at the beginning of the four-quarter
period used to make such calculation.
"CONSOLIDATED NET INCOME" of any Person for any period means the net
income (or loss) of such Person and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP; provided that there will be
excluded from such net income (to the extent otherwise included in net income),
without duplication:
(i) the net income (or loss) of any Person (other than a
Subsidiary of the referent Person) in which any Person other than the
referent Person has an ownership interest, except to the extent that
any of such income has actually been received by the referent Person or
any of its Wholly Owned Subsidiaries in the form of dividends or
similar distributions during such period;
(ii) except to the extent includible in the Consolidated Net
Income of the referent Person pursuant to clause (i) above, the net
income (or loss) of any Person that accrues prior to the date that (A)
such Person becomes a Subsidiary of the referent Person or is merged
into or consolidated with the referent Person or any of its
Subsidiaries or (B) the assets of such Person are acquired by the
referent Person or any of its Subsidiaries;
(iii) the net income of any Subsidiary of the referent Person
(other than a Wholly Owned Subsidiary) to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary of such income is not permitted by operation of the terms of
its charter or any
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agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary during such
period;
(iv) any gain (or loss), together with any related provisions
(or benefit) for taxes on any such gain (or loss), realized during such
period by the referent Person or any of its Subsidiaries upon (A) the
acquisition of any securities, or the extinguishment of any
Indebtedness, of the referent Person or any of its Subsidiaries, (B)
any Asset Sale by the referent Person or any of its Subsidiaries or (C)
the payment of a settlement with the Commission during the year ended
December 29, 2002;
(v) any extraordinary gain or extraordinary loss, together
with any related provision for taxes or tax benefit resulting from any
such extraordinary gain or extraordinary loss, realized by the referent
Person or any of its Subsidiaries during such period; and
(vi) in the case of a successor to such Person by
consolidation, merger or transfer of its assets, any earnings of the
successor prior to such merger, consolidation or transfer of assets.
"CONSOLIDATED NET TANGIBLE ASSETS" as of any date means the total
assets of the Company and its Subsidiaries (less applicable reserves and other
properly deductible items) after deducting from such amount (i) all current
liabilities (excluding any thereof that are by their terms extendible or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is computed), (ii) goodwill and
any other intangibles and (iii) appropriate adjustments on account of minority
interests of other Persons holding stock of the Company's Subsidiaries, all as
set forth on the most recent balance sheet of the Company and its Consolidated
Subsidiaries and prepared in accordance with GAAP on a consolidated basis at
such date.
"CONSOLIDATED NET WORTH" of any Person as of any date means the
stockholders' equity (including any Preferred Stock that is classified as equity
under GAAP, other than Disqualified Stock) of such Person and its Subsidiaries
(excluding any equity adjustment for foreign currency translation for any period
subsequent to the Original Issue Date of the Notes) on a consolidated basis at
such date, as determined in accordance with GAAP, less all write-ups subsequent
to the Original Issue Date of the Notes in the book value of any asset owned by
such Person or any of its Subsidiaries.
"CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
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"CREDIT AGREEMENT" means that certain Credit and Security Agreement
dated as of November 15, 2001, as amended or modified from time to time, among
the Company, as borrower, the lenders listed therein and Wachovia Bank, N.A., as
agent, including any related notes, letters or credit, guarantees, collateral
documents, instruments and agreements executed in connection therewith, provided
that the aggregate principal amount of Indebtedness outstanding thereunder shall
not at any time exceed $100,000,000.
"CREDIT FACILITIES" means one or more credit facilities (including,
without limitation, the Credit Agreement) or commercial paper facilities, in
each case with banks or other institutional lenders providing for revolving
credit loans, term loans, receivables financing (including, without limitation,
through the sale of Accounts Receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such Accounts Receivables
and under which the aggregate amount that may be issued or obtained is based
upon eligible Accounts Receivable or eligible Inventory) or letters of credit,
in each case as amended, modified, renewed, refunded, replaced or refinanced
from time to time, including any successor or replacements thereto, whether or
not with the same lender or lenders and whether or not the principal amount
thereof or amount of letters of credit outstanding thereunder or interest rate
payable in respect thereof shall be thereby increased.
"DEBT" means any notes, bonds, debentures, or other similar evidences
of indebtedness for money borrowed.
"DEFAULT" means any event, act or condition that is, or after notice or
the passage of time or both would be, an Event of Default.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of its holder, in whole or in part, on or prior to the Maturity
Date.
"ELIGIBLE INVESTMENTS" of any Person means Investments of such Person
in:
(i) direct obligations of, or obligations the payment of which
is guaranteed by, the United States of America or an interest in any
trust or fund that invests solely in such obligations or repurchase
agreements, properly secured, with respect to such obligations;
(ii) direct obligations of agencies or instrumentalities of
the United States of America having a rating of A or higher by S&P or
A2 or higher by ▇▇▇▇▇'▇;
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(iii) a certificate of deposit issued by, or other
interest-bearing deposits with, a bank having its principal place of
business in the United States of America and having equity capital of
not less than $250,000,000;
(iv) a certificate of deposit issued by, or other
interest-bearing deposits with, any other bank organized under the laws
of the United States of America or any U.S. state, provided that the
deposit is either (A) insured by the Federal Deposit Insurance
Corporation or (B) properly secured by the bank by pledging direct
obligations of the United States of America having a market value of
not less than the face amount of such deposits;
(v) prime commercial paper maturing within 270 days of the
acquisition thereof and, at the time of acquisition, having a rating of
A-1 or higher by S&P or P-1 or higher by ▇▇▇▇▇'▇; and
(vi) eligible banker's acceptances, repurchase agreements and
tax-exempt municipal bonds having a maturity of less than one year, in
each case having a rating of, or evidencing the full recourse
obligation of a Person whose senior debt is rated, A or higher by S&P
or A2 or higher by ▇▇▇▇▇'▇.
"EQUITY OFFERING" means any primary offering by the Company of Capital
Stock of the Company (other than Disqualified Stock) for which cash
consideration is paid at the time of closing, other than sales to officers or
directors of the Company, any Subsidiary of the Company or any employee benefit
plan in which the Company or any Subsidiary of the Company participates.
"EXISTING INDEBTEDNESS" means all of the Indebtedness of the Company
and its Subsidiaries that is outstanding on the Original Issue Date of the Notes
(other than pursuant to Credit Facilities).
"FAIR MARKET VALUE" of any asset or items means the fair market value
of such asset or items as determined in good faith by the Company's board of
directors and evidenced by a Board Resolution.
"FALL-AWAY EVENT" means that (i) the Notes are rated Investment Grade
for a continuous period of at least 30 calendar days, (ii) no Event of Default
or Default under the Indenture has occurred and is continuing and (iii) the
Company has delivered to the Trustee an Officer's Certificate certifying as to
the foregoing.
"FUNDED DEBT" means Indebtedness created, assumed or guaranteed by a
Person for money borrowed which matures by its terms, or is renewable by the
borrower to a date, more than a year after the date of original creation,
assumption or guarantee.
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"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time, applied on a basis consistent (except for
changes concurred in by the Company's independent public accountants) with the
most recent audited consolidated financial statements of the Company and its
Consolidated Subsidiaries.
"HEDGING OBLIGATIONS" of any Person means the obligations of such
Person pursuant to any interest rate swap agreement, foreign currency exchange
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement relating to interest rates or foreign exchange
rates (but shall not in any event include arrangements relating solely to
commodities).
"INDEBTEDNESS" of any Person at any date means, without duplication:
(i) all indebtedness of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion of such Person's assets);
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all obligations of such Person in respect of letters of
credit or other similar instruments (or reimbursement obligations with
respect to them), other than obligations with respect to letters of
credit securing obligations (other than obligations described in clause
(i) above or clause (v) or (vi) below) entered into in the ordinary
course of business of such Person to the extent such letters of credit
are not drawn upon;
(iv) all obligations of such Person with respect to Hedging
Obligations (other than those that are designed solely to protect such
Person against fluctuations in interest rates in respect of
Indebtedness otherwise permitted by the Indenture to the extent the
notional principal amount of any such obligation does not exceed the
aggregate principal amount of the Indebtedness to which such Hedging
Obligation relates or that protect the Company or its Subsidiaries
against changes in foreign exchange rates);
(v) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, except trade payables
and accrued expenses incurred in the ordinary course of business;
(vi) all Capital Lease Obligations of such Person;
(vii) all Indebtedness of others secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person;
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(viii) all Indebtedness of others guaranteed by such Person to
the extent of such guarantee; and
(ix) all Disqualified Stock of such Person and its
Subsidiaries and all other Preferred Stock of Subsidiaries of such
Person valued at the greater of (A) the voluntary or involuntary
liquidation preference of such Disqualified Stock or such Preferred
Stock, as the case may be, and (B) the aggregate amount payable upon
purchase, redemption, defeasance or payment of such Disqualified Stock
or such Preferred Stock, as the case may be.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations plus past due
interest as described above, the maximum liability of such Person for any of
those contingent obligations at such date and, in the case of clause (vii)
above, the amount of the Indebtedness secured.
"INTEREST EXPENSE" of any Person for any period means the aggregate
amount of interest that, in accordance with GAAP, would be set opposite the
caption "interest expense" or any like caption on an income statement for such
Person (including, without limitation or duplication, imputed interest included
in Capital Lease Obligations, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, the net costs associated with Hedging Obligations, amortization of
financing fees and expenses, the interest portion of any deferred payment
obligation, amortization of discount and all other non-cash interest expense
other than interest amortized to cost of sales).
"INVENTORY" of any Person means any and all inventory of any kind of
such Person, including without limitation any or all of the following:
inventory, merchandise, goods and other tangible personal property that are held
for sale or lease by such Person; all materials used or consumed in the business
of such Person, but excluding from the foregoing equipment of such Person.
"INVESTMENT GRADE" means (i) a rating of BBB-- or above, in the case of
S&P (or its equivalent under any successor Rating Categories of S&P), and Baa3
or above, in the case of Moody's (or its equivalent under any successor Rating
Categories of Moody's), or (ii) the equivalent in respect of the Rating
Categories of any other Rating Agencies; provided, however, that if the rating
is BBB- in the case of S&P, or Baa3 in the case of Moody's (or the equivalent in
respect of the Rating Categories of any other Rating Agencies), then such rating
also must not be accompanied by a negative outlook, negative credit watch or
review for possible downgrade (or the equivalent thereof), as the case may be.
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"INVESTMENTS" of any Person means:
(i) all investments by such Person in any other Person in the
form of loans, advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the
ordinary course of business);
(ii) all guarantees of Indebtedness or other obligations of
any other Person by such Person;
(iii) all purchases (or other acquisitions for consideration)
by such Person of Indebtedness, Capital Stock or other securities of
any other Person; and
(iv) all other items that would be classified as investments
(including, without limitation, purchases of assets outside the
ordinary course of business) on a balance sheet of such Person prepared
in accordance with GAAP.
"LIEN" means, with respect to any asset, any pledge, mortgage, charge,
encumbrance or security interest in respect of such asset; provided that any
transaction (including, without limitation, any sale of accounts receivable)
which is treated as a sale of assets under GAAP shall be so treated and any
asset which is so sold shall not be deemed subject to a Lien. Pursuant to the
Indenture, a contractual grant of a right of set-off does not create a Lien in
the absence of an agreement to maintain a balance against which such right may
be exercised.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"NET PROCEEDS" with respect to any Asset Sale means (i) cash (in U.S.
dollars or freely convertible into U.S. dollars) received by the Company or any
of its Subsidiaries from such Asset Sale (including, without limitation, cash
received as consideration for the assumption or incurrence of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (A)
provision for all income or other taxes measured by or resulting from such Asset
Sale or the transfer of the proceeds of such Asset Sale to the Company or any of
its Subsidiaries, (B) payment of all commissions and other fees and expenses
related to such Asset Sale and (C) deduction of an appropriate amount to be
provided by the Company or any of its Subsidiaries as a reserve, in accordance
with GAAP, against any liabilities associated with the assets sold or otherwise
disposed of in such Asset Sale and retained by the Company or any of its
Subsidiaries after such Asset Sale (including, without limitation, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters) or against any indemnification obligations associated
with the sale or other disposition of the assets sold or otherwise disposed of
in such Asset Sale and (ii) all non-cash consideration received by the Company
or any of its Subsidiaries from those Asset Sales upon the liquidation or
conversion of the consideration into cash.
12
"ORIGINAL ISSUE DATE" means May 27, 2003, the date the Notes were
initially issued.
"PERMITTED INVESTMENTS" means:
(i) capital contributions, advances or loans to the Company by
any of its Subsidiaries or by the Company or any of its Subsidiaries to
a Subsidiary of the Company;
(ii) the acquisition and holding by the Company and any of its
Subsidiaries of receivables owing to the Company and such Subsidiary,
if created or acquired in the ordinary course of business and payable
or dischargeable in accordance with customary trade terms;
(iii) the acquisition and holding by the Company and its
Subsidiaries of cash and Eligible Investments;
(iv) Investments in any Person as a result of which such other
Person becomes a Subsidiary of the Company or is merged into or
consolidated with or transfers all or substantially all of its assets
to the Company or any of its Subsidiaries;
(v) Investments in any Person (other than a Subsidiary of the
Company) that, when added to the aggregate amount of all such other
Investments made after the Original Issue Date of the Notes, do not
exceed 2.5% of Consolidated Net Tangible Assets (with each such
Investment being valued as of the date made and without regard to
subsequent changes in value), provided that the Company or any
Wholly-Owned Subsidiary of the Company owns at least 15.0% of the
outstanding Voting Stock of such Person and such Person engages only in
a business of the type conducted by the Company on the Original Issue
Date or in a business ancillary thereto; and
(vi) Investments resulting from the transfer of Accounts
Receivable from the Company or any of its Subsidiaries to a Subsidiary,
the only business of which is the acquisition and financing of such
Accounts Receivable under a Credit Facility.
"PERMITTED REFINANCING INDEBTEDNESS" means Indebtedness incurred in
exchange for, or the net proceeds of which are applied to refund, refinance or
extend, any Indebtedness, provided that:
(i) the Permitted Refinancing Indebtedness is the obligation
of the same Person (or if the Indebtedness being refinanced is an
obligation of one or more Subsidiaries of the Company, the Permitted
Refinancing Indebtedness may be incurred by the Company or one or more
other Subsidiaries of the Company) and is subordinated to the Notes, if
at all, to
13
the same extent as the Indebtedness being refunded, refinanced or
extended;
(ii) the Permitted Refinancing Indebtedness is scheduled to
mature no earlier than the Indebtedness being refunded, refinanced or
extended;
(iii)the Permitted Refinancing Indebtedness has a Weighted
Average Life to Maturity at the time the Permitted Refinancing
Indebtedness is incurred that is equal to or greater than the Weighted
Average Life to Maturity of the portion of the Indebtedness being
refunded, refinanced or extended;
(iv) the Permitted Refinancing Indebtedness is secured only to
the extent, if at all, and by the assets that the Indebtedness being
refunded, refinanced or extended is secured; and
(v) the Permitted Refinancing Indebtedness is in an aggregate
principal amount that is equal to or less than the aggregate principal
amount then outstanding under the Indebtedness being refunded,
refinanced or extended (except for issuance costs and increases in
Attributable Debt due solely to increases in the present value
calculations resulting from renewals or extensions of the terms of the
underlying leases in effect on the Original Issue Date of the Notes).
"PREFERRED STOCK" means with respect to any Person all Capital Stock of
such Person that has a preference in liquidation or a preference with respect to
the payment of dividends or distributions of operating profit or cash.
"PRINCIPAL PROPERTY" means any manufacturing plant or distribution
facility, together with the land upon which it is erected and fixtures
comprising a part thereof, owned by the Company or any Restricted Subsidiary and
located in the United States, the gross book value (without deduction of any
reserve for depreciation) of which on the date as of which the determination is
being made is an amount which exceeds 1.0% of Consolidated Net Tangible Assets,
other than any such manufacturing plant or distribution facility or any portion
thereof or any such fixture (together with the land upon which it is erected and
fixtures comprising a part thereof) (i) which is financed by industrial
development bonds, industrial revenue bonds, pollution control bonds or other
similar Debt issued or guaranteed by the United States of America or any U.S.
state, or any department, agency, instrumentality or political subdivision of
the United States of America or any U.S. state or (ii) which, in the opinion of
the board of directors of the Company as evidenced by a Board Resolution, is not
of material importance to the total business conducted by the Company and its
Subsidiaries, taken as a whole.
14
"RATING AGENCIES" means (i) S&P and Moody's or (ii) if S&P or Moody's
or both of them are not making ratings of the Notes publicly available, a
nationally recognized U.S. rating agency or agencies, as the case may be,
selected by the Company, which will be substituted for S&P or Moody's or both,
as the case may be.
"RATING CATEGORY" means (i) with respect to S&P, any of the following
categories (any of which may include a "+" or "--"): AAA, AA, A, BBB, BB, B,
CCC, CC, C and D (or equivalent successor categories); (ii) with respect to
Moody's, any of the following categories (any of which may include a "1," "2" or
"3"): Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor
categories); and (iii) the equivalent of any such categories of S&P or Moody's
used by another Rating Agency, if applicable.
"RESTRICTED PAYMENT" means with respect to any Person:
(i) the declaration of any dividend or the making of any other
payment or distribution of cash, securities or other property or assets
in respect of such Person's Capital Stock (except that a dividend
payable solely in Capital Stock (other than Disqualified Stock) of such
Person will not constitute a Restricted Payment);
(ii) any payment on account of the purchase, redemption,
retirement or other acquisition for value of such Person's or such
Person's Subsidiaries' Capital Stock or any other payment or
distribution made in respect thereof, either directly or indirectly;
(iii) any payment on account of the purchase, redemption,
retirement, defeasance or other acquisition for value, prior to any
scheduled principal payment, sinking fund payment or stated maturity,
of Subordinated Indebtedness of the Company or its Subsidiaries;
(iv) the incurrence, creation or assumption of any guarantee
of Indebtedness of any Affiliate (other than a Subsidiary of the
Company); or
(v) the making of any Investment in any Person (other than
Permitted Investments);
provided, however, that with respect to the Company and its
Subsidiaries, Restricted Payments will not include any payment
described in clause (i), (ii) or (iii) above made (A) to the Company or
any of its Wholly Owned Subsidiaries by any of the Company's
Subsidiaries, (B) by the Company to any of its Wholly Owned
Subsidiaries or (C) by any Subsidiary, provided that the Company or
another Subsidiary of the Company receives its proportionate share
thereof.
15
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that, at
the time of determination, all of the outstanding Capital Stock (other than
directors' qualifying shares) is owned by the Company directly or indirectly and
which, at the time of determination, is primarily engaged in manufacturing,
except a Subsidiary that (i) neither transacts any substantial portion of its
business nor regularly maintains any substantial portion of its fixed assets
within the United States of America, (ii) is engaged primarily in the finance
business including, without limitation thereto, financing the operations of, or
the purchase of products which are products of or incorporate products of, the
Company or its Subsidiaries or (iii) is primarily engaged in ownership and
development of real estate, construction of buildings, or related activities, or
a combination of the foregoing. In the event that there shall at any time be a
question as to whether a Subsidiary is primarily engaged in manufacturing or is
described in clause (i), (ii) or (iii) above, such matter will be determined for
all purposes of the Indenture by a Board Resolution.
"S&P" means Standard & Poor's Rating Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"SALE AND LEASEBACK TRANSACTION" means any arrangement after the
Original Issue Date of the Notes with any bank, insurance company or other
lender or investor (other than the Company or any Restricted Subsidiary)
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property for a period of more than three years, which was or is owned
or leased by the Company or any Restricted Subsidiary and which has been or is
to be sold or transferred by the Company or any Restricted Subsidiary, more than
180 days after the completion of construction and commencement of commercial
operations by the Company or such Restricted Subsidiary, to such lender or
investor or to any Person to whom funds have been or are to be advanced by such
lender or investor on the security of such Principal Property.
"SUBORDINATED INDEBTEDNESS" of any Person means any Indebtedness of
such Person that is subordinated in right of payment to the Notes.
"VOTING STOCK" means stock which ordinarily has voting power for the
election of directors, managers or trustees, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness or portion thereof at any date, the number of years obtained by
dividing (i) the then outstanding principal amount of such Indebtedness or
portion thereof (if applicable) into (ii) the sum of the products obtained by
multiplying (A) 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 (B) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment.
16
"WHOLLY OWNED SUBSIDIARY" of any Person means (i) a Subsidiary of which
100% of the Voting Stock (except for director's qualifying shares or certain
minority interests owned by other Persons solely due to local law requirements
that there be more than one stockholder, but which interest is not in excess of
what is required for such purpose) is owned directly by such Person or through
one or more other Wholly Owned Subsidiaries of such Person and (ii) any entity
other than a corporation in which such Person, directly or indirectly, owns all
of the Voting Stock of such entity.
(d) The defined term "SUBSIDIARY" in Section 1.01 of the Base Indenture
shall be replaced in its entirety by the following defined term for purposes of
the Indenture:
"SUBSIDIARY" of any Person means any corporation, association or other
business entity of which at the time of determination such Person or one or more
of such Person's Subsidiaries owns or controls more than 50% of the shares of
Voting Stock.
Section 1.03. Other Definitions. Each of the following terms is defined
in the section set forth opposite such term:
TERM SECTION
---- -------
Asset Sale Offer............................................ Section 5.06(e)
Asset Sale Payment Amount................................... Section 5.06(e)(i)
Asset Sale Purchase Price................................... Section 5.06(e)(ii)
Base Indenture.............................................. Recitals
cash........................................................ Section 5.06(b)
Change of Control Offer..................................... Section 5.07(a)
Change of Control Purchase Date............................. Section 5.07(a)
Change of Control Purchase Price............................ Section 5.07(a)
DTC......................................................... Section 2.05
Excess Proceeds............................................. Section 5.06(e)
Excess Proceeds Payment Date................................ Section 5.06(f)(ii)
Events of Default........................................... Section 4.01
Indenture................................................... Recitals
Net Proceeds Deficiency..................................... Section 5.06(e)(ii)
Notes....................................................... Section 2.01
Notice of Default........................................... Section 4.01(b)
Other Debt.................................................. Section 5.06(e)(iv)
Restricted Securities....................................... Section 5.02
ARTICLE 2
THE SERIES OF NOTES
Section 2.01. Title. There shall be a series of Securities designated
the 7.25% Notes due 2013 (the "NOTES").
17
Section 2.02. Principal Amount. The aggregate principal amount of the
Notes which may be authenticated and delivered under this Supplemental Indenture
shall initially be $125,000,000. The Notes need not be issued at one time and,
unless otherwise provided, Notes may also be issued by the Company and
authenticated and delivered under this Indenture after the Original Issue Date
on the same terms and conditions (other than the issue date and the issue price)
and with the same CUSIP number as the Notes issued on the Original Issue Date
and in an aggregate principal amount, together with the Notes issued on the
Original Issue Date, exceeding the amount set forth in the preceding sentence.
Section 2.03. Form of Notes. The Notes shall be substantially in the
form of Exhibit A attached hereto. The terms of such Notes are herein
incorporated by reference and are part of this Supplemental Indenture.
Section 2.04. Denomination and Date of Securities; Payment of Interest.
(a) The Notes shall be issuable in denominations of $1,000 and any integral
multiple thereof.
(b) Each Note shall be dated the date of its authentication and shall
bear interest from the most recent date to which interest has been paid on the
Notes, or, if no interest has been paid, from the date of original issuance of
the Notes. Interest on the Notes shall be payable on each Interest Payment Date.
(c) Except as provided in Section 3.07 of the Base Indenture, the
person in whose name any Note is registered at the close of business on any
Regular Record Date with respect to any Interest Payment Date shall be entitled
to receive the interest, if any, payable on such Interest Payment Date,
notwithstanding any transfer or exchange of such Note subsequent to the Regular
Record Date and prior to such Interest Payment Date.
Section 2.05. Depository. The Depository for any Notes issued as Global
Securities shall be The Depository Trust Company in The City of New York ("DTC")
or any successor Depository appointed by the Company within 90 days of the
termination of the services of DTC (or any successor to DTC).
ARTICLE 3
REDEMPTION
Section 3.01. Optional Redemption. (a) Except as set forth in Section
3.01(b) hereof, the Company may not redeem the Notes before June 1, 2008.
Beginning on June 1, 2008, the Company may redeem all of the Notes at any time
or any portion of the Notes from time to time, at a redemption price equal to
the percentage of the principal amount set forth below, plus accrued and unpaid
interest up to but not including the redemption price if redeemed during the 12
month period commencing on June 1, of the years set forth below; provided that
if the redemption date falls after the Regular Record Date and on or before the
18
Interest Payment Date, interest shall be payable to holders of record on the
relevant Regular Record Date.
12-MONTH PERIOD
COMMENCING JUNE 1 IN
YEAR PERCENTAGE
---- ----------
2008 103.625%
2009 102.417%
2010 101.208%
2011 and thereafter 100.000%
(b) Notwithstanding the foregoing, at any time and on more than one
occasion prior to June 1, 2006, the Company may redeem up to 35% of the
originally issued principal amount of the Notes with the proceeds of one more
Equity Offerings, at a redemption price of 107.25% of the principal amount
thereof plus accrued and unpaid interest, provided that (i) at least 65% of the
originally issued principal amount of the Notes remains outstanding immediately
after such redemption (other than Notes held, directly or indirectly, by the
Company and its Affiliates) and (ii) each such redemption occurs within 60 days
after the completion of the related Equity Offering.
(c) Any redemption pursuant to this Article 3 shall be made pursuant to
the provisions of Article 11 of the Base Indenture.
ARTICLE 4
EVENTS OF DEFAULT
Section 4.01. Additional Events of Default Applicable to the Notes.
Pursuant to Section 5.01(g) of the Base Indenture, the following additional
"EVENTS OF DEFAULT" shall apply with respect to the Notes:
(a) default in the performance, or breach, of any covenant or
obligation of the Company under Sections 5.06, 5.07 and 6.01 hereof; and
(b) default under any Indebtedness of the Company (including a default
with respect to Securities of any series other than the Notes), whether such
Indebtedness exists as of the Original Issue Date or shall thereafter be
created, which default shall have resulted in such Indebtedness in an aggregate
principal amount exceeding $25,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, without such acceleration having been rescinded or annulled within a
period of 60 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 50% in principal amount of the Outstanding Notes a written
notice specifying such default and requiring the Company to cause such
acceleration to be rescinded or annulled and stating that such notice is a
"NOTICE OF DEFAULT" hereunder;
19
provided, however, that if, prior to a declaration of acceleration of the
Maturity of the Notes or the entry of judgment in favor of the Trustee in a suit
pursuant to Section 5.03 of the Base Indenture, such default under such bonds,
debentures, notes or other evidences of indebtedness shall be remedied or cured
by the Company or waived by the holders of such Indebtedness, then the Event of
Default under the Indenture by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of the Holders of Notes.
ARTICLE 5
COVENANTS
Section 5.01. Reports. In addition to the covenants set forth in
Article 10 of the Base Indenture, the Company covenants and agrees for the
benefit of the Notes, and whether or not required by the rules and regulations
of the Commission, that so long as any Notes are Outstanding, the Company shall
file with the Commission, to the extent such filings are accepted by the
Commission, and shall furnish (within 15 days after such filing) to the Trustee
and to the Holders all quarterly and annual reports and other information,
documents and reports that would be required to be filed with the Commission
pursuant to Section 13 of the Securities and Exchange Act of 1934 if the Company
were required to file under such Section.
Section 5.02. Limitations upon Liens. In addition to the covenants set
forth in Article 10 of the Base Indenture, the Company covenants and agrees for
the benefit of the Notes that neither it nor any Subsidiary will create, incur,
issue or assume any Indebtedness secured by any Lien on any Principal Property
now owned or hereafter acquired by the Company or any Restricted Subsidiary, and
that neither the Company nor any Subsidiary will create, incur, issue or assume
any Indebtedness secured by any Lien on any shares of stock or Indebtedness now
existing, or created or acquired after the Original Issue Date of any Restricted
Subsidiary (such shares of stock or Indebtedness of any Restricted Subsidiary
being called "RESTRICTED SECURITIES"), without in any such case effectively
providing concurrently with the incurrence, creation, issuance or assumption of
any such Indebtedness or the grant of any Lien with respect to any such
Indebtedness that the Notes (together with, if the Company shall so determine,
any other Indebtedness of the Company or such Subsidiary then existing or
thereafter created which is not subordinate to the Notes) shall be secured
equally and ratably with (or prior to) such secured Indebtedness, so long as
such secured Indebtedness shall be so secured. The foregoing restriction shall
not, however, apply to Indebtedness secured by:
(a) Liens on any Principal Property or Restricted Securities of the
Company or any Subsidiary existing on the Original Issue Date of the Notes;
20
(b) Liens on any Principal Property or Restricted Securities of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary or is merged with or into or consolidated with the Company or
Restricted Subsidiary, or at the time of a sale, lease or other disposition of
the properties of a corporation as an entirety or substantially as an entirety
to the Company or a Restricted Subsidiary, or arising thereafter pursuant to
contractual commitments entered into prior to and not in contemplation of such
corporation becoming a Restricted Subsidiary or not in contemplation of any such
merger or consolidation or any such sale, lease or other disposition;
(c) Liens on any Principal Property or Restricted Securities of the
Company or any Subsidiary existing at the time of acquisition thereof (including
acquisition through merger or consolidation) or securing the payment of all or
any part of the purchase price or construction cost thereof or securing any
Indebtedness incurred prior to, at the time of or within 360 days after, the
acquisition of such Principal Property or Restricted Securities or the
completion of any such construction, whichever is later, for the purposes of
financing all or any part of the purchase price or construction cost thereof;
(d) Liens on any Principal Property to secure all or any part of the
cost of development, operation, construction, alteration, repair or improvement
of all or any part of such Principal Property, or to secure Indebtedness
incurred prior to, at the time of or within 360 days after, the completion of
such development, operation, construction, alteration, repair or improvement,
whichever is later, for the purpose of financing all or any part of such cost;
(e) Liens which secure Indebtedness owing by a Subsidiary of the
Company to the Company or to a Restricted Subsidiary;
(f) Liens on the property of the Company or a Restricted Subsidiary in
favor of the United States of America or any State thereof, or any department,
agency, instrumentality or political subdivision of the United States of America
or any State thereof, (i) to secure partial, progress, advance or other payments
pursuant to any contract or statute, (ii) securing Indebtedness incurred to
finance all or any part of the purchase price or cost of constructing,
installing or improving the property subject to such mortgages including
mortgages to secure Indebtedness of the pollution control or industrial revenue
bond type, or (iii) securing Indebtedness issued or guaranteed by the United
States of America, any State thereof, any foreign country or any department,
agency, instrumentality or political subdivision of any such jurisdiction;
(g) Liens in respect of the Company's facilities in Byhalia,
Mississippi to secure Indebtedness permitted to be incurred pursuant to the
Credit Facilities;
(h) Liens securing Indebtedness incurred pursuant to Section
5.03(b)(iv) hereof; and
21
(i) any extension, renewal, substitution or replacement of any of the
Liens referred to in clauses (a) through (h) above or the Indebtedness secured
thereby.
Notwithstanding the foregoing, the Company and any Subsidiary of the
Company may create, incur, issue or assume Indebtedness secured by a
Lien which would otherwise be subject to the foregoing restrictions if
the aggregate principal amount of all Indebtedness secured by Liens on
Principal Properties and Restricted Securities then outstanding (not
including any Indebtedness secured by Liens permitted to be incurred
pursuant to clauses (a) through (i) above) plus Attributable Debt of
the Company and its Restricted Subsidiaries in respect of Sale and
Leaseback Transactions that would otherwise be subject to the
restrictions described in Section 5.08 hereof does not at the time such
Indebtedness is incurred exceed an amount equal to 12.5% of
Consolidated Net Tangible Assets.
For the purposes of this Section 5.02, the giving of a guarantee which
is secured by a Lien on Principal Property or Restricted Securities,
and the creation of a Lien on Principal Property or Restricted
Securities to secure Indebtedness which existed prior to the creation
of such Lien, shall be deemed to involve the creation of Indebtedness
in an amount equal to the principal amount guaranteed or secured by
such Lien; but the amount of Indebtedness secured by Liens on Principal
Properties and Restricted Securities shall be computed without
cumulating the underlying Indebtedness with any guarantee thereof or
Lien securing the same.
Section 5.03. Limitations on Additional Indebtedness and Subsidiary
Preferred Stock. Prior to the occurrence of the Fall-Away Event, the Company:
(i) shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee,
extend the stated maturity of, or otherwise become liable with respect
to, any Indebtedness (including Acquired Indebtedness); and
(ii) shall not permit any of its Subsidiaries to issue (except
to the Company or any of its Wholly Owned Subsidiaries) or create any
Preferred Stock or permit any Person (other than the Company or any of
its Wholly Owned Subsidiaries) to own or hold any interest in any
Preferred Stock of any such Subsidiary;
provided, however, that the Company may incur Indebtedness and the
Company may permit its Subsidiaries to issue or create Preferred Stock
if, after giving effect thereto, the Company's Consolidated Interest
Expense Coverage Ratio on such date would be at least 2.0 to 1.0,
determined on a pro forma basis as if the incurrence of such additional
Indebtedness or the issuance of such Preferred Stock (declared to have
an aggregate principal
22
amount equal to the aggregate liquidation value of such Preferred
Stock), as the case may be, and the application of the net proceeds
from such additional Indebtedness or Preferred Stock, had occurred at
the beginning of the four-quarter period used to calculate the
Company's Consolidated Interest Expense Coverage Ratio.
(b) Notwithstanding the foregoing, and irrespective of the Consolidated
Interest Expense Coverage Ratio, in addition to Existing Indebtedness:
(i) the Company may incur Indebtedness pursuant to the Notes;
(ii) the Company may incur Indebtedness pursuant to the Credit
Agreement;
(iii) the Company and its Subsidiaries may incur Indebtedness
pursuant to Credit Facilities in an aggregate principal amount at any
time outstanding not to exceed the excess of (A) $250,000,000 over (B)
all Indebtedness outstanding under the Credit Agreement incurred
pursuant to clause (ii) above, provided that the aggregate principal
amount of such Indebtedness incurred by its Subsidiaries at any time
outstanding shall not exceed $75,000,000;
(iv) the Company and its Subsidiaries may incur Indebtedness
pursuant to Credit Facilities under which the principal amount that may
be issued or otherwise obtained is based upon eligible Accounts
Receivable or eligible Inventory and the aggregate principal amount of
such Indebtedness at any time outstanding shall not exceed an amount
equal to the sum of (A) 100% of the book value of the consolidated
Accounts Receivable of the Company and its Consolidated Subsidiaries
plus (B) 100% of the book value (excluding last-in-first-out reserves,
if any) of the consolidated Inventory of the Company and its
Consolidated Subsidiaries minus (C) the aggregate principal amount of
outstanding Indebtedness secured by any Accounts Receivable or
Inventory of the Company or any of its Consolidated Subsidiaries, other
than Indebtedness outstanding under a Credit Facility, minus (D) other
outstanding Investments (other than Indebtedness under a Credit
Facility or as described in clause (C) above) under any asset
securitization or similar facility in respect of Accounts Receivable or
Inventory of the Company or its Consolidated Subsidiaries, provided
that the aggregate principal amount of all such Indebtedness at any
time outstanding shall not exceed $120,000,000;
(v) the Company and its Subsidiaries may incur Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which
are applied to refund, refinance or extend, Existing Indebtedness or
other Indebtedness that was permitted by the Indenture to be incurred
under this
23
Section 5.03 except for Indebtedness incurred under clauses (ii),
(iii), (iv), (vi) and (vii) of this Section 5.03(b);
(vi) the Company may incur any Indebtedness to any of its
Subsidiaries or any of its Subsidiaries may incur any Indebtedness to
the Company or to any other Subsidiary of the Company;
(vii) the Company and its Subsidiaries may incur any
Indebtedness evidenced by letters of credit that are used in the
ordinary course of business of the Company and its Subsidiaries (A) to
secure workers' compensation and other insurance coverages or (B)
otherwise so long as the aggregate reimbursement obligations with
respect to letters of credit under this clause (B) at any one time
outstanding shall not exceed $5,000,000;
(viii) the Company and its Subsidiaries may incur Capital
Lease Obligations and Attributable Debt, in each case excluding
Existing Indebtedness, but including all Permitted Refinancing
Indebtedness incurred in exchange for, or the net proceeds of which are
applied to refund, refinance or extend, any Indebtedness incurred
pursuant to this clause, in an aggregate principal amount at any one
time outstanding not to exceed 3.0% of Consolidated Net Tangible
Assets;
(ix) the Company may incur Indebtedness, whether or not
secured by a Lien, constituting all or a part of the purchase price of
assets or property acquired or constructed after the Original Issue
Date of the Notes, including all Permitted Refinancing Indebtedness
incurred in exchange for, or the net proceeds of which are applied to
refund, refinance or extend, any Indebtedness incurred pursuant to this
clause, not to exceed 12.5% of Consolidated Net Tangible Assets at any
time outstanding; and
(x) the Company's Subsidiaries may incur Indebtedness,
including all Permitted Refinancing Indebtedness incurred in exchange
for, or the net proceeds of which are applied to refund, refinance or
extend, any Indebtedness incurred pursuant to this clause, in an
aggregate principal amount at any time outstanding not to exceed
$125,000,000, in addition to Existing Indebtedness and other
Indebtedness permitted to be incurred by the Company's Subsidiaries
pursuant to any of clauses (iii) through (viii) this Section 5.03(b).
For purposes of determining compliance with this Section 5.03, if an
item of proposed Indebtedness meets the criteria of more than one of
the categories of permitted Indebtedness described in clauses (i)
through (x) of this Section 5.03(b), or is entitled to be incurred
pursuant to Section 5.03(a) hereof, the Company will be permitted to
classify such item of Indebtedness on the date of its incurrence in any
manner that complies with this Section 5.03.
24
Section 5.04. Limitations on Restricted Payments. (a) Prior to the
occurrence of the Fall-Away Event, the Company shall not and shall not permit
any of its Subsidiaries to directly or indirectly, make any Restricted Payment
if at the time of such Restricted Payment:
(i) a Default or Event of Default under the Indenture has
occurred and is continuing or will occur as a consequence of such
Restricted Payment;
(ii) after giving effect to the proposed Restricted Payment,
the amount of such Restricted Payment, when added to the aggregate
amount of all Restricted Payments made after the Original Issue Date of
the Notes, exceeds the sum of:
(A) 50.0% of the Company's Consolidated Net Income
accrued during the period (taken as a single period)
commencing on March 31, 2003 to and including the fiscal
quarter ended immediately prior to the date of such Restricted
Payment (or, if the aggregate Consolidated Net Income is a
deficit, minus 100.0% of that aggregate deficit), plus
(B) the net cash proceeds from the issuance and sale
of the Company's Capital Stock (other than to any of the
Company's Subsidiaries) that is not Disqualified Stock during
the period (taken as a single period) commencing with the
Original Issue Date of the Notes; or
(iii) the Company would not be able to incur an additional
$1.00 of Indebtedness under the Consolidated Interest Expense Coverage
Ratio under Section 5.03(a) hereof.
(b) Notwithstanding the foregoing, the Company may:
(i) pay any dividend within 60 days after the date of
declaration of such dividend if the payment of such dividend would have
complied with the limitations of this Section 5.04 on the date of
declaration;
(ii) retire shares of the Company's Capital Stock or
Indebtedness of the Company or any of its Subsidiaries out of the
proceeds of a substantially concurrent sale (other than to one of the
Company's Subsidiaries) of shares of the Company's Capital Stock (other
than Disqualified Stock);
(iii) make Investments that, when added to the aggregate
amount of all such other Investments made pursuant to this clause after
the Original Issue Date of the Notes, do not exceed 3.0% of the
Company's
25
Consolidated Net Tangible Assets at such time (with each such
Investment being valued as of the date made and without regard to
subsequent changes in value);
(iv) repurchase, redeem, acquire or otherwise retire for value
any Capital Stock of the Company or any of its Subsidiaries held by any
member of the Company's (or any of its Subsidiaries') management or
former management pursuant to any management equity subscription
agreement, stock option agreement, employment agreement, stock
compensation plan or similar agreement but excluding payments made to
holders upon the exercise of stock appreciation rights, approved by the
Company's board of directors or a committee thereof consisting solely
of two or more "non-employee directors" (within the meaning of Rule
16b-3(b)(3)(i) under the Securities Exchange Act of 1934), provided
that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Capital Stock may not in an aggregate amount exceed
(A) $5,000,000 in any twelve-month period plus (B) $5,000,000;
(v) pay any dividend in respect of shares of the Company's
Capital Stock, provided that the aggregate amount of all such dividends
paid pursuant to this clause, excluding dividends payable pursuant to
clause (i) above, shall not exceed $20,000,000 in any fiscal year of
the Company; provided, however, that to the extent that such dividends
are not paid in such fiscal year pursuant to this clause, the aggregate
unused amount thereof may be used at any time thereafter to repurchase
the Company's Voting Stock on the New York Stock Exchange (or such
other national securities exchange or automated quotation system on
which the Company's Voting Stock is then listed or quoted) pursuant to
a stock repurchase program approved by the Company's board of
directors; and
(vi) make other Restricted Payments in an aggregate amount not
to exceed $30,000,000;
provided, however, that each Restricted Payment described in clause (i)
or (ii) of this Section 5.04(b) will be taken into account for purposes
of computing the aggregate amount of all Restricted Payments pursuant
to Section 5.04(a)(ii) hereof.
Section 5.05. Limitations on Restrictions on Distributions from
Subsidiaries. Prior to the occurrence of the Fall-Away Event, the Company shall
not, and shall not permit any of its Subsidiaries to create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or restriction
(other than encumbrances or restrictions imposed by law or by judicial or
regulatory action or by provisions in leases or other agreements that restrict
the assignability of the lease or assignment) on the ability of any of the
Company's Subsidiaries to:
26
(a) pay dividends or make any other distributions on its Capital Stock
or any other interest or participation in, or measured by, its profits, owned by
the Company or any of its other Subsidiaries, or pay interest on or principal of
any Indebtedness owed to the Company or any of its other Subsidiaries;
(b) make loans or advances to the Company or any of its other
Subsidiaries; or
(c) transfer any of its properties or assets to the Company or any of
its other Subsidiaries,
in each case except for encumbrances or restrictions existing under or by reason
of:
(i) applicable law;
(ii) any of the Credit Facilities;
(iii) Existing Indebtedness and agreements evidencing such
Existing Indebtedness as in effect on the Original Issue Date of the
Notes;
(iv) any restrictions under any agreement evidencing any
Acquired Indebtedness that was permitted to be incurred pursuant to the
Indenture and that was not incurred in anticipation or contemplation of
the related acquisition, provided that the restrictions and
encumbrances only apply to assets that were subject to those
restrictions and encumbrances prior to the acquisition of those assets
by the Company or any of its Subsidiaries;
(v) restrictions or encumbrances replacing those permitted by
clauses (ii), (iii) and (iv) of this Section 5.05(c) that, taken as a
whole, are not materially more restrictive, as determined in good faith
by the Company's board of directors;
(vi) the Indenture;
(vii) any restrictions and encumbrances arising in connection
with Permitted Refinancing Indebtedness; provided, however, any
restrictions or encumbrances of the type described in this clause that
arise under Permitted Refinancing Indebtedness must not, taken as a
whole, be materially more restrictive, as determined in good faith by
the Company's board of directors, than those under the agreement
creating or evidencing the Indebtedness being refunded or refinanced;
(viii) any restrictions with respect to a Subsidiary of the
Company imposed pursuant to an agreement that has been entered into for
the sale or other disposition of all or substantially all of the
Capital Stock or assets of such Subsidiary;
27
(ix) any agreement restricting the sale or other disposition
of property securing Indebtedness if such agreement does not expressly
restrict the ability of a Subsidiary of the Company to pay dividends or
make loans or advances; and
(x) customary restrictions in purchase money debt or leases
relating to the property covered by such debt or lease.
Section 5.06. Limitations on Asset Sales. (a) Prior to the occurrence
of the Fall-Away Event, the Company shall not and shall not permit any of its
Subsidiaries to consummate any Asset Sale unless:
(i) the Company or the selling Subsidiary receives
consideration at the time of the Asset Sale at least equal to the Fair
Market Value of the assets included in such Asset Sale;
(ii) immediately before and immediately after giving effect to
such Asset Sale, no Default or Event of Default under the Indenture has
occurred and is continuing; and
(iii) at least 50.0% of the consideration received in the
Asset Sale by the Company or its selling Subsidiary is in the form of
cash paid at the closing of such Asset Sale; provided, however, that if
less than 50.0%, but at least 25.0%, of the consideration received at
such closing by the Company or its selling Subsidiary is in the form of
cash, such other consideration shall be deemed to be "cash" for this
purpose if it consists of securities, notes or other obligations
received by the Company or any of its Subsidiaries and is converted to
cash no later than ten Business Days after such closing.
(b) The term "CASH" for purposes of this Section 5.06 will include the
amount (without duplication) of any Indebtedness (other than Subordinated
Indebtedness) of the Company or its Subsidiary that is expressly assumed by the
transferee in such Asset Sale and with respect to which the Company or its
Subsidiary, as the case may be, is unconditionally released by the holder of
such assumed Indebtedness, as well as any notes, securities or similar
obligations or items of property received from such transferee that are
immediately converted, sold or exchanged by the Company or its Subsidiary for
cash (to the extent of the cash actually so received).
(c) If at any time any non-cash consideration received by the Company
or any of its Subsidiaries, 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 received with respect to any of such non-cash consideration), then the
date of such conversion or disposition shall be deemed to constitute the date of
an Asset Sale under this Section 5.06 and the Net Proceeds thereof will be
applied in accordance with this Section 5.06.
28
(d) Prior to the occurrence of the Fall-Away Event, if the Company
or any of its Subsidiaries engages in an Asset Sale, the Company or such
Subsidiary shall, no later than 360 days after such Asset Sale,
(i) apply all or any of the Net Proceeds from such Asset Sale
to repay Indebtedness that ranks pari passu with the Notes;
(ii) invest, whether by way of capital expenditure,
acquisition, addition to working capital or otherwise, all or any part
of the Net Proceeds from such Asset Sale in any lines of business of
the Company or of any of its Subsidiaries immediately prior to such
investment; or
(iii) any combination of clauses (i) and (ii) of this Section
5.06(d).
(e) The amount of the Net Proceeds not applied or invested as provided
in Section 5.06(d) hereof, and in excess of $25,000,000, will constitute "EXCESS
PROCEEDS." Prior to the occurrence of the Fall-Away Event, when the cumulative
aggregate amount of Excess Proceeds equals or exceeds $25,000,000, the Company
shall be required to make an offer to purchase (an "ASSET SALE OFFER"), from all
Holders, an aggregate principal amount of Notes equal to the amount of the
Excess Proceeds as follows:
(i) The Company shall make an Asset Sale Offer to all Holders
in accordance with the procedures set forth in this Section 5.06 to
purchase the maximum principal amount (expressed as a multiple of
$1,000) of Notes that may be purchased out of the amount (the "ASSET
SALE PAYMENT AMOUNT") of such Excess Proceeds;
(ii) The offer price for the Notes shall be payable in cash in
an amount equal to 100% of the principal amount of the Notes tendered
pursuant to such Asset Sale Offer, plus accrued and unpaid interest to
the date such Asset Sale Offer is consummated (the "ASSET SALE PURCHASE
PRICE"), in accordance with the procedures set forth in this Section
5.06. To the extent that the aggregate Asset Sale Purchase Price of
Notes tendered pursuant to an Asset Sale Offer is less than the Asset
Sale Payment Amount relating thereto (such shortfall constituting a
"NET PROCEEDS DEFICIENCY"), the Company may use such Net Proceeds
Deficiency, or a portion thereof, for general corporate purposes;
(iii) If the aggregate Asset Sale Purchase Price of Notes
validly tendered and not withdrawn by holders thereof exceeds the Asset
Sale Payment Amount, Notes to be purchased shall be selected on a pro
rata basis; and
29
(iv) Upon completion of such Asset Sale Offer in accordance
with the foregoing provisions, the amount of Excess Proceeds with
respect to which such Asset Sale Offer was made shall be deemed to be
zero.
In the event that any other Indebtedness of the Company which ranks
pari passu with the Notes ("OTHER DEBT") requires an offer to purchase
to be made to repurchase such Other Debt upon the consummation of an
Asset Sale, the Company may apply the Excess Proceeds to both purchase
such Other Debt and to make an Asset Sale Offer, provided that the
purchase price of such Other Debt does not exceed 100% of the aggregate
principal amount or accreted value thereof plus interest thereon. With
respect to any Excess Proceeds, the Company shall make the Asset Sale
Offer in respect thereof at the same time as the analogous offer to
purchase is made pursuant to any Other Debt and the purchase date in
respect thereof shall be the same as the purchase date in respect
thereof pursuant to any Other Debt.
With respect to any Asset Sale Offer effected pursuant to this Section
5.06, to the extent the aggregate principal amount of Notes and Other
Debt, if any, tendered pursuant to such Asset Sale Offer and the
concurrent offer to purchase with respect to such Other Debt exceeds
the Excess Proceeds, such Notes and Other Debt, if any, shall be
purchased pro rata based on the aggregate principal amount of such
Notes and such Other Debt tendered by each holder thereof.
(f) If the Company is required to make an Asset Sale Offer, the Company
shall, within 30 days following the date specified above, notify the Trustee
thereof and give written notice of such Asset Sale Offer to each Holder by
first-class mail, postage prepaid, at the address of such Holder appearing in
the register maintained by the Registrar, stating:
(i) that an Asset Sale Offer is being made pursuant to this
Section 5.06;
(ii) that such Holders have the right to require the Company
to apply the Excess Proceeds to repurchase the Notes at a purchase
price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the purchase date which shall
be no earlier than 30 days and not later than 60 days from the date
such notice is mailed (the "EXCESS PROCEEDS PAYMENT DATE");
(iii) that any Note not tendered or accepted for payment will
continue to accrue interest;
(iv) that any Notes accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Excess Proceeds
Payment Date;
30
(v) that Holders accepting the offer to have their Notes
purchased pursuant to the Asset Sale Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the form of Note attached hereto as Exhibit
A, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Excess Proceeds
Payment Date;
(vi) that Holders will be entitled to withdraw their
acceptance of the Asset Sale Offer if the Paying Agent receives, not
later than the close of business on the third Business Day preceding
the Excess Proceeds Payment Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Notes delivered for purchase and a statement that such Holder is
withdrawing his or her election to have such Notes purchased;
(vii) that if the aggregate principal amount of Notes
surrendered by Holders exceeds the amount of Excess Proceeds, the
Company shall select the Notes to be purchased on a pro rata basis so
that the aggregate amount of Notes so purchased equals the amount of
Excess Proceeds (with such adjustments as may be deemed appropriate by
the Company so that only Notes in denominations of $1,000 or integral
multiples thereof shall be purchased);
(viii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered; provided that each Note
purchased and each such new Note issued shall be in an original
principal amount of $1,000 or an integral multiple thereof;
(ix) the calculations used in determining the amount of Excess
Proceeds to be applied to the purchase of such Notes;
(x) any other procedures that a Holder must follow to accept
an Asset Sale Offer or effect withdrawal of such acceptance; and
(xi) the name and address of the Paying Agent.
On the Excess Proceeds Payment Date, the Company shall, to the extent
lawful, (1) accept for payment, on a pro rata basis to the extent
necessary, Notes or portions thereof tendered pursuant to the Asset
Sale Offer, (2) deposit with the Paying Agent U.S. legal tender
sufficient to pay the purchase price plus accrued and unpaid interest,
if any, on the Notes to be purchased or portions thereof, (3) deliver
or cause to be delivered to the Trustee Notes so accepted together with
an Officer's Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms
of this Section 5.06. The Paying Agent shall promptly mail to each
Holder of Notes so accepted payment in
31
an amount equal to the purchase price for such Notes, and the Company
shall execute and issue, and the Trustee shall promptly authenticate
and make available for delivery to such Holder, a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered;
provided that each Note purchased and each such new Note issued shall
be in an original principal amount of $1,000 or an integral multiple
thereof.
The Company shall comply with the requirements of Rule14e-1 under the
Securities and Exchange Act of 1934 and other securities laws and
regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Notes pursuant to an
Asset Sale Offer. To the extent that the provisions of any securities
laws or regulations conflict with this Section 5.06, the Company shall
comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under this Section 5.06
by virtue thereof.
Section 5.07. Repurchase of Notes upon a Change of Control Prior to the
Fall-Away Event. (a) Upon the occurrence of a Change of Control and if the
Fall-Away Event has not occurred prior to the expiration of the 30-day period
immediately after the occurrence of such Change of Control, the Company shall be
obligated to make an offer to purchase (the "CHANGE OF CONTROL OFFER") the
outstanding Notes of each Holder in whole or in part in integral multiples of
$1,000, at a purchase price (the "CHANGE OF CONTROL PURCHASE PRICE") in cash in
an amount equal to 101% of the principal amount thereof, plus accrued interest,
if any, to the date of purchase (the "CHANGE OF CONTROL PURCHASE DATE"),
pursuant to the procedures set forth below.
(a) Within 30 days following any Change of Control, and if the
Fall-Away Event has not occurred within the 30-day period immediately after the
occurrence of such Change of Control, the Company shall notify, in writing, the
Trustee thereof and give written notice of such Change of Control to each Holder
by first-class mail, postage prepaid, at the address of such Holder appearing in
the register maintained by the Registrar, stating, among other things:
(i) that the Change of Control Offer is being made pursuant to
this Section 5.07;
(ii) that such Holders have the right to require the Company
to repurchase such Notes at the Change of Control Purchase Price on the
Change of Control Purchase Date which shall be no earlier than 30 days
and not later than 60 days from the date such notice is mailed;
(iii) that any Note not tendered or accepted for payment will
continue to accrue interest;
(iv) that, unless the Company defaults in its payment of the
Change of Control Purchase Price, any Note accepted for payment
32
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Purchase Date;
(v) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the form of Note attached hereto as Exhibit
A, to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change of
Control Purchase Date;
(vi) that Holders will be entitled to withdraw their
acceptance of the Change of Control Offer if the Paying Agent receives,
not later than the close of business on the third Business Day
preceding the Change of Control Purchase Date, a telegram, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Notes delivered for purchase and a statement
that such Holder is withdrawing his or her election to have such Notes
purchased;
(vii) any other procedures that a Holder must follow to accept
a Change of Control Offer or effect withdrawal of such acceptance; and
(viii) the name and address of the Paying Agent.
(c) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent U.S.
legal tender sufficient to pay the purchase price of all Notes or portions
thereof so tendered and (3) deliver or cause to be delivered to the Trustee
Notes so accepted together with an Officer's Certificate stating that such Notes
or portions thereof were accepted for payment by the Company pursuant to this
Section 5.07. The Paying Agent shall promptly mail to each Holder of Notes so
accepted payment in an amount equal to the purchase price for such Notes, and
the Company shall execute and issue, and the Trustee shall promptly authenticate
and mail to such Holder, a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered; provided that each such new Note shall be
issued in an original principal amount of $1,000 or an integral multiple
thereof.
(d) The Company shall comply with the requirements of Rule 14e-1 under
the Securities and Exchange Act of 1934 and other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to a Change of Control Offer.
To the extent that the provisions of any securities laws or regulations conflict
with this Section 5.07, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under this Section 5.07 by virtue thereof.
33
Section 5.08. Limitations upon Sales and Leasebacks. After the
occurrence of the Fall-Away Event, the Company shall not, and nor shall it
permit any Restricted Subsidiary to, enter into a Sale and Leaseback Transaction
unless, either:
(a) the Company and such Restricted Subsidiary would be entitled,
pursuant to the provisions described in Section 5.02 hereof, to incur Debt
secured by a Lien on such Principal Property in a principal amount equal to or
exceeding the Attributable Debt in respect of such Sale and Leaseback
Transaction without equally and ratably securing the Notes; or
(b) the Company, within 180 days after the sale or transfer, applies or
causes such Restricted Subsidiary to apply an amount equal to the Net Proceeds
of such sale or transfer (as determined by any two of the following: the
President, any Vice President, the Treasurer and the Controller of the Company)
to the retirement of Notes or other Funded Debt of the Company (other than
Funded Debt subordinated to the Notes) or Funded Debt of a Restricted
Subsidiary; provided that the amount to be so applied shall be reduced by (A)
the principal amount of Notes delivered within 180 days after such sale or
transfer to the Trustee for retirement and cancellation, and (B) the principal
amount of any such Funded Debt of the Company or a Restricted Subsidiary, other
than Notes voluntarily retired by the Company or a Restricted Subsidiary within
180 days after such sale or transfer to the trustee for retirement and
cancellation, excluding in the case of both (A) and (B), retirement pursuant to
any mandatory sinking fund payment or any mandatory prepayment provision or by
payment at maturity.
Section 5.09. Restrictions on Funded Debt of Restricted Subsidiaries.
After the occurrence of the Fall-Away Event, the Company shall not, and nor
shall it permit any Restricted Subsidiary to, create, incur, issue, assume or
guarantee any Funded Debt. This restriction will not apply if:
(a) the Company or such Restricted Subsidiary could create Debt secured
by Liens in accordance with Section 5.02 hereof, or enter into a Sale or
Leaseback Transaction in accordance with Section 5.08 hereof, in an amount equal
to such Funded Debt, without equally and ratably securing the Notes;
(b) such Funded Debt existed on the Original Issue Date;
(c) such Funded Debt is owed to the Company or any of its Subsidiaries;
(d) such Funded Debt existed at the time the corporation that issued
such Funded Debt became a Restricted Subsidiary, or was merged with or into or
consolidated with such Restricted Subsidiary, or at the time of a sale, lease or
other disposition of the properties of such corporation as an entirety to such
Restricted Subsidiary, or arising thereafter (i) otherwise than in connection
with the borrowing of money arranged thereafter and (ii) pursuant to contractual
34
commitments entered into prior to and not in contemplation of such corporation
becoming a Restricted Subsidiary and not in contemplation of any such merger or
consolidation or any such sale, lease or other disposition;
(e) such Funded Debt is guaranteed by the Company;
(f) such Funded Debt is guaranteed by a governmental agency;
(g) such Funded Debt is issued, assumed or guaranteed in connection
with, or with a view to, compliance by such Restricted Subsidiary with the
requirements of any program adopted by any federal, state or local governmental
authority and applicable to such Restricted Subsidiary and providing financial
or tax benefits to such Restricted Subsidiary which are not available directly
to the Company;
(h) such Funded Debt is issued, assumed or guaranteed to pay all or any
part of the purchase price or the construction cost of property or equipment
acquired or constructed by a Restricted Subsidiary, if such Funded Debt is
incurred within 360 days after acquisition, completion of construction or
commencement of full operation of such property, whichever is later;
(i) such Funded Debt is non-recourse; or
(j) such Funded Debt is incurred for the purpose of extending,
renewing, substituting, replacing or refunding Funded Debt permitted by clauses
(a) through (i) of this Section 5.09.
Notwithstanding the foregoing, any Restricted Subsidiary may create,
incur, issue, assume or guarantee Funded Debt which would otherwise be
subject to the foregoing restrictions in an aggregate principal amount
which, together with the aggregate outstanding principal amount of all
other Funded Debt of Restricted Subsidiaries which would otherwise be
subject to the foregoing restrictions (not including Funded Debt
permitted to be incurred pursuant to clauses (a) through (j) of this
Section 5.09), does not at the time such Funded Debt is incurred exceed
an amount equal to 12.5% of Consolidated Net Tangible Assets.
ARTICLE 6
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 6.01. Consolidation, Merger, Sale of Assets, Etc. Prior to
Fall-Away Event. If any of the transactions described in Article 8 of the Base
Indenture shall occur prior to the occurrence of the Fall-Away Event, then
immediately after giving effect to such transaction and the use of any of the
net proceeds from such transaction on a pro forma basis, (i) the Consolidated
Net Worth of the Company or of the Company's successor, as the case may be,
shall
35
be at least equal to the Company's Consolidated Net Worth immediately prior to
such transaction and (ii) the Consolidated Interest Expense Coverage Ratio of
the Company or its successor, as the case may be, shall be such that the Company
or its successor, as the case may be, shall be entitled to incur at least $1.00
of additional Indebtedness under the Consolidated Interest Expense Coverage
Ratio test set forth in Section 5.03(a) hereof.
ARTICLE 7
MODIFICATION, AMENDMENT AND WAIVER
Section 7.01. Modification, Amendment and Waiver. The consent of each
Holder of each Outstanding Note shall be required to alter the Company's
obligation to make an Asset Sale Offer pursuant to Section 5.06 hereof or to
make a Change of Control Offer pursuant to Section 5.07 hereof.
ARTICLE 8
DEFEASANCE
Section 8.01. Defeasance. The provisions of Sections 13.02 and 13.03 of
the Base Indenture will apply to the Notes.
Section 8.02. Covenant Defeasance. Section 13.03 of the Base Indenture
is amended by (i) deleting "and" where it appears after "Section 5.01(f)" and
inserting a comma in its place and (ii) inserting "and any other obligations
specified in a Board Resolution or in one or more indentures supplemental
hereto" after "(if Section 5.01(g) is specified as applicable to the Securities
of such series)".
Section 8.03. Additional Covenant Defeasance. In addition to the
obligations referred to in Section 13.03 of the Base Indenture, "covenant
defeasance", as defined in such Section, will also apply to the obligations of
the Company set forth in Article 5 of this Supplemental Indenture.
ARTICLE 9
MISCELLANEOUS
Section 9.01. Supplemental Indenture. The Base Indenture, as
supplemented and amended by this Supplemental Indenture, is in all respects
hereby adopted, ratified and confirmed.
Section 9.02. Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
36
Section 9.03. Governing Law. This Supplemental Indenture and the form
of Note attached hereto as Exhibit A shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State, without regard to principles of
conflicts of laws.
37
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, as of the day and year first written above.
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Treasurer
THE BANK OF NEW YORK, as Trustee
By:
--------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, as of the day and year first written above.
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
By:
--------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
[FACE OF NOTE]
REGISTERED
No. 1
PRINCIPAL AMOUNT: $125,000,000
CUSIP NO. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
7.25% NOTES DUE 2013
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY") (55 ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
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▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION, a Tennessee corporation (the "COMPANY,"
which term includes any successor Person under the Indenture, as defined on the
reverse hereof), for value received, hereby promises to pay to CEDE & CO., C/O
THE DEPOSITORY TRUST COMPANY, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or
registered assigns, the principal sum of ONE HUNDRED TWENTY-FIVE MILLION DOLLARS
($125,000,000) on June 1, 2013.
Interest Rate: 7.25% per annum.
Interest Payment Dates: June 1 and December 1, commencing December 1,
2003.
Regular Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Note set forth on
the reverse hereof and the Indenture (as defined on the reverse hereof), which
shall for all purposes have the same effect as if set forth on the face hereof.
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IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
[Corporate Seal]
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
By:
-------------------------------
Name:
Title:
Attest:
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
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CERTIFICATE OF AUTHENTICATION
This is one of the 7.25% Notes due 2013 referred to in the
within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK, as Trustee
By:
--------------------------------
Authorized Signatory
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[REVERSE OF NOTE]
7.25% NOTES DUE 2013
1. Indenture. The Company issued this Note pursuant to an Indenture
dated as of August 1, 1998, as supplemented by a Supplemental Indenture No. 2
dated as of May 27, 2003 (together, the "INDENTURE"), between the Company and
The Bank of New York, as trustee (the "TRUSTEE," which term includes any
successor trustee under the Indenture). This Note is one of a duly authorized
issue of Notes of the Company designated as its 7.25% Notes due 2013. 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. Notwithstanding anything to
the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the Trust Indenture Act for a statement
of such terms. The Notes are senior unsecured obligations of the Company.
Each Holder, by accepting a Note, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time.
2. Interest. The Company promises to pay interest on the principal
amount of this Note at a rate of 7.25% per annum. Interest on the Notes will
accrue from the most recent Interest Payment Date to which interest has been
paid or duly provided for, or if no interest has been paid, from the date of
original issuance of the Notes. The Company will pay interest semi-annually in
arrears on each Interest Payment Date, commencing December 1, 2003, until the
principal hereof is paid or duly provided for. Interest will be computed and
paid on the basis of a 360-day year comprised of twelve 30-day months.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, principal or interest payable with respect to such
Interest Payment Date or Maturity Date, as the case may be, will be paid on the
next succeeding Business Day with the same force and effect as if it were paid
on the date such payment was due, and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date or the Maturity
Date, as the case may be.
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holder on such Regular Record
Date and may either be paid (i) to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice of which shall be
given to Holders of Notes not less than 10 days prior to such Special Record
Date or (ii) at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes of this series may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
3. Method of Payment. The Company shall pay interest on the Notes
(except Defaulted Interest) to the Persons who are the registered Holders at the
close of business on the Regular Record Date for such interest, which shall be
the May 15 or November 15 (whether or not such day is a Business Day),
immediately preceding the Interest Payment Date even if the
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Notes are canceled on registration of transfer or registration of exchange after
such Regular Record Date.
All payments of principal of, and any interest on the Notes issued in
global form will be made to the Depository as the registered holder thereof. The
Company expects that the Depository, upon receipt of payment of principal or
interest on such Note, will credit the accounts of persons who have accounts
with the Depository (the "PARTICIPANTS") with payment of principal or interest
on the date payable in amounts proportionate to their respective beneficial
interests in the principal amount of such Note as shown on the records of the
Depository. The Company also expects that payments by participants to owners of
beneficial interests in any Note held through such participants will be governed
by standing instructions and customary practices. Such payments will be the
responsibility of such participants.
The Company is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in United States dollars. The Company may,
at its option, pay principal, premium, if any, and interest by wire transfer in
U.S. legal tender. The Company may deliver any interest payment by check mailed
to the address of the Person entitled thereto as such address will appear on the
Security Register.
4. Paying Agent and Registrar. The Company will at all times appoint
and maintain a Paying Agent (which may be the Trustee) authorized by the Company
to pay the principal, premium, if any, and interest on the Notes on behalf of
the Company and having an office or agency in New York, New York (the "PLACE OF
PAYMENT") where Notes may be presented or surrendered for payment and where
notices, designations or requests with respect to the Notes may be served. The
Company has initially appointed the Trustee to act as Paying Agent and
Registrar. The Company may change the Paying Agent or Registrar without notice
to the Holders. Neither the Company nor any of its Subsidiaries or Affiliates
may act as Paying Agent, although such entities may act as Registrar.
5. Optional Redemption. Except as set forth below, the Company may not
redeem the Notes before June 1, 2008. Beginning on June 1, 2008, the Company may
redeem all of the Notes at any time or any portion of the Notes from time to
time, at a Redemption Price equal to the percentage of the principal amount set
forth below, plus accrued and unpaid interest up to but not including the
Redemption Price if redeemed during the 12-month period commencing on June 1, of
the years set forth below; provided that if the Redemption Price falls after the
Regular Record Date and on or before the Interest Payment Date, interest shall
be payable to holders of record on the relevant Regular Record Date.
12-MONTH PERIOD
COMMENCING JUNE 1 IN
YEAR PERCENTAGE
------------------------------- ---------------------
2008 103.625%
2009 102.417%
2010 101.208%
2011 and thereafter 100.000%
Notwithstanding the foregoing, at any time and on more than one
occasion prior to June 1, 2006, the Company may redeem up to 35% of the
originally issued principal amount of the
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Notes with the proceeds of one more Equity Offerings, at a Redemption Price of
107.25% of the principal amount thereof plus accrued and unpaid interest,
provided that (i) at least 65% of the originally issued principal amount of the
Notes remains outstanding immediately after such redemption (other than Notes
held, directly or indirectly, by the Company and its Affiliates) and (ii) each
such redemption occurs within 60 days after the completion of the related Equity
Offering.
If less than all of the Notes are to be redeemed at any time, selection
of the Notes to be redeemed will be made by the Trustee from among the
Outstanding Notes on a pro rata basis, by lot or by any other method permitted
in the Indenture. On and after the Redemption Date, interest will cease to
accrue on the Notes or portions thereof called for redemption.
The Notes will not be entitled to any sinking fund.
6. Notice of Redemption. Notice of redemption under the preceding
paragraph of this Note 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 such
Holder's registered address.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then the Notes called for redemption
will cease to bear interest from and after such Redemption Date and the only
right of the Holders of such Notes will be to receive payment of the Redemption
Price plus interest accrued through the Redemption Date, if any.
7. Offers to Purchase. Prior to the occurrence of the Fall-Away Event,
the Indenture provides that, after certain Asset Sales 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 the Notes in
accordance with the procedures set forth in the Indenture.
8. Denominations; Transfer; Exchange. The Notes are in definitive,
fully registered form, without coupons, in minimum denominations of U.S.$1,000
and in integral multiples of U.S.$1,000 in excess thereof. A Holder shall
register the transfer or exchange of Notes in accordance with the Indenture and
the Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents in connection therewith as permitted by the
Indenture. No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. The
Registrar need not register the transfer of or exchange of any Notes or portions
thereof selected for redemption.
9. Persons Deemed Owners. Prior to due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
10. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years (or such shorter period for the return of such
moneys to the Company under applicable abandoned property laws), the Trustee and
the Paying Agent will pay the
A-7
money back to the Company. After that, Holders entitled to money must look to
the Company for payment as general creditors unless an "abandoned property" law
designates another person.
11. Defeasance and Covenant Defeasance. The Indenture contains
provisions for defeasance at any time of (i) the entire indebtedness of this
Note or (ii) certain respective covenants and Events of Default with respect to
this Note, in each case upon compliance with certain conditions set forth
therein, which provisions apply to the Notes.
At the option of the Company and upon satisfaction of certain
conditions specified in the Indenture, either (a) the Company shall be deemed to
have paid and discharged the entire indebtedness on the Notes or (b) the Company
need not comply with certain covenants contained in the Indenture, in each case
upon the deposit by the Company with the Trustee in trust for the Holders of the
Notes of an amount of funds or obligations issued or guaranteed by the United
States of America sufficient to pay and discharge upon the Stated Maturity
thereof the entire indebtedness evidenced by the Notes, all as provided in the
Indenture.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the currency herein prescribed.
12. Amendments, Supplements, and Waivers. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of Notes at any time by the Company and the Trustee with the consent of
a majority in aggregate Outstanding principal amount of the Notes. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate Outstanding principal amount of the Notes to waive compliance by the
Company with certain provisions of the Indenture and certain past Defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note or Notes issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not a notation of such consent or waiver is made upon this Note.
Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
13. Restrictive Covenants. The Indenture imposes certain limitations on
the ability of the Company and/or its Subsidiaries to, among other things, incur
additional Indebtedness, issue Preferred Stock, make Restricted Payments
(including dividends, other distributions and investments), create dividend or
other payment restrictions affecting Subsidiaries of the Company, make Asset
Sales, create Liens, merge or consolidate with or into any other Person or sell,
lease, convey or otherwise dispose of all or substantially all of its assets.
Such limitations are subject to a number of qualifications and exceptions and,
in certain instances upon the occurrence of certain events, cease to be binding
upon the Company and its Subsidiaries. The
A-8
Company shall report on an annual basis to the Trustee on compliance with all
conditions and covenants of the Indenture.
14. Successor. When a successor Corporation assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Notes and the
Indenture, and immediately before and thereafter no Default exists and certain
other conditions are satisfied, the predecessor Corporation will be released
from those obligations.
15. Defaults and Remedies. In case an Event of Default with respect to
the Notes shall occur and be continuing, the principal of the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
16. Trustee Dealings with Company. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from
and perform services for the Company, and may otherwise deal with the Company,
its Subsidiaries or their respective Affiliates as if it were not the Trustee.
17. No Recourse Against Others. This Note and all documents,
agreements, understandings and arrangements relating to any transaction
contemplated hereby or thereby have been executed or entered into by an officer
of the Company in his/her capacity as an officer of the Company which has been
formed as a Tennessee corporation, and not individually, and neither the
trustees, directors, officers, employees or shareholders of the Company shall be
bound or have any personal liability hereunder or thereunder. Each party hereto
shall look solely to the assets of the Company for satisfaction of any liability
of the Company in respect of this Note and all documents, agreements,
understandings and arrangements relating to any transaction contemplated hereby
or thereby and will not seek recourse or commence any action against any of the
trustees, directors, officers, employees or shareholders of the Compan, or any
of their personal assets, for the performance or payment of any obligation
hereunder or thereunder. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes. The foregoing shall also apply to any
future documents, agreements, understandings, arrangements and transactions
between the parties hereto.
18. Authentication. Unless the Certificate of Authentication hereon has
been executed by the Trustee by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
19. Counterparts. The parties may sign multiple counterparts of this
Note. Each signed counterpart shall be deemed an original but all of them
together represent one and the same Note.
20. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York, as applied to agreements made
and to be performed entirely within the State of New York, without regard to
principles of conflicts of law. Each of the parties to the Indenture has agreed
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 Note.
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21. Abbreviations and Defined Terms. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (as
tenants in common); TEN ENT (as tenants by the entireties); JT TEN (as joint
tenants with right of survivorship and not as tenants in common); CUST
(Custodian); and U/G/M/A (Uniform Gifts to Minors Act).
22. CUSIP Numbers. The Company has caused CUSIP numbers to be printed
on the Notes as a convenience to the Holders. No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption, and reliance may be placed only on the other
identification numbers printed hereon, and any redemption of the Notes shall not
be affected by any defect in or omission of such numbers.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture. Requests may be made to: ▇▇▇▇▇▇ &
▇▇▇▇▇ Corporation, ▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telephone No.
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
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PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
----------------------------
/----------------------------/
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please Print or Type Name and Address
Including Postal Zip Code of Assignee)
--------------------------------------------------------------------------------
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
------------------------------
Signature Guaranteed
------------------------------------
NOTICE: Signature must be guaranteed NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within Note in every particular,
without alteration or enlargement or
any change whatever.
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you elect to have this Note purchased by the Company in accordance
with the provisions of the Indenture governing Asset Sales or a Change of
Control of the Company, check the appropriate box:
Asset Sales [ ]
Change of Control [ ]
If you elect to have only part of this Note purchased by the Company in
accordance with the provisions of the Indenture governing Asset Sales or a
Change of Control of the Company, state the amount you elect to have purchased:
$
------------------------
Date:
----------------------
---------------------------------------
(Sign exactly as your name appears on the other side of this Note)
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