Exhibit T3C-2
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▇. ▇. ▇▇▇▇▇▇▇▇▇▇ & CO., INC.
As Issuer
WILMINGTON TRUST COMPANY
As Trustee and Collateral Agent
THE SUBSIDIARY GUARANTORS NAMED HEREIN
As Guarantors
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Indenture
Dated as of June 3, 2003
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12.50% Senior Secured Notes due 2007
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▇. ▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of May 15, 2003
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310 (a) (1) ............................................ 609
(a) (2) ............................................ 609
(a) (3) ............................................ Not Applicable
(a) (4) ............................................ Not Applicable
(b) ............................................ 608
Section 311 (a) ............................................ 613
(b) ............................................ 613
703(a)
(b) (2) ............................................ 703(b)
701(a)
Section 312 (a) ............................................ 702(a)
(b) ............................................ 702(b)
(c) ............................................ 702(c)
Section 313 (a) ............................................ 703(a)
(b) ............................................ 703(a)
(c) ............................................ 703(a)
(d) ............................................ 703(b)
Section 314 (a) ............................................ 704
(b) ............................................ Not Applicable
(c) (1) ............................................ 102
(c) (2) ............................................ 102
(c) (3) ............................................ Not Applicable
1405(b)
(d) ............................................ 1406(a)
(e) ............................................ 102
▇▇▇▇▇▇▇ ▇▇▇ (▇) ............................................ ▇▇▇
▇▇▇
(▇) ............................................ 703(a)(6)
(c) ............................................ 601
(d) ............................................ 601
(d) (1) ............................................ 601
(d) (2) ............................................ ▇▇▇
-▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ Section Section
--------------- ---------
(d) (3) ............................................ 601
(e) ............................................ 514
Section 316 (a) ............................................ 101
502
(a) (1) (A) ............................................ 512
(a) (1) (B) ............................................ 513
(a) (2) ............................................ Not Applicable
(b) ............................................ 508
Section 317 (a) (1) ............................................ 503
(a) (2) ............................................ 504
(b) ............................................ 1003
Section 318 (a) ............................................ 107
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TABLE OF CONTENTS
PAGE
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION............................................2
SECTION 101. Definitions....................................................2
SECTION 102. Compliance Certificates and Opinions..........................19
SECTION 103. Form of Documents Delivered to Trustee........................20
SECTION 104. Acts of Holders: Record Date..................................21
SECTION 105. Notices, Etc., to Trustee, Company, and Subsidiary Guarantors.22
SECTION 106. Notice to Holders; Waiver.....................................22
SECTION 107. Conflict with Trust Indenture Act.............................22
SECTION 108. Effect of Headings and Table of Contents......................23
SECTION 109. Successors and Assigns........................................23
SECTION 110. Separability Clause...........................................23
SECTION 111. Benefits of Indenture.........................................23
SECTION 112. Governing Law.................................................23
SECTION 113. Legal Holidays................................................23
ARTICLE TWO SECURITY AND SUBSIDIARY GUARANTEE FORMS.......................23
SECTION 201. Forms Generally...............................................23
SECTION 202. Form of Face of Security......................................24
SECTION 203. Form of Reverse of Security...................................26
SECTION 204. Form of Trustee's Certificate of Authentication...............28
SECTION 205. Form of Guarantee.............................................28
ARTICLE THREE THE SECURITIES................................................32
SECTION 301. Title and Terms...............................................32
SECTION 302. Denominations.................................................33
SECTION 303. Execution, Authentication, Delivery and Dating................33
SECTION 304. Temporary Securities..........................................34
SECTION 305. Registration, Registration of Transfer and Exchange...........34
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..............35
SECTION 307. Payment of Interest; Interest Rights Preserved................36
SECTION 308. Persons Deemed Owners.........................................37
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 309. Cancellation..................................................37
SECTION 310. Computation of Interest.......................................38
SECTION 311. PIK Notes.....................................................38
ARTICLE FOUR SATISFACTION AND DISCHARGE....................................38
SECTION 401. Satisfaction and Discharge of Indenture.......................38
SECTION 402. Application of Trust Money....................................39
ARTICLE FIVE REMEDIES......................................................39
SECTION 501. Events of Default.............................................39
SECTION 502. Acceleration of Maturity; Rescission and Annulment............41
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.......................................................42
SECTION 504. Trustee May File Proofs of Claim..............................43
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...44
SECTION 506. Application of Money Collected................................44
SECTION 507. Limitation on Suits...........................................44
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..........................................45
SECTION 509. Restoration of Rights and Remedies............................45
SECTION 510. Rights and Remedies Cumulative................................45
SECTION 511. Delay or Omission Not Waiver..................................45
SECTION 512. Control by Holders............................................46
SECTION 513. Waiver of Past Defaults.......................................46
SECTION 514. Undertaking for Costs.........................................46
SECTION 515. Waiver of Stay or Extension Laws..............................47
ARTICLE SIX THE TRUSTEE...................................................47
SECTION 601. Certain Duties and Responsibilities...........................47
SECTION 602. Notice of Defaults............................................47
SECTION 603. Certain Rights of Trustee.....................................47
SECTION 604. Not Responsible for Recitals or Issuance of Securities........49
SECTION 605. May Hold Securities...........................................49
SECTION 606. Money Held in Trust...........................................50
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 607. Compensation and Reimbursement................................50
SECTION 608. Disqualification; Conflicting Interests.......................50
SECTION 609. Corporate Trustee Required; Eligibility.......................50
SECTION 610. Resignation and Removal; Appointment of Successor.............51
SECTION 611. Acceptance of Appointment by Successor........................52
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...52
SECTION 613. Preferential Collection of Claims Against Company.............52
SECTION 614. Appointment of Authenticating Agent...........................53
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............54
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.....54
SECTION 702. Preservation of Information; Communications to Holders........54
SECTION 703. Reports by Trustee............................................55
SECTION 704. Reports by Company and the Subsidiary Guarantors..............55
ARTICLE EIGHT MERGER, CONSOLIDATION, ETC....................................55
SECTION 801. Mergers, Consolidations and Certain Sales and Purchases
of Assets by the Company......................................55
SECTION 802. Mergers, Consolidations and Certain Sales of Assets
by Subsidiary Guarantors......................................57
SECTION 803. Successor Substituted.........................................57
ARTICLE NINE SUPPLEMENTAL INDENTURES.......................................58
SECTION 901. Supplemental Indentures Without Consent of Holders............58
SECTION 902. Supplemental Indentures with Consent of Holders...............59
SECTION 903. Execution of Supplemental Indentures..........................60
SECTION 904. Effect of Supplemental Indentures.............................60
SECTION 905. Conformity with Trust Indenture Act...........................60
SECTION 906. Reference in Securities to Supplemental Indentures............60
ARTICLE TEN COVENANTS.....................................................60
SECTION 1001. Payment of Principal, Premium and Interest....................60
SECTION 1002. Maintenance of Office or Agency...............................61
SECTION 1003. Money for Security Payments to be Held in Trust...............61
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 1004. Existence.....................................................62
SECTION 1005. Maintenance of Properties.....................................62
SECTION 1006. Payment of Taxes and Other Claims.............................63
SECTION 1007. Maintenance of Insurance......................................63
SECTION 1008. Limitation on Consolidated Debt and Preferred Stock...........63
SECTION 1009. Limitation on Restricted Subsidiary Debt and Preferred Stock..65
SECTION 1010. Limitation on Restricted Payments.............................66
SECTION 1011. Limitations Concerning Distributions and Transfers By Restricted
Subsidiaries..................................................68
SECTION 1012. Limitation on Liens...........................................69
SECTION 1013. Limitation on Sale and Leaseback Transactions.................69
SECTION 1014. Limitation on Transactions with Affiliates and Related Persons69
SECTION 1015. Limitation on Certain Asset Dispositions......................70
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.......................................71
SECTION 1017. Change of Control.............................................72
SECTION 1018. Limitations on Acquisitions...................................73
SECTION 1019. Limitations on the Repurchase of Securities...................73
SECTION 1020. Provision of Financial Information............................73
SECTION 1021. Statement by Officers as to Default...........................74
SECTION 1022. Waiver of Certain Covenants...................................74
SECTION 1023. Cancellation of Reacquired Notes..............................75
SECTION 1024. Covenant to Obtain Lien on Intellectual Property..............75
SECTION 1025. Covenant to Obtain Leasehold Mortgages........................75
ARTICLE ELEVEN REDEMPTION OF SECURITIES......................................75
SECTION 1101. Right of Redemption...........................................75
SECTION 1102. Applicability of Article......................................76
SECTION 1103. Election to Redeem; Notice to Trustee.........................76
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.............76
SECTION 1105. Notice of Redemption..........................................76
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 1106. Deposit of Redemption Price...................................77
SECTION 1107. Securities Payable on Redemption Date.........................77
SECTION 1108. Securities Redeemed in Part...................................77
ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE............................78
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance..78
SECTION 1202. Defeasance and Discharge......................................78
SECTION 1203. Covenant Defeasance...........................................78
SECTION 1204. Conditions to Defeasance or Covenant Defeasance...............79
SECTION 1205. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions......................80
SECTION 1206. Reinstatement.................................................81
ARTICLE THIRTEEN SUBSIDIARY GUARANTEES.........................................81
SECTION 1301. Subsidiary Guarantees.........................................81
SECTION 1302. Execution and Delivery of Subsidiary Guarantees...............83
SECTION 1303. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms.84
SECTION 1304. Release of Subsidiary Guarantors..............................84
SECTION 1305. Additional Subsidiary Guarantors..............................84
ARTICLE FOURTEEN SECURITY DOCUMENTS............................................85
SECTION 1401. Security Documents............................................85
SECTION 1402. Recording, Etc................................................86
SECTION 1403. Possession of the Collateral..................................86
SECTION 1404. Suits to Protect the Collateral...............................87
SECTION 1405. Release of Collateral.........................................87
SECTION 1406. Specified Releases of Collateral..............................87
SECTION 1407. Disposition of Collateral Without Release.....................89
SECTION 1408. Sufficiency of Release........................................90
SECTION 1409. Actions by the Trustee........................................90
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INDENTURE, dated as of [ ] [ ], 2003, among ▇. ▇. ▇▇▇▇▇▇▇▇▇▇ &
CO., INC., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, each of the SUBSIDIARY
GUARANTORS (as hereinafter defined), and Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of the State of Delaware,
United States of America having its principal office at ▇▇▇▇▇▇ Square North,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, acting hereunder not in its
individual capacity but solely as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
AND THE SUBSIDIARY GUARANTORS
The Company has duly authorized the creation of an issue of its
12.50% Senior Secured Notes due 2007 (the "Securities") of substantially the
tenor hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
The Company, directly or indirectly, owns beneficially and of
record 100% of the Capital Stock of the Subsidiary Guarantors; the Company and
the Subsidiary Guarantors are members of the same consolidated group of
companies; the Subsidiary Guarantors will derive direct and indirect economic
benefit from the issuance of the Securities; accordingly, the Subsidiary
Guarantors have each duly authorized the execution and delivery of this
Indenture to provide for the Guarantee by each of them with respect to the
Securities as set forth in this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, to make the Guarantees of each of
the Subsidiary Guarantors, when executed by the respective Subsidiary Guarantors
and endorsed on the Securities, authenticated and delivered hereunder, the valid
obligations of the respective Subsidiary Guarantors, and to make this Indenture
a valid agreement of the Company and each of the Subsidiary Guarantors, in
accordance with their and its terms, will have been done.
NOW, THEREFORE, THIS INDENTURE 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 all Holders of the Securities, as follows:
ARTICLE One
Definitions and Other Provisions
of General Application
SECTION 101 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles (whether or not such is indicated herein), and,
except as otherwise herein expressly provided, the term generally
accepted accounting principles with respect to any computation required
or permitted hereunder shall mean such accounting principles as are
generally accepted as consistently applied by the Company at the date of
such computation;
(4) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made on
a consolidated basis in accordance with generally accepted accounting
principles but shall not include the accounts of Unrestricted
Subsidiaries, except to the extent of dividends and distributions
actually paid to the Company or one of its Restricted Subsidiaries; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Asset Disposition" by any Person means any transfer,
conveyance, sale, lease or other disposition by such Person or any of its
Restricted Subsidiaries (including a consolidation or merger or other sale of
any such Restricted Subsidiary with, into or to another Person in a
2
transaction in which such Restricted Subsidiary ceases to be a Restricted
Subsidiary, but excluding a disposition by a Restricted Subsidiary of such
Person to such Person or a Wholly Owned Restricted Subsidiary of such Person or
by such Person to a Wholly Owned Restricted Subsidiary of such Person, provided,
if such Person is the Company, that such Wholly Owned Restricted Subsidiary is a
Subsidiary Guarantor) of (i) shares of Capital Stock (other than directors'
qualifying shares) or other ownership interests of a Restricted Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Restricted Subsidiaries representing a division or line of business or (iii)
other assets or rights of such Person or any of its Restricted Subsidiaries
outside of the ordinary course of business.
"Attributable Value" means, as to any particular lease under
which any Person is at the time liable other than a Capital Lease Obligation,
and 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 initial term thereof as determined in accordance with generally accepted
accounting principles, discounted from the last date of such initial term to the
date of determination at a rate per annum equal to the discount rate which would
be applicable to a Capital Lease Obligation with like terms in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount shall
also include the lesser of the amount of such penalty (in which case 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) or the rent which would otherwise
be required to be paid if such lease is not so terminated. "Attributable Value"
means, as to a Capital Lease Obligation under which any Person is at the time
liable and at any date as of which the amount thereof is to be determined, the
capitalized amount thereof that would appear on the face of a balance sheet of
such Person in accordance with generally accepted accounting principles.
"Authenticating Agent" means the Trustee or any Person authorized
by the Trustee to act on behalf of the Trustee to authenticate Securities.
"Average Life" means, as of the date of determination, with
respect to any Debt or Preferred Stock, the quotient obtained by dividing (i)
the sum of the products of the numbers of years from the date of determination
to the dates of each successive scheduled principal or liquidation value
payments of such Debt or Preferred Stock, respectively, and the respective
amount of such principal or liquidation value payments, by (ii) the sum of all
such principal or liquidation value payments.
"▇▇▇▇▇▇▇ Term Loan" means that certain Term Loan and Security,
dated as of March 17, 2000, by and between Universal ▇▇▇▇▇▇▇, Inc., a borrower,
and Congress Financial Corporation, as amended, supplemented, restated or
otherwise modified from time to time.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
3
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York, Wilmington, Delaware or Houston, Texas are authorized or obligated by law
or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock of such Person.
"Change of Control" has the meaning specified in Section 1017.
"Collateral Access Agreement" means the Collateral Access
Agreement dated as of even date herewith by and between the Trustee and Congress
Financial Corporation.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person
that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter Company
shall mean such successor Person.
"Company Notice" means a notice from the Company requesting
release of Released Security Collateral.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated EBITDA Coverage Ratio" of any Person means for any
period the ratio of (i) EBITDA of such Person for such period to (ii) the sum of
(A) Consolidated Interest
4
Expense of such Person for such period plus (B) the annual interest expense
(including the amortization of debt discount) with respect to any Debt proposed
on the date of computation to be Incurred by such Person or its Restricted
Subsidiaries minus (C) Consolidated Interest Expense of such Person to the
extent included in Clause (ii)(A) with respect to any Debt that will no longer
be outstanding as a result of the Incurrence of the Debt proposed on the date of
computation to be Incurred plus (D) the annual interest expense (including the
amortization of debt discount) with respect to any other Debt Incurred by such
Person or its Restricted Subsidiaries since the end of such period to the extent
not included in Clause (ii)(A) minus (E) Consolidated Interest Expense of such
Person to the extent included in Clause (ii)(A) with respect to any Debt that no
longer is outstanding as a result of the Incurrence of any Debt referred to in
Clause (ii)(D); provided, however, that in making such computation, the
Consolidated Interest Expense of such Person attributable to interest on any
Debt bearing a floating interest rate (after taking into account any interest
rate swaps, caps, collars and similar arrangements) shall be computed on a pro
forma basis as if the rate in effect on the date of computation had been the
applicable rate for the entire period; provided further that, in the event such
Person or its Restricted Subsidiaries has made Asset Dispositions or
acquisitions of assets not in the ordinary course of business (including
acquisitions of other Persons by merger, consolidation or purchase of Capital
Stock) during or after such period, such computation shall be made on a pro
forma basis as if the Asset Dispositions or acquisitions had taken place on the
first day of such period.
"Consolidated Income Tax Expense" of any Person means for any
period the consolidated provision for income taxes of such Person for such
period calculated on a consolidated basis in accordance with generally accepted
accounting principles.
"Consolidated Interest Expense" for any Person means for any
period the consolidated interest expense included in a consolidated income
statement (without deduction of interest income) of such Person for such period
calculated on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iii) net fees with respect to interest rate
swap or similar agreements or foreign currency hedge, exchange or similar
agreements; (iv) Preferred Stock dividends declared and payable in cash; (v) the
portion of any rental obligation allocable to interest expense; (vi) interest
expense attributable to any Debt represented by the Guarantee by such Person or
a Subsidiary of such Person other than with respect to the Debt of such Person
or a Subsidiary of such Person and (vii) all other non-cash interest expense
(including the amount of PIK Notes issued in lieu of cash interest) excluding,
however, any amount of such interest of any Restricted Subsidiary of such Person
if the net income of such Restricted Subsidiary is excluded in the calculation
of Consolidated Net Income for such Person pursuant to clause (b) of the proviso
in the definition thereof (but only in the same proportion as the net income of
such Subsidiary is excluded from the calculation of Consolidated Net Income for
such Person pursuant to clause (b) of the proviso in the definition thereof).
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person for such period determined on a
consolidated basis in accordance with generally accepted accounting principles;
provided that there shall be excluded
5
therefrom (a) the net income (but not net loss) of any Restricted Subsidiary of
such Person which is subject to restrictions which prevent the payment of
dividends or the making of distributions (by loans, advances, intercompany
transfers or otherwise) to such Person to the extent of such restrictions, (b)
the net income (or loss) of any Person that is not a Restricted Subsidiary of
such Person except to the extent of the amount of dividends or other
distributions actually paid to such Person by such other Person during such
period, (c) gains or losses on Asset Dispositions by such Person or its
Restricted Subsidiaries and (d) all extraordinary gains and extraordinary
losses.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person and its Restricted Subsidiaries, determined
in accordance with generally accepted accounting principles, less amounts
attributable to Disqualified Stock of such Person.
"Consolidated Tangible Assets" of any Person means the sum of the
Tangible Assets of such Person after eliminating intercompany items, determined
on a consolidated basis in accordance with generally accepted accounting
principles, including appropriate deductions for any minority interest in
Tangible Assets of such Person's Restricted Subsidiaries.
"Corporate Trust Office" means the principal office of the
Trustee in Wilmington, Delaware at which at any particular time its corporate
trust business shall be administered.
"corporation" means a corporation, association, company,
joint-stock company, partnership or business trust.
"Debt" means (without duplication) with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations Incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person under interest rate swaps, caps, collars and
similar arrangements, (v) every obligation of such Person issued or assumed as
the deferred purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of
business which are not overdue), (vi) every Capital Lease Obligation of such
Person, (vii) the maximum fixed redemption or repurchase price of Redeemable
Stock of such Person at the time of determination, and (viii) every obligation
of the type referred to in Clauses (i) through (vii) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has Guaranteed or for which such Person is responsible or liable, directly or
indirectly, as obligor, Guarantor or otherwise. The amount outstanding at any
time of any Debt issued with original issue discount is the face amount of such
Debt less the remaining unamortized portion of the original issue discount of
such Debt at such time as determined in conformity with generally accepted
accounting principles.
"Defaulted Interest" has the meaning specified in Section 307.
6
"Disqualified Stock" of any Person means any Capital Stock of
such Person which, 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 the holder thereof,
in whole or in part, on or prior to the final Stated Maturity of the Securities.
"EBITDA" of any Person means for any period the Consolidated Net
Income for such period increased by the sum of (i) Consolidated Interest Expense
of such Person for such period, plus (ii) Consolidated Income Tax Expense of
such Person for such period, plus (iii) the consolidated depreciation and
amortization expense included in the income statement of such Person for such
period, plus (iv) other non-cash charges (such as minority interests) of such
Person for such period deducted from consolidated revenues in determining
Consolidated Net Income for such period, minus (v) non-cash items of such Person
for such period increasing consolidated revenues in determining Consolidated Net
Income for such period.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as
it may be amended and any successor act thereto.
"Expiration Date" has the meaning specified in the definition of
Offer to Purchase.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect from time to
time
"General Intangibles" means all general intangibles, which term
has the meaning given to it in the Uniform Commercial Code, and shall include
all tax refunds, trademarks, servicemarks, tradenames and other intellectual
property and proprietary rights applicable to the liquidation of receivables and
inventory.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such Debt, (ii) to purchase property, securities or services for the purpose
of assuring the holder of such Debt of the payment of such Debt, or (iii) to
maintain working capital, equity capital or other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Debt (and "Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
7
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Incentive Arrangement" means any earn-out agreement, stock
appreciation rights, "phantom stock plans," employment agreements,
non-competition agreements, subscription and stockholders agreements and other
incentive and bonus plans and similar arrangements made in connection with
acquisitions of persons or businesses by the Company or its Restricted
Subsidiaries, or the retention of directors, officers or employees by the
Company or its Restricted Subsidiaries, other than any such agreement or
arrangement with ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ or any Person directly or indirectly under
his control (other than the Company or its Restricted Subsidiaries).
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to generally accepted
accounting principles or otherwise, of any such Debt or other obligation on the
balance sheet of such Person (and "Incurrence," "Incurred," "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing); provided,
however, that a change in GAAP that results in an obligation of such Person that
exists at such time becoming Debt shall not be deemed an Incurrence of such
Debt.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Public Offering" means an underwritten initial public
offering of Common Stock of the Company pursuant to a registration statement
filed pursuant to the Securities Act of 1933, as amended.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Intra-Company Note" means a note representing a loan from the
Company to a Wholly Owned Restricted Subsidiary of the Company of funds
advanced.
"Inventory" of a Person means all inventory of such Person,
including (i) all raw materials, work in process, parts, components, assemblies,
supplies and materials used or consumed in such Person's business; (ii) all
goods, wares and merchandise, finished or unfinished, held for sale or lease;
and (iii) all goods returned or repossessed by such Person.
"Investment" by any Person means any direct or indirect loan,
advance or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Debt issued by any other Person.
8
"Joint Venture" means any joint venture arrangement in which the
Company or any of its Restricted Subsidiaries owns an equity interest not in
excess of 50% of the equity interest of all joint venturers thereof, whether
such joint venture is structured as a corporation, partnership, trust, limited
liability company or any other Person.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, security interest,
lien, charge, encumbrance or other security agreement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Management Services Agreement" means the agreement, dated
February 1, 1996, by and between the Company and Southwestern Holdings, Inc., a
Texas corporation, as in effect on the date of this Indenture.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Mortgage" means (a) that certain Deed of Trust, Security
Agreement and Financing Statement dated as of even date herewith made by
Magnetic Instruments Corp., as mortgagor, in favor of [___________], as trustee,
for the benefit of the Trustee as trustee for the Holders, with respect to real
property in Texas, (b) that certain Deed of Trust, Security Agreement, Fixture
Filing and Financing Statement dated as of even date herewith made by ▇▇▇▇▇▇
Trailer Mfg. Co., as mortgagor, in favor of the Trustee as trustee for the
Holders, with respect to real property in Arizona, (c) that certain Open-End
Mortgage, Security Agreement and Financing Statement dated as of even date
herewith made by ▇▇▇▇▇▇ Trailer Mfg. Co., as mortgagor, in favor of the Trustee
as trustee for the Holders, with respect to real property in Pennsylvania, (d)
that certain Mortgage, Security Agreement and Financing Statement dated as of
even date herewith made by EFP Corporation, as mortgagor, in favor of the
Trustee as trustee for the Holders, with respect to real property in Indiana,
(e) that certain Mortgage, Security Agreement and Financing Statement dated as
of even date herewith made by Truck Accessories Group, Inc., as mortgagor, in
favor of the Trustee as trustee for the Holders, with respect to real property
in Indiana, and (f) that certain Mortgage in Support of Guarantee dated as of
even date herewith made by Truck Accessories Group, Inc., as mortgagor, in favor
of the Trustee as trustee for the Holders, with respect to real property in
Saskatchewan, in each case amended, supplemented, restated or otherwise modified
from time to time.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable cash equivalents received (including by way of
sale or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Debt) therefrom by such Person, net of (i) all legal, title and
recording tax expenses, commissions and other fees and expenses Incurred and all
federal, state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such Asset Disposition, (ii) all payments made by
such Person or its Restricted Subsidiaries on any Debt which is secured by such
assets in accordance with the terms of any Lien upon or with respect to such
assets or which must be accrued by the terms of such Lien, or
9
in order to obtain a necessary consent to such Asset Disposition or by
applicable law be repaid out of the proceeds from such Asset Disposition, and
(iii) all distributions and other payments made to minority interest holders in
Restricted Subsidiaries of such Person or joint ventures as a result of such
Asset Disposition.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing this Indenture and related
documents.
"Offer" has the meaning specified in the definition of Offer to
Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by
the Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Security Register on the date of the Offer offering to purchase
up to the principal amount of Securities specified in such Offer at the purchase
price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Securities within five Business Days after the Expiration Date.
The Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain information concerning the
business of the Company and its Subsidiaries which the Company in good faith
believes will enable such Holders to make an informed decision with respect to
the Offer to Purchase, which at a minimum will include (i) the most recent
annual and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" contained in the
documents required to be filed with the Trustee pursuant to Section 1020 (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
Clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the
Company to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein. The Offer shall contain all instructions
and materials necessary to enable such Holder to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section hereof requiring the Offer to
Purchase) (the "Purchase Amount");
10
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion of
a Security tendered must be tendered in an integral multiple of $1,000
principal amount;
(6) the place or places where Securities are to be surrendered
for tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but
not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the Purchase Price will become due
and payable upon each Security or portion thereof accepted for payment
pursuant to the Offer to Purchase and that interest thereon shall cease
to accrue on and after the Purchase Date;
(9) that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such Security at the
place or places specified in the Offer prior to the close of business on
the Expiration Date (such Security being, if the Company or the Trustee
so requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing and bearing appropriate signature guarantees);
(10) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the Expiration Date, a
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Security the Holder tendered, the
certificate number of the Security the Holder tendered and a statement
that such Holder is withdrawing all or a portion of his tender;
(11) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities and (b) if Securities in an aggregate principal
amount in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase Securities
having an aggregate principal amount equal to the Purchase Amount on a
pro rata basis (with such adjustments as may be deemed appropriate so
that only Securities in denominations of $1,000 or integral multiples
thereof shall be purchased); and
(12) that in the case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Security so tendered.
11
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company
or a Subsidiary Guarantor, as the case may be, and delivered to the Trustee. One
of the officers signing an Officers' Certificate given pursuant to Section 1021
shall be the principal executive, financial or accounting officer of the Company
or a Subsidiary Guarantor, as the case may be.
"Old Securities" means any Securities issued under the indenture,
dated May 23, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York
and certain of the subsidiary guarantors.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or any Subsidiary Guarantor) in
trust or set aside and segregated in trust by the Company or a
Subsidiary Guarantor (if the Company or a Subsidiary Guarantor, as the
case may be, shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been defeased pursuant to Section
1202 hereof; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee
12
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"pari passu", when used with respect to the ranking of any Debt
of any Person in relation to other Debt of such Person, means that each such
Debt (a) either (i) is not subordinated in right of payment to any other Debt of
such Person or (ii) is subordinate in right of payment to the same Debt of such
Person as is the other and is so subordinate to the same extent and (b) is not
subordinate in right of payment to the other or to any Debt of such Person as to
which the other is not so subordinate.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company and such Paying Agent shall initially be the Trustee.
"Permitted Holder" means (i) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, his executors,
administrators or similar legal representatives, or any Person which is
controlled, directly or indirectly, by any of the foregoing and (ii) any
beneficial holder of Old Securities that exchange all of their Old Securities
for Securities in the Offer.
"Permitted Liens" means (i) Liens created or permitted pursuant
to the Security Documents to secure the Securities; (ii) Liens on any assets to
secure Debt permitted to be Incurred under clause (i) and clause (viii) of the
third paragraph of the covenant described under Section 1008 of this Indenture;
(iii) purchase money Liens on any assets acquired in accordance with this
Indenture; (iv) Liens for taxes, assessments or governmental charges or levies
on the property of the Company or any Restricted Subsidiary if the same is not
at the time delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings, provided that any
reserve or other appropriate provision that may be required in conformity with
GAAP has been made therefor; (v) Liens imposed by law or arising by operation of
law, including without limitation, landlords', mailmen's, suppliers', vendors',
carriers', warehousemen's and mechanics' Liens and other similar Liens, Liens
for master's and crew's wages and other similar laws, on the assets of the
Company or any Restricted Subsidiary arising in the ordinary course of business
and for payment obligations that are not more than 60 days past due or are being
contested in good faith and by appropriate proceedings; (vi) Liens on the assets
of the Company or any Restricted Subsidiary Incurred in the ordinary course of
business to secure performance of obligations with respect to statutory or
regulatory requirements, performance or return-of-money bonds, surety or appeal
bonds or other obligations of a like nature and Incurred in a manner consistent
with industry practice; (vii) Liens on assets at the time the Company or any
Restricted Subsidiary acquired such assets, including any acquisition by means
of a merger or consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that any such Lien may not extend to any other
assets of the Company or any Restricted Subsidiary; provided further,
13
however, that such Liens have not been Incurred in anticipation of or in
connection with the transaction or series of transactions pursuant to which such
assets were acquired by the Company or any Restricted Subsidiary; (viii) Liens
on the assets of a Person existing at the time such Person becomes a Restricted
Subsidiary; provided, however, that any such Lien may not extend to any other
assets of the Company or any other Restricted Subsidiary that is not a direct
Subsidiary of such Person; provided further, however, that any such Lien was not
Incurred in anticipation of or in connection with the transaction or series of
transactions pursuant to which such Person became a Restricted Subsidiary; (ix)
Liens Incurred or pledges or deposits made by the Company or any Restricted
Subsidiary under workmen's compensation laws, unemployment insurance laws or
similar legislation, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Debt) or leases to which the Company or
any Restricted Subsidiary is party, or deposits to secure public or statutory
obligations of the Company, or deposits for the payment of rent, in each case
Incurred in the ordinary course of business; (x) utility easements, building
restrictions and such other encumbrances or charges against real property as are
of a nature generally existing with respect to properties of a similar
character; (xi) Liens existing on the date of this Indenture not otherwise
described above; (xii) Liens on the assets of the Company or any Restricted
Subsidiary to secure any Refinancing, in whole or in part, of any Debt secured
by Liens referred to in this definition; provided, however, that any such Lien
will be limited to all or part of the same assets that secured the original Lien
(together with improvements and accessions to such assets) and the aggregate
principal amount of Debt that is secured by such Lien will not be increased to
an amount greater than the outstanding principal amount, or, if greater, the
committed amount, of the Debt secured by Liens described under this definition,
as the case may be, at the time the original Lien became a Permitted Lien under
the indenture; (xiii) judgment Liens not giving rise to a Default or Event of
Default so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been initiated for the review of such judgment, decree
or order have been finally terminated or the period within which such
proceedings may be initiated has not expired; (xiv) Liens upon specific items of
inventory or other goods and proceeds of any Person securing such Person's
obligations in respect of banker's acceptances issued or credited for the
account of such Person to facilitate the purchase, shipment or storage of such
inventory or goods; (xv) Liens securing obligations of the Company under hedging
obligations permitted to be Incurred under this Indenture; (xvi) Liens on assets
leased to the Company or a Restricted Subsidiary if such lease is properly
classified as an operating lease in accordance with GAAP; (xvii) Liens arising
under consignment or similar arrangements for the sale of goods in the ordinary
course of business; (xviii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods; and (xix) Liens in favor of the Company or a
Restricted Subsidiary
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"PIK Notes" mean notes which are paid to Holders of Securities as
Interest in lieu of cash.
"PIK Option" means the Company's option to pay up to half of the
interest payable on the Securities on any three of the first five interest
payment dates in the form of PIK Notes instead of cash.
"Pledge Agreements" means (a) that certain Pledge Agreement and
Irrevocable Proxy dated as of even date herewith made by the Company in favor of
the Trustee for the benefit of the Holders and (b) that certain Master
Subsidiary Pledge Agreement dated as of even date herewith made by Magnetic
Instruments Corp., ▇▇▇▇▇▇ Trailer Financial Corporation,
14
▇▇▇▇▇▇ Trailer Mfg. Co. and Truck Accessories Group, Inc., in favor of the
Trustee for the benefit of the Holders, in each case as amended, supplemented,
restated or otherwise modified from time to time.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Purchase Amount" has the meaning specified in the definition of
Offer to Purchase.
"Purchase Date" has the meaning specified in the definition of
Offer to Purchase.
"Purchase Price" has the meaning specified in the definition of
Offer to Purchase.
"Redeemable Stock" of any Person means any equity security of
such Person that by its terms or otherwise is required to be redeemed prior to
the final Stated Maturity of the Securities or is redeemable at the option of
the holder thereof at any time prior to the final Stated Maturity of the
Securities.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Refinance" means, in respect of any Debt, to refinance, extend,
renew, defease, amend, modify, supplement, restructure, replace, refund or
repay, or to issue other Debt, in exchange or replacement for, such Debt.
"Refinanced" and "Refinancing" will have correlative meanings
"Regular Record Date" for the interest payable on any Interest
Payment Date means May 1 or November 1 (whether or not a Business Day), as the
case may be, next preceding such interest Payment Date.
"Related Person" of any Person means, without limitation, any
other Person owning (a) 5% or more of the outstanding Common Stock of such
Person or (b) 5% or more of the Voting Stock of such Person.
15
"Released Security Collateral" means Security Collateral which
has been released pursuant to Section 1406 of this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Payments" has the meaning specified in Section 1010.
"Restricted Subsidiary" means any Subsidiary of the Company,
whether existing on or after the date of this Indenture, other than an
Unrestricted Subsidiary.
"Revolving Credit Agreement" means the Loan and Security
Agreement dated June 28, 1996 among the Company, certain financial institutions
parties thereto and Congress Financial Corporation, as amended by Amendment No.
1 to Loan and Security Agreement, dated May 13, 1998, Amendment No. 2 to Loan
and Security Agreement, dated as of June 30, 1998, Amendment No. 3 to Loan and
Security Agreement, dated as of June 24, 1999, Amendment No. 4 to Loan and
Security Agreement, dated as of February 25, 2000, Amendment No. 5 to Loan and
Security Agreement, dated as of March 8, 2000, Amendment No. 6 to Loan and
Security Agreement, dated as of March 17, 2000, Amendment No. 7 to Loan and
Security Agreement, dated as of September 29, 2000, Amendment No. 8 to Loan and
Security Agreement, dated as of October 31, 2000, Amendment No. 9 to Loan and
Security Agreement, dated March 27, 2001, Amendment No. 10 to Loan and Security
Agreement, dated as of June 29, 2001, Amendment No. 11 to Loan and Security
Agreement, dated as of August 14, 2001, Amendment No. 12 to Loan and Security
Agreement, dated as of December 14, 2001, Amendment No. 13 to Loan and Security
Agreement, dated March 1, 2002, Amendment No. 14 to Loan and Security Agreement,
dated April 22, 2002, Amendment No. 15 to Loan and Security Agreement, dated May
30, 2002, Amendment No. 16 to Loan and Security Agreement, dated March 26, 2003,
Amendment No. 17 to Loan and Security Agreement, dated [ ], including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, in each case as the same may be amended,
supplemented, replaced, refinanced, renewed, extended or restated from time to
time, provided that the total amount which may be borrowed pursuant to the
Revolving Credit Agreement and any such amendment, supplement, replacement,
refinancing, renewal, extension or restatement is limited to an amount not in
excess of $45 million (including any sublimits for letters of credit).
"Sale and Leaseback Transaction" of any Person means an
arrangement with any lender or investor or to which such lender or investor is a
party providing for the leasing by such Person of any property or asset of such
Person which has been or is being sold or transferred by such Person more than
270 days after the acquisition thereof or the completion of construction or
commencement of operation thereof to such lender or investor or to any person to
whom funds
16
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"Securities" means securities designated in the first paragraph
of the RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS.
"Security Agreements" means (a) that certain Security Agreement
dated as of even date herewith made by the Company in favor of the Trustee for
the benefit of the Holders and (b) that certain Master Subsidiary Security
Agreement dated as of even date herewith made by EFP Corporation, ▇▇▇▇ Group,
Inc., SWK Holdings, Inc., Magnetic Instruments Corp., ▇▇▇▇▇▇ Trailer Financial
Corporation, ▇▇▇▇▇▇ Trailer Financial Management, L.P., ▇▇▇▇▇▇ Trailer Mfg. Co.,
Raider Industries, Inc., Truck Accessories Group, Inc., and Universal ▇▇▇▇▇▇▇,
Inc., in favor of the Trustee for the benefit of the Holders, in each case as
amended, supplemented, restated or otherwise modified from time to time.
"Security Collateral" means, collectively, all of the property
and assets that are from time to time subject to the Lien of the Security
Documents, other than the Company's assets and its subsidiaries' assets securing
the Revolving Credit Agreement (including receivables, inventory, cash and cash
equivalents and contract rights and other general intangibles) and the property
of Universal ▇▇▇▇▇▇▇, Inc., securing a loan from Congress Financial due March
31, 2007), including (i) a pledge of the capital stock of all of the Company's
Subsidiaries, other than ▇▇▇▇▇▇ Trailer Mfg. Co., (ii) a mortgage on all of the
Company's real property (other than leasehold interests), including all
additions and improvements and component parts related thereto, (iii) a security
interest in all existing furniture, fixtures and equipment owned or leased by
the Company, (iv) a security interest in substantially all other personal
property not securing the Revolving Credit Agreement, and (v) a collateral
assignment of certain contracts not securing the Revolving Credit Agreement.
"Security Documents" means, collectively, the Mortgages, the
Security Agreements, the Pledges, the Security Guarantees and all other security
agreements, mortgages, deeds of trust, pledges, collateral assignments or other
instruments by the Company or any of its Subsidiaries evidencing or creating any
security interest in favor of the Trustee in all or any portion of the Security
Collateral, in each case as amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with the terms hereof and
thereof
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
17
"Subordinated Debt" means all obligations of the type referred to
in Clauses (i) through (vi) and Clause (viii) of the definition of Debt, if the
instrument creating or evidencing the same or pursuant to which the same is
outstanding or another instrument designates such obligations as being
subordinated or junior in right of payment to any other Debt of the Company.
"Subsidiary" of any Person means (i) a corporation more than 50%
of the outstanding Voting Stock of which is owned, directly or indirectly, by
such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Subsidiary Guarantees" means the unconditional Guarantees by the
respective Subsidiary Guarantors of the due and punctual payment of principal,
premium, if any, and interest on the Securities when and as the same shall
become due and payable and in the coin or currency in which the same are
payable, whether at Stated Maturity, by declaration of acceleration, call for
redemption, purchase or otherwise.
"Subsidiary Guarantor" means each of EFP Corporation, a Delaware
corporation, ▇▇▇▇ Group, Inc., a Delaware corporation, SWK Holdings, Inc., a
Texas corporation, Magnetic Instruments Corp., a Delaware corporation, ▇▇▇▇▇▇
Trailer Financial Corporation, a Nevada corporation, ▇▇▇▇▇▇ Trailer Financial
Management, L.P., a Texas limited partnership, ▇▇▇▇▇▇ Trailer Mfg. Co., a New
Jersey corporation, Raider Industries Inc., a corporation incorporated under the
laws of Saskatchewan, Canada, Truck Accessories Group, Inc., a Delaware
corporation, and Universal ▇▇▇▇▇▇▇, Inc., a Wisconsin corporation, and all
future direct and indirect subsidiaries of the Company, other than Beltrami Door
Company, a Delaware corporation and Acero-Tec, S.A. de C.V., a corporation
incorporated under the laws of Monterrey, Nuevo ▇▇▇▇, Mexico, that are required
to become or become a guarantor of the Securities pursuant to Section 1305 of
this Indenture.
"Tangible Assets" of any Person means, at any date, the gross
book value as shown by the accounting books and records of such Person of all
its property both real and personal, less (i) the net book value of all its
licenses, patents, patent applications, copyrights, trademarks, trade names,
goodwill, non-compete agreements or organizational expenses and other like
intangibles, (ii) unamortized Debt discount and expense, (iii) all reserves for
depreciation, obsolescence, depletion and amortization of its properties and
(iv) all other proper reserves which in accordance with generally accepted
accounting principles should be provided in connection with the business
conducted by such Person.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter Trustee
shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905; provided,
18
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 1204.
"Unrestricted Subsidiary" means (1) any Subsidiary designated as
such by the Board of Directors as set forth below where (a) neither the Company
nor any of its other Subsidiaries (other than any Unrestricted Subsidiary) (i)
provides credit support for, or Guarantee of, any Debt of such Subsidiary
(including any undertaking, agreement or instrument evidencing such Debt) or
(ii) is directly or indirectly liable for any Debt of such Subsidiary or any
Subsidiary of such Subsidiary, and (b) no default with respect to any Debt of
such Subsidiary or any Subsidiary of such Subsidiary (including any right which
the holders thereof may have to take enforcement action against such Subsidiary)
would permit (upon notice, lapse of time or both) any holder of any other Debt
of the Company or its other Subsidiaries (other than another Unrestricted
Subsidiary) to declare a default on such other Debt or cause the payment of such
other Debt of the Company or its other Subsidiaries to be accelerated or payable
prior to its final scheduled maturity and (2) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors shall not designate any Restricted Subsidiary
to be an Unrestricted Subsidiary. The Company, by action of the Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary, provided that, immediately after giving effect to such designation,
the Company could Incur at least $1.00 of additional Debt pursuant to the first
paragraph under Section 1008. Any such designation by the Board of Directors
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the resolution of the Board of Directors giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares and
other than shares issued pursuant to an Incentive Arrangement) shall at the time
be owned by such Person or by one or more Wholly Owned Restricted Subsidiaries
of such Person or by such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates
19
and opinions as may be required under the Trust Indenture Act or this Indenture.
Each such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
20
SECTION 104. Acts of Holders: Record Date.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
21
SECTION 105. Notices, Etc., to Trustee, Company, and Subsidiary Guarantors.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any
Subsidiary Guarantor shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the Company or any Subsidiary Guarantor by the Trustee or by
any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, in the case of the Company, to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to
the Trustee by the Company and, in the case of any Subsidiary Guarantor,
to it at the address of the Company's principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by such Subsidiary Guarantor.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
22
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or
any Subsidiary Guarantor shall bind its respective successors and assigns,
whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture, the Securities and the Subsidiary Guarantees
endorsed thereon shall be governed by and construed in accordance with the laws
of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, Redemption Date
or Purchase Date, or at the Stated Maturity, provided that, to the extent such
payment is so made on such next succeeding Business Day, no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Purchase Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security and Subsidiary Guarantee Forms
SECTION 201. Forms Generally.
The Securities, the Subsidiary Guarantees to be endorsed thereon
and the Trustee's certificates of authentication shall be in substantially the
forms set forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
23
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities or Subsidiary Guarantees,
as the case may be, as evidenced by their execution of such Securities or
Subsidiary Guarantees, as the case may be.
The definitive Securities and Subsidiary Guarantees to be
endorsed thereon shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any
other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities or Subsidiary Guarantees, as the case may be, as evidenced by their
execution of such Securities or Subsidiary Guarantees, as the case may be.
SECTION 202. Form of Face of Security.
▇. ▇. ▇▇▇▇▇▇▇▇▇▇ & CO., INC.
12.50% SENIOR SECURED NOTE DUE 2007
GUARANTEED AS TO PAYMENT OF PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST BY CERTAIN
SUBSIDIARIES OF ▇. ▇. ▇▇▇▇▇▇▇▇▇▇ & CO., INC.
No. __________ $___________
▇. ▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the Company,
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ________________ or
registered assigns, the principal sum of ________________ Dollars on May 23,
2007 and to pay interest thereon from May 15, 2003 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 15 and November 15 of each year, commencing May 15, 2003,
at the rate of 12.50% per annum, until the principal hereof is paid or made
available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of 12.50% per annum on any overdue
principal and premium, if any, and on any overdue installment of interest until
paid. The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture (as defined on the
reverse hereof), be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 1 or November 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) 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 whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
24
If, on May 15, 2005, the Company has not retired at least an
aggregate of $7.5 million of the Securities (less any cash amounts paid to
tendering holders in the exchange offer pursuant to which this Security is
originally issued) since May 15, 2003, the interest rate on the Securities will
increase by 2.0% until the Interest Payment Date immediately succeeding the
one-year anniversary of the date the Company has repaid at least $7.5 million of
Securities (less any cash amounts paid to tendering holders in the exchange
offer pursuant to which this Security is originally issued) since May 15, 2003.
If on May 15, 2006, the Company has not retired (either through tender offers or
redemptions) at least an aggregate of $15 million of the Securities (less any
cash amounts paid to tendering holders in the exchange offer pursuant to which
this Security is originally issued) since May 15, 2003, the interest rate on the
Securities will increase by an additional 2.5% from the interest rate then in
effect until the Interest Payment Date immediately succeeding the one-year
anniversary of the date on which the Company has repaid at least $15.0 million
of Securities (less any cash amounts paid to tendering holders in the exchange
offer pursuant to which this Security is originally issued) since May 15, 2003.
Interest will be payable in cash, provided that, at the option of
the Company (the "PIK Option"), the Company may pay up to half of the Interest
payable on any three of the first five interest payment dates (November 15,
2003, May 15 and November 15, 2004 and May 15 and November 15, 2005) in
additional Securities (the "PIK Notes") with a principal amount equal to 112.5%
of the amount of cash that would have otherwise been payable. The Company may
not exercise the PIK Option with respect to any interest payment after the
Company has made any Restricted Payments pursuant to Section 1010 of the
Indenture.
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Paying Agent
maintained for that purpose in Wilmington, Delaware, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
▇. ▇. ▇▇▇▇▇▇▇▇▇▇ & CO., INC.
[Seal]
By
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Title:
25
Attest:
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Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of
the Company designated as its 12.50% Senior Secured Notes due 2007 (herein
called the "Securities"), unlimited in aggregate principal amount, issued and to
be issued under an Indenture, which term shall include any PIK Notes, as defined
below, dated as of May 15, 2003 (herein called the "Indenture"), among the
Company, the Subsidiary Guarantors named therein and Wilmington Trust Company,
acting hereunder not in its individual capacity but solely as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Subsidiary Guarantors, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption at the option of the Company,
in whole or in part, upon not less than 30 nor more than 60 days' notice by
mail, at any time prior to Maturity, as a whole or in part, in the amounts of
$100 or an integral multiple of $100 at a Redemption Price equal to 100% of the
principal amount, together in the case of any such redemption with accrued
interest to (but excluding) the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
The Securities do not have the benefit of any sinking fund
obligations.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture provides that, subject to certain conditions, if
(i) a Change of Control occurs, or (ii) certain Net Available Proceeds are
available to the Company as a result of Asset Dispositions, the Company shall be
required to make an Offer to Purchase for all or a specified portion of the
Securities.
As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Company under this Security are
guaranteed pursuant to Subsidiary Guarantees endorsed hereon and as provided in
the Indenture. Each Holder, by holding this Security, agrees to all of the terms
and provisions of said Guarantees. The Indenture provides that a Subsidiary
Guarantor shall be released from its Subsidiary Guarantee upon compliance with
certain conditions.
26
The Indenture contains provisions for defeasance at any time of
(i) the entire indebtedness of this Security or (ii) certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
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 Subsidiary Guarantors and the rights of the
Holders of the Securities under the Indenture at any time by the Company, the
Subsidiary Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company or the Subsidiary Guarantors 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 Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in Wilmington, Delaware, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $100 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
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.
Prior to due presentment of this Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors, or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company,
27
the Subsidiary Guarantors, the Trustee nor any such agent shall be affected by
notice to the contrary.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in
its entirety by the Company pursuant to Section 1015, 1016 or 1017 of the
Indenture, check the box:
If you want to elect to have only a part of this
Security purchased by the Company pursuant to Section 1015, 1016 or 1017 of the
Indenture, state the amount: $
Dated: Your Signature:___________________________
(Sign exactly as name appears on the other side
of this Security)
Signature Guarantee:__________________________________________
(Signature must be guaranteed by a member
firm of the New York Stock Exchange or a
commercial bank or trust company)
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities with the Subsidiary Guarantees
endorsed thereon referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
Not In Its Individual Capacity But
Solely As Trustee
By
---------------------------------
Authorized Officer
SECTION 205. Form of Guarantee.
GUARANTEE
Reference is hereby made to that certain Indenture dated as of
June 3, 2003 by and among ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc., a Delaware corporation
(the "Company"), Wilmington
28
Trust Company, not in its individual capacity but solely as trustee (the
"Trustee"), and the undersigned Subsidiary Guarantors (as amended, restated or
otherwise modified or replaced from time to time, the "Indenture"). Capitalized
terms used herein and not otherwise defined shall have the meanings given them
in the Indenture.
For value received, each of the Subsidiary Guarantors listed
below hereby jointly and severally unconditionally guarantees to the Holder of
the Security upon which this Guarantee is endorsed, and to the Trustee on behalf
of such Holder, the due and punctual payment of the principal of (and premium,
if any) and interest on such Security when and as the same shall become due and
payable, whether at the Stated Maturity, by acceleration, call for redemption,
purchase or otherwise, according to the terms thereof and of the Indenture
referred to therein. In case of the failure of the Company punctually to make
any such payment, each of the Subsidiary Guarantors hereby jointly and severally
agrees to cause such payment to be made punctually when and as the same shall
become due and payable, whether at the Stated Maturity or by acceleration, call
for redemption, purchase or otherwise, and as if such payment were made by the
Company.
Each of the Subsidiary Guarantors hereby jointly and severally
agrees that its obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of such Security or the Indenture,
the absence of any action to enforce the same, or any release or amendment or
waiver of any term of any other Guarantee of, or any consent to departure from
any requirement of any other Guarantee of all or of any of the Securities, the
election by the Trustee or any of the Holders in any proceeding under Chapter 11
of the Bankruptcy Code, 11 U.S.C. Sections 101-1330, as amended (the "Bankruptcy
Code") of the application of Section 1111(b)(2) of the Bankruptcy Code, any
borrowing or grant of a security interest by the Company, as
debtor-in-possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the
Securities, any waiver or consent by the Holder of such Security or by the
Trustee or either of them with respect to any provisions thereof or of the
Indenture, the obtaining of any judgment against the Company or any action to
enforce the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each of the Subsidiary
Guarantors hereby waives the benefits of diligence, presentment, demand of
payment, any requirement that the Trustee or any of the Holders protect, secure,
perfect or insure any security interest in or other Lien on any property subject
thereto or exhaust any right or take any action against the Company or any other
Person, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest or notice with respect to such Security or the Debt evidenced thereby
and all demands whatsoever, and covenants that this Subsidiary Guarantee will
not be discharged except by complete performance of the obligations contained in
such Security and in this Subsidiary Guarantee. Each of the Subsidiary
Guarantors hereby agrees that, in the event of a default in payment of principal
(or premium, if any) or interest on such Security, whether at its Stated
Maturity, by acceleration, call for redemption, purchase or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by, the Holder of
such Security, subject to the terms and conditions set forth in the Indenture,
directly against each of the Subsidiary Guarantors to enforce this Subsidiary
Guarantee without first proceeding against the Company. Each Subsidiary
Guarantor agrees that if, after the occurrence and during the continuance of an
Event of Default, the Trustee or any of the Holders are
29
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, such Subsidiary Guarantor agrees to pay to the Trustee for the
account of the Holders, upon demand therefor, the amount that would otherwise
have been due and payable had such rights and remedies been permitted to be
exercised by the Trustee or any of the Holders.
No reference herein to the Indenture and no provision of this
Subsidiary Guarantee or of the Indenture shall alter or impair the Subsidiary
Guarantee of any Subsidiary Guarantor, which is absolute and unconditional, of
the due and punctual payment of the principal (and premium, if any) and interest
on the Security upon which this Subsidiary Guarantee is endorsed.
Each Subsidiary Guarantor shall be subrogated to all rights of
the Holder of this Security against the Company in respect of any amounts paid
by such Subsidiary Guarantor on account of this Security pursuant to the
provisions of this Subsidiary Guarantee or the Indenture; provided, however,
that such Subsidiary Guarantor shall not be entitled to enforce or to receive
any payments arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any) and interest on this Security and all other
Securities issued under the Indenture shall have been paid in full.
This Subsidiary Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company for liquidation or reorganization, should the Company become insolvent
or make an assignment for the benefit of creditors or should a receiver or
trustee be appointed for all or any significant part of the Company's assets,
and shall, to the fullest extent permitted by law, continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the
Securities is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Securities, whether
as a "voidable preference," "fraudulent transfer," or otherwise, all as though
such payment or performance had not been made. In the event that any payment, or
any part thereof, is rescinded, reduced, restored or returned, the Securities
shall, to the fullest extent permitted by law, be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.
The Subsidiary Guarantors shall have the right to seek
contribution from any non-paying Subsidiary Guarantor so long as the exercise of
such right does not impair the rights of the Holders under this Subsidiary
Guarantee.
The Subsidiary Guarantors or any particular Subsidiary Guarantor
shall be released from this Subsidiary Guarantee upon the terms and subject to
certain conditions provided in the Indenture.
By delivery of a Supplemental Indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of the Indenture will be deemed to have
executed and delivered this Subsidiary Guarantee for the benefit of the Holder
of this Security with the same effect as if such Subsidiary Guarantor was named
below. All terms used in this Subsidiary Guarantee which are defined in the
Indenture
30
referred to in the Security upon which this Subsidiary Guarantee is endorsed
shall have the meanings assigned to them in such Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Security upon which
this Subsidiary Guarantee is endorsed shall have been executed by the Trustee
under the Indenture by manual signature.
Reference is made to Article Thirteen of the Indenture for
further provisions with respect to this Subsidiary Guarantee.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused
this Subsidiary Guarantee to be duly executed.
EFP Corporation
▇▇▇▇ Group, Inc.
Magnetic Instruments Corp.
▇▇▇▇▇▇ Trailer Financial Corporation
▇▇▇▇▇▇ Trailer Financial Management, ▇.▇.
▇▇▇▇▇▇ Trailer Mfg. Co.
Raider Industries Inc.
SWK Holdings, Inc.
Truck Accessories Group, Inc.
Universal ▇▇▇▇▇▇▇, Inc.
Each as Subsidiary Guarantor
By
-------------------------------------------
Title:
31
Attest:
------------------------------------
Title:
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities shall be known and designated as the "12.50%
Senior Secured Notes due 2007" of the Company. Their Stated Maturity shall be
May 15, 2007 and they shall bear interest at the rate of 12.50% per annum, from
May 15, 2003 or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, as the case may be, payable semi-annually on May
15 and November 15, commencing May 15, 2003, until the principal thereof is paid
or made available for payment.
If, on May 15, 2005, the Company has not retired at least an
aggregate of $7.5 million of the Securities (less any cash amounts paid to
tendering holders in the exchange offer pursuant to which this Security is
originally issued) since May 15, 2003, the interest rate on the Securities will
increase by 2.0% until the Interest Payment Date immediately succeeding the
one-year anniversary of the date the Company has repaid at least $7.5 million of
Securities (less any cash amounts paid to tendering holders in the exchange
offer pursuant to which this Security is originally issued) since May 15, 2003.
If on May 15, 2006, the Company has not retired (either through tender offers or
redemptions) at least an aggregate of $15 million of the Securities (less any
cash amounts paid to tendering holders in the exchange offer pursuant to which
this Security is offered) since May 15, 2003, the interest rate on the
Securities will increase by an additional 2.5% from the interest rate then in
effect until the Interest Payment Date immediately succeeding the one-year
anniversary of the date on which the Company has repaid at least $15.0 million
of Securities (less any cash amounts paid to tendering holders in the exchange
offer pursuant to which this Security is offered) since May 15, 2003.
Interest will be payable in cash, provided that, at the option of
the Company, the Company may pay up to half of the Interest payable on any three
of the first five interest payment dates (November 15, 2003, May 15 and November
15, 2004 and May 15 and November 15, 2005) in PIK Notes with a principal amount
equal to 112.5% of the amount of cash that would have otherwise been payable.
The Company may not exercise the PIK Option with respect to any interest payment
after the Company has made any Restricted Payments pursuant to Section 1010 of
this Indenture.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company in
Wilmington, Delaware maintained for such
32
purpose and at any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to defeasance at the option of
the Company as provided in Article Twelve.
The Securities shall be Guaranteed by the Subsidiary Guarantors
as provided in Article Thirteen.
SECTION 302. Denominations.
The Securities shall be issued only in fully registered form,
without coupons, in denominations of $100 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company, having endorsed thereon the Subsidiary
Guarantee executed under Section 1302 by the Subsidiary Guarantors, may deliver
Securities executed by the Company to the Authenticating Agent for
authentication, together with a Company Order for the authentication and
delivery of such Securities with the Subsidiary Guarantee of the Subsidiary
Guarantors endorsed thereon; provided, however, that after $85 million aggregate
principal amount of Securities have been authenticated (other than Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906 or
1108 or in connection with an Offer to Purchase pursuant to Section 1015, 1016
or 1017), such Company Order shall be accompanied by an Officers' Certificate
demonstrating that the issuance of the Securities is in compliance with Section
1008 hereof; and the Authenticating Agent in accordance with such Company Order
shall authenticate and deliver such Securities with the Subsidiary Guarantee of
the Subsidiary Guarantors endorsed thereon as in this Indenture provided and not
otherwise.
Each Security shall be dated the date of its authentication.
33
No Security or Subsidiary Guarantee endorsed thereon shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Authenticating
Agent by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security and Subsidiary
Guarantee endorsed thereon have been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and having
endorsed thereon the Subsidiary Guarantees substantially of the tenor of the
definitive Subsidiary Guarantees in lieu of which they are issued duly executed
by the Subsidiary Guarantors and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities and
Subsidiary Guarantees may determine, as evidenced by their execution of such
Securities and Subsidiary Guarantees.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations and like tenor having endorsed thereon Subsidiary
Guarantees executed by the Subsidiary Guarantors. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Paying Agent" and "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like
34
aggregate principal amount and tenor, each such Security having endorsed thereon
the Subsidiary Guarantee of the Subsidiary Guarantors.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, and tenor, and having the Subsidiary Guarantee endorsed
thereon executed by each Subsidiary Guarantor, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, the Subsidiary Guarantors
shall execute the Subsidiary Guarantee endorsed thereon and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities and the Subsidiary Guarantees endorsed thereon
issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company and the respective Subsidiary Guarantors,
evidencing the same debt and Subsidiary Guarantees, and entitled to the same
benefits under this Indenture, as the Securities and the Subsidiary Guarantees
endorsed thereon surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company or Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of, transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 906 or 1108 or in accordance with
any Offer to Purchase pursuant to Section 1015, 1016 or 1017 not involving any
transfer.
The Company shall not be required (i) to issue, authenticate,
register the transfer of or exchange any Security during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 1104 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute, the Subsidiary Guarantors shall execute the Subsidiary
Guarantee endorsed thereon and the Trustee shall authenticate and deliver in
exchange therefor, a new Security of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them, each Subsidiary Guarantor and any agent of any of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security
35
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, having endorsed thereon the Subsidiary Guarantees of the Subsidiary
Guarantors and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security, and the Subsidiary Guarantee endorsed
thereon, shall constitute an original additional contractual obligation of the
Company and the respective Subsidiary Guarantors, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment,
36
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Company shall, with the consent of the Trustee, fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Company shall
promptly notify the Trustee of such Special Record Date and shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2). If the Company fails to set a Special Record Date
or cause notice to holders, the Trustee, in the name of and at the
expense of the Company, may elect to carry out the foregoing provisions.
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 307) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Subsidiary
Guarantors, the Trustee nor any agent of the Company, the Subsidiary Guarantors
or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange or any Offer to Purchase pursuant to Section 1015, 1016
or 1017 shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall pursuant to Company Order be promptly cancelled by it.
The Company may at any time deliver to the Trustee for
37
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee pursuant to Company
Order. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order or pursuant to business practices of
the Trustee.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 311. PIK Notes.
If the Company pays interest payable on the Securities in the
form of PIK Notes, the PIK Notes shall be issued in denominations of $100
principal amount and integral multiples thereof. The amount of PIK Notes issued
will be rounded down to the nearest $100 with any fractional amount paid in
cash.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
38
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company or a Subsidiary Guarantor, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to
the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company or a Subsidiary Guarantor has paid or caused to
be paid all other sums payable hereunder by the Company and the
Subsidiary Guarantor; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 and the obligations to any Authenticating Agent under Section 614.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), and interest for whose payment such money has been deposited with the
Trustee; subject to payment to the Trustee of any unpaid amount owing to it
hereunder.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any Court or any order, rule or regulation
of any administrative governmental body):
(1) default in the payment of the principal of (or premium, if
any, on) any Security at its Maturity; or
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(2) default in the payment of any interest upon any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(3) default on the applicable Purchase Date, in the purchase of
Securities required to be purchased pursuant to an Offer to Purchase by
the covenants described under Sections 1013, 1015, 1016 and 1017 in
accordance with the terms of such Offer to Purchase; or
(4) default in the performance, or breach, of Section 801 of
this Indenture, and which continues for 30 days; or
(5) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture (other than a representation,
covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with) or Security Documents
and continuance of such default or breach for a period of 60 days after
there has 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
25% in principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default;" or
(6) a default or defaults under any bond, debenture, note or
other evidence of Debt by the Company or any Restricted Subsidiary of
the Company or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Debt of the Company or any such Restricted Subsidiary with a principal
amount then outstanding, individually or in the aggregate, in excess of
$5 million, whether such Debt now exists or shall hereafter be created,
which default or defaults shall constitute a failure to pay any portion
of the principal of such Debt when due and payable at maturity after the
expiration of any applicable grace period with respect thereto or shall
have resulted in such Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable; or
(7) the rendering of a final judgment or judgments (not subject
to appeal) against the Company or any of its Restricted Subsidiaries in
an amount in excess of $5 million by a court or courts of competent
jurisdiction, which judgments remain undischarged or unstayed for a
period of 60 days after the date on which the right to appeal all such
judgments has expired; or
(8) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging
the Company or any such Restricted Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
or any such Restricted Subsidiary under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such
Restricted Subsidiary or of any substantial part of the property of the
Company or any such Restricted Subsidiary,
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or ordering the winding up or liquidation of the affairs of the Company
or any such Restricted Subsidiary, and the continuance of any such
decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(9) the commencement by the Company or any Restricted Subsidiary
of the Company of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company or any such Restricted
Subsidiary to the entry of a decree or order for relief in respect of
the Company or any Restricted Subsidiary of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
the Company or any Restricted Subsidiary of the Company, or the filing
by the Company or any such Restricted Subsidiary of a petition or answer
or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company or any such Restricted
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any
Restricted Subsidiary of the Company or of any substantial part of the
property of the Company or any Restricted Subsidiary of the Company, or
the making by the Company or any Restricted Subsidiary of the Company of
an assignment for the benefit of creditors, or the admission by the
Company or any such Restricted Subsidiary in writing of its inability to
pay its debts generally as they become due, or the taking of corporate
action by the Company or any such Restricted Subsidiary in furtherance
of any such action; or
(10) except as permitted by this Indenture and the Securities,
the cessation of effectiveness of any Subsidiary Guarantee as against
any Subsidiary Guarantor, or the finding by any judicial proceeding that
any such Subsidiary Guarantee is, as to any Subsidiary Guarantor,
unenforceable or invalid or the written denial or disaffirmation by any
Subsidiary Guarantor of its Obligations under its Subsidiary Guarantee;
or
(11) if any event occurs which adversely affects or impairs the
perfection of the lien or security interest evidenced by a Security
Document, and such event remains uncured for a period of sixty (60) days
after written notice thereof from the Trustee the Company.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 501(8) or (9)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company and to the
Trustee if given by Holders, and upon any such declaration such principal and
any accrued interest shall become immediately due and payable. If an Event of
Default specified in Section 501(8) or (9) occurs, the principal of and any
accrued interest on the Securities then Outstanding shall ipso facto become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
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At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration (including any Securities required
to have been purchased on the Purchase Date pursuant to an Offer
to Purchase made by the Company) and, to the extent that payment
of such interest is lawful, interest thereon at the rate
provided by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided by
the Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof or, with
respect to any Security required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the Purchase Date thereof, or
(3) to enforce the performance of any provision of the
Securities, this Indenture or the Security Documents,
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, in the case of (1) or (2) above, the whole amount
then due and payable on such Securities for principal (and premium, if any) and
interest, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate provided by the Securities, and, in addition
thereto, in the case of (1), (2) or (3) above, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts promptly upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company, any Subsidiary Guarantor or any other
obligor upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, any
Subsidiary Guarantor or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, any
Subsidiary Guarantor or any other obligor upon the Securities, or the property
of the Company or its creditors or of any Subsidiary Guarantor or its creditors,
the Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money or other property collected by the Trustee pursuant to
this Article shall be applied, unless otherwise required by law, in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or other property on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607; and
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on
the Securities in respect of which or for the benefit of which
such money or other property has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
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(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities.
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or in the case of an Offer to Purchase made by the Company and required to
be accepted as to such Security, on the Purchase Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from
45
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction,
provided, further, that Subject to the provisions of this Indenture relating to
the duties of the Trustee to provide notice in case an Event of Default will
occur and be continuing, the Trustee will be under no obligation to exercise any
of its rights or powers under this Indenture at the request or direction of any
of the Holders, unless such Holders have offered to the Trustee reasonable
indemnity. Subject to such provisions for the indemnification of the Trustee,
the Holders of a majority in aggregate principal amount of the Outstanding
Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to
have been purchased pursuant to an Offer to Purchase which has been made
by the Company), or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may
46
assess costs against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act; provided, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or any Subsidiary Guarantor or in any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the Stated Maturity expressed in such Security (or,
in the case of redemption, on or after the Redemption Date or, in the case of an
Offer to Purchase made by the Company and required to be accepted as to such
Security, on or after the Purchase Date).
SECTION 515. Waiver of Stay or Extension Laws.
Each of the Company and the Subsidiary Guarantors covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
each of the Company and the Subsidiary Guarantors (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Article Six.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(5) , no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
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(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and agents and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine during normal
business hours and, if no Event of Default has occurred and is
continuing, upon prior notice to the Company or such Subsidiary
Guarantor the books, records and premises of the Company or any
Subsidiary Guarantor, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed in good faith by it hereunder;
(h) the Trustee shall not have any duty or liability with
respect to the administration of the assets pledged under the Security
Documents, the investment of property pledged to the Trustee, and no
implied obligations shall be inferred from this Indenture on the part of
the Trustee, and the Trustee shall not be liable for the acts or
48
omissions of the Company nor shall the Trustee be liable for any act or
omission by it in good faith in accordance with the directions of the
Company;
(i) the Trustee accepts the trusts hereby created and agrees to
perform its duties hereunder with respect to the same but only upon the
terms of this Indenture, and the Trustee shall not be personally liable
under any circumstances, except for its own willful misconduct or gross
negligence;
(j) the Trustee shall not be personally liable for any error of
judgment made in good faith by an officer or employee of the Trustee;
(k) the Trustee shall have no duty with respect to the pledged
assets to (i) effect any recording or filing of this Indenture, any
other document, any other instrument or document described in this
Indenture, any supplement to any thereof or any security interest or
lien or to see to the maintenance of any such documentation, recording
or filing; (ii) insure or to effect or maintain any such insurance in
connection with assets related hereto; (iii) effect the payment or
discharge of any tax, assessment or any governmental charge or any lien
assessed or levied against any part of such assets or make or prepare
any reports or returns related thereto, or execute and/or file any such
reports or returns; or (iv) control, use, sell, dispose of or otherwise
deal with any part of such assets; and
(l) the Trustee acts solely as trustee hereunder and not in its
individual capacity, and all persons having any claim against the
Trustee by reason of the transactions contemplated by this Indenture
shall look only to the property held in trust for payment or
satisfaction thereof.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and the
Subsidiary Guarantees endorsed thereon, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Subsidiary Guarantors, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities or of the
Subsidiary Guarantees. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or any Subsidiary
Guarantor, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company or any Subsidiary Guarantor with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company or any Subsidiary
Guarantor, as the case may be.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee pursuant to a separate fee agreement
with the Trustee reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
gross negligence or bad faith; and
(3) to indemnify the Trustee (including in its individual
capacity) and its officers, directors, employees and agents (the
"Indemnified Parties") for, and to hold the Indemnified Parties harmless
against, any loss, liability, cost or expense incurred without gross
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers, role
or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $25,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders
of a majority in principal amount of the Outstanding Securities, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 (or
resolve such conflict pursuant to Section 608 within a reasonable amount
of time) after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution
may remove the Trustee, or (ii) subject to Section 514, any Holder who has been
a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign or be removed, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee. If, within one year
after such resignation or removal, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company, each Subsidiary Guarantor and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company, any Subsidiary Guarantor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company and
the Subsidiary Guarantors shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company, the Subsidiary Guarantors or any other obligor upon the Securities, the
Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Company, the Subsidiary Guarantors or any
such other obligor.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer or
partial redemption or pursuant to Section 306, and
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Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $25,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and the Subsidiary Guarantors and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the Security
Register. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee may agree to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
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This is one of the Securities with the Subsidiary Guarantees
endorsed thereon described in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
As Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
As Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 5 days after each Regular
Record Date a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record
Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 5 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company, the Subsidiary Guarantors and the Trustee that
neither the Company, the Subsidiary Guarantors nor the Trustee nor any agent of
any of them shall be held accountable by reason of any disclosure of information
as to the names and addresses of Holders made pursuant to the Trust Indenture
Act.
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SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders and the Company such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
SECTION 704. Reports by Company and the Subsidiary Guarantors.
A copy of each such report shall, at the time of such
transmission to the Company, be filed by the Company with each stock exchange
upon which the Securities are listed, with the Commission, with the Company and
with the Subsidiary Guarantors. The Company will notify the Trustee when the
Securities are listed on any stock exchange.
The Company and each of the Subsidiary Guarantors shall file
with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 801. Mergers, Consolidations and Certain Sales and Purchases of
Assets by the Company.
The Company (a) shall not consolidate with or merge into any
other Person or permit any other person to consolidate with or merge into the
Company; (b) shall not, directly or indirectly, in a single transaction or
through a series of related transactions, transfer, convey, sell, lease or
otherwise dispose of all or substantially all of its properties and assets as an
entirety to any Person or group of affiliated Persons, or permit any of its
Restricted Subsidiaries to enter into any such transaction or transactions if
such transaction or transactions, in the aggregate, would result in a sale,
assignment, transfer, lease or disposal of all or substantially all of the
properties and assets of the Company and its Restricted Subsidiaries on a
consolidated basis to any other Person or group of affiliated Persons; (c) shall
not, and shall not permit any Restricted Subsidiary of the Company to, acquire
Capital Stock or other ownership interests of any other Person such that such
Person becomes a Subsidiary of the Company; and (d) shall not, and shall not
permit any Restricted Subsidiary of the Company to, directly or indirectly,
purchase, lease or otherwise acquire (including by way of merger or
consolidation) (i) all or substantially all of the property and assets of any
Person as an entirety or (ii) any existing business (whether existing as a
separate entity, subsidiary, division, unit or otherwise) of any Person, unless,
in any such transaction:
(1) in the case the Company shall consolidate with or merge into
another Person or shall directly or indirectly transfer, convey, sell,
lease or otherwise dispose of all or substantially all of its properties
and assets as an entirety, the Person formed by
55
such consolidation or into which the Company is merged or the Person
which acquires by transfer, conveyance, sale, lease or other disposition
all or substantially all of the properties and assets of the Company as
an entirety (for purposes of this Article Eight, a "Successor Company")
shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume by
an indenture supplemental hereto executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on all
the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any Debt that becomes an obligation of the Company or a
Restricted Subsidiary of the Company as a result of such transaction as
having been Incurred by the Company or such Restricted Subsidiary at the
time of such transaction, no Event of Default, and no event which, after
giving of notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing;
(3) immediately after giving effect to such transaction, and
treating any Debt that becomes an obligation of the Company or any
Restricted Subsidiary as a result of such transaction as having been
Incurred at the time of such transaction, the Company or the Successor
Company could Incur at least $1.00 of additional Debt pursuant to the
first paragraph of Section 1008;
(4) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company and its Restricted Subsidiaries
or, if applicable, the Successor Company, shall be equal to or greater
than the Consolidated Net Worth of the Company and its Restricted
Subsidiaries immediately prior to such transaction;
(5) if, as a result of any such transaction, property and assets
of the Company or any of its Restricted Subsidiaries would become
subject to a Lien which would not be permitted by Section 1012, the
Company or, if applicable, the Successor Company, as the case may be,
shall take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) any Debt secured by
such Lien; and
(6) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, lease or acquisition and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with, and, with respect to such Officer's
Certificate, setting forth the manner of determination of the
Consolidated Net Worth and the ability to Incur Debt in accordance with
Clause (3) of Section 801, of the Company or, if applicable, of the
Successor Company as required pursuant to the foregoing.
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SECTION 802. Mergers, Consolidations and Certain Sales of Assets by
Subsidiary Guarantors.
Except in a transaction constituting an Asset Disposition to a
Person other than the Company or a Restricted Subsidiary of the Company, each
Subsidiary Guarantor shall not, and the Company shall not permit any Subsidiary
Guarantor to, (i) consolidate with or merge into any other Person, or permit any
other Person to consolidate with or merge into such Subsidiary Guarantor (other
than, in any such case, the Company or another Subsidiary Guarantor) or (ii)
directly or indirectly, in a single transaction or through a series of related
transactions, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of
affiliated Persons as an entirety unless, in any such transaction:
(1) in the case such Subsidiary Guarantor shall consolidate with
or merge into another Person or shall directly or indirectly transfer,
convey, sell, lease or otherwise dispose of all or substantially all of
the properties and assets as an entirety, the Person formed by such
consolidation or into which such Subsidiary Guarantor is merged or the
Person which acquires by transfer, conveyance, sale, lease or other
disposition all or substantially all of the properties and assets of
such Subsidiary Guarantor as an entirety (for purposes of this Article
Eight, a "Successor Subsidiary Guarantor") shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District
of Columbia and, if not the Company or another Subsidiary Guarantor,
shall expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of all obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture
and the performance of every covenant of this Indenture on the part of
such Subsidiary Guarantor to be performed or observed; and
(2) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, lease or acquisition and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 803. Successor Substituted.
(a) Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the Successor Company
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture and the Security Documents with the same
effect as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture, the Security
Documents and the Securities.
57
(b) Upon any consolidation of a Subsidiary Guarantor with, or
merger of such Subsidiary Guarantor into, any other Person or any transfer,
conveyance, sale, lease or other disposition of all or substantially all of the
properties and assets of such Subsidiary Guarantor as an entirety in accordance
with Section 802, except in a transaction constituting an Asset Disposition to a
Person other than the Company or a Restricted Subsidiary of the Company, the
Successor Subsidiary Guarantor shall succeed to, and be substituted for, and may
exercise every right and power of, such Subsidiary Guarantor under this
Indenture with the same effect as if such successor Person had been named as a
Subsidiary Guarantor herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture, its Subsidiary Guarantee and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, the Subsidiary Guarantors, when authorized by resolutions
of their respective boards of directors (certified copies of which shall be
furnished to the Trustee) and the Trustee, at any time and from time to time,
may enter into one or more indentures or Security Documents supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes
(1) to evidence the succession of another Person to the Company
or any Subsidiary Guarantor and the assumption by any such successor of
the covenants of the Company or any Subsidiary Guarantor herein and in
the Securities or the Subsidiary Guarantees, as the case may be; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Securities pursuant to the requirements of
Section 1012 or otherwise; or
(4) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action pursuant to
this Clause (5) shall not adversely affect the interests of the Holders
in any material respect; or
(6) to add new Subsidiary Guarantors pursuant to Section 1305.
58
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, the Subsidiary Guarantors, when authorized by resolutions of their
respective boards of directors (certified copies of which shall be furnished to
the Trustee) and the Trustee may enter into one or more indentures or Security
Documents supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Security Documents or of modifying in any manner the rights of the Holders
under this indenture; provided, however, that no such supplemental indenture or
supplement to the Security Documents shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon,
or change the place of payment where, or the coin or currency in which,
any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of an Offer
to Purchase which has been made, on or after the applicable Purchase
Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 902 or
Section 1022, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) following the mailing of an Offer with respect to an Offer
to Purchase pursuant to Section 1015, 1016 or 1017, modify the
provisions of this Indenture with respect to such Offer to Purchase in a
manner adverse to such Holder, or
(5) adversely affect the validity of the Subsidiary Guarantees
or the Subsidiaries of the Company required to provide Subsidiary
Guarantees, or
(6) affect the validity or priority of the security interests
with respect to the Security Collateral or the classes or types of
assets which comprise the Security Collateral, or
(7) amend the second sentence of the definition of "Unrestricted
Subsidiary."
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental Indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company and the Subsidiary
Guarantors shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and the Subsidiary Guarantees endorsed
thereon may be executed by the Subsidiary Guarantors and such new Securities may
be authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in Wilmington, Delaware an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company or any Subsidiary Guarantor in
respect of the Securities, any Subsidiary Guarantee endorsed thereon and this
Indenture may be served. The Company and the Subsidiary Guarantors will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company or any Subsidiary
Guarantor shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company and each Subsidiary Guarantor hereby
appoint the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, no later then 11:00 AM EST on the due date of the principal of (and
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
existence, rights (charter and statutory) and franchises of the Company and each
Subsidiary Guarantor; provided, however, that the Company shall not be required
to preserve any such right or franchise if the Board of Directors of the Company
in good faith shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Restricted Subsidiary of the
Company to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
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thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, as determined by the Board of
Directors in good faith, desirable in the conduct of its business or the
business of any Restricted Subsidiary and not disadvantageous in any material
respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any of its
Restricted Subsidiaries or upon the income, profits or property of the Company
or any of its Restricted Subsidiaries, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Restricted Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Restricted Subsidiaries
to, keep at all times all of their properties which are of an insurable nature
insured against loss or damage with insurers believed by the Company to be
responsible to the extent that property of similar character is usually so
insured by corporations similarly situated and owning like properties in
accordance with good business practice.
SECTION 1008. Limitation on Consolidated Debt and Preferred Stock.
The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur any Debt unless, immediately after giving effect to the
Incurrence of such Debt and the receipt and application of the net proceeds
thereof, (i) no default or Event of Default will have occurred or be continuing
and (ii) the Consolidated EBITDA Coverage Ratio of the Company and its
Restricted Subsidiaries for the four full fiscal quarters for which quarterly or
annual financial statements are available next preceding the Incurrence of such
Debt, calculated on a pro forma basis (including a pro forma application of
proceeds of such Debt and the earnings of any business acquired by the Company
with the proceeds of such Debt) as if such Debt had been Incurred at the
beginning of such four full fiscal quarters, would be greater than 2.00 to 1;
provided that the proceeds of any such Incurrence of Debt may only be used for
capital expenditures (including Capital Leases).
The Company shall not issue any Preferred Stock that (i)
requires that dividends be paid or distribution be made in respect of such
Preferred Stock or to the holders of Preferred Stock (other than dividends or
distributions payable solely in (a) shares of Capital Stock (other than
Disqualified Stock) or (b) in options, warrants or other rights to acquire
Capital Stock (other than Disqualified Stock)) or (ii) would constitute
Disqualified Stock.
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Notwithstanding the foregoing paragraphs, the Company may, and
may permit any Restricted Subsidiary to, Incur the following Permitted Debt:
(i) Debt under the Revolving Credit Agreement in an aggregate
principal amount at any one time outstanding not to exceed $45 million,
less the aggregate amount then outstanding and available under any
revolving credit agreement or similar arrangement of a Subsidiary
Guarantor permitted under Section 1009(i);
(ii) Debt owed by the Company or any Wholly Owned Restricted
Subsidiary of the Company to the Company or any Wholly Owned Restricted
Subsidiary of the Company (provided that such Debt is at all times
either held by the Company or a Wholly Owned Restricted Subsidiary of
the Company or, in the case of Debt represented by an Intra-Company
Note, payable to the Company and pledged to secure Debt under the
Revolving Credit Agreement); provided, however, that for purposes of
this Section 1008, upon either (x) the transfer or other disposition by
such Wholly Owned Restricted Subsidiary of the Company of any Debt so
permitted to a Person other than the Company or another Wholly Owned
Restricted Subsidiary of the Company or (y) the issuance (other than
directors' qualifying shares), sale, lease, transfer or other
disposition of shares of Capital Stock (including by consolidation or
merger) of such Wholly Owned Restricted Subsidiary to a Person other
than the Company or another such Wholly Owned Restricted Subsidiary, the
provisions of this Clause (ii) shall no longer be applicable to such
Debt and such Debt shall be deemed to have been Incurred at the time of
such transfer or other disposition;
(iii) Debt the proceeds of which are used solely to refinance
the Securities or any other Debt outstanding on the date of the
Indenture, or to refinance Debt Incurred subsequent to the date of the
Indenture (other than in reliance on Clauses (i), (ii), (iv), (v), (vi)
or (vii) of this Section 1008) in an aggregate principal amount not to
exceed the principal amount of the Debt so refinanced; provided,
however, that (A) in the case of any refinancing or refunding of Debt
which is pari passu to the Securities, the refinancing or refunding Debt
is Subordinated Debt or is made pari passu to the Securities, (B) in the
case of any refinancing or refunding of Debt which is Subordinated Debt,
the refinancing or refunding Debt is made subordinate to the Securities
at least to the same extent as the Debt being refinanced or refunded,
(C) in all cases, such refinancing Debt does not have an Average Life or
final maturity less than the Average Life of final maturity,
respectively, of the Debt being refinanced and (D) the interest rate on
such refinancing Debt is not greater than the interest rate on less than
the Average Life of the Debt being refinanced;
(iv) obligations in respect of industrial revenue bonds,
pollution control bonds or other similar tax-exempt instruments
financing facilities or operations of the Company or any of its
Restricted Subsidiaries;
(v) interest rate swaps, caps, collars and similar arrangements
hedging Debt permitted under this Indenture and having a notional amount
not to exceed the principal amount of the Debt being hedged;
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(vi) any PIK Notes
(vii) until the date that is 60 days after the date hereof, an
aggregate of up to $2,000,000 of Securities in exchange for Old
Securities of the Holders which do not tender in the Offer; and
(viii) Debt under the ▇▇▇▇▇▇▇ Term Loan in an aggregate
principal amount not to exceed $2,000,000.
SECTION 1009. Limitation on Restricted Subsidiary Debt and Preferred Stock.
The Company shall not permit any Restricted Subsidiary of the
Company to Incur or suffer to exist any Debt or issue any Preferred Stock
except:
(i) Debt of a Subsidiary Guarantor under a revolving credit
agreement or similar arrangement, provided that the aggregate amount
outstanding and available under all such agreements and arrangements,
together with the aggregate amount outstanding and available under the
Revolving Credit Agreement, does not exceed $45 million;
(ii) the Subsidiary Guarantees;
(iii) the guarantees by the Subsidiary Guarantors of the
Company's obligations under the Revolving Credit Agreement;
(iv) any Guarantee by a Subsidiary Guarantor of Debt of the
Company permitted to be Incurred under this Indenture, provided that
such Guarantee is by its terms pari passu or subordinated in right of
payment of any amounts payable thereunder to the Subsidiary Guarantee of
such Subsidiary Guarantor, and provided further that if such Debt is by
its terms subordinated in right of payment of any amounts payable
thereunder to the Securities that such Guarantee is by its terms
subordinated in right of payment of any amounts payable thereunder to
the Subsidiary Guarantee of such Subsidiary Guarantor to substantially
the same extent;
(v) other Debt or Preferred Stock outstanding on the date of
this Indenture after giving effect to the application of the proceeds
from the Securities;
(vi) Debt or Preferred Stock issued to and held or owned by the
Company or a Wholly Owned Restricted Subsidiary of the Company; provided
that, such Debt or Preferred Stock is at all times either held by the
Company or a Wholly Owned Restricted Subsidiary of the Company or, in
the case of Debt represented by an Intra-Company Note, payable to the
Company and pledged to secure Debt under the Revolving Credit Agreement;
(vii) Debt or Preferred Stock Incurred by a Person prior to the
time (A) such Person became a Restricted Subsidiary of the Company, (B)
such Person merges into or consolidates with a Restricted Subsidiary of
the Company or (C) another Restricted Subsidiary of the Company merges
into or consolidates with such Person (in a transaction in which such
Person becomes a Restricted Subsidiary of the Company), provided that in
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any such case in this Clause (vii) such Debt or Preferred Stock was not
Incurred or issued in anticipation of such transaction and was
outstanding prior to such transaction, and provided further that such
Debt is Permitted Debt;
(viii) Debt Incurred pursuant to the first paragraph of and
Clause (v) of the second paragraph of Section 1008;
(ix) Debt or Preferred Stock which is exchanged for, or the
proceeds of which are used solely to refinance or refund, any Debt or
Preferred Stock permitted to be outstanding pursuant to Clauses (v) and
(vii) hereof (or any extension or renewal thereof), in an aggregate
principal amount, in the case of Debt, or liquidation preference, in the
case of Preferred Stock, not to exceed the principal amount or
liquidation preference of the Preferred Stock, so refinanced, provided,
that such Debt or Preferred Stock does not have an Average Life or final
maturity less than the Average Life or final maturity, respectively, of
the Debt or Preferred Stock being refinanced or an interest or dividend
rate greater than the interest or dividend rate on the Debt or Preferred
Stock being refinanced; and
(x) Debt under the ▇▇▇▇▇▇▇ Term Loan in an aggregate principal
amount not to exceed $2,000,000.
SECTION 1010. Limitation on Restricted Payments.
The Company (i) shall not, directly or indirectly, declare or
pay any dividend, or make any distribution, of any kind or character (whether in
cash, property or securities) in respect of any class of its Capital Stock or to
the holders of any class of its Capital Stock excluding any dividends or
distributions payable solely (a) in shares of its Capital Stock (other than
Disqualified Stock) or (b) in options, warrants or other rights to acquire its
Capital Stock (other than Disqualified Stock), (ii) shall not, and shall not
permit any Restricted Subsidiary of the Company, directly or indirectly, to
purchase, redeem or otherwise acquire or retire for value (a) any Capital Stock
of the Company or any Related Person of the Company or (b) any options, warrants
or rights to purchase or acquire shares of Capital Stock of the Company or any
Related Person of the Company, (iii) shall not make, or permit any Restricted
Subsidiary of the Company to make, any Investment in, or payment on a Guarantee
of any obligation of, any Affiliate or any Related Person of the Company, other
than the Company or a Wholly Owned Restricted Subsidiary of the Company which is
a Wholly Owned Restricted Subsidiary prior to such Investment, and (iv) shall
not, and shall not permit any Restricted Subsidiary of the Company to, redeem,
defease (including, but not limited to, legal or covenant defeasance),
repurchase, retire or otherwise acquire or retire for value prior to any
scheduled maturity, repayment or sinking fund payment, Subordinated Debt of the
Company (the transactions described in Clauses (i) through (iv) being referred
to herein as Restricted Payments), if at the time thereof:
(1) an Event of Default, or an event that with the lapse of time
or the giving of notice, or both, would constitute an Event of Default,
shall have occurred and is continuing;
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(2) upon giving effect to such Restricted Payment, the aggregate
of all Restricted Payments from the date of this Indenture exceeds the
sum of:
(a) 50% of cumulative Consolidated Net Income of the Company and
its Restricted Subsidiaries (or, in the case Consolidated Net Income of
the Company and its Restricted Subsidiaries shall be negative, less 100%
of such deficit) for the period (taken as one accounting period) from
the beginning of the first quarter commencing immediately after the date
of the Indenture and ended as of the Company's most recently ended
fiscal quarter at the time of such Restricted Payment; plus
(b) 100% of the aggregate net proceeds after the date of this
Indenture, including the fair value of property other than cash
(determined in good faith by the Board of Directors and evidenced by a
Board Resolution), from capital contributions (of cash or other
property) to the Company and from the issuance or sale of Capital Stock
(other than Disqualified Stock) of the Company and options, warrants or
other rights to acquire Capital Stock (other than Disqualified Stock) of
the Company (other than, in each case, to a Restricted Subsidiary) and
the principal amount of and accrued interest on Debt of the Company that
has been converted into Capital Stock (other than Disqualified Stock and
other than by a Restricted Subsidiary) of the Company after the date of
the Indenture; plus
(c) if any Unrestricted Subsidiary is redesignated as a
Restricted Subsidiary, the greater of the fair market value (as
determined by the Board of Directors in good faith) and book value of
such Unrestricted Subsidiary as of the date it is redesignated as a
Restricted Subsidiary; or
(3) in the case of a Restricted Payment described in clause (i)
or (ii) above, the Consolidated EBITDA Coverage Ratio of the Company and
its Restricted Subsidiaries for the four full fiscal quarters for which
quarterly or annual financial statements are available next preceding
the payment of such Restricted Payment was not greater than 3.00 to 1;
provided that for purposes of calculating Consolidated Net Income for
purposes of this paragraph with respect to the fiscal quarter during
which the Notes were issued, there shall be added back the amount paid
in cash to holders in connection with the issuance of the Securities.
Notwithstanding the foregoing, the Company may pay any dividend within
60 days after declaration thereof if at the declaration date such payment would
have complied with the foregoing provisions; provided that any such amounts will
thereafter be deducted from the calculation of the amount available for
Restricted Payments pursuant to the preceding paragraph. In addition, the
foregoing covenant will not prohibit the repurchase, redemption or other
acquisition or retirement for value of any shares of Capital Stock of the
Company out of the proceeds of any policy of insurance maintained to provide
funds for such purpose
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SECTION 1011. Limitations Concerning Distributions and Transfers By
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, suffer to exist any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary of the Company (i) to
pay, directly or indirectly, dividends or make any other distributions in
respect of its Capital Stock or pay any Debt or other obligation owed to the
Company or any other Restricted Subsidiary of the Company; (ii) to make loans or
advances to the Company or any Restricted Subsidiary of the Company; or (iii) to
transfer any of its property or assets to the Company, except, in any such case,
any encumbrance or restrictions:
(a) pursuant to an agreement as in effect on the date of this
Indenture or an agreement relating to Debt Incurred pursuant to clause
(i) or clause (viii) of Section 1008 of this Agreement,
(b) pursuant to an agreement relating to any Debt Incurred by
such Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company and outstanding on such date and
not Incurred in anticipation of becoming a Restricted Subsidiary,
provided that such encumbrance or restriction does not apply to any
Person, or to the property or assets of any Person, other than such
Restricted Subsidiary, or
(c) pursuant to any agreement relating to Debt permitted to be
Incurred by a Subsidiary Guarantor pursuant to Clause (viii) of Section
1009, provided that, immediately after giving pro forma effect to the
effectiveness of such agreement, the Company could Incur at least $1.00
of additional Debt pursuant to the first paragraph under Section 1008 if
the calculation of Consolidated Net Income (and clause (b) of the
proviso in the definition thereof) is made assuming such encumbrance or
restriction fully restricts the payment of dividends and the making of
distributions, or
(d) restricting the assignment of any contract or lease, or the
subletting of any lease, of the Company or any Restricted Subsidiary, or
(e) pursuant to an agreement entered into for a permitted sale
or disposition of the stock, business, assets or properties of the
Company or a Restricted Subsidiary, or
(f) pursuant to the terms of purchase money obligations, but
only to the extent such purchase money obligations restrict or prohibit
the transfer of the property so acquired and no other property, or
(g) pursuant to an agreement effecting a renewal, extension,
refinancing or refunding of Debt Incurred pursuant to an agreement
referred to in Clause (a), (b) or (c) above in an aggregate principal
amount not to exceed the principal amount of the Debt so refinanced;
provided, however, that in the case of an agreement effecting a renewal,
extension, refinancing or refunding of Debt Incurred pursuant to an
agreement referred to in Clause (b), (c) or (d) above, the provisions
contained in such renewal, extension, refinancing or refunding agreement
relating to such encumbrance or restriction are no more restrictive in
any material respect with respect to the interests of the Security
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holders than the provisions contained in the agreement the subject
thereof, as determined in good faith by the Board of Directors and
evidenced by a Board Resolution.
SECTION 1012. Limitation on Liens.
Except as permitted by the next paragraph, the Company may not,
and may not permit any Restricted Subsidiary of the Company to, Incur any Lien
(other than Permitted Liens) on property or assets now owned or hereafter
acquired to secure any Debt.
The Company and its Subsidiaries will use their commercially
reasonable efforts to obtain on behalf of the holders of the Securities a
perfected, first priority security interest in the tradenames, trademarks and
copyrights in which the lenders under the Company's Revolving Credit Agreement
currently have a perfected, first priority security interest. If the Company and
its Subsidiaries are unsuccessful in obtaining such a security interest, the
Company and its Subsidiaries will use their commercially reasonable efforts to
obtain on behalf of the holders of the Securities a perfected, second priority
security interest in such assets.
SECTION 1013. Limitation on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, enter into any Sale and Leaseback Transaction
unless:
(1) the Company or such Restricted Subsidiary would be entitled
to Incur a Lien to secure Debt pursuant to the provisions of Section
1012 hereof, equal in amount to the Attributable Value of the Sale and
Leaseback Transaction, without equally and ratably securing the
Securities; or
(2) the Sale and Leaseback Transaction is treated as an Asset
Disposition and all of the conditions of Section 1015 are satisfied with
respect to such Sale and Leaseback Transaction, treating all of the
consideration received in such Sale and Leaseback Transaction as Net
Available Proceeds for purposes of Section 1015.
SECTION 1014. Limitation on Transactions with Affiliates and Related Persons.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, directly or indirectly enter into any transaction
not in the ordinary course of business (including, without limitation, the
purchase, sale, lease or exchange of property, the rendering of any service or
the making of any loan or advance) involving aggregate consideration in excess
of $200,000, with any Affiliate or Related Person of the Company (other than the
Company or a Restricted Subsidiary of the Company), unless the Board of
Directors shall determine in its reasonable good faith judgment and evidenced by
a Board Resolution filed with the Trustee that: (1) such transaction is in the
best interests of the Company or such Restricted Subsidiary; and (2) such
transaction is on terms not materially less favorable to the Company or such
Restricted Subsidiary than those that could be obtained in a comparable arm's
length transaction with an entity that is not an Affiliate or a Related Person;
provided that the payment of discretionary annual bonuses pursuant to the
Management Services Agreement may be made only if, immediately after giving
effect to such payment, the Company could Incur at least $1.00 of additional
Debt pursuant to the first paragraph of Section 1008.
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Notwithstanding the foregoing, this Section 1014 will not apply
to (i) transactions between the Company and any of its Restricted Subsidiaries
or between its Restricted Subsidiaries, (ii) any payments or transactions
permitted pursuant to Section 1010, (iii) the payment of reasonable annual
compensation and reasonable and customary fees to directors or executive
officers of the Company or any of its Restricted Subsidiaries, (iv) payments for
management fees (not to exceed a base fee of $50,000 per month for these
services, subject to annual automatic increases based upon the consumer price
index) and reimbursements for reasonable costs, charges or expenses by the
Company to Southwestern Holdings, Inc. in accordance with the terms of the
Management Services Agreement and (v) payments pursuant to any tax sharing
agreement or arrangement among the Company and all or any of its Subsidiaries or
among all or any of its Subsidiaries.
SECTION 1015. Limitation on Certain Asset Dispositions.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, make any Asset Disposition in one or more related
transactions unless:
(i) the Company (or the Restricted Subsidiary of the Company, as
the case may be) receives consideration at the time of such disposition
at least equal to the fair market value of the shares or assets disposed
of (which shall be as determined in good faith by the Board of Directors
and evidenced by a Board Resolution filed with the Trustee), and
(ii) not less than 80% of the consideration for such disposition
consists of cash or readily marketable cash equivalents, and
(iii) (a) in the case of any Asset Disposition involving assets
having a value of less than $100,000 and less than an aggregate of $3 million
during the term of the Securities, within 180 days of the Asset Disposition, the
Company or such Restricted Subsidiary applies the Net Available Proceeds of such
Asset Disposition, to the extent the Revolving Credit Agreement does not require
that such Net Available Proceeds be used to reduce the outstanding balance under
the Revolving Credit Agreement, either to (1) repurchase or redeem Securities or
(2) make capital expenditures in new assets that will become Security Collateral
for the Securities, and (b) in the case of any Asset Disposition involving
assets having a value greater than $100,000 or more than an aggregate of $3
million during the term of the Securities, the Company or such Restricted
Subsidiary applies the Net Available Proceeds of such Asset Disposition, to the
extent the Revolving Credit Agreement does not require that such Net Available
Proceeds be used to reduce the outstanding balance under the Revolving Credit
Agreement, so that (1) at least 80% of such Net Available Proceeds are used to
repurchase or redeem Securities within 120 days of the Asset Disposition and (2)
any balance of such Net Available Proceeds is used to make capital expenditures
in new assets that will become Security Collateral for the Securities within 180
days of the Asset Disposition. If the proceeds are not used within the time
period specified above for any permitted purpose, the Company will offer to
purchase outstanding Securities pursuant to an Offer to Purchase at 100% of
their principal amount plus accrued interest to the date of purchase in an
aggregate principal amount plus interest equal to the unused Net Available
Proceeds from such disposition (including from the sale of any marketable cash
equivalents
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received therein). This Section 1015 shall not apply to a transaction which is
subject to and permitted under the provisions described under Section 801 and
802 of this Indenture.
(b) The Company will mail the Offer for an Offer to Purchase
required pursuant to Section 1015 (a) not more than one year after consummation
of the disposition referred to in Section 1015(a). The aggregate principal
amount of the Securities to be offered to be purchased pursuant to the Offer to
Purchase shall equal the Net Available Proceeds available therefor pursuant to
Clause (iii) (B) of Section 1015 (a) (rounded down to the next lowest integral
multiple of $100), reduced to the extent specified in the second proviso of
Section 1015 (a) (iii). Each Holder shall be entitled to tender all or any
portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $100 principal amount.
(c) Not later than the date of the Offer with respect to an
Offer to Purchase pursuant to this Section 1015, the Company shall deliver to
the Trustee an Officers' Certificate as to (i) the Purchase Amount, (ii) the
allocation of the Net Available Proceeds from the Asset Disposition pursuant to
which such Offer is being made, including, if amounts are invested in assets
related to the business, the actual assets acquired and a statement as to the
necessity of such assets for the maintenance of such business and (iii) the
compliance of such allocation with the provisions of paragraph (a).
The Company shall perform its respective obligations specified
in the Offer for the Offer to Purchase. On or prior to the Purchase Date, the
Company shall (i) accept for payment (on a pro rata basis, if necessary)
Securities or portions thereof tendered pursuant to the Offer, (ii) deposit with
the Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) money sufficient to pay
the purchase price of all Securities or portions thereof so accepted and (iii)
deliver or cause to be delivered to the Trustee all Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company. The Paying Agent (or the Company,
if so acting) shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security equal
in principal amount to any unpurchased portion of the Security surrendered. Any
Security not accepted for payment shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Offer on or as soon as practicable after the Purchase Date.
(d) Notwithstanding the foregoing, this Section 1015 shall not
apply to any Asset Disposition which constitutes a transfer, conveyance, sale,
lease or other disposition of all or substantially all of the Company's
properties or assets within the meaning of Sections 801 and 802 hereof.
SECTION 1016. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries.
The Company will not sell, transfer or otherwise dispose of, and
will not permit or cause any of its Restricted Subsidiaries to issue or sell,
transfer or otherwise dispose of any Capital Stock of a Restricted Subsidiary
(other than director's qualifying shares and other than to the Company of to a
Wholly-Owned Restricted Subsidiary) or securities convertible into, or
71
warrants, rights or options to subscribe for or purchase shares of such Capital
Stock or permit any Person (other than the Company or a Wholly-Owned Subsidiary)
to own or hold any Capital Stock of any Restricted Subsidiary; provided,
however, that this provision will not prohibit the sale of all of the Capital
Stock of a Restricted Subsidiary in compliance with the provisions described
under Section 801 of this Indenture.
SECTION 1017. Change of Control.
(a) Upon the occurrence of a Change in Control, each Holder of a
Security shall have the right to have such Security repurchased by the Company
on the terms and conditions precedent set forth in this Section 1017 and this
Indenture. Subject to the requirements of paragraph (d) of this Section 1017,
the Company shall, within 30 days following the date of the consummation of a
transaction resulting in a Change of Control, mail an Offer with respect to an
Offer to Purchase all Outstanding Securities at a purchase price equal to 101%
of their aggregate principal amount plus accrued interest to the Purchase Date
(provided, however, that installments of interest whose Stated Maturity is on or
prior to the Purchase Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307). Each Holder shall be entitled to tender all or any
portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $100 principal amount.
(b) The Company shall perform its respective obligations
specified in the Offer for the Offer to Purchase. Prior to the Purchase Date,
the Company shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Offer, (ii) deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) money sufficient to pay the purchase price of all Securities or
portions thereof so accepted and (iii) deliver or cause to be delivered to the
Trustee all Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security or
Securities equal in principal amount to any unpurchased portion of the Security
surrendered as requested by the Holder. Any Security not accepted for payment
shall be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Offer on or as soon as
practicable after the Purchase Date.
(c) A "Change of Control" shall be deemed to have occurred in
the event that, after the date of this Indenture, either (A) any Person or any
Persons (other than a Permitted Holder) acting together which would constitute a
"group" (a "Group") for purposes of Section 13(d) (3) of the Exchange Act, or
any successor provision thereto, together with any Affiliates thereof, shall
beneficially own (as defined in Rule 13d-3 of the Exchange Act or any successor
provision thereto) at least 50% of the aggregate voting power of all classes of
Capital Stock of the Company entitled to vote generally in the election of
directors of the Company; or (B) any Person or Group (other than a Permitted
Holder), together with any Affiliates or Related Persons thereof, shall succeed
in having sufficient of its or their nominees elected to the Board of
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Directors of the Company such that such nominees, when added to any existing
director remaining on the Board of Directors of the Company after such election
who is an Affiliate or Related Person of such Person or Group, shall constitute
a majority of the Board of Directors of the Company.
SECTION 1018. Limitations on Acquisitions.
The Company and the Restricted Subsidiaries shall not enter into a
transaction to acquire the assets of a Person, where such transaction is not in
the ordinary course of the Company's business or the ordinary course of business
of the respective Restricted Subsidiary, unless the assets so acquired become
contemporaneous with their acquisition collateral for the Securities and the
assets so acquired are acquired with proceeds of an Asset Disposition that are
permitted to be invested in such assets.
SECTION 1019. Limitations on the Repurchase of Securities.
The Company and the Restricted Subsidiaries shall not purchase
Securities from any Holder of Securities at a price that is less than 100% of
the principal amount of such Securities, other than through an Offer to
Purchase.
The Company and its Restricted Subsidiaries shall not purchase
Securities using the proceeds of borrowings under the Revolving Credit Agreement
unless there is available for borrowing under such Revolving Credit Agreement,
after giving effect to the borrowings to purchase Securities, an amount equal to
the sum of (i) $6 million plus (ii) the amount of any PIK Notes representing
interest (but not including any premium) paid in PIK Notes plus (iii) the
aggregate amount of interest payable on the next interest payment date on the
Securities then outstanding; provided that the amount in (ii) will be reduced
by:
(1) the amount of any Securities repurchased or redeemed, with
respect to the period prior to May 15, 2005;
(2) the amount of any Securities repurchased or redeemed in
excess of $7.5 million, with respect to the period from May 16, 2005
through May 15, 2006; and
(3) the amount of any Securities repurchased or redeemed in
excess of $15 million, with respect to the period beginning on May 15,
2006.
SECTION 1020. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or 15(d)
of the Exchange Act, or any successor provision thereto, the Company shall file
with the Commission the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provision thereto if the Company
were so subject, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so required.
The Company shall also in any event (a) within 15 days of each Required Filing
Date (i) transmit by mail to all Holders, as their names and addresses appear in
the Security Register, without cost to such
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Holders, and (ii) file with the Trustee copies of the annual reports, quarterly
reports and other documents which the Company would be required to file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act or any
successor provisions thereto if the Company were so subject to such Sections and
(b) if filing such documents by the Company with the Commission is not permitted
under the Exchange Act, promptly upon written request supply copies of such
documents to any prospective Holder.
SECTION 1021. Statement by Officers as to Default.
(a) The Company and the Subsidiary Guarantors will deliver to
the Trustee, within 90 days after the end of each fiscal year, and within 60
days after the end of each fiscal quarter (other than the fourth fiscal
quarter), of the Company ending after the date hereof an Officers' Certificate
(one of the signers of which shall be the executive, financial or accounting
officer), stating whether or not to the best knowledge of the signers thereof
the Company or the Subsidiary Guarantors, as the case may be, is in default in
the performance and observance of any of the terms, provisions and conditions of
Sections 801 and 802 or Sections 1004 to 1020, inclusive, and if the Company or
the Subsidiary Guarantors, as the case may be, shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge. For purposes of this Section 1021, such compliance or default shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) The Company and each Subsidiary Guarantor shall deliver to
the Trustee, as soon as possible and in any event within 10 days after the
Company becomes aware of the occurrence of an Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of such Event of
Default or default, and the action which the Company proposes to take with
respect thereto.
(c) The Company shall deliver to the Trustee within 90 days
after the end of each fiscal year a written statement by the Company's
independent public accountants stating (A) that their audit has included a
review of the terms of this Indenture and the Securities as they relate to
accounting matters, and (B) whether, in connection with their audit, any event
which, with notice or the lapse of time or both, would constitute an Event of
Default has come to their attention and, if such a default has come to their
attention, specifying the nature and period of the existence thereof.
SECTION 1022. Waiver of Certain Covenants.
The Company and the Subsidiary Guarantors may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 801 and 802 and Sections 1004 to 1021, if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the Subsidiary Guarantors
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect; provided, however, with respect to an Offer to
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Purchase as to which an Offer has been mailed, no such waiver may be made or
shall be effective against any Holder tendering Securities pursuant to such
Offer, and the Company may not omit to comply with the terms of such Offer as to
such Holder.
SECTION 1023. Cancellation of Reacquired Notes.
The Company shall promptly deliver to the Trustee for
cancellation all Securities and Old Securities which the Company or any
Subsidiary acquires, whether through privately negotiated sales, open market
purchases, tender offer or redemption.
SECTION 1024. Covenant to Obtain Lien on Intellectual Property.
Following the date hereof, the Company and the Subsidiary
Guarantors shall use their commercially reasonable efforts to obtain on behalf
of the Holders a perfected, first priority security interest in the trade names,
trademarks and copyrights in which the lender(s) under the Revolving Credit
Facility currently have a perfected, first priority security interest. If the
Company and the Subsidiaries are unsuccessful in obtaining such a perfected,
first priority security interest after using commercially reasonable efforts (as
determined by the Company, acting reasonably), the Company shall notify the
Trustee in writing thereof and the Company and the Subsidiary Guarantors shall
use their reasonably commercial efforts to obtain on behalf of the Holders a
perfected, second priority security interest in such asset. If the Company and
the Subsidiaries are unsuccessful in obtaining such a perfected, second priority
security interest after using commercially reasonable efforts (as determined by
the Company, acting reasonably), the Company shall notify the Trustee in writing
thereof.
SECTION 1025. Covenant to Obtain Leasehold Mortgages.
Following the date hereof, the Company and the Subsidiary
Guarantors shall use their commercially reasonable efforts to obtain on behalf
of the Holders leasehold mortgage(s) on leasehold interests of the Company and
the Subsidiary Guarantors that individually involve payments of more than
$10,000 per month, provided that the relevant landlords or lessors shall have
granted the requisite consents thereto.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company,
in whole or in part, upon not less than 30 nor more than 60 days' notice by
mail, at any time prior to Maturity, as a whole or in part, in each case at the
Redemption Prices specified in the form of Security hereinbefore set forth
together with accrued interest to the Redemption Date.
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SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not less than 30 days nor
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $100 or any integral multiple
thereof) of the principal amount of Securities of a denomination larger than
$100.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
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(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any applicable accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time,
elect to have either Section 1202 or Section 1203 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Twelve.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1201 applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that (i) the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), and (ii) the Subsidiary Guarantors shall
each be released from their respective Subsidiary Guarantees, except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 1204 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article Twelve. Subject to compliance with this Article
Twelve, the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
1201 applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1021, inclusive, and Clauses (3), (4)
and (5) of Section 801, (ii) the occurrence of an event specified in Sections
501(4) (with respect to Clauses (3), (4) or (5) of Section 801), 501(5) (with
respect to any of Sections 1005 through 1021, inclusive), 501(6) and 501(7)
shall not be deemed to be an Event of Default on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that (a) the Company may omit
to comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, Clause or Article, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section,
Clause or Article or by reason of any reference in any such Section, Clause or
Article to any other provision herein or in any other document, and (b) the
Subsidiary Guarantors shall be released from all of their obligations under
their Subsidiary Guarantees and under Article Thirteen of this Indenture; but
the remainder of this Indenture and such Securities shall be unaffected thereby.
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SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (premium, if any,) and each installment of interest on the
Securities on the Stated Maturity of such principal or installment of
interest in accordance with the terms of this Indenture and of such
Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged or
(y) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a) (2) of the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge
had not occurred.
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(3) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities will not recognize gain
or loss for Federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would have been
the case if such deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any securities of
the Company.
(6) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 501(8)
and (9) are concerned, at any time during the period ending on the 121st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(7) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1202 or the covenant defeasance under Section 1203 (as the case may be)
have been complied with.
(9) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such act or exempt from regulation
thereunder.
SECTION 1205. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee) pursuant to Section
1204 in respect of the Securities shall be held in trust and applied by the
Trustee (or other qualifying trustee), in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee (or other qualifying trustee) may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee (or other
qualifying trustee) against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to Section 1204 or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding,
the Trustee (or other qualifying trustee) shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government obligations
held by it as provided in Section 1204 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (or other qualifying trustee),
are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with Section 1202 or 1203 by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Twelve until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1202 or 1203; provided, however, that if the Company makes any payment
of principal of (and premium, if any) or interest on any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or the Paying Agent.
ARTICLE THIRTEEN
Subsidiary Guarantees
SECTION 1301. Subsidiary Guarantees.
Each of the Subsidiary Guarantors hereby jointly and severally
unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee, and to the Trustee on behalf of such Holder, the due
and punctual payment of the principal of (and premium, if any) and interest on
such Security when and as the same shall become due and payable, whether at the
Stated Maturity, by acceleration, call for redemption, purchase or otherwise, in
accordance with the terms of such Security and of this Indenture. In case of the
failure of the Company punctually to make any such payment, each of the
Subsidiary Guarantors hereby jointly and severally agrees to cause such payment
to be made punctually when and as the same shall become due and payable, whether
at the Stated Maturity or by acceleration, call for redemption, purchase or
otherwise, and as if such payment were made by the Company.
Each of the Subsidiary Guarantors hereby jointly and severally
agrees that its obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of such Security or this Indenture,
the absence of any action to enforce the same,
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any exchange, release or non-perfection of any Lien on any collateral for, or
any release or amendment or waiver of any term of any other Guarantee of, or any
consent to departure from any requirement of any other Guarantee of all or any
of the Securities, the election by the Trustee or any of the Holders in any
proceeding under Chapter 11 of the Title 11 of the United States Code (the
"Bankruptcy Code") of the application of Section 1111(b) (2) of the Bankruptcy
Code, any borrowing or grant of a security interest by the Company, as
debtor-in-possession, under Section 364 of the Bankruptcy Code, the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the
Securities, any waiver or consent by the Holder of such Security or by the
Trustee with respect to any provisions thereof or of this Indenture, the
obtaining of any judgment against the Company or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each of the Subsidiary Guarantors hereby
waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company or any other Person or
any Security Collateral, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest or notice with respect to such Security or the
Indebtedness evidenced thereby and all demands whatsoever, and covenants, that
this Subsidiary Guarantee will not be discharged in respect of such Security
except by complete performance of the obligations contained in such Security and
in this Subsidiary Guarantee. Each of the Subsidiary Guarantors hereby agrees
that, in the event of a default in payment of principal (or premium, if any) or
interest on such Security, whether at their Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security, subject to the
terms and conditions set forth in this Indenture, directly against each of the
Subsidiary Guarantors to enforce this Subsidiary Guarantee without first
proceeding against the Company. Each Subsidiary Guarantor agrees that if, after
the occurrence and during the continuance of an Event of Default, the Trustee or
any of the Holders are prevented by applicable law from exercising their
respective rights to accelerate the maturity of the Securities, to collect
interest on the Securities, or to enforce or exercise any other right or remedy
with respect to the Securities, or the Trustee or the Holders are prevented from
taking any action to realize on the Security Collateral, such Subsidiary
Guarantor agrees to pay to the Trustee for the account of the Holders, upon
demand therefor, the amount that would otherwise have been due and payable had
such rights and remedies been permitted to be exercised by the Trustee or any of
the Holders.
Each Subsidiary Guarantor shall be subrogated to all rights of
the Holders of the Securities upon which its Guarantee is endorsed against the
Company in respect of any amounts paid by such Subsidiary Guarantor on account
of such Security pursuant to the provisions of its Subsidiary Guarantee or this
Indenture; provided, however, that no Subsidiary Guarantor shall be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on all
Securities issued hereunder shall have been paid in full.
Each Subsidiary Guarantee shall remain in full force and effect
and continue to be effective should any petition be filed by or against the
Company for liquidation or reorganization, should the Company become insolvent
or make an assignment for the benefit of
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creditors or should a receiver or trustee be appointed for all or any
significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Securities, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Securities, whether as a "voidable preference",
"fraudulent transfer", or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Securities shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
No stockholder, officer, director, employer or incorporator,
past, present or future, of any Subsidiary Guarantor, as such, shall have any
personal liability under this Subsidiary Guarantee by reason of his, her or its
status as such stockholder, officer, director, employer or incorporator.
The Subsidiary Guarantors shall have the right to seek
contribution from any non-paying Subsidiary Guarantor so long as the exercise of
such right does not impair the rights of the Holders under this Subsidiary
Guarantee.
SECTION 1302. Execution and Delivery of Subsidiary Guarantees.
The Subsidiary Guarantees to be endorsed on the Securities shall
include the terms of the Subsidiary Guarantee set forth in Section 1301 and any
other terms that may be set forth in the form established pursuant to Section
205. Each of the Subsidiary Guarantors hereby agrees to execute its Subsidiary
Guarantee, in a form established pursuant to Section 205, to be endorsed on each
Security authenticated and delivered by the Trustee.
The Subsidiary Guarantee shall be executed on behalf of each
respective Subsidiary Guarantor by any one of such Subsidiary Guarantor's
Chairman of the Board, Vice Chairman of the Board, President or Vice Presidents,
attested by its Secretary or Assistant Secretary. The signature of any or all of
these officers on the Subsidiary Guarantee may be manual or facsimile.
A Subsidiary Guarantee bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of a
Subsidiary Guarantor shall bind such Subsidiary Guarantor, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of the Security on which such Subsidiary Guarantee
is endorsed or did not hold such offices at the date of such Subsidiary
Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee endorsed thereon on behalf of the Subsidiary Guarantors.
Each of the Subsidiary Guarantors hereby jointly and severally agrees that its
Subsidiary Guarantee set forth in Section 1301 shall remain in full force and
effect notwithstanding any failure to endorse a Subsidiary Guarantee on any
Security.
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SECTION 1303. Subsidiary Guarantors May Consolidate, Etc., on Certain Terms.
Except as set forth in Section 1304 and in Articles Eight and
Ten hereof, nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
the Company or a Subsidiary Guarantor or shall prevent any sale or conveyance of
the property of a Subsidiary Guarantor as an entirety of substantially as an
entirety to the Company or a Subsidiary Guarantor.
SECTION 1304. Release of Subsidiary Guarantors.
(a) Concurrently with any consolidation or merger of a
Subsidiary Guarantor or any sale or conveyance of the property of a Subsidiary
Guarantor as an entirety or substantially as an entirety, in each case as
permitted by Section 1303 hereof, and upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that
such consolidation, merger, sale or conveyance was made in accordance with
Section 1303 hereof, the Trustee shall execute any documents reasonably required
in order to evidence the release of such Subsidiary Guarantor from its
obligations under its Subsidiary Guarantees endorsed on the Securities and under
this Article Thirteen. Any Subsidiary Guarantor not released from its
obligations under its Subsidiary Guarantees endorsed on the Securities and under
this Article Thirteen shall remain liable for the full amount of principal of
and interest on the Securities and for the other obligations of a Subsidiary
Guarantor under its Subsidiary Guarantees endorsed on the Securities and under
this Article Thirteen.
(b) Concurrently with the defeasance of the Securities under
Section 1202 hereof or the covenant defeasance of the Securities under Section
1203 hereof, the Subsidiary Guarantors shall be released from all of their
obligations under their Subsidiary Guarantees endorsed on the Securities and
under this Article Thirteen.
(c) Upon the sale or disposition (by merger or otherwise) of any
Subsidiary Guarantor by the Company or any Restricted Subsidiary of the Company
to any entity that is not a Restricted Subsidiary of the Company and which sale
or disposition is otherwise in compliance with the terms of this Indenture, such
Subsidiary Guarantor shall automatically be released from all obligations under
its Subsidiary Guarantees endorsed on the Securities and under this Article
Thirteen, provided that such Subsidiary Guarantor is sold or disposed of for
fair market value (evidenced by a Board Resolution and set forth in an Officers'
Certificate delivered to the Trustee).
(d) Upon the redesignation by the Company of a Subsidiary
Guarantor from Restricted Subsidiary to an Unrestricted Subsidiary in compliance
with the provisions of this Indenture, such Subsidiary shall cease to be a
Subsidiary Guarantor and shall be released from all of the obligations of a
Subsidiary Guarantor under its Subsidiary Guarantees endorsed on the Securities
and under this Article Thirteen.
SECTION 1305. Additional Subsidiary Guarantors.
(a) The Company may cause any Person that becomes a Restricted
Subsidiary after the date of this Indenture to become a Subsidiary Guarantor
with respect to the Securities. Any such Person shall become a Subsidiary
Guarantor by executing and delivering to the Trustee
84
(a) a supplemental indenture, in form and substance satisfactory to the Trustee,
which subjects such Person to the provisions (including the representations and
warranties) of this Indenture as a Subsidiary Guarantor and (b) an Opinion of
Counsel to the effect that such supplemental indenture has been duly authorized
and executed by such Person and constitutes the legal, valid, binding and
enforceable obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be reasonably
acceptable to the Trustee in its discretion).
(b) The Company will cause any Subsidiary of the Company that is
or becomes a borrower under or guarantor of the Company's obligations under the
Revolving Credit Agreement to become a Subsidiary Guarantor with respect to the
Securities.
ARTICLE FOURTEEN
Security Documents
SECTION 1401. Security Documents.
(a) As general and continuing collateral security for the due
satisfaction of the Obligations of the Company and the Subsidiary Guarantors, as
applicable, under this Indenture, the Securities and the due performance by the
Company and the Subsidiary Guarantors, as applicable, hereunder, the Company,
such Subsidiary Guarantors and the Trustee have entered into Security Documents
to grant Liens (subject to Permitted Liens) on the Security Collateral. The
Trustee, the Company and the Subsidiary Guarantors hereby agree that the Trustee
holds the Security Collateral in trust and for the benefit of the Holders
pursuant to the terms of this Indenture and the Security Documents. The Trustee
further agrees that the Company and certain of the Subsidiary Guarantors have
heretofore entered into the Revolving Credit Agreement and ▇▇▇▇▇▇▇ Term Loan and
granted liens and security interests to the lender(s) thereunder in certain
collateral pursuant to various security documents related thereto and consents
to the financing arrangements evidenced thereby.
(b) The Company represents, covenants and agrees that it has
and, to the extent required hereunder, the Subsidiary Guarantors shall at all
times have, full right, power and lawful authority to grant, bargain, sell,
release, convey, hypothecate, assign, mortgage, pledge, transfer and confirm the
property constituting the Security Collateral pursuant to the Security Documents
to which such Persons are party, free and clear of all Liens (other than
Permitted Liens), and that (i) it will forever warrant and defend the title to
the same against the claims of all Persons (except as to Permitted Liens), (ii)
it and such of its Restricted Subsidiaries, as applicable, will execute,
acknowledge and deliver to the Trustee such further assignments, transfers,
assurances or other instruments as the Trustee may reasonably require to
perfect, preserve, maintain or protect the Liens granted pursuant to the
Security Documents and (iii) it and such of its Restricted Subsidiaries, as
applicable, will do or cause to be done all such acts as may be reasonably
required by the Trustee, to confirm to the Trustee such Lien on the Security
Collateral, or any part thereof, as from time to time constituted, so as to
render the same available for the security and benefit of the Security
Documents, this Indenture and the Securities. The Company further covenants and
agrees that each Security Document, as
85
applicable, creates or will create (when delivered) a valid first-ranking Lien
(subject to Permitted Liens) on the Security Collateral subject thereto.
(c) Each Holder, by accepting a Security, and the Company
authorize the Trustee to enter into the Security Documents and the Collateral
Access Agreement and such other instruments and documents related hereto and
thereto and agrees to all of the terms of the Security Documents and Collateral
Access Agreement and such other instruments and documents related hereto and
thereto, as the same may be amended, supplemented, restated or otherwise
modified from time to time pursuant to the terms of this Indenture or the
Security Documents and (ii) agrees that the Company and certain of the
Subsidiary Guarantors have heretofore entered into the Revolving Credit
Agreement and ▇▇▇▇▇▇▇ Term Loan and granted liens to the lender(s) thereunder in
and to certain collateral pursuant to various security documents related thereto
and consents to the financing arrangements evidenced thereby.
SECTION 1402. Recording, Etc.
(a) The Company shall cause, at the Company's expense, this
Indenture and each Security Document, and all amendments or supplements thereto,
to be registered, recorded and filed and/or re-recorded and/or re-filed and/or
renewed in such manner and in such place or places, if any, as may be reasonably
required or as may be reasonably requested by the Trustee in order to preserve,
protect and maintain the perfected first-ranking Liens (subject to Permitted
Liens) created by the Security Documents on the Security Collateral. The Company
shall pay all Mortgages, mortgage recording, stamp, intangible or other similar
taxes, charges or fees required to be paid by any government or quasi-government
under applicable legal requirements in connection with the execution, delivery,
recordation, filing, perfection or enforcement of any of the Security Documents.
(b) The Company shall furnish to the Trustee on [ ] of each
year, beginning May 23, 2004, an Opinion or Opinions of Counsel, dated as of
such date, either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, registering, filing, re-recording,
re-registering and re-filing of (x) this Indenture, the Security Documents and
all supplemental indentures and amendments thereto, and (y) financing
statements, continuation statements or other instruments of further assurances,
as is necessary to maintain the Lien created by each such Security Document and
reciting the details of such action or referring to prior Opinions of Counsel in
which such details are given, and stating that all financing statements and
continuation statements have been executed and filed that are necessary to
perfect such Lien, or stating that, in the opinion of such counsel, no such
action is necessary to maintain such Liens.
SECTION 1403. Possession of the Collateral.
(a) Until the occurrence of an Event of Default, the Company or
the relevant Restricted Subsidiary may possess, manage, operate and enjoy, as
applicable, the Security Collateral in accordance with the terms of this
Indenture, the Securities and the Security Documents.
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(b) Notwithstanding the foregoing, all amounts received by the
Trustee as proceeds of any part of the Security Collateral (including Net
Available Proceeds in the case of an Asset Disposition) and all amounts of
money, securities, letters of credit and other evidences of indebtedness
deposited with or held by the Trustee in accordance with this Indenture and any
Security Document shall be held by the Trustee as security for the Obligations
of the Company and the Subsidiary Guarantors, if any, under this Indenture, the
Securities, any Guarantees and the Security Documents until applied in
accordance with the terms of this Indenture.
SECTION 1404. Suits to Protect the Collateral.
The Trustee shall have power to institute in its name and to
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Security Collateral by any acts which may be unlawful or in
violation of this Indenture or any of the Security Documents, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders in the Security Collateral and in the
principal, interest, issues, profits, rents, revenues and other income arising
therefrom, including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of, or compliance with, such enactment, rule or
order would impair the security hereunder or under any of the Security
Documents, or be prejudicial to the interests of the Holders or the Trustee.
SECTION 1405. Release of Collateral.
(a) The Trustee shall not at any time release Security
Collateral from the Liens created by this Indenture and the Security Documents
unless such release is in accordance with the provisions of this Indenture and
the Security Documents and accompanied by a Company Order directing the Trustee
to release such Security Collateral and an Officers' Certificate upon which the
Trustee may rely.
(b) The release of any Security Collateral from the Lien of the
Security Documents shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Security Collateral is released pursuant to this Indenture and the Security
Documents. To the extent applicable, the Company shall comply with Trust
Indenture Act Section 314(d) relating to the release of property from the Lien
of the Security Documents and relating to the substitution therefor of any
property to be subjected to the Lien of the Security Documents. Any certificate
or opinion required by Trust Indenture Act Section 314(d) may be made by an
Officer of the Company, except in cases where Trust Indenture Act Section 314(d)
requires that such certificate or opinion be made by an independent person,
which person shall be an independent engineer, appraiser or other expert
selected by the Company.
SECTION 1406. Specified Releases of Collateral.
(a) Satisfaction and Discharge; Defeasance. The Company shall be
entitled to obtain a full release of all of the Security Collateral from the
Liens of this Indenture and of the Security Documents upon payment in full of
all principal, premium, if any, and interest on the
87
Securities and of all other Obligations for the payment of money due and owing
to the Trustee or the Holders under this Indenture, the Securities, the
Guarantees and the Security Documents, or upon compliance with the conditions
precedent set forth in Article Twelve hereof for covenant defeasance. Upon such
payment or upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel, each to the effect that such conditions
precedent have been complied with (and which may be the same Officers'
Certificate and Opinion of Counsel required by Article Twelve hereof), together
with such documentation, if any, as may be required by the Trust Indenture Act
(including, without limitation, Trust Indenture Act Section 314(d)) or
reasonably required by the Trustee prior to the release of such Security
Collateral, the Trustee shall forthwith take all action that is necessary or
reasonably requested by the Company (in each case at the expense of the Company)
to release and reconvey to the Company without recourse all of the Security
Collateral, and shall deliver such Security Collateral in its possession to the
Company and shall execute and deliver to the Company releases and satisfactions,
in recordable form, to the extent reasonably requested by the Company.
(b) Releases of Security Collateral in Connection with Asset
Dispositions. Items of Security Collateral subject to an Asset Dispositions,
pursuant to Section 1015 of this Agreement (the "Released Security Collateral")
shall be automatically released upon compliance with the conditions precedent
that the Company shall have delivered to the Trustee the following with respect
to such Security Collateral:
(i) a Company Notice (A) specifically describing the proposed
Released Security Collateral, (B) specifying the fair market value of
such Released Security Collateral on a date within 60 days of the
Company Notice, (C) stating that the consideration to be received is at
least equal to the fair market value of the Released Security
Collateral, (D) stating that the release of such Released Security
Collateral shall not materially and adversely impair the value of the
remaining Security Collateral, taken as a whole, (E) confirming the sale
of, or an agreement to sell, such Released Security Collateral in a bona
fide sale, (F) certifying that such Asset Disposition complies with the
terms and conditions of this Indenture, including, without limitation,
Section 1015 hereof, and (G) in the event that there is to be a
substitution of property for the Security Collateral subject to the
Asset Disposition, specifying the property intended to be substituted
for the Security Collateral to be disposed of;
(ii) an Officers' Certificate certifying that (A) such sale
complies with the terms and conditions of this Indenture, including,
without limitation, Section 1015 hereof, (B) Net Available Proceeds from
the sale of any of the Released Security Collateral shall be deposited
in an account to be applied in accordance herewith, including Section
1015 hereof, and (C) all conditions precedent in this Indenture and the
Security Documents to such release have been complied with;
(iii) the Net Available Proceeds and other property received as
consideration from the Asset Disposition, together with such instruments
of conveyance, assignment and transfer, if any, as may be necessary to
subject to the Lien of this Indenture and the Security Documents all the
right, title and interest of the Company in and to such property (to the
extent required by this Indenture and the Security Documents);
88
(iv) all documentation required by the Trust Indenture Act
(including, without limitation, Trust Indenture Act Section 314(d)), if
any, prior to the release by the Trustee of the Released Security
Collateral, and, in the event there is to be a substitution of property
for the Security Collateral subject to the Asset Disposition, all
documentation required by the Trust Indenture Act to effect the
substitution of such new Security Collateral and to subject such new
Security Collateral to the Lien of the relevant Security Documents, and
all documents required by Section 1401 hereof with respect to such new
Security Collateral;
(v) an Opinion of Counsel substantially to the effect that (A)
any obligation included in the consideration for any Released Security
Collateral is a valid and binding obligation enforceable in accordance
with its terms subject to customary exceptions regarding equitable
principles, creditors' rights generally and bankruptcy and is subject to
a perfected Lien under the Security Documents, (B) the Company has
corporate power to own all property included in the consideration for
such release, and (C) all conditions precedent herein and under any of
the Security Documents relating to the release of such Security
Collateral have been complied with; and
(vi) if the Security Collateral to be released is only a portion
of a discrete parcel of real property, an Opinion of Counsel or an
endorsement to any title insurance policy insuring the Lien in favor of
the Trustee created by a Mortgage on such Mortgaged property confirming
that after such release, the Lien of such Mortgage continues as a
perfected Lien upon the remaining Mortgaged property. Upon compliance by
the Company with the conditions precedent set forth above, the Trustee
shall cause to be released and reconveyed to the Company without
recourse the Released Security Collateral and shall deliver any such
Released Security Collateral in its possession to the Company and shall
execute and deliver to the Company at the Company's expense releases and
satisfactions, in recordable form, to the extent reasonably requested by
the Company.
Upon compliance by the Company with the conditions precedent set
forth above, the Trustee shall and is hereby authorized to take such action and
deliver such documents, instruments and agreements to cause to be released and
reconveyed to the Company without recourse to Released Security Collateral and
to deliver any such Released Security Collateral in its possession to the
Company and to execute and deliver to the Company at the Company's expense
releases and satisfactions, in recordable form, to the extent reasonably
requested by the Company.
In any proceedings for the Condemnation of any Security
Collateral, the Trustee may be represented by counsel who may be counsel for the
Company.
SECTION 1407. Disposition of Collateral Without Release.
Notwithstanding the provisions of Sections 1005 and 1006 hereof
and the Security Documents and subject to Section 1008 hereof and the Trust
Indenture Act, the Company may, without any prior release or consent by the
Trustee:
89
(a) sell or otherwise dispose in any transaction or series of
related transactions of any Security Collateral that may be defective or may
have become worn out, defective or obsolete or is not used or useful in the
operation of the Company, or any of its Restricted Subsidiaries;
(b) alter, repair, replace, change the location or position of
and add to its plants, structures, machinery, systems, equipment, fixtures and
appurtenances constituting Security Collateral; provided, however, that no
change in the location of any such Security Collateral subject to the Lien of
any of the Security Documents shall be made unless the Trustee receives not less
than 30 days' prior written notice of such change;
(c) subject to the provisions of the Security Documents,
abandon, terminate, cancel, release or make alterations in or substitutions of
any leases, contracts or rights-of-way subject to the Lien of the Security
Documents;
(d) grant a non-exclusive license of any interest in or right to
intellectual property included in Security Collateral; or
(e) abandon any interest in or right to intellectual property
included in Security Collateral. Nothing in this Article Fourteen shall limit
the right of each of the Company and the Restricted Subsidiaries to sell, lease
or otherwise deal in or dispose of its property or assets that do not constitute
Security Collateral, subject only to the provisions of Article Ten hereof.
SECTION 1408. Sufficiency of Release.
All purchasers and grantees of any property or rights purporting
to be released shall be entitled to rely upon any release executed by the
Trustee hereunder as sufficient for the purpose of this Indenture and as
constituting a good and valid release of the property therein described from the
Lien of this Indenture and of the Security Documents.
SECTION 1409. Actions by the Trustee.
Subject to the provisions of the Security Documents and Article
Twelve, the Trustee may in its sole discretion and without the consent of the
Holders take all actions it deems necessary or appropriate in order to (i)
enforce any of the terms of the Security Documents and (ii) to collect and
receive all amounts payable in respect of the obligations of the Company and any
Guarantors under the Security Documents and this Indenture. The Trustee shall
have the power to institute and maintain such suits and proceedings as it may
deem expedient in order to prevent any impairment of the Security Collateral by
any act that may be unlawful or in violation of this Indenture or the Security
Documents, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and those of the Holders in the Security
Collateral. No duty beyond that set forth in Section 602 is imposed on the
Trustee pursuant to this Section 1409.
--------------------
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed and attested, all as of the day and year first above
written.
▇. ▇. ▇▇▇▇▇▇▇▇▇▇ & CO., INC.
By:
--------------------------------
Name:
Title
Attest:
----------------------
EFP CORPORATION
By:
--------------------------------
Name:
Title
Attest:
----------------------
▇▇▇▇ GROUP, INC.
By:
--------------------------------
Name:
Title
Attest:
----------------------
MAGNETIC INSTRUMENTS CORP.
By:
--------------------------------
Name:
Title
91
Attest:
----------------------
▇▇▇▇▇▇ TRAILER FINANCIAL CORPORATION
By:
--------------------------------
Name:
Title
Attest:
----------------------
▇▇▇▇▇▇ TRAILER FINANCIAL MANAGEMENT , L.P.
BY: ▇▇▇▇▇▇ Trailer Mfg. Co.,
Its General Partner
By:
--------------------------------
Name:
Title
Attest:
----------------------
▇▇▇▇▇▇ TRAILER MFG. CO.
By:
--------------------------------
Name:
Title
Attest:
----------------------
RAIDER INDUSTRIES, INC.
By:
--------------------------------
Name:
Title
92
Attest:
----------------------
SWK HOLDINGS, INC.
By:
--------------------------------
Name:
Title
Attest:
----------------------
TRUCK ACCESSORIES GROUP, INC.
By:
--------------------------------
Name:
Title
Attest:
----------------------
UNIVERSAL ▇▇▇▇▇▇▇, INC.
By:
--------------------------------
Name:
Title
Attest:
----------------------
WILMINGTON TRUST COMPANY
By:
--------------------------------
Name:
Title
Attest:
----------------------
93
STATE OF TEXAS) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
[ ] of ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc., one of the corporations described in and
which executed the foregoing instrument and that he signed his name thereto by
like authority.
-----------------------------------
STATE OF TEXAS) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
[ ] of EFP Corporation, one of the corporations described in and which
executed the foregoing instrument and that he signed his name thereto by like
authority.
-----------------------------------
94
STATE OF TEXAS) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
[ ] of ▇▇▇▇ Group, Inc., one of the corporations described in and which
executed the foregoing instrument and that he signed his name thereto by like
authority.
-----------------------------------
STATE OF TEXAS) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
[ ]of Magnetic Instruments Corp., one of the corporations described in and
which executed the foregoing instrument and that he signed his name thereto by
like authority.
-----------------------------------
95
STATE OF TEXAS ) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
[ ]of ▇▇▇▇▇▇ Trailer Financial Corporation, one of the corporations described
in and which executed the foregoing instrument and that he signed his name
thereto by like authority.
-----------------------------------
STATE OF TEXAS ) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
[ ] of ▇▇▇▇▇▇ Trailer Mfg. Co., General Partner of ▇▇▇▇▇▇ Trailer Financial
Management, L.P., one of the limited partnerships described in and which
executed the foregoing instrument and that he signed his name thereto by like
authority.
-----------------------------------
96
STATE OF TEXAS ) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
[ ]of ▇▇▇▇▇▇ Trailer Mfg. Co., one of the corporations described in and which
executed the foregoing instrument and that he signed his name thereto by like
authority.
-----------------------------------
STATE OF TEXAS ) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
Vice President of Raider Industries Inc., one of the corporations described in
and which executed the foregoing instrument and that he signed his name thereto
by like authority.
-----------------------------------
97
STATE OF TEXAS) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
[ ] of SWK Holdings, Inc., one of the corporations described in and which
executed the foregoing instrument and that he signed his name thereto by like
authority.
-----------------------------------
STATE OF TEXAS ) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
[ ] of Truck Accessories Group, Inc., one of the corporations described in and
which executed the foregoing instrument and that he signed his name thereto by
like authority.
-----------------------------------
98
STATE OF TEXAS ) ss.:
COUNTY OF ▇▇▇▇▇▇)
On the 3rd day of June, 2003, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
Vice President and Secretary of Universal ▇▇▇▇▇▇▇, Inc., one of the corporations
described in and which executed the foregoing instrument and that he signed his
name thereto by like authority.
-----------------------------------
STATE OF DELAWARE ) ss.:
COUNTY OF _________)
On the 3rd day of June, 2003, before me personally came [ ], to me
known, who, being by me duly sworn, did depose and say that [s]he is [ ] of
Wilmington Trust Company, one of the entities described in and which executed
the foregoing instrument and that [s]he signed [his/her] name thereto by like
authority.
-----------------------------------
99