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▇▇▇▇▇▇▇ CONTAINER CORPORATION,
as Issuer
and
FLEET NATIONAL BANK,
as Trustee
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INDENTURE
Dated as of June 12, 1997
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$225,000,000
9-3/4% Senior Notes due 2007, Series A
and
9-3/4% Senior Notes due 2007, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) ............. 7.10
(a)(2) ............ 7.10
(a)(3) ............ N.A.
(a)(4) ............ N.A.
(a)(5) ............ 7.08; 7.10
(b) ............... 7.08; 7.10; 11.02
(c) ............... N.A.
311(a) ............... 7.11
(b) ............... 7.11
(c) ............... N.A.
312(a) ............... 2.05
(b) ............... 11.03
(c) ............... 11.03
313(a) ............... 7.06
(b)(1) ............ N.A.
(b)(2) ............ 7.06
(c) ............... 7.06; 11.02
(d) ............... 7.06
314(a) ............... 4.07; 4.09; 11.02
(b) ............... N.A.
(c)(1) ............ 11.04
(c)(2) ............ 11.04
(c)(3) ............ N.A.
(d) ............... N.A.
(e) ............... 11.05
(f) ............... N.A
315(a) ............... 7.01(b)
(b) ............... 7.05; 10.02
(c) ............... 7.01(a)
(d) ............... 7.01(c)
(e) ............... 6.11
316(a)(last sentence) 2.09
(a)(1)(A) ......... 6.05
(a)(1)(B) ......... 6.04
(a)(2) ............ N.A.
(b) ............... 6.07
317(a)(1) ............ 6.08
(a)(2) ............ 6.09
(b) ............... 2.04
318(a) ............... 11.01
(c) ............... 11.01
----------------------
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCEy
SECTION 1.01. Definitions. ........................ 1
SECTION 1.02. Incorporation by Reference of TIA. .. 24
SECTION 1.03. Rules of Construction. .............. 25
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating. ........................ 25
SECTION 2.02. Execution and Authentication. ........... 26
SECTION 2.03. Registrar and Paying Agent. ............. 27
SECTION 2.04. Paying Agent To Hold Assets in Trust. ... 28
SECTION 2.05. Noteholder Lists. ....................... 29
SECTION 2.06. Transfer and Exchange. .................. 29
SECTION 2.07. Replacement Notes. ...................... 30
SECTION 2.08. Outstanding Notes. ...................... 30
SECTION 2.09. Treasury Notes. ......................... 31
SECTION 2.10. Temporary Notes. ........................ 31
SECTION 2.11. Cancellation. ........................... 31
SECTION 2.12. Defaulted Interest. ..................... 32
SECTION 2.13. CUSIP Number. ........................... 32
SECTION 2.14. Deposit of Moneys. ...................... 32
SECTION 2.15. Restrictive Legends. .................... 33
SECTION 2.16. Book-Entry Provisions for Global Note. .. 34
SECTION 2.17. Special Transfer Provisions. ............ 36
SECTION 2.18. Designation. ............................ 38
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee. ................. 39
SECTION 3.02. Selection of Notes To Be Redeemed. .. 39
SECTION 3.03. Notice of Redemption. ............... 39
SECTION 3.04. Effect of Notice of Redemption. ..... 40
SECTION 3.05. Deposit of Redemption Price. ........ 41
SECTION 3.06. Notes Redeemed in Part. ............. 41
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Page
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes. ........................... 41
SECTION 4.02. Maintenance of Office or Agency. ............ 42
SECTION 4.03. Limitation on Restricted Payments. .......... 42
SECTION 4.04. Corporate Existence. ........................ 45
SECTION 4.05. Payment of Taxes and Other Claims. .......... 45
SECTION 4.06. Maintenance of Properties and Insurance. .... 46
SECTION 4.07. Compliance Certificate; Notice of Default. .. 46
SECTION 4.08. Compliance with Laws. ....................... 48
SECTION 4.09. SEC Reports. ................................ 48
SECTION 4.10. Waiver of Stay, Extension or Usury Laws. .... 49
SECTION 4.11. Limitation on Transactions with Affiliates. . 49
SECTION 4.12. Limitation on Incurrence of Additional
Indebtedness. ............................ 50
SECTION 4.13. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries. ..... 50
SECTION 4.14. Limitation on Liens. ........................ 51
SECTION 4.15. Change of Control. .......................... 52
SECTION 4.16. Limitation on Asset Sales. .................. 54
SECTION 4.17. Limitation on Incurrence of Subordinated Debt. 58
SECTION 4.18. Guarantees by Restricted Subsidiaries. ...... 58
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. ........ 59
SECTION 5.02. Successor Corporation Substituted. .. 60
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. ..................... 60
SECTION 6.02. Acceleration. .......................... 62
SECTION 6.03. Other Remedies. ........................ 63
SECTION 6.04. Waiver of Past Defaults. ............... 63
SECTION 6.05. Control by Majority. ................... 64
SECTION 6.06. Limitation on Suits. ................... 64
SECTION 6.07. Rights of Holders To Receive Payment. .. 64
SECTION 6.08. Collection Suit by Trustee. ............ 65
SECTION 6.09. Trustee May File Proofs of Claim. ...... 65
SECTION 6.10. Priorities. ............................ 66
SECTION 6.11. Undertaking for Costs. ................. 66
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee. .......................... 67
SECTION 7.02. Rights of Trustee. .......................... 68
SECTION 7.03. Individual Rights of Trustee. ............... 69
SECTION 7.04. Trustee's Disclaimer. ....................... 69
SECTION 7.05. Notice of Default. .......................... 69
SECTION 7.06. Reports by Trustee to Holders. .............. 70
SECTION 7.07. Compensation and Indemnity. ................. 70
SECTION 7.08. Replacement of Trustee. ..................... 71
SECTION 7.09. Successor Trustee by Merger, Etc. ........... 72
SECTION 7.10. Eligibility; Disqualification. .............. 72
SECTION 7.11. Preferential Collection of Claims Against
Company. ................................. 73
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations. .... 73
SECTION 8.02. Acknowledgment of Discharge by Trustee. .. 75
SECTION 8.03. Application of Trust Money. .............. 75
SECTION 8.04. Repayment to the Company. ................ 76
SECTION 8.05. Reinstatement. ........................... 76
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. ......... 77
SECTION 9.02. With Consent of Holders. ............ 77
SECTION 9.03. Compliance with TIA. ................ 78
SECTION 9.04. Revocation and Effect of Consents. .. 79
SECTION 9.05. Notation on or Exchange of Notes. ... 79
SECTION 9.06. Trustee To Sign Amendments, Etc. .... 80
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee. .................. 80
SECTION 10.02. Severability. ............................. 81
SECTION 10.03. Limitation of Liability. .................. 81
SECTION 10.04. Subsidiary Guarantors May Consolidate,
etc., on Certain Terms. ................. 82
SECTION 10.05. Contribution. ............................. 83
SECTION 10.06. Waiver of Subrogation. .................... 83
SECTION 10.07. Execution of Guarantee. ................... 84
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Page
SECTION 10.08. Waiver of Stay, Extension or Usury Laws. .. 85
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls. ............................... 85
SECTION 11.02. Notices. .................................... 85
SECTION 11.03. Communications by Holders with Other Holders. 86
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent. ............................... 87
SECTION 11.05. Statements Required in Certificate or
Opinion. ................................. 87
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar. .. 87
SECTION 11.07. Legal Holidays. ............................. 88
SECTION 11.08. Governing Law. .............................. 88
SECTION 11.09. No Adverse Interpretation of Other
Agreements. .............................. 88
SECTION 11.10. No Recourse Against Others. ................. 88
SECTION 11.11. Successors. ................................. 88
SECTION 11.12. Duplicate Originals. ........................ 89
SECTION 11.13. Severability. ............................... 89
Signatures .................................................. 90
Exhibit A - Form of Note ............................ A-1
Exhibit B - Form of Exchange Note ................... B-1
Exhibit C - Form of Certificate To Be Delivered in
Connection with Transfers to Non-QIB
Accredited Investors .................... C-1
Exhibit D - Form of Certificate To Be Delivered in
Connection with Transfers Pursuant to
Regulation S ............................ D-1
Exhibit E Form of Guarantee ....................... E-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
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7
INDENTURE, dated as of June 12, 1997, between ▇▇▇▇▇▇▇ Container
Corporation, a Delaware corporation (the "Company"), and Fleet National Bank, a
national banking association, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 9-3/4% Senior
Notes due 2007, Series A (the "Initial Notes"), and 9-3/4% Senior Notes due
2007, Series B (the "Exchange Notes" and, together with the Initial Notes, the
"Notes"), and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. All things necessary to make the
Notes, when duly issued and executed by the Company, and authenticated and
delivered hereunder, the valid obligations of the Company, and to make this
Indenture a valid and binding agreement of the Company, have been done.
Each party hereto agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary
of the Company or assumed in connection with the acquisition of assets from
such Person and not incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Restricted Subsidiary
of the Company or such acquisition.
"Affiliate" means a Person who directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with,
the Company. The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing. Notwithstanding the foregoing, any
Person established in connection with any Trade Receivable Facility shall not
be deemed an Affiliate. For purposes of
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Section 4.11, the term "Affiliate" shall include any Person who, as a result
of any transaction described in Section 4.11, would become an Affiliate.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Acquisition" means (i) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company or shall be merged with the Company or any Restricted
Subsidiary of the Company or (ii) the acquisition by the Company or any
Restricted Subsidiary of the Company of assets of any Person or any division or
line of business of such Person.
"Asset Sale" means the sale, lease (other than an operating lease),
assignment or other disposition (including, without limitation, dispositions
pursuant to Sale and Leaseback Transactions) by the Company or one of its
Restricted Subsidiaries to any Person other than the Company or one of its
Subsidiaries of (i) any capital stock of any Restricted Subsidiary, (ii) all or
substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary of the Company or (iii)
any other assets of the Company or any of its Restricted Subsidiaries greater
than $5 million individually, other than those assets sold in the ordinary
course of business of the Company or such Restricted Subsidiary, respectively.
For the purposes of this definition, the term "Asset Sale" shall not include
(i) Capital Stock of the Company, (ii) any transfer of trade receivables or
related assets pursuant to any Trade Receivable Facility, (iii) any sale,
issuance, conveyance, transfer, lease or other disposition of properties or
assets that is governed by the provisions of Article Five, (iv) an issuance of
Capital Stock by a Restricted Subsidiary to the Company or to a Restricted
Subsidiary, (v) a disposition consisting of a Permitted Investment or
Restricted Payment permitted by Section 4.03, (vi) the surrender or waiver of
contract rights or the settlement, release or surrender of contract, tort or
other claims of any kind, (vii) the grant in the ordinary course of business
of any non-exclusive license of patents, trademarks, registrations thereof and
other similar intellectual property, (viii) the sale or discount, in each case
without recourse, of accounts
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receivables arising in the ordinary course of business, but only in
connection with the compromise or collection thereof, (ix) the sale for cash or
exchange of specific items of equipment, so long as the purpose of each such
sale or exchange is to acquire (and results within 90 days of such sale or
exchange in the acquisition of) replacement items of equipment which are the
functional equivalent of the item of equipment so sold or exchanged and (x)
disposals or replacements of obsolete equipment in the ordinary course of
business.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal, state
or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors or other equivalent governing body of such
Person.
"Borrowing Restricted Subsidiary" means any Restricted Subsidiary that
incurs, or otherwise becomes liable for, in excess of $5.0 million of
Restricted Subsidiary Indebtedness.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, including each class of common stock and preferred stock of
such Person and (ii) with respect to the Company or any other Person formed
other than as a corporation, any and all partnership or other equity interests
of the Company or such other Person.
"Capitalized Lease Obligation" means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP.
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"Cash Equivalents" means (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors
Service; (iii) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at least
A-1 from Standard & Poor's Corporation or at least P-1 from ▇▇▇▇▇'▇ Investors
Service; (iv) certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any commercial bank
organized under the laws of the United States of America or any state thereof
or the District of Columbia or any U.S. branch of a foreign bank having at the
date of acquisition thereof combined capital and surplus of not less than
$250,000,000; (v) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (iv)
above and (vi) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (i) through (v)
above.
"Change of Control" means if at any time any Person or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) acquires, in one
or more transactions, (i) beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of 50% or more of the voting power represented by
all voting securities of the Company or (ii) the power to elect a majority of
the Board of Directors of the Company; provided, however, that voting
securities beneficially owned by or voting power controlled by such Person or
group will not be deemed to include common stock beneficially owned or voting
power controlled so long as it is beneficially owned
or controlled directly or indirectly by Mid-America Group, Ltd. ("MAG")(but
only so long as MAG is controlled by ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and/or his spouse
or their respective heirs or lineal descendants), or ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, their respective spouses or their respective heirs or
lineal descendants.
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"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section 4.15.
"Commodity Agreements" means without limitation any commodity futures
contract, commodity option agreement, or other similar agreement or arrangement
entered into by the Company designed to protect the Company against
fluctuations in the prices commodities used in the ordinary course of business
and not entered into for any other purpose.
"Common Stock" of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or nonvoting) of such Person's common stock, whether outstanding on the Issue
Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated EBITDA" means, with respect to any Person, for any period,
the sum (without duplication) of (i) Consolidated Net Income, (ii) to the
extent Consolidated Net Income has been reduced thereby, all income taxes of
such Person and its Restricted Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to extraordinary,
unusual or nonrecurring gains or losses), Consolidated Interest Expense,
amortization expense (including write-off of deferred financing costs) and
depreciation expense and (iii) other non-cash items other than non-cash
interest reducing Consolidated Net Income (other than such items incurred in
the ordinary course of business consistent
with past practice) less other non-cash items increasing Consolidated Net
Income (other than such items incurred in the ordinary course of business
consistent with past practice), all as determined on a consolidated basis for
such Person and its Restricted Subsidiaries in conformity with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the four most
recent full fiscal quarters
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for which financial information is available (the "Four Quarter Period") ending
not more than 135 days prior to the date of the transaction giving rise to the
need to calculate the Consolidated Fixed Charge Coverage Ratio (the
"Transaction Date") to Consolidated Fixed Charges of such Person for the Four
Quarter Period. In addition to and without limitation of the foregoing, for
purposes of this definition, "Consolidated EBITDA" and "Consolidated Fixed
Charges" shall be calculated after giving effect on a pro forma basis for
the Four Quarter Period to (1) the incurrence or repayment of any
Indebtedness of such Person or any of its Restricted Subsidiaries at any
time subsequent to the last day of the Four Quarter Period and on or prior to
the Transaction Date, as if such incurrence or repayment, as the case may be
(and the application of the proceeds thereof), occurred on the first day of the
Four Quarter Period and (ii) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a result of the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness and also including any Consolidated EBITDA associated with such
Asset Acquisition) occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such Asset Sale or Asset Acquisition (including the
incurrence, assumption or liability for any such Indebtedness or Acquired
Indebtedness) occurred on the first day of the Four Quarter Period. If such
Person or any of its Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or any Restricted
Subsidiary of such Person had directly incurred or otherwise assumed such
guaranteed Indebtedness. Furthermore, in calculating "Consolidated Fixed
Charges," (1) interest on Indebtedness determined on a fluctuating basis as of
the Transaction Date and that will continue to be so determined
thereafter shall be deemed to have accrued at a fixed rate per annum equal to
the rate of interest on such Indebtedness in effect on the Transaction Date,
(2) if interest on any Indebtedness actually incurred on the Transaction Date
may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate or other rates, then the
interest rate in effect on the Transaction Date will be deemed to have been in
effect during the Four Quarter Period, (3) notwithstanding clause (1) above,
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by Interest Rate Agreements,
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shall be deemed to accrue at the rate per annum resulting after giving effect
to the operation of such Interest Rate Agreements and (4) the permanent
retirement of any Indebtedness during the Four Quarter Period and on or prior
to the Transaction Date shall be given effect as if it occurred at the
beginning of such Four Quarter Period.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (i) Consolidated Interest Expense and
(ii) the product of (x) the amount of all dividend payments on any series of
preferred stock of such Person (except dividends for such period which are
accrued but unpaid) times (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective consolidated
federal, state and local tax rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person for any
period, the aggregate of all cash and non-cash interest expense (minus
amortization or write-off of deferred financing costs included in cash or
non-cash interest expense and minus interest income and capitalized interest)
with respect to all outstanding Indebtedness of such Person and its Restricted
Subsidiaries, including the net costs associated with Interest Rate Agreements,
for such period determined on a consolidated basis in conformity with GAAP.
Consolidated Interest Expense of the Company shall not include any prepayment
premiums or amortization of original issue discount or deferred financing
costs.
"Consolidated Net Income" of the Company means, for any period, the
aggregate net income (or loss) of the Company and its Restricted Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided that there shall be excluded therefrom (a) gains and losses from As
set Sales (without regard to the $5 million limitation set forth in the
definition thereof) or abandonments or reserves relating thereto, (b) items
classified as extraordinary, nonrecurring or unusual gains and losses, and the
related tax effects, (c) the net income (or loss) of any Person acquired in a
pooling of interests transaction accrued prior to the date it becomes a
Restricted Subsidiary of the Company or is merged or consolidated with the
Company or any Restricted Subsidiary, (d) the net income of any Restricted
Subsidiary to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is restricted by
contract, operation of law or otherwise and (e) for the purpose of calculating
Consolidated Net Income for clause (iii)(w) of the
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first paragraph of the covenant "Limitation on Restricted Payments," the net
income (or loss) of any Person, other than a Restricted Subsidiary, except to
the extent of cash dividends or distributions (net of tax, if applicable) paid
to the Company or a Restricted Subsidiary of the Company by such Person.
"Credit Agreement" means the Credit Agreement dated as of November 17,
1986, and amended and restated as of June 30, 1995, among the Company, the
financial institutions party thereto in their capacities as lenders thereunder,
and Bankers Trust Company as agent for the banks, as the same may be amended
from time to time, and any agreement evidencing the refinancing, modification,
replacement, renewal, restatement, refunding, deferral, extension,
substitution, supplement, reissuance or resale thereof, whether including any
additional obligors or with the same or any different agent or group of
lenders.
"Currency Agreements" means without limitation any foreign exchange
contract, currency swap agreement, cross currency agreement, currency option
agreement, forward currency agreement, or other similar agreement or
arrangement entered into by the Company designed to protect the Company against
fluctuations in foreign exchange rates and not entered into for any other
purpose.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or with
the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Discharged" has the meaning provided in Section 8.01.
"Disqualified Capital Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event, matures or its
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof, in whole or in part, on
or prior to the final maturity date of the Notes.
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"Equity Offering" means an offering of Common Stock of the Company
resulting in net proceeds to the Company in excess of $20 million.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Exchange Notes" has the meaning provided in the preamble to this
Indenture.
"Exchange Offer" means the registration by the Company under the
Securities Act pursuant to a registration statement of the offer by the Company
to each Holder of the Initial Notes to exchange all the Initial Notes held by
such Holder for the Exchange Notes in an aggregate principal amount equal to
the aggregate principal amount of the Initial Notes held by such Holder, all in
accordance with the terms and conditions of the Registration Rights Agreement.
"GAAP" means generally accepted accounting principles as in effect in the
United States of America as of the date of this Indenture, except in respect of
any consolidated financial statements delivered pursuant to Section 4.09 from
time to time, GAAP shall mean generally accepted accounting principles as in
effect in the United States of America at the time of delivery of such
consolidated financial statements. If the Company has changed one or more
of the accounting principles used in the preparation of its financial
statements, then a Default or an Event of Default relating to financial
ratios or amounts, calculated under the new accounting principles, shall
not be considered a Default or an Event of Default if the required ratio
or amount would have been complied with had the Company continued to use those
generally accepted accounting principles employed as of the date of this
Indenture.
"Global Note" has the meaning provided in Section 2.01.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
16
-10-
"Indebtedness" means with respect to any Person, without duplication, (i)
all indebtedness of such Person for borrowed money, (ii) all indebtedness of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Capitalized Lease Obligations of such Person, (iv) all indebtedness
of such Person issued or assumed as the deferred purchase price of property,
all conditional sale obligations and all indebtedness under any title retention
agreement, (v) all indebtedness of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) guarantees and other contingent obligations and (vii) all
indebtedness of any other Person of the type referred to in clauses (i) through
(vi) that is secured by any first Lien on any property or asset of such Person,
the amount of such indebtedness being deemed to be the lesser of the value of
such property or asset or the amount of the indebtedness so secured, but
excluding trade accounts payable arising in the ordinary course of business
that are not overdue in excess of 90 days or the subject of a good faith
dispute.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"Initial Notes" has the meaning provided in the preamble to this
Indenture.
"Initial Purchasers" mean BT Securities Corporation, Salomon Brothers Inc
and Bear ▇▇▇▇▇▇▇ & Co. Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement
or arrangement entered into by the Company designed to protect the Company
against fluctuations in interest rates and not entered into for any other
purpose.
"Interest Swap Obligations" means the obligations of any Person, pursuant
to any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to
17
-11-
receive from time to time periodic payments calculated by applying either
a floating or a fixed rate of interest on a stated notional amount in
exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"Investment" means any transfer or delivery of cash, stock or other
property of value in exchange for indebtedness, stock or other security or
ownership interest by way of loan, advance (excluding any advances to officers
and employees in the ordinary course of business) or capital contribution. The
amount of any non-cash Investment (other than a Permitted Investment) or any
Investment in an Unrestricted Subsidiary shall be the fair market value of such
Investment, as determined in good faith by management of the Company unless the
fair market value of such Investment exceeds $10 million, in which case such
fair market value shall also be determined in good faith by the Board of
Directors or other equivalent governing body of the Company at the time such
Investment is made. For purposes of the covenant "Limitations on Restricted
Payments," (i) "Investment" in a Subsidiary shall include the portion
(proportionate to the Company's Capital Stock in such Subsidiary) of the fair
market value (as determined in good faith by the Board of Directors) of such
Subsidiary at the time that such Subsidiary is designated an Unrestricted
Subsidiary; provided that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Company shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount
(if positive) equal to (x) the Company's "Investment" in such Subsidiary
at the time of such redesignation less (y) the portion (proportionate to the
Company's Capital Stock in such Subsidiary) of the fair market value (as
determined in good faith by the Board of Directors) of the net assets of such
Subsidiary at the time of such redesignation; and (ii) any property transferred
to or from an Unrestricted Subsidiary shall be valued at its fair market value
at the time of such transfer, in each case determined in good faith by the
Board of Directors.
"Issue Date" means the date of original issuance of the Notes under this
Indenture.
18
-12-
"Legal Holiday" has the meaning provided in Section 11.07.
"Lien" means any lien, mortgage, deed of trust, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof or any agreement to
give any security interest).
"Make-Whole Premium" with respect to a Note means an amount equal to the
greater of (i) 1.0% of the outstanding principal amount of such Note and (ii)
the excess of (a) the present value of the remaining interest, premium and
principal payments due on such Note as if such Note were redeemed on June 15,
2002, computed using a discount rate equal to the Treasury Rate plus 62.5 basis
points, over (b) the outstanding principal amount of such Note.
"Maturity Date" means June 15, 2007.
"Net Cash Proceeds" means, (i) with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and dales commissions), (b) taxes paid or payable
((1) including, without limitation, income taxes reasonably estimated to
be actually payable as a result of any disposition of property within
two years of the date of disposition and (2) after taking into account
any reduction in tax liability due to available tax credits or deductions
and any tax sharing arrangements), (c) a reasonable reserve for the
after-tax cost of any indemnification obligations (fixed and/or contingent)
attributable to seller's indemnities to the purchaser undertaken by
the Company or any of its Restricted Subsidiaries in connection with such Asset
Sale and (d) repayment of Indebtedness that is required to be repaid in
connection with such Asset Sale or (ii) with respect to the sale of Capital
Stock by any Person, the aggregate net proceeds received by such Person after
payment of expenses, commissions, underwriting discounts and other similar
charges incurred in connection therewith, whether such proceeds are in cash or
property (valued at the fair market value thereof, as determined in good faith
by the Board of Directors or other equivalent governing body of such Person, at
19
-13-
the time of receipt, whose determination shall be evidenced by a board
resolution).
"Net Proceeds Offer" has the meaning provided in Section 4.16.
"Non-U.S. Person" means a person who is not a U.S. person, as defined in
Regulation S.
"Notes" means the Company's 9 3/4% Senior Notes due 2007, as amended or
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to the Indenture.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offering Memorandum" means the Offering Memorandum dated June 5, 1997,
pursuant to which the Initial Notes were offered, and any supplement thereto.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller
or the Secretary of such Person.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of such Person and otherwise complying with the
requirements of Sections 11.04 and 11.05, as they relate to the making of an
Officers' Certificate.
"Offshore Physical Notes" has the meaning provided in Section 2.01.
"Old Notes" means the 11-1/2% Senior Notes due 2001 of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of
Sections 11.04 and 11.05, as they relate to the giving of an Opinion of
Counsel. Unless otherwise required by the TIA, the legal counsel may be an
employee of or counsel to the Company or the Trustee.
20
-14-
"Participants" has the meaning provided in Section 2.16.
"Paying Agent" has the meaning provided in Section 2.03, except that, for
the purposes of Articles Three and Eight and Sections 4.15 and 4.16, the Paying
Agent shall not be the Company or a Subsidiary of the Company.
"Permitted Indebtedness" means, without duplication, (i) the Notes and any
Guarantees thereof, (ii) Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually paid or
permanent reductions thereon (other than permanent reductions as a result of
any refinancing thereof permitted hereunder), (iii) Indebtedness of the Company
and its Restricted Subsidiaries incurred pursuant to the Credit Agreement in an
aggregate principal amount not to exceed $225 million, (iv) Indebtedness of the
Company and its Restricted Subsidiaries incurred pursuant to Interest Rate
Agreements, (v) intercompany Indebtedness by and among the Company and/or its
wholly owned Restricted Subsidiaries, (vi) Indebtedness of the Company and its
Restricted Subsidiaries (including Acquired Indebtedness) pursuant
to pollution control bonds and industrial revenue bonds not to exceed the
sum of the aggregate amount thereof outstanding on the Issue Date plus $25
million, (vii) Indebtedness of the Company and its Restricted Subsidiaries
(including Acquired Indebtedness) evidenced by purchase money obligations and
Capitalized Lease Obligations not to exceed $25 million in any fiscal year;
provided that any portion of the $25 million that is not incurred in any fiscal
year may be carried over to successive fiscal years; provided, further, that
the maximum amount that may be incurred in any one fiscal year shall not exceed
$50 million, (viii) additional Indebtedness of the Company and its Restricted
Subsidiaries (including Acquired Indebtedness) incurred for any purpose not to
exceed, at any time outstanding, $200 million (that may be, but need not be,
incurred in whole or in part under the Credit Agreement), (ix) Indebtedness
incurred pursuant to the Trade Receivable Facility, (x) Indebtedness of the
Company or its Restricted Subsidiaries incurred under one or more instruments
in connection with any refinancing, modification, replacement, renewal,
restatement, refunding, deferral, extension, substitution, supplement,
reissuance or resale (a "refinancing") of existing or future Indebtedness of
such entity; provided that any such incurrence and related refinancing,
together, shall not (1) result in an increase in the aggregate principal amount
of such Indebtedness (except to the extent such increase is a result of an
incurrence or refinancing of additional Indebtedness otherwise permitted by the
Indenture or such increase does not exceed the amount of premiums, fees and
expenses (including underwriting discounts) relating to such refinancing,
modification, replacement, renewal, restatement, refunding, deferral,
extension, substitution, supplement, reissuance or resale of such existing or
future Indebtedness) of the Company and its Restricted Subsidiaries and (2)
create Indebtedness where the Weighted Average Life to Maturity at the time of
such refunded, refinanced, modified, replaced, renewed, restated, deferred,
extended, substituted, supplemented, reissued or resold Indebtedness is
incurred is less than the Weighted Average Life to Maturity of the Indebtedness
being refunded, refinanced, modified, replaced, renewed, restated, deferred,
extended, substituted, supplemented, reissued or resold; and provided, further,
that with respect to the refinancing of Indebtedness incurred pursuant to
clauses (v), (vi), (vii), (xvi) and (xvii), such Indebtedness may only be
refinanced with Indebtedness permitted to be incurred under such respective
clause, (xi) Indebtedness of the Company and its Restricted
21
-15-
Subsidiaries arising in connection with the acquisition or refinancing of
property so long as recourse with respect to such Indebtedness is limited
only to the property being acquired or refinanced or any amendment,
restatement, deferral, extension, modification, refinancing, refunding,
renewal, replacement, substitution, supplement, reissuance or resale thereof
so long as recourse is limited to the property being refinanced, (xii)
Indebtedness of the Company and its Restricted Subsidiaries incurred after
the Issue Date relating to letters of credit available or outstanding under
the Credit Agreement (or any successor thereto), (xiii) surety obligations of
the Company and its Restricted Subsidiaries entered into in the ordinary
course of business, (xiv) Indebtedness of the Company and its Restricted
Subsidiaries incurred to finance the purchase of insurance in the ordinary
course of business, (xv) Indebtedness of the Company and its Restricted
Subsidiaries incurred arising from the honoring by a bank or other
financial institution of a check or draft inadvertently drawn against
insufficient funds in the ordinary course of business, provided that such
Indebtedness is extinguished within two business days of notice of any such
incurrence, (xvi) Indebtedness of the Company and its Restricted Subsidiaries
arising from guarantees of loans and advances by third parties to employees and
officers of the Company or its subsidiaries, not to exceed $1 million in the
aggregate, (xvii) Indebtedness of the Company and its Restricted Subsidiaries
arising from the repurchase of Common Stock not to exceed $4 million, (xviii)
Indebtedness of the Company and its Restricted
22
-16-
Subsidiaries arising from Currency Agreements and Commodity Agreements, (xix)
the 12 3/4% Debentures and (xx) the Old Notes.
"Permitted Investments" means in the case of the Company or its Restricted
Subsidiaries, (i) an Investment related to the business of the Company and its
Restricted Subsidiaries as it is conducted on the Issue Date, including, but
not limited to, subsidiaries, joint ventures or other business alliances formed
in the ordinary course of business, (ii) Investments in the Company by any
Restricted Subsidiary or Investments by the Company or any Restricted
Subsidiary (including acquisitions) in any other Person, if after giving effect
of any such Investment, such Person would be a wholly owned Restricted
Subsidiary of the Company, (iii) Investments in cash and Cash Equivalents, (iv)
Investments in Productive Assets, (v) Investments in any Person in connection
with the Trade Receivable Facility, (vi) Investments existing on the date of
this Indenture, (vii) loans and advances to employees and officers of the
Company and its Restricted Subsidiaries not in excess of $1 million at any one
time outstanding, (viii) accounts receivable created or acquired in the
ordinary course of business, (ix) Interest Rate Agreements, Currency
Agreements and Commodity Agreements entered into in the ordinary course
of the Company's business and otherwise in compliance with this Indenture,
(x) Investments in Unrestricted Subsidiaries in an amount at any one
time outstanding not to exceed $25 million, (xi) guarantees by the Company
of Indebtedness otherwise permitted to be incurred by Restricted
Subsidiaries of the Company under this Indenture and (xii) Investments
received by the Company or its Restricted Subsidiaries as consideration
for asset sales, including Asset Sales; provided in the case of an Asset
Sale, such Asset Sale is effected in compliance with Section 4.16.
"Permitted Liens" means (i) Liens for taxes, assessments and governmental
charges to the extent not required to be paid, (ii) statutory Liens of
landlords and carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen or other like Liens arising in the ordinary course of business and
with respect to amounts not yet delinquent or being contested in good faith by
an appropriate process of law, and for which a reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made, (iii)
pledges or deposits in the ordinary course of business to secure lease
obligations or nondelinquent obligations under workers' compensation,
unemployment insurance or similar legislation, (iv) Liens to secure the
performance of public statutory obligations that are not delinquent, appeal
bonds, performance bonds or other
23
-17-
obligations of a like nature (other than for
borrowed money), (v) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the Company or any of
its Subsidiaries, (vi) Liens upon specific items of inventory or other goods
and proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods
in the ordinary course of business, (vii) Liens securing reimbursement
obligations with respect to letters of credit that encumber documents and other
property relating to such letters of credit and the products and proceeds
thereof, (viii) Liens in favor of custom and revenue authorities arising as a
matter of law to secure payment of nondelinquent customs duties in connection
with the importation of goods, (ix) judgment and attachment Liens not giving
rise to a Default or Event of Default, (x) leases or subleases granted
to others not interfering in any material respect with the business of the
Company or any proSubsidiary, (xi) Liens encumbering customary initial deposits
and margin deposits, and other Liens incurred in the ordinary course of
business that are within the general parameters customary in the industry, in
each case securing Indebtedness under Interest Rate Agreements, Currency
Agreements, Commodity Agreements and forward contracts, option futures
contracts, futures options or similar agreements or arrangements designed to
protect the Company or any Subsidiary from fluctuations in the price of
commodities, (xii) Liens encumbering deposits made in the ordinary course of
business to secure nondelinquent obligations arising from statutory,
regulatory, contractual or warranty requirements of the Company or its
Subsidiaries for which a reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made, (xiii) Liens arising out of
consignment or similar arrangements for the sale of goods entered into by the
Company or any Subsidiary in the ordinary course of business in accordance with
industry practice, (xiv) any interest or title of a lessor in the property
subject to any lease, whether characterized as capitalized or operating, other
than any such interest or title resulting from or arising out of default by the
Company or any Subsidiary of its obligations under such lease, (xv) Liens
arising from filing UCC financing statements for precautionary purposes in the
connection with true leases of personal property that are otherwise permitted
under this Indenture and under which the Company or any Subsidiary is lessee,
(xvi) Liens on property of a Person existing at the time such Person is
acquired by, merged into or consolidated with the Company or any Restricted
Subsidiary of the Company,
24
-18-
provided that such Liens were in existence prior to the contemplation
of such merger or consolidation and do not extend to any assets other
than those of the Person merged into or consolidated with the Company
or such Restricted Subsidiary, (xvii) Liens to secure the payment of
all or a part of the purchase price of property or assets acquired or
constructed in the ordinary course of business on or after the date of this
Indenture, provided that (a) such property or assets are used in the same or
similar line of business as the Company was engaged in on the Issue Date, (b)
at the time of incurrence of any such Lien, the aggregate principal amount of
the obligations secured by such Lien shall not exceed the lesser of the cost or
fair market value of the assets or property (or portions thereof) so acquired
or constricted, (c) each such Lien shall encumber only the assets or property
(or portions thereof) so acquired or constructed and shall be attached to
such property within 180 days of the purchase or construction thereof and (d)
Indebtedness secured by such Lien shall have been permitted to be incurred
under the covenant "Limitation on Incurrence of Additional Indebtedness," and
(xviii) Liens of landlords or of mortgagees of landlords arising by operation
of law, provided that the rental payments secured thereby are not yet due and
payable; (xix) Liens incurred in the ordinary course of business of the Company
or any Restricted Subsidiary of the Company with respect to obligations that
(a) are not incurred in connection with the borrowing of money or the obtaining
of advances or credit (other than trade credit in the ordinary course of
business) and (b) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Company or such Restricted Subsidiary.
"Person" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, limited liability company or a
governmental agency or political subdivision thereof.
"Physical Notes" has the meaning provided in Section 2.01.
"Plan of Liquidation" means, with respect to any Person, a plan that
provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases or
otherwise) (i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety and (ii) the distribution of all or substantially
all of the proceeds of such sale, lease,
25
-19-
conveyance or other disposition and all or substantially all of the
remaining assets of such Person to holders of Capital Stock of such Person.
"principal" of any Indebtedness (including the Notes) means the principal
amount of such Indebtedness plus the premium, if any, on such Indebtedness.
"Private Placement Legend" means the legend initially set forth on the
Notes in the form set forth in Section 2.15.
"pro forma" means, with respect to any calculation made or required to be
made pursuant to the terms of this Indenture, a calculation in accordance with
Article 11 of Regulation S-X under the Securities Act as interpreted by the
Company in consultation with its independent certified public accountants.
"Proceeds Purchase Date" shall have the meaning provided in Section 4.16.
"Productive Assets" means assets (including Capital Stock) of a kind used
or usable in the business of the Company and its Restricted Subsidiaries as it
is conducted on the Issue Date.
"Qualified Capital Stock" means stock that is not Disqualified Capital
Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning specified
in Rule 144A under the Securities Act.
"Redemption Date," when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Notes.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and the
Notes.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights Agreement
dated June 12, 1997 among the Company and the Initial Purchasers for the
benefit of themselves and the Holders, as the same may be amended or modified
from time to time in accordance with the terms thereof.
26
-20-
"Regulation S" means Regulation S under the Securities Act.
"Restricted Payment" has the meaning provided in Section 4.03.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to
whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means any direct or indirect Subsidiary of any
Person that is not an Unrestricted Subsidiary of such Person.
"Restricted Subsidiary Indebtedness" means (a) Indebtedness (other than
Indebtedness under any Trade Receivable Facility, intercompany Indebtedness or
Indebtedness outstanding on the Issue Date, including any refinancing of
Indebtedness outstanding on the Issue Date to the extent it does not increase
the principal amount of such Indebtedness) incurred by a Restricted Subsidiary
(other than a Subsidiary Guarantor), or (b) the direct or indirect assumption,
guarantee (other than a Guarantee) or other obligation of any Restricted
Subsidiary (other than a Subsidiary Guarantor) for any Indebtedness of the
Company or any other Restricted Subsidiary by way of the pledge of any
intercompany note or otherwise, or (c) the total amount of committed borrowings
under revolving credit facilities under which the Restricted Subsidiary (other
than a Subsidiary Guarantor) is a borrower or guarantor, but "Restricted
Subsidiary Indebtedness" shall not include any Indebtedness of the Restricted
Subsidiary evidenced by purchase money obligations or Capitalized Lease
Obligations provided for under clause (vii) and Indebtedness provided for under
clause (xi) of the definition of Permitted Indebtedness in an aggregate amount
not to exceed $75 million for all Restricted Subsidiaries.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect arrangement
with any Person or to which any such Person is a party providing for the
leasing to the Company or a Restricted Subsidiary of any property, whether
owned by the Company or any Restricted Subsidiary at the Issue Date or later
acquired, which has been or is to be sold or transferred by the Company or such
Subsidiary to such Person or to any other
27
-21-
Person from whom funds have been or are to be advanced by said Person
on the security of such Property.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Significant Restricted Subsidiary" means any Restricted Subsidiary of the
Company that satisfies the criteria for a "significant subsidiary" set forth in
Rule 1.02(w) of Regulation S-X under the Securities Act.
"Subordinated Discount Debenture" means the $434,222,000 in aggregate
principal amount of 12 3/4% Senior Subordinated Debentures due 2005 of the
Company, as amended or supplemented from time to time in accordance with the
terms thereof.
"Subordinated Discount Debenture Indenture" means the indenture dated as
of May 18, 1993 between the Company and Texas Commerce Bank National
Association as successor to Ameritrust Texas National Association, as Trustee,
relating to the Subordinated Discount Debentures as in effect on the Issue Date
as amended or supplemented from time to time in accordance with the terms
thereof.
"Subsidiary," with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest to elect the
governing body or Persons thereof under ordinary circumstances is at the time,
directly or indirectly, owned by such Person.
"Subsidiary Guarantee" has the meaning provided in Section 4.18.
"Subsidiary Guarantor" means each of the Company's Restricted Subsidiaries
that becomes a guarantor of the Notes by executing a supplemental indenture in
form and substance reasonably satisfactory to the Trustee in which such
Restricted Subsidiary agrees to be bound by the terms of the Indenture;
provided that any person constituting a Subsidiary Guarantor as described above
shall cease to constitute a Subsidiary
28
-22-
Guarantor when its respective Subsidiary
Guarantee is released in accordance with the terms thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sec.Sec.
77aaa-77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"Total Tangible Assets" means the Company's total consolidated assets
minus all intangible assets, determined in accordance with GAAP.
"Trade Receivable Facility" means the arrangements that have been or may
be entered into by the Company or one or more of its Restricted Subsidiaries
pursuant to which the Company or one or more of its Restricted Subsidiaries may
either transfer to any other Person or grant a security interest in any trade
receivables (whether now existing or arising in the future) and any assets
related to such trade receivables including, without limitation, all collateral
securing such trade receivables and all material contracts and all guarantees
or other Obligations in respect of such trade receivables of the Company or one
or more of its Restricted Subsidiaries.
"Treasury Rate" means the yield to maturity at the time of computation of
United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15(519) that
has become publicly available at least two business days prior to the Change of
Control Redemption Date (or, if such Statistical Release is no longer
published, any publicly available source or similar market date)) most nearly
equal to the period from the Change of Control Redemption Date to June 15,
2002; provided, however, that if the period from the Change of Control
Redemption Date to June 15, 2002 is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given except that if the period
from the Change of Control Redemption Date to June 15, 2002 is less than one
year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.
"Trust Officer" means any officer of the Trustee assigned by the Trustee
to administer its corporate trust matters.
29
-23-
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Subsidiary" means any Subsidiary of the Company, whether
existing, newly formed or newly acquired, designated as an Unrestricted
Subsidiary by the Board of Directors of the Company and any Subsidiary of an
Unrestricted Subsidiary, provided, however, that at the time of such
designation (i) no Default or Event of Default shall have occurred and be
continuing, (ii) no portion of any Indebtedness or any other obligation
(contingent or otherwise) of such Subsidiary (a) is guaranteed by, or is
otherwise the subject of credit support provided by the Company or any of its
Restricted Subsidiaries, (b) is recourse to or obligates the Company or any of
its Restricted Subsidiaries in any way or (c) subjects any property or asset of
the Company or any of its Restricted Subsidiaries directly or indirectly,
contingently or otherwise, to the satisfaction of such Indebtedness or other
obligation, (iii) neither the Company nor any of its Restricted Subsidiaries
has any contract, or agreement, arrangement or understanding with such
Subsidiary other than on terms as favorable to the Company or such Restricted
Subsidiary as those that might be obtained at the time from Persons that are
not Affiliates of the Company and (iv) neither the Company nor any of its
Restricted Subsidiaries has any obligations (a) to subscribe for additional
shares of Capital Stock of such Subsidiary or (b) to maintain or preserve such
Subsidiary's financial condition or to cause such Subsidiary to achieve certain
levels of operating results. Any such designation by the Company's Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified certificate stating that such designation complies with the foregoing
conditions. The Company's Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that immediately
after giving effect to such designation, no Default or Event of Default shall
have occurred and be continuing, including, without limitation, under the
covenants described in Section 4.12 assuming the incurrence by the Company and
its Restricted Subsidiaries at the time of such designation of all existing
Indebtedness of the Unrestricted Subsidiary to be so designated as a Restricted
Subsidiary. In the event of any disposition involving the Company in which the
Company is not the Surviving Person, the Board of Directors of the Surviving
Person may (x) prior to such disposition, designate any of its Subsidiaries,
and any of the Company's Subsidiaries, and (y) after such disposition,
designate any of its direct or indirect
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Subsidiaries as an Unrestricted Subsidiary under the same conditions and in
the same manner as the Company under the terms of the Indenture.
"U.S. Government Obligations" has the meaning provided in Section 8.01.
"U.S. Legal Tender" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. Physical Notes" has the meaning provided in Section 2.01.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"wholly owned Restricted Subsidiary" means any Restricted Subsidiary of
which all of the outstanding voting securities or other equity ownership
interest (other than directors qualifying or similar shares required to be held
by third parties in accordance with applicable law, not in any event to exceed
5 percent of the total outstanding voting securities) are owned by the Company
or any wholly owned Restricted Subsidiary of the Company.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in, and made a part of, this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Noteholder.
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"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular; and
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Exchange Notes and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit B hereto. The Notes may have notations or depository legends or
endorsements required by law, stock exchange rule or usage. The Company and
the Trustee shall approve the form of the Notes and any notation, legend or
endorsement on them. Each Note
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shall be dated the date of its issuance and shall show the date of its
authentication.
The terms and provisions contained in the Notes annexed hereto as Exhibits
A & B shall constitute, and are hereby expressly made, a part of this Indenture
and, to the extent applicable, the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions
and to be bound thereby; provided, however, that if there are any
inconsistencies between the terms of this Indenture and the terms of the Notes,
the terms of this Indenture shall control.
Notes offered and sold in reliance on Rule 144A shall be issued initially
in the form of one or more permanent global Notes in registered form,
substantially in the form set forth in Exhibit A (the "Global Note"), deposited
with the Trustee, as custodian for the Depository, duly executed by the Company
and authenticated by the Trustee as hereinafter provided and shall bear the
legend set forth in Section 2.15. The aggregate principal amount of the Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depository, as hereinafter
provided.
Notes offered and sold in offshore transactions in reliance on Regulation
S shall be issued in the form of permanent certificated Notes in registered
form in substantially the form set forth in Exhibit A (the "Offshore Physical
Notes). Notes offered and sold to institutional "accredited investors" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) shall be
issued, and Notes offered and sold in reliance on Rule 144A may be issued, in
the form of permanent certificated Notes in registered form, in substantially
the form set forth in Exhibit A (the "U.S. Physical Notes"). The Offshore
Physical Notes and the U.S. Physical Notes are sometimes collectively herein
referred to as the "Physical Notes."
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary, shall sign, or one
Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company by manual or facsimile
signature.
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If an Officer or Assistant Secretary whose signature is on a Note was an
Officer or Assistant Secretary at the time of such execution but no longer
holds that office or position at the time the Trustee authenticates the Note,
the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate (i) Initial Notes for original issue in the
aggregate principal amount of up to $225,000,000 and (ii) Exchange Notes from
time to time for issue only in exchange for a like principal of Initial Notes,
in each case, upon receipt of written orders of the Company in the form of an
Officers' Certificate. The Officers' Certificate shall specify the amount of
Notes to be authenticated, the date on which the Notes are to be authenticated
and the aggregate principal amount of Notes outstanding on the date of
authentication and whether the Notes are to be Initial Notes or Exchange Notes.
The aggregate principal amount of Notes outstanding at any time may not exceed
$225,000,000, except as provided in Section 2.07. Upon the written order of
the Company in the form of an Officers' Certificate, the Trustee shall
authenticate Notes in substitution of Notes originally issued to reflect any
name change of the Company.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where (a) Notes may be
presented or surrendered for registration of transfer or for exchange
("Registrar"), (b) Notes may be presented or surrendered for payment ("Paying
Agent") and (c) notices and demands to or upon the Company in respect of
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the Notes and this Indenture may be served. The Company may also from time
to time designate one or more other offices or agencies where the Notes may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency for such purposes. The
Company may act as its own Registrar or Paying Agent except that
for the purposes of Articles Three and Eight and Sections 4.15 and 4.16 neither
the Company, any Subsidiary of the Company nor any of their Affiliates shall
act as Paying Agent. The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Company, upon notice to the Trustee, may have
one or more co-Registrars and one or more additional paying agents reasonably
acceptable to the Trustee. The term "Paying Agent" includes any additional
paying agent. The Company initially appoints the Trustee as Registrar and
Paying Agent until such time as the Trustee has resigned or a successor has
been appointed.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee, in advance, of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, or interest on, the Notes (whether such assets have been
distributed to it by the Company or any other obligor on the Notes), and shall
notify the Trustee of any Default by the Company (or any other obligor on the
Notes) in making any such payment. If the Company or a Subsidiary of the
Company acts as Paying Agent, it shall segregate such assets and hold them as a
separate trust fund. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the
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Company to the Paying Agent, the Paying Agent shall have no further
liability for such assets.
SECTION 2.05. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Company shall furnish to
the Trustee before each Record Date and at such other times as the Trustee may
request in writing a list as of such date and in such form as the Trustee may
reasonably require of the names and addresses of the Holders, which list may be
conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.16 and 2.17, when Notes are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Notes or to exchange such Notes for an equal principal amount
of Notes of other authorized denominations, the Registrar or co-Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transaction are met; provided, however, that the Notes surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Notes at the
Registrar's or co-Registrar's request. No service charge shall be made for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges or transfers pursuant to Section
2.02, 2.07, 2.10, 3.06, 4.15, 4.16 or 9.05). The Registrar or co-Registrar
shall not be required to register the transfer of or exchange of any Note (i)
during a period beginning at the opening of business 15 days before the mailing
of a notice of redemption of Notes and ending at the close of business on the
day of such mailing and (ii) selected for redemption in whole or in part
pursuant to Article Three, except the unredeemed portion of any Note being
redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interests
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in such Global Note may be effected only through a book entry system
maintained by the Holder of such Global Note (or its agent), and that
ownership of a beneficial interest in the Note shall be required to be
reflected in a book entry.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if
the Trustee's requirements are met. If required by the Trustee or the Company,
such Holder must provide an indemnity bond or other indemnity, sufficient in
the judgment of both the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Note, including reasonable fees and expenses of
counsel. Every replacement Note shall constitute an additional obligation of
the Company.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to
it for cancellation and those described in this Section as not outstanding. A
Note does not cease to be outstanding because the Company or any of its
Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent (other than
the Company or a Subsidiary of the Company) holds U.S. Legal Tender or U.S.
Government Obligations sufficient to pay all of the principal and interest
due on the Notes payable on that date, then on and after that date such
Notes cease to be outstanding and interest on them ceases to accrue; provided,
however, that to the extent the Trustee is enjoined from making payments to
the Holders, interest will continue to accrue until such time as the
Trustee is not so enjoined.
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SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver, consent or notice, Notes owned
by the Company or an Affiliate (other than (i) Messrs. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, (ii) any other Affiliate who is an Affiliate solely on
account of his or its ownership of securities of the Company, membership on the
Board of Directors of the Company or employment by the Company or any Affiliate
of the Company, and (iii) any other Affiliate who is an Affiliate solely on
account of his or its relationship with any Person described in clauses (i) or
(ii) above, except in any case to the extent such Person is an affiliate as
defined in Section 316(a) of the TIA) shall be considered as though they are
not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so considered.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes upon receipt of a written order
of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Notes to be authenticated and
the date on which the temporary Notes are to be authenticated. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate upon receipt of a written order of the Company pursuant to Section
2.02 definitive Notes in exchange for temporary Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment. The Trustee, or at the
direction of the Trustee, the Registrar or the Paying Agent (other than the
Company or a Subsidiary of the Company), and no one else, shall cancel and, at
the written direction of the Company, shall dispose of all Notes surrendered
for transfer, exchange, payment or cancellation. Subject to Section 2.07, the
Company may not issue new Notes to replace Notes that it has
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paid or delivered to the Trustee for cancellation. If the Company shall
acquire any of the Notes, such acquisition shall not operate as a redemption
or satisfaction of the Indebtedness represented by such Notes unless and
until the same are surrendered to the Trustee for cancellation pursuant to
this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall,
unless the Trustee fixes another record date pursuant to Section 6.10, pay the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest to the Persons who are Holders on a subsequent special
record date, which date shall be the fifteenth day next preceding the date
fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, with a copy to the Trustee, a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Notes may use one or more "CUSIP" numbers, and
if so, the Trustee shall use the CUSIP numbers in notices of redemption or
exchange as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness or accuracy of
the CUSIP numbers printed in the notice or on the Notes, and that reliance may
be placed only on the other identification numbers printed on the Notes. The
Company shall promptly notify the Trustee of any change in any of the CUSIP
numbers.
SECTION 2.14. Deposit of Moneys.
Prior to each Interest Payment Date and on the Maturity Date, the Company
shall have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date or
Maturity Date, as the case may be, in a timely manner that permits the Paying
Agent to remit payment to the Holders on such Interest Payment Date or Maturity
Date, as the case may be.
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SECTION 2.15. Restrictive Legends.
Each Global Note and Physical Note that constitutes a Restricted Security
shall bear the following legend (the "Private Placement Legend") on the face
thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE ACT) OR (B) IT IS AN "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE ACT)
(AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY
RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇, (▇)
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE SECURITY, IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT
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SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE ACT.
Each Global Note shall also bear the following legend on the face thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH NOMINEE
OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE INDENTURE.
SECTION 2.16. Book-Entry Provisions
for Global Note.
(a) The Global Note initially shall (i) be registered in the name of the
Depository or the nominee of such Depository, (ii) be delivered to the Trustee
as custodian for such Depository and (iii) bear legends as set forth in Section
2.15.
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Members of, or participants in, the Depository ("Participants") shall have
no rights under this Indenture with respect to any Global Note held on their
behalf by the Depository, or the Trustee as its custodian, or under the Global
Note, and the Depository may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and Participants, the operation of customary practices governing the exercise
of the rights of a Holder of any Note.
(b) Transfers of the Global Note shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Note may be transferred
or exchanged for Physical Notes in accordance with the rules and procedures of
the Depository and the provisions of Section 2.17. In addition, Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in the Global Note if (i) the Depository notifies the Company that it
is unwilling or unable to continue as Depository for the Global Note and a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depository to issue Physical
Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more Physical Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to paragraph (b), the Global Note shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial
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interest in the Global Note, an equal aggregate principal amount of Physical
Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Security delivered in
exchange for an interest in the Global Note pursuant to paragraph (b) or (c)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section
2.17, bear the legend regarding transfer restrictions applicable to the
Physical Notes set forth in Section 2.15.
(f) The Holder of the Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and Non-U.S.
Persons. The following provisions shall apply with respect to the registration
of any proposed transfer of a Note constituting a Restricted Security to any
Institutional Accredited Investor that is not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after June 15,
1999 or (y) (1) in the case of a transfer to an Institutional Accredited
Investor which is not a QIB (excluding Non-U.S. Persons), the proposed
transferee has delivered to the Registrar a certificate substantially in
the form of Exhibit C hereto or (2) in the case of a transfer to a
Non-U.S. Person, the proposed transferor has delivered to the Registrar
a certificate substantially in the form of Exhibit D hereto and such
other information that the Trustee may reasonably request in order to
confirm that such transaction is being made pursuant to an exemption from
or in a transaction not subject to the registration requirements of the
Securities Act; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in the Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures,
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whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and (b) the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for
on the form of Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Note for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within
the meaning of Rule 144A, and is aware that the sale to it is being made
in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing representations
in order to claim the exemption from registration provided by Rule 144A;
and
(ii) if the proposed transferee is an Agent Member, and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Global Note, upon receipt by the
Registrar of instructions given in accordance with the Depository's and
the Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Note in an amount equal to the principal amount of the Physical Notes to
be transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(c) Private Placement Legend. Upon the transfer, exchange or replacement
of Notes not bearing the Private
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Placement Legend, the Registrar shall deliver Notes that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of
Notes bearing the Private Placement Legend, the Registrar shall deliver only
Notes that bear the Private Placement Legend unless (i) the circumstance
contemplated by paragraph (a)(i)(x) of this Section 2.17 exists or (ii)
there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither
such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Note bearing the Private Placement
Legend, each Holder of such a Note acknowledges the restrictions on transfer of
such Note set forth in this Indenture and in the Private Placement Legend and
agrees that it will transfer such Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.16 or this Section 2.17.
The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
SECTION 2.18. Designation.
The indebtedness evidenced by the Notes is hereby irrevocably designated
as "senior indebtedness" or such other term denoting seniority for the purposes
of any future Indebtedness of the Company which the Company expressly makes
subordinate to any senior indebtedness or such other term denoting seniority.
In connection with the issuance of any such future subordinated Indebtedness,
the Company shall take all necessary steps to effectuate the foregoing. For
purposes of the Subordinated Discount Debenture Indenture, the Indebtedness
evidenced by the Notes is hereby designated "Designated Senior Debt" as defined
therein. The Notes are intended to be senior indebtedness with respect to the
Subordinated Discount Debentures.
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ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 5 of the
Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of the Notes to be redeemed and
whether it wants the Trustee to give notice of redemption to the Holders (at
the Company's expense) at least 40 days (unless a shorter notice shall be
satisfactory to the Trustee) but not more than 60 days before the Redemption
Date. Any such notice may be cancelled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed in compliance with the requirements of the
principal national securities exchange, if any, on which the Notes being
redeemed are listed, or, if the Notes are not listed on a national securities
exchange, on a pro rata basis.
The Trustee shall make the selection from the Notes outstanding and not
previously called for redemption and shall promptly notify the Company in
writing of the Notes selected for redemption and, in the case of any Note
selected for partial redemption, the principal amount thereof, to be redeemed.
Notes in denominations of $1,000 may be redeemed only in whole. The Trustee
may select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Notes that have denominations larger than $1,000.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail or cause to be mailed a notice of redemption by first class
mail to each Holder whose Notes are to be redeemed, with a copy to the Trustee.
At the Company's request, the Trustee shall give the notice of redemption in
the Company's name and at the Company's expense. Each
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notice for redemption shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if
any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of
such Notes is to receive payment of the Redemption Price upon surrender
to the Paying Agent of the Notes redeemed;
(6) if any Note is being redeemed in part, the portion of the
principal amount, of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes in
the aggregate principal amount equal to the unredeemed portion thereof
will be issued; and
(7) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount, as the case may be, of Notes
to be outstanding after such partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03, Notes
called for redemption become due and payable on the Redemption Date and at the
Redemption Price plus accrued interest, if any. Upon surrender to the Trustee
or Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price, which shall include accrued and unpaid interest, if any,
thereon to the Redemption Date.
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SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price, plus,
without duplication, accrued and unpaid interest, if any, of all Notes to be
redeemed on that date (other than Notes or portions thereof called for
redemption on that date that have been delivered by the Company to the Trustee
for cancellation). The Paying Agent shall promptly return to the Company any
U.S. Legal Tender so deposited that is not required for that purpose, except
with respect to monies owed as obligations to the Trustee pursuant to Article
Seven.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price, plus, without
duplication, accrued and unpaid interest, if any, interest on the Notes to be
redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Trustee shall
authenticate for the Holder a new Note or Notes equal in principal amount to
the unredeemed portion of the Note surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes. An installment of principal of
or interest on the Notes shall be considered paid on the date it is due if the
Trustee or Paying Agent (other than the Company or a Subsidiary of the Company)
holds on that date U.S. Legal Tender designated for and sufficient to pay the
installment.
The Company shall pay interest on overdue principal from time to time on
demand at the rate of 10 3/4% per annum; it shall pay interest on overdue
installments of interest
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(without regard to any applicable grace periods) from time to time on demand
at the rate of 10 3/4% per annum.
Notwithstanding anything to the contrary contained in this Indenture, the
Company may, to the extent it is required to do so by law, deduct or withhold
income or other similar taxes imposed by the United States of America from
principal or interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under Section
2.03. The Company shall give prior notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
SECTION 4.03. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or
make any distribution (other than dividends or distributions payable in
Qualified Capital Stock of the Company) on shares of the Company's Capital
Stock to holders of such Capital Stock, (b) purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Company or any warrants,
rights or options to purchase or acquire shares of any class of such Capital
Stock, other than the exchange of such Capital Stock for Qualified Capital
Stock, (c) make any principal payment on, purchase, defease, redeem, prepay,
decrease or otherwise acquire or retire for value, prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness of the Company or its Restricted Subsidiaries that is subordinate
or junior in right of payment to the Notes or (d) make any Investment (other
than Permitted Investments) (each of the foregoing actions set forth in clauses
(a), (b), (c) and (d) being referred to as a "Restricted Payment"), if at the
time of such Restricted Payment or immediately after giving effect thereto, (i)
a Default or an Event of Default shall have occurred and be continuing, (ii)
the Company is not able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12 or (iii)
the aggregate amount of Restricted Payments made subsequent to the Issue Date
(the amount
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expended for such purposes, if other than in cash, shall be the fair market
value of such property as determined by the Board of Directors of the
Company in good faith) shall exceed the sum, without duplication, of: (w)
50% of the cumulative Consolidated Net Income (or if cumulative Consolidated
Net Income shall be a loss, minus 100% of such loss) of the Company earned
during the period beginning on the first day of the fiscal year of the Company
commencing after the Issue Date and ending on the last day of the most recent
fiscal quarter ending at least 45 days prior to the date the Restricted Payment
occurs (treating such period as a single accounting period); (x) 100% of the
aggregate net proceeds, including the fair market value of property other than
cash as determined by the Board of Directors of the Company in good faith,
received by the Company from any Person (other than a Restricted Subsidiary of
the Company) from the issuance and sale subsequent to the Issue Date of
Qualified Capital Stock of the Company or of debt securities of the Company
that have been converted into Qualified Capital Stock (excluding (A) Qualified
Capital Stock made as a distribution on any Capital Stock or as interest on any
Indebtedness and (B) any net proceeds from issuances and sales of Qualified
Capital Stock financed directly or indirectly using funds borrowed from the
Company or any Restricted Subsidiary of the Company, until and to the extent
such borrowing is repaid), (y) $50 million and (z) the amount of the net
reduction in Investments made as Restricted Payments in accordance with this
sentence in Unrestricted Subsidiaries resulting from (1) the payment of cash
dividends or the repayment in cash of the principal of loans or the cash return
on any Investment, in each case to the extent received by the Company or any
wholly owned Restricted Subsidiary of the Company from Unrestricted
Subsidiaries, (2) to the extent that any Investment in an Unrestricted
Subsidiary that was made after the date of this Indenture is sold for cash or
otherwise liquidated or repaid for cash, the after-tax cash return of capital
with respect to such Investment (less the cost of disposition, if any) or (3)
the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries, such
aggregate amount of the net reduction in such Investments not to exceed, in the
case of any Unrestricted Subsidiary, the amount of such Investments made as
Restricted Payments previously made by the Company or any Restricted Subsidiary
in such Unrestricted Subsidiary, which amount was included in the calculation
of the amount of Restricted Payments.
Notwithstanding the foregoing, these provisions do not prohibit: (1) the
payment of any dividend, making of any distribution or consummation of
irrevocable redemption within 60 days after the date of declaration of such
dividend, making
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of such distribution or giving of such notice if the dividend, distribution
or redemption would have been permitted on the date of declaration; (2)
the acquisition of Capital Stock or Indebtedness of the Company that
is subordinate or junior in right of payment to the Notes, either
(i) in exchange for shares of Qualified Capital Stock or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other
than to a Restricted Subsidiary of the Company) of shares of Qualified Capital
Stock; (3) the acquisition of Indebtedness of the Company that is subordinate
or junior in right of payment to the Notes, either (i) in exchange for
Indebtedness of the Company that is subordinate or junior in right of payment
to the Notes, at least to the extent that the Indebtedness being acquired is
subordinated to the Notes, and has no scheduled principal prepayment dates
prior to the earlier of (a) at least one year after the scheduled final
maturity date of the Notes or (b) the scheduled final maturity date of the
Indebtedness being exchanged, (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Restricted Subsidiary
of the Company) of Indebtedness of the Company that is subordinate or junior in
right of payment to the Notes, at least to the extent that the Indebtedness
being acquired is subordinated to the Notes, and has no scheduled principal
prepayment dates prior to the earlier of (a) the scheduled final maturity date
of the Notes or (b) the scheduled final maturity date of the Indebtedness being
refinanced or (iii) any combination of clauses (i) and (ii) above; (4) the
elimination of fractional shares or warrants; (5) the purchase for value of
shares of Capital Stock of the Company (x) held by directors, officers or
employees upon death, disability, retirement, termination of employment or (y)
to fund capital stock-based, long-term incentive programs, not to exceed $4
million in the aggregate; (6) the repurchase of any 12 3/4% Debentures in
accordance with (i) the "Limitation on Asset Sales" and "Change of Control"
covenants hereunder and (ii) Sections 4.15 and 4.16 of the 12 3/4% Debenture
Indenture; (7) the redemption or repurchase by the Company of up to $200
million aggregate principal amount of 12 3/4% Debentures through the
application of (a) up to $200 million of net cash proceeds of a substantially
concurrent sale or incurrence (other than to or from a Restricted Subsidiary of
the Company) of secured or unsecured Indebtedness of the Company that ranks
pari passu with the Notes as to payment, (b) up to $100 million of cash from
operations of the Company or (c) any combination of (a) and (b), (8) Restricted
Payments for the redemption, repurchase or other acquisition of shares of
Capital Stock of the Company in satisfaction of indemnification or other claims
arising under any merger, consolidation, asset purchase or
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investment or similar acquisition agreement permitted under the Indenture,
pursuant to which such shares of Capital Stock were issued and (9) repurchases
of Capital Stock deemed to occur upon exercise of employee or director stock
options; provided that in the case of clauses (2), (3), (4), (5), (6), (7)
and (8), no Default or Event of Default shall have occurred or be continuing
at the time of such payment or as a result thereof. In determining the
aggregate amount of Restricted Payments made subsequent to the Issue Date,
amounts expended pursuant to clauses (1), (2), (4), (5), (6), 7(b) and (8)
shall be included in such calculation; provided that amounts expended pursuant
to clause (2) shall constitute Restricted Payments only to the extent any
amounts are credited pursuant to clause (iii)(x) of the next preceding
paragraph.
SECTION 4.04. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate or other existence and the corporate or other existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of each such Subsidiary and the material rights
(charter and statutory) and franchises of the Company and each such Subsidiary;
provided, however, that the Company shall not be required to preserve and keep
in full force and effect, with respect to any of its Restricted Subsidiaries,
any such existence, material right or franchise, and with respect to itself,
any material right or franchise if the Board of Directors or other equivalent
governing body of the Company or such Subsidiary, as the case may be, shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company or any such Subsidiary.
SECTION 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
properties of it or any of its Subsidiaries and (ii) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien upon
the property of it or any of its 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 if either (a) the amount,
applicability or validity thereof is being contested in
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good faith by appropriate proceedings and an adequate reserve has been
established therefor to the extent required by generally accepted accounting
principles then in effect or (b) the failure to make such payment or effect
such discharge (together with all other such failures) would not have a
material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
SECTION 4.06. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Subsidiaries to,
maintain its properties in good working order and condition (subject to
ordinary wear and tear) and make all necessary repairs, renewals, replacements,
additions, betterments and improvements thereto and actively conduct and carry
on its business; provided, however, that nothing in this Section shall prevent
the Company or any of its Subsidiaries from discontinuing the operation and
maintenance of any of its properties, if such discontinuance is, in the
judgment of the Company or the Subsidiary, as the case may be, desirable in
the conduct of their respective businesses and is not disadvantageous in any
material respect to the Holders.
(b) The Company shall provide or cause to be provided for itself and each
of its Subsidiaries, insurance (including appropriate self-insurance) against
loss or damage of the kinds that, in the reasonable, good faith opinion of the
Company are adequate and appropriate for the conduct of the business of the
Company and such Subsidiaries in a prudent manner, with reputable insurers or
with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods as shall be customary, in the reasonable, good faith opinion of the
Company, for companies similarly situated in the industry, unless the failure
to provide such insurance (together with all other such failures) would not
have a material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole.
SECTION 4.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of the Company's fiscal year, an Officers' Certificate stating that a
review of its activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether it has kept, observed,
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performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company during such preceding fiscal year has kept, observed,
performed and fulfilled each and every such covenant and no Default or Event of
Default occurred during such year and at the date of such certificate there is
no Default or Event of Default that has occurred and is continuing or, if such
signers do know of such Default or Event of Default, the certificate shall
describe the Default or Event of Default and its status with particularity.
The Officers' Certificate shall also notify the Trustee should the Company
elect to change the manner in which it fixes its fiscal year end.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.09 shall be accompanied by a written
report of the Company's independent public accountants (who shall be a firm of
established national reputation) that in conducting their audit of such
financial statements (which is directed primarily to the expression of their
opinion on such financial statements taken as a whole and not toward obtaining
knowledge of non-compliance with credit agreements) nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article Four, Five or Six of this Indenture or, if any such
violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing, (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed default under this Indenture or the Notes or (iii) if the
trustee for or the holder of any other evidence of Indebtedness of the Company
or any Restricted Subsidiary seeks to exercise any remedy with respect to a
claimed default (other than with respect to Indebtedness in the principal
amount of less than $20,000,000), the Company shall deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five Business Days of its
occurrence.
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SECTION 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their
respective properties, except such as are being contested in good faith and by
appropriate proceedings and except for such noncompliances as are not in the
aggregate reasonably likely to have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION 4.09. SEC Reports.
To the extent permitted by applicable law or regulation, whether or not
the Company is subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the SEC all quarterly and annual
reports and such other information, documents or other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) required to be filed pursuant to such provisions of the Exchange
Act.
The Company shall file with the Trustee, and prior to the consummation of
the Exchange Offer, the Company shall mail to the Holders and Trustee in
accordance with paragraph (b) of this Section 4.09, within 15 days after it
files the same with the SEC, copies of the quarterly and annual reports and the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that it is
required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. The Company shall also comply with the other provisions of TIA Sec.
314(a).
Regardless of whether the Company is required to furnish such reports to
its stockholders pursuant to the Exchange Act, the Company shall cause its
consolidated financial statements, comparable to that which would have been
required to appear in annual or quarterly reports, to be delivered to the
holders of the Notes.
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SECTION 4.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture; and (to the extent that it
may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.11. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with or for the
benefit of, an Affiliate of the Company or any Restricted Subsidiary (other
than transactions between the Company and a wholly owned Restricted Subsidiary
of the Company) (an "Affiliate Transaction"), other than Affiliate Transactions
on terms that are no less favorable in the aggregate than those that might
reasonably have been obtained or are obtainable in a comparable transaction on
an arm's-length basis from a person that is not an Affiliate; provided that
neither the Company nor any of its Restricted Subsidiaries shall enter into an
Affiliate Transaction or series of related Affiliate Transactions involving or
having a value of $10 million or more, unless a majority of disinterested
members of the Board of Directors of the Company determines in good faith as
evidenced by a board resolution that the terms are no less favorable in the
aggregate to the Company than those that might reasonably have been obtained in
a comparable transaction on an arm's-length basis from a Person that is not an
Affiliate; provided, however, that (i) any employment agreement or stock option
agreement entered into by the Company or any of its Restricted Subsidiaries in
the ordinary course of business, (ii) transactions permitted under Section
4.03, (iii) the payment of reasonable fees and expenses to directors of the
Company or its Restricted Subsidiaries, (iv) any issuance of securities or
other payments, awards or grants in cash, securities or otherwise pursuant to,
or the funding of
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employment arrangements, stock options and stock ownership plans of the
Company entered into in the ordinary course of business and (v) transactions
pursuant to agreements existing on the Issue Date or any amendment
thereto or any transactions contemplated thereby (including pursuant to any
amendment thereto) in any replacement agreement thereto, so long as any such
amendment or replacement is not more disadvantageous to the holders in any
material respect than the original agreement as in effect on the Issue Date, in
each case, shall not be deemed Affiliate Transactions.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, after the Issue Date, directly or indirectly, create, incur,
assume, guarantee, acquire or become liable, contingently or otherwise, or
otherwise become responsible for the payment of any Indebtedness other
than Permitted Indebtedness. Notwithstanding the foregoing limitations,
the Company and, subject to compliance with Section 4.18, Restricted
Subsidiaries may incur Indebtedness if (i) no Default or Event of
Default shall have occurred and be continuing at the time of or as a
consequence of the incurrence of such Indebtedness and (ii) the Consolidated
Fixed Charge Coverage Ratio of the Company, measured on the date of the
incurrence of such Indebtedness, is greater than 2.0:1.0. No Indebtedness
incurred pursuant to the next preceding sentence shall be included in
calculating any limitation set forth in the definition of Permitted
Indebtedness. Upon the repayment of Indebtedness which may have been incurred
pursuant to more than one provision of this Indenture, the Company may, in its
sole discretion, designate which provision such Indebtedness shall have been
incurred under.
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
its Capital Stock, (b) make loans or advances or to pay any Indebtedness or
other obligation owed to the Company or a Restricted Subsidiary of the Company
or (c) transfer any of its property or assets to the Company, except for such
encumbrances or restrictions existing under or by reason of: (1) applicable
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law; (2) the Indenture; (3) customary nonassignment provisions of any lease
governing a leasehold interest of the Company or any Restricted Subsidiary of
the Company; (4) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to the Company or any Restricted
Subsidiary of the Company, or the properties or assets of the Company or any
Restricted Subsidiary of the Company, other than the Person, the properties or
assets so acquired; (5) agreements existing on the Issue Date; (6) any Trade
Receivable Facility; (7) customary nonassignment provisions in contracts
entered into in the ordinary course of business, (8) Indebtedness of a
Restricted Subsidiary permitted to be incurred under the Indenture; or (9) an
agreement effecting a refinancing, modification, replacement, renewal,
restatement, refunding, deferral, extension, substitution, supplement,
reissuance or resale of Indebtedness issued, assumed or incurred pursuant to an
agreement referred to in clause (2), (4), (5), (6) or (8) above; provided,
however, that the provisions relating to such encumbrance or restriction
contained in any such refinancing, replacement or substitution agreement
are not less favorable to the Company or Restricted Subsidiary, as the
case may be, in any material respect in the reasonable judgment of the
Board of Directors of the Company than the provisions relating to such
encumbrance or restriction contained in agreements referred to in such
clause (2), (4), (5), (6) or (8).
SECTION 4.14. Limitation on Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Liens upon their
respective assets, except for (a) Liens securing Indebtedness under the Credit
Agreement, (b) Permitted Liens, (c) Liens securing Acquired Indebtedness, (d)
Liens existing on the Issue Date, (e) Liens securing Indebtedness to the extent
incurred to refinance, replace, renew or refund secured Indebtedness existing
on the Issue Date or Acquired Indebtedness, (f) Liens securing pollution
control bonds and industrial revenue bonds, (g) Liens securing Indebtedness
permitted to be incurred pursuant to clauses (viii) or (ix) of the definition
of Permitted Indebtedness, (h) Liens securing Indebtedness pursuant to clauses
(vii) or (xi) of the definition of Permitted Indebtedness; provided, however,
that if such Indebtedness is incurred to finance the cost of the property
subject to a Lien securing such Indebtedness, the principal amount of the
Indebtedness secured by such Lien shall not exceed 100% of the cost of the
property subject thereto plus related financing costs, (i) Liens in favor of
the Trustee and the trustee in respect of any other outstanding
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indebtedness of the Company, (j) Liens granted in connection with the
redemption of the Old Notes, or (k) any replacement, extension, renewal,
amendment or modification, in whole or in part, of any Lien described above;
provided that to the extent any such clause limits the amount secured or
the assets subject to such Liens, no extension or renewal will increase
the amount or assets secured by or subject to such Liens.
SECTION 4.15. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will have the
right to require that the Company repurchase all or a portion of such Holder's
Notes pursuant to the offer described in paragraph (b) below (the "Change of
Control Offer") at a purchase price equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of repurchase.
(b) Within 30 days following the date upon which the Change of Control
occurred (the "Change of Control Date"), the Company shall send, by first class
mail, a notice to each Holder, with a copy to the Trustee, which notice shall
govern the terms of the Change of Control Offer. The notice to the Holders
shall contain all instructions and materials necessary to enable such Holders
to tender Notes pursuant to the Change of Control Offer. Such notice shall
state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of
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Holder to Elect Purchase" on the reverse of the Security completed, to
the Paying Agent at the address specified in the notice prior to the
close of business on the Business Day prior to the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion
of the Notes surrendered; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient
to pay the purchase price of all Notes so tendered and (iii) deliver to the
Trustee Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to the Holders of Notes so accepted payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and
mail to such Holders new Notes equal in principal amount to any unpurchased
portion of the Notes surrendered. Any Notes not so accepted shall be promptly
mailed by the Company to the Holder thereof. For purposes of this Section
4.15, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a Change of
Control Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable
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securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.15 by virtue thereof.
SECTION 4.16. Limitation on Asset Sales.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (a) the Company or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Board of Directors of the Company), (b) at least 75% of the consideration
received by the Company or the Restricted Subsidiary, as the case may be, from
such Asset Sale shall be cash or Cash Equivalents and is received at the time
of such disposition; provided, however, that this condition shall not apply to
a transaction whereby the Company or any Restricted Subsidiary effects an Asset
Sale by the exchange of assets or property for Productive Assets or to the sale
or other disposition of all or any portion of the Company's East Mill assets
located in Antioch, California, provided, further, that the amount of (A) any
liabilities of the Company or any Restricted Subsidiary (other than liabilities
that are by their terms subordinated in right of payment to the Notes) that are
assumed by the transferee of any such assets shall be deemed to be cash for
purposes of this provision and (B) any notes or other obligations received by
the Company or such Restricted Subsidiary from such transferee that are
immediately converted by the Company or such Restricted Subsidiary into cash
(to the extent of the cash received) shall be deemed to be cash for purposes of
this provision, and (c) the Company shall (i) apply, or cause such Restricted
Subsidiary to apply, such Net Cash Proceeds of such Asset Sale within 270 days
of the consummation of such Asset Sale (A) to prepay indebtedness ranking pari
passu with the Notes, senior indebtedness of a Subsidiary Guarantor or debt of
a Restricted Subsidiary that is not a Subsidiary Guarantor or, in the case of
any debt under a revolving credit facility, effect a reduction in the committed
availability under any such revolving credit facility or (B) to make an offer
to purchase the Notes and, to the extent required by the documentation
governing such indebtedness and on a pro rata basis, indebtedness ranking pari
passu with the Notes, at a price equal to 100% of the principal amount of the
Notes plus accrued interest thereon to the date of purchase pursuant to an
offer to purchase made by the Company as set forth below (a "Net Proceeds
Offer"), or (ii)(A) commit, or cause such Restricted Subsidiary to commit (such
commitments to include amounts anticipated to be expended
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pursuant to the Company's capital investment plan (x) as adopted by the Board
of Directors of the Company and (y) evidenced by the filing of an Officers'
Certificate with the Trustee stating that the total amount of the Net Cash
Proceeds of such Asset Sale is less than the aggregate amount contemplated to
be expended pursuant to such capital investment plan within 24 months of the
consummation of such Asset Sale) within 270 days of the consummation of such
Asset Sale, to apply the Net Cash Proceeds of such Asset Sale to reinvest in
Productive Assets and (B) apply, or cause such Restricted Subsidiary to apply,
pursuant to such commitment (which includes amounts actually expended under
the capital investment plan authorized by the Board of Directors of the
Company), such Net Cash Proceeds of such Asset Sale within 24 months of
the consummation of such Asset Sale; provided that if any commitment
under this clause (ii) is terminated or rescinded after the 225th day
after the consummation of such Asset Sale, the Company or such Restricted
Subsidiary, as the case may be, shall have 45 days after such
termination or rescission to (1) apply such Net Cash Proceeds
pursuant to clause (c)(i) above (a "Reapplication Determination") or (2) to
commit, or cause such Restricted Subsidiary to commit, to apply the Net Cash
Proceeds of such Asset Sale to reinvest in Productive Assets; provided that in
any such case, such proceeds must be applied pursuant to clause (c)(i) or such
commitment, as the case may be, no later than 24 months after the consummation
of such Asset Sale or (iii) any combination of the foregoing; provided,
further, that if at any time any non-cash consideration received by the Company
or any Restricted Subsidiary of the Company, as the case may be, in connection
with any Asset Sale is converted into or sold or otherwise disposed of for
cash, then such conversion or disposition shall be deemed to constitute an
Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in
accordance with clause (c) above; and provided, further, that the Company may
defer making a Net Proceeds Offer until the aggregate Net Cash Proceeds from
Asset Sales to be applied equals or exceeds $10 million. Pending the final
application of any such Net Cash Proceeds the Company or such Restricted
Subsidiary may temporarily reduce Indebtedness under a revolving credit
facility, if any.
Each Net Proceeds Offer will be mailed to the record Holders as shown on
the register of Holders within 270 days following the consummation of the Asset
Sale that requires the Company to make a Net Proceeds Offer (or within 30 days
after a Reapplication Determination, if applicable), with a copy to the
Trustee, will specify the purchase date (which will be no earlier than 30 days
nor later than 45 days from the date such
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notice is mailed) and shall comply with the procedures set forth in
this Indenture. Upon receiving notice of the Net Proceeds Offer,
Holders may elect to tender their Notes in whole or in part in
integral multiples of $1,000 in exchange for cash. To the extent Holders
properly tender Notes in an amount exceeding the aggregate amount of the Net
Proceeds Offer, Notes of tendering Holders will be repurchased on a pro rata
basis (based upon the principal amount tendered). To the extent that the
aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less
than the aggregate amount of the Net Proceeds Offer, the Company may use such
excess Net Proceeds Offer amount for general corporate purposes or for
any other purpose not prohibited by this Indenture. Upon completion of
any such Net Proceeds Offer, the amount of the Net Proceeds Offer
shall be reset at zero. A Net Proceeds Offer shall remain open for
a period of 20 business days or such longer period as may be required
by law.
The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Net Proceeds Offer and
shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section
4.16 and that all Notes tendered will be accepted for payment; provided,
however, that if the aggregate principal amount of Notes tendered in a
Net Proceeds Offer plus accrued interest at the expiration of such offer
exceeds the aggregate amount of the Net Proceeds Offer, the Company shall
select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000 or multiples thereof shall be
purchased);
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed, other than as may be
required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue or accrete interest after the Proceeds Purchase Date;
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(5) that Holders electing to have a Note purchased pursuant to a Net
Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day prior to the Proceeds
Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days prior to the
Proceeds Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion
of the Notes surrendered.
On or before the Proceeds Purchase Date, the Company shall (i) accept for
payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer
which are to be purchased in accordance with item (1) above, (ii) deposit with
the Paying Agent U.S. Legal Tender sufficient to pay the purchase price of all
Notes to be purchased and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or portions thereof
being purchased by the Company. The Paying Agent shall promptly mail to the
Holders of Notes so accepted payment in an amount equal to the purchase price.
For purposes of this Section 4.16, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a Net
Proceeds Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.16, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.16 by virtue thereof.
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SECTION 4.17. Limitation on Incurrence
of Subordinated Debt.
The Company shall not incur Indebtedness that is subordinated by written
agreement in right of payment to any other Indebtedness of the Company,
unless the Indebtedness to be incurred is subordinated to the Notes
substantially to the same extent as it is subordinated to such other
Indebtedness pursuant to such written agreement.
SECTION 4.18. Guarantees by Restricted Subsidiaries.
The Company will cause any Borrowing Restricted Subsidiary to become a
Subsidiary Guarantor by executing the guarantee (the "Guarantee") of payment of
the Notes by such Borrowing Restricted Subsidiary (1) if, at the time the
Restricted Subsidiary first becomes a Borrowing Restricted Subsidiary, the
total Investment of the Company and the Restricted Subsidiaries in such
Borrowing Restricted Subsidiary and in all other Borrowing Restricted
Subsidiaries that are not Subsidiary Guarantors, is more than 15% of Total
Tangible Assets (the "15% Investment Threshold"), or (2) if, at the time a
Borrowing Restricted Subsidiary increases the amount of Restricted Subsidiary
Indebtedness (excluding for this purpose, incurrences of indebtedness under a
revolving credit facility that do not exceed the maximum committed borrowings
thereunder), the 15% Investment Threshold is met, or (3) if, at the time the
Company or any Restricted Subsidiary makes a capital contribution or other
equity investment in excess of $1 million during any six-month period in any
Borrowing Restricted Subsidiary, the 15% Investment Threshold is met. If any
such incurrence of liability of such Restricted Subsidiary is provided in
respect of Indebtedness that is expressly subordinated to the Notes, the
guarantee or other instrument provided by such Restricted Subsidiary in respect
of such subordinated Indebtedness shall be subordinated to the Guarantee
pursuant to subordination provisions no less favorable to holders of the Notes
than those contained in the 12 3/4% Indenture. A Borrowing Restricted
Subsidiary shall be released as a Subsidiary Guarantor (i) at such time as it
ceases to be a Borrowing Restricted Subsidiary or (ii) upon the election of the
Company, if, after giving effect to such election, the 15% Investment Threshold
is not met.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.
(a) The Company shall not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of
its assets to, another Person or adopt a Plan of Liquidation, unless:
(1) either the Company shall be the survivor of such merger or
consolidation or the surviving Person is a corporation, partnership or
trust organized and existing under the laws of the United States, any
State thereof or the District of Columbia, and such surviving Person
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee on or prior to the consummation of such
transaction, in a form satisfactory to the Trustee, all the obligations
of the Company under the Notes and this Indenture;
(2) immediately after giving effect to such transaction (on a pro
forma basis, including any Indebtedness to be incurred in connection with
such transaction), the Company or the surviving Person shall be able to
incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.12;
(3) immediately after giving effect to such transaction and the
assumption of the obligations as set forth in clause (1) above and the
incurrence of any Indebtedness to be incurred in connection therewith, no
Default or Event of Default shall have occurred and be continuing; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or adoption and such supplemental
indenture comply with this Article Five, that the surviving Person (if
other than the Company) agrees to be bound hereby, and that all
conditions precedent herein provided relating to such transaction have
been satisfied.
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Notwithstanding clauses (2), (3) and (4) of this Section 5.01, any
Restricted Subsidiary of the Company may consolidate with, merge into or
transfer all or part of its properties and assets to the Company.
(b) For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties and assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets
of the Company.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets in accordance
with Section 5.01, the successor Person formed by such consolidation or into
which the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein. When a successor corporation assumes all of the
obligations of the Company hereunder and under the Notes and agrees to be bound
hereby and thereby, the predecessor shall be released from such obligations.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any Notes
when the same becomes due and payable and the Default continues for a
period of 30 days;
(2) the Company defaults in the payment of the stated principal
amount of any Notes when the same becomes due and payable at maturity,
upon acceleration or redemption or pursuant to an offer to purchase
required hereunder;
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(3) the Company fails to observe or perform any other covenant or
agreement contained in the Notes or this Indenture and the Default
continues for the period and after the notice specified below;
(4) there shall be a failure to pay at stated maturity the principal
amount of any Indebtedness for borrowed money of the Company or any
Restricted Subsidiary of the Company, or the acceleration of the stated
maturity of any such Indebtedness, if the aggregate principal amount of
such Indebtedness, together with the principal amount of any other such
Indebtedness in default for failure to pay principal at stated maturity
or which has been accelerated, aggregates $20,000,000 or more at any
time;
(5) one or more judgments in an aggregate amount in excess of
$20,000,000 shall have been rendered against the Company or any of its
Restricted Subsidiaries and such judgments remain undischarged or
unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable and after the notice specified below;
(6) the Company or any Significant Restricted Subsidiary (A) admits
in writing its inability to pay its debts generally as they become due,
(B) commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (C) consents to the entry of a judgment, decree
or order for relief against it in an involuntary case or proceeding under
any Bankruptcy Law, (D) consents to the appointment of a Custodian of it
or for substantially all of its property, (E) consents to or acquiesces
in the institution of a bankruptcy or an insolvency proceeding against
it, (F) makes a general assignment for the benefit of its creditors, or
(G) takes any corporate action to authorize or effect any of the
foregoing; and
(7) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any Significant Restricted
Subsidiary in an involuntary case or proceeding under any Bankruptcy Law,
which shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Company or any Significant Restricted Subsidiary, (B) appoint a Custodian
of the Company or any Significant Restricted Subsidiary or for
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substantially all of its property or (C) order the winding-up or
liquidation of its affairs; and such judgment, decree or order shall
remain unstayed and in effect for a period of 60 consecutive days.
A Default under clause (3) above (other than in the case of any Default
under Section 4.15, 4.16 or 5.01, which Defaults shall be Events of Default
with the notice specified in this paragraph but without the passage of time
specified in this paragraph) is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in principal amount of the
outstanding Notes notify the Company and the Trustee of the Default, and the
Company does not cure the Default within 30 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default." Such notice shall be given by the Trustee
if so requested by the Holders of at least 25% in principal amount of the Notes
then outstanding. A Default under clause (5) above shall be an Event of
Default with the notice specified in this paragraph but without the passage of
time referred to in this paragraph.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(6) or (7) with respect to the Company) occurs and is continuing
and has not been waived pursuant to Section 6.04, the Trustee may, by notice to
the Company, or the Holders of at least 25% in principal amount of the Notes
then outstanding may, by written notice to the Company and the Trustee, and the
Trustee shall, upon the request of such Holders, declare the aggregate
principal amount of the Notes outstanding, together with accrued but unpaid
interest thereon to the date of payment, to be due and payable and, upon any
such declaration, the same shall become and be due and payable; provided,
however, that the Trustee shall be under no obligation to follow any request of
any of the Holders unless such Holders shall have offered to the Trustee, after
request by the Trustee, reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred by it in compliance with such
request, order or direction. If an Event of Default specified in Section
6.01(6) or (7) occurs with respect to the Company, all unpaid principal and
accrued interest on the Notes then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Noteholder. Upon payment of such principal amount and
interest all of the Company's obligations under the Notes and this Indenture,
other than
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obligations under Section 7.07, shall terminate. The Holders of a majority in
principal amount of the Notes then outstanding by notice to the Trustee may
rescind an acceleration and its consequences if (i) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction, (ii)
all existing Events of Default, other than the non-payment of the principal and
interest on the Notes which have become due solely by such declaration of
acceleration, have been cured or waived, (iii) to the extent the payment of
such interest is lawful, interest on overdue installments of interest and
overdue principal, which has become due otherwise than by such declaration of
acceleration, has been paid, (iv) the Company has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its expenses,
disbursements and advances and (v) in the event of the cure or waiver of a
Default or Event of Default of the type described in Section 6.01(6) or (7),
the Trustee shall have received an Officer's Certificate and an Opinion of
Counsel that such Default has been cured or waived. No such rescission shall
affect any subsequent default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment
of principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in principal
amount of the outstanding Notes by notice to the Trustee may waive an existing
Default or Event of Default and its consequences, except a Default in the
payment of principal of or interest on any Note as specified in clauses (1) and
(2) of Section 6.01.
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SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it
including, without limitation, any remedies provided for in Section 6.03.
Subject to Section 7.01, however, the Trustee may refuse to follow any
direction that conflicts with any law or this Indenture or that the Trustee
determines may be unduly prejudicial to the rights of another Noteholder, or
that may involve the Trustee in personal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.06. Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default;
(2) Holders of at least 25% in principal amount of the outstanding
Notes make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee reasonable indemnity against
any loss, liability or expense to be incurred in compliance with such
request;
(4) the Trustee does not comply with the request within 45 days
after receipt of the request and the offer of satisfactory indemnity; and
(5) during such 45-day period the Holders of a majority in principal
amount of the outstanding Notes do not give the Trustee a direction
which, in the opinion of the Trustee, is inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over such other Noteholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal
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of and interest on a Note, on or after the respective due dates expressed in
such Note, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified in
clause (1) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount of principal and
accrued interest remaining unpaid, together with interest on overdue principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the Notes
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company or any
other obligor upon the Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each 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 to it for the
reasonable compensation, expenses, taxes, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Notes or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
Fourth: to the Company or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a record date and
payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10%
in principal amount of the outstanding Notes.
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ARTICLE SEVEN
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and
covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof as
a prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture that are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
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(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 or 6.05.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, however, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree with the Company in writing.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 11.04 and 11.05. The Trustee
shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers.
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(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, 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, upon
reasonable notice to the Company, to examine the books, records, and
premises of the Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred by it in compliance with such request,
order or direction.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company any Subsidiary of
the Company, or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Notes, it shall not be accountable for the Company's use of
the proceeds from the Notes, and it shall not be responsible for any statement
in the Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each Noteholder notice of the
uncured Default or Event of Default within 90 days after such Default or Event
of Default occurs. Except in the case of a Default or an Event of Default in
payment of principal of, or interest on, any Note, including an accelerated
payment and the failure to make
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payment on the Change of Control Payment Date pursuant to a Change of Control
Offer or on the Proceeds Purchase Date pursuant to a Net Proceeds Offer,
the Trustee may withhold the notice if and so long as its board of
directors, the executive committee of its board of directors or a committee
of its directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the Noteholders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall, to the extent that any of the events
described in TIA Sec. 313(a) occurred within the previous twelve months, but
not otherwise, mail to each Noteholder a brief report dated as of such May 15
that complies with TIA Sec. 313(a). The Trustee also shall comply with TIA
Sec.Sec. 313(b) and 313(c).
A copy of each report at the time of its mailing to Noteholders shall be
mailed to the Company and filed with the SEC and each stock exchange, if any,
on which the Notes are listed.
The Company shall notify the Trustee if the Notes become listed on any
stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all tax obligations imposed on the
Trustee related to this Indenture and all reasonable out-of-pocket expenses
incurred or made by it. Such expenses shall include the reasonable fees and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee and its agents, employees,
stockholders and directors for, and hold them harmless against, any loss,
liability or expense incurred by them except for such actions to the extent
caused by any negligence or bad faith on their part, arising out of or in
connection with the administration of this trust including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their rights, powers or
duties hereunder. The Trustee shall notify the Company promptly of any claim
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asserted against the Trustee for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel; provided that the Company will not be required to
pay such fees and expenses if it assumes the Trustee's defense and there is no
conflict of interest between the Company and the Trustee in connection with
such defense as reasonably determined by the Trustee. The Company need not pay
for any settlement made without its written consent. The Company need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or willful
misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by
so notifying the Company and the Trustee and may appoint a successor trustee.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall notify each Holder of such event
and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal
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amount of the Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Noteholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirement
of TIA Sec.Sec. 310(a)(1) and 310(a)(5). The Trustee (or in the case of a
corporation included in a bank holding company system, the related bank holding
company) shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. In
addition, if the Trustee is a corporation included in
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a bank holding company system, the Trustee, independently of such bank holding
company, shall meet the capital requirements of TIA Sec. 310(a)(2). The
Trustee shall comply with TIA Sec. 310(b); provided, however, that there shall
be excluded from the operation of TIA Sec. 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA Sec. 310(b)(1) are met.
SECTION 7.11. Preferential Collection of
Claims Against Company.
The Trustee shall comply with TIA Sec. 311(a), excluding any creditor
relationship listed in TIA Sec. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Sec. 311(a) to the extent indicated therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations.
This Indenture shall cease to be of further effect (except that the
Company's obligations under Sections 7.07, 8.04 and 8.05 shall survive the
effect of this Article Eight) when all outstanding Notes theretofore
authenticated and issued have been delivered to the Trustee for cancellation.
In addition, at the Company's option, either (a) the Company shall be
deemed to have been Discharged (as defined below) from its obligations with
respect to the Notes at any time after the applicable conditions set forth
below have been satisfied or (b) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in
Sections 4.03, 4.05, 4.09, 4.11 through 4.18 and 5.01 at any time after the
applicable conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Notes (i) money in an amount, or (ii) U.S. Legal Tender or
U.S. Government Obligations (as defined below) that
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through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one business day
before the due date of any payment, money in an amount, or (iii) a
combination of (i) and (ii), sufficient, in the opinion (with respect to
(i) and (ii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal of and
interest on the outstanding Notes on the dates such installments of
interest or principal are due; provided, that no deposits made pursuant
to this Section 8.01(1) shall cause the Trustee to have a conflicting
interest as defined in and for purposes of the TIA; provided, further,
that no such deposit shall result in the Company, the Trustee or the
trust becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(2) No Event of Default or Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit;
(3) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) the Holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of the Company's exercise of its option under this Section 8.01
other than in the same manner and at the same times as would have been
the case if such option had not been exercised, and, accompanied by a
ruling to that effect received from or published by the Internal Revenue
Service, and (ii) all conditions precedent to the Discharge pursuant to
this Section 8.01 have been complied with, together with an Officers'
Certificate to such effect;
(4) The Company shall have paid or duly provided for payment of all
amounts then due to the Trustee pursuant to Section 7.07 hereof; and
(5) No such deposit will result in a Default under this Indenture or
a breach or violation of, or constitute a default under, any other
instrument or agreement (including, without limitation, the Credit
Agreement) to which the Company or any of its subsidiaries is a party or
by which it or its property is bound.
Notwithstanding the foregoing, the Opinion of Counsel required by clause
(i) of paragraph (3) above need not be
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delivered if all Notes not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, (ii) will become due and
payable on the Maturity Date within one year, or (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.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Notes and to have satisfied all the obligations under this Indenture relating
to the Notes (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except (i) the rights of the
Holders of Notes to receive, from the trust fund described in clause (1) above,
payment of the principal of and the interest on such Notes when such payments
are due, (ii) the Company's obligations with respect to the Notes under
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07 and 7.08 and (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder.
SECTION 8.02. Acknowledgment of Discharge by Trustee.
Subject to Section 8.05, after (i) the conditions of Section 8.01 have
been satisfied, (ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and (iii) the Company has delivered to the
Trustee an Opinion of Counsel, stating that all conditions precedent referred
to in clause (i) above relating to the satisfaction and discharge of this
Indenture have been complied with, the Trustee upon written request shall
acknowledge in writing the discharge of the Company's obligations under this
Indenture except for those surviving obligations specified in this Article
Eight.
"U.S. Government Obligations" means direct obligations of, and obligations
guaranteed by, the United States of America for the payment of which the full
faith and credit of the United States of America is pledged.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust, money, U.S. Legal Tender or U.S.
Government Obligations deposited with it pursuant to Section 8.01. It shall
apply the deposited money and the money from U.S. Legal Tender and U.S.
Government Obligations through the Paying Agent and in accordance with this
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Indenture to the payment of principal and accrued and unpaid interest on the
Notes.
SECTION 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the Company any
money held by them for the payment of principal or interest that remains
unclaimed for one year; provided, however, that the Trustee or such Paying
Agent may, at the expense of the Company, cause to be published once in a
newspaper of general circulation in The City of New York or mailed to each
Holder, 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 or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person and all liability
of the Trustee and Paying Agent with respect to such money shall cease.
SECTION 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money, U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 8.01 by reason
of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though
no deposit had occurred pursuant to Section 8.01 until such time as
the Trustee or Paying Agent is permitted to apply all such money, U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 8.01;
provided, however, that if the Company has made any payment of interest on or
principal of any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money, U.S. Legal Tender or U.S. Government
Obligations held by the Trustee or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee,
together, may amend or supplement this Indenture or the Notes without notice to
or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not, in the opinion of the Trustee,
adversely affect the rights of any Holder in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(4) to make any other change that does not adversely affect in any
material respect the rights of any Noteholders hereunder; or
(5) to provide for issuance of the Exchange Notes, which will have
terms substantially identical in all material respects to the Initial
Notes (except that the transfer restrictions contained in the Initial
Notes will be modified or eliminated, as appropriate), and which
will be treated together with any outstanding Initial Notes, as a single
issue of securities;
provided, that the Company has delivered to the Trustee an Opinion of Counsel
and an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder
or Holders of at least a majority in aggregate principal amount of the
outstanding Notes, may amend or supplement this Indenture or the Notes, without
notice to any other Holders. Subject to Section 6.07, the Holder or Holders of
a majority in aggregate principal amount of the outstanding Notes may waive
compliance by the Company with any
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provision of this Indenture or the Notes without notice to any other
Noteholder. No amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, shall, without the consent of each
Holder of each Note affected thereby:
(1) change the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver of any provision of this Indenture
or the Notes;
(2) reduce the rate or extend the time for payment of interest on
any Note;
(3) reduce the principal amount of any Note;
(4) change the Maturity Date of any Note, or alter the optional
redemption provisions contained in Article Three of this Indenture and in
Paragraph 5 of the Notes in a manner adverse to any Holder;
(5) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Notes or the rights of
Holders to recover the principal of, interest on, or optional redemption
payments with respect to, any Note; or
(6) make the principal of, or the interest on, any Note payable with
anything or in any manner other than as provided for in this Indenture
and the Notes.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
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SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to his Note or portion of his Note by notice to the
Trustee or the Company received before the date on which the Trustee receives
an Officers' Certificate certifying that the Holders of the requisite principal
amount of Notes have consented (and not theretofore revoked such consent) to
the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Noteholder, unless it makes a change described in any of clauses (1)
through (6) of Section 9.02, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder's Note; provided that any such waiver shall not impair
or affect the right of any Holder to receive payment of principal of and
interest on a Note, on or after the respective due dates expressed in such
Note, or to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return
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it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue, and the Trustee
shall authenticate, a new Note that reflects the changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized
pursuant to this Article Nine; provided that the Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects
the Trustee's own rights, duties or immunities under this Indenture. The
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel and an Officers' Certificate each stating that the
execution of any amendment, supplement or waiver authorized pursuant to this
Article Nine is authorized or permitted by this Indenture. Such Opinion of
Counsel shall not be an expense of the Trustee.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Subsidiary Guarantor, if any, hereby unconditionally guarantees in
accordance with the provisions of Section 4.18, to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that: (i) the principal of and interest on the Notes
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration or otherwise and interest on the overdue
principal, if any, and interest on any interest, to the extent lawful, of the
Notes to the Holders or the Trustee will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Notes, the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, subject to any applicable grace period, whether at stated
maturity, by acceleration or otherwise, subject, however, in the case of
clauses (i) and (ii) above, to the limitations set forth in Section 10.03.
Each Subsidiary Guarantor, if any, hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any
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action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, and action to enforce the same or any
other circumstance that might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Subsidiary Guarantor, if any,
hereby waives diligence, presentment, demand for payment, filing of
claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that its
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the Notes, this Indenture and in its Subsidiary
Guarantee. If any Noteholder or the Trustee is required by any court or
otherwise to return to the Company, any Subsidiary Guarantor or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
or any such Subsidiary Guarantor, any amount paid by the Company or any such
Subsidiary Guarantor to the Trustee or such Noteholder, each Subsidiary
Guarantee to the extent theretofore discharged, shall be reinstated in
full force and effect. Each Subsidiary Guarantor further agrees that,
as between it and all other Subsidiary Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as provided
in Article Six for the purposes of a Subsidiary Guarantee notwithstanding
any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (y) in the event
of any acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall forthwith become due
and payable by the Subsidiary Guarantors for the purpose of the Subsidiary
Guarantees.
SECTION 10.02. Severability.
In case any provision of this Article Ten shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.03. Limitation of Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform
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Fraudulent Transfer Act or any similar Federal or state law. To effectuate
the foregoing intention, the Holders and each Subsidiary Guarantor hereby
irrevocably agree that the obligations of each Subsidiary Guarantor under
its Subsidiary Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of
such Subsidiary Guarantor and after giving effect to any collections
from or payments made by or on behalf of any of the other Subsidiary
Guarantors in respect of the obligations of such other Subsidiary
Guarantors under the other Subsidiary Guarantees or pursuant to Section
10.05, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 10.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
(a) Nothing contained in this Indenture or in the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or
another Subsidiary Guarantor or shall prevent any sale of assets or conveyance
of the property of a Subsidiary Guarantor as an entirety or substantially as an
entirety, to the Company or another Subsidiary Guarantor. Upon any such
consolidation, merger, sale or conveyance, the Subsidiary Guarantee given by
such Subsidiary Guarantor shall no longer have any force or effect.
(b) Upon the sale or disposition as an entirety (whether by merger, stock
purchase, asset sale or otherwise) of a Subsidiary Guarantor (or all or
substantially all its assets) to a Person that is not a Subsidiary of the
Company and which sale or disposition is otherwise in compliance with Section
4.18 and the other terms of this Indenture, such Subsidiary Guarantor shall be
deemed released from all obligations under this Article Ten without any further
action required on the part of the Trustee or any Holder.
The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a request by the Company accompanied by Officers'
Certificates and Opinions of Counsel certifying as to the compliance with this
Section 10.04. Any Subsidiary Guarantor not so released remains liable for the
full amount of principal of and interest on the Securities as provided in this
Article Ten.
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SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under any of the Subsidiary Guarantees, such Funding
Guarantor shall be entitled to a contribution from all other Subsidiary
Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each of the Subsidiary Guarantors (including the Funding Guarantor)
for all payments, damages and expenses incurred by that funding Guarantor in
discharging the Company's obligations with respect to the Notes or any
obligations of any of the other Subsidiary Guarantors with respect to any of
the Subsidiary Guarantees or based on such other determination as may be
mutually agreed upon between or among each such Subsidiary Guarantor.
"Adjusted Net Assets" of any Person at any date shall mean the lesser
of the amount by which (x) the fair value of the property of such Person
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under
a Subsidiary Guarantee of such person at such date and (y) the present fair
salable value of the assets of such Person at such date exceeds the amount that
will be required to pay the probable liability of such Person on its debts
(after giving effect to all other fixed and contingent liabilities incurred or
assumed on such date), excluding debt in respect of the Subsidiary Guarantee of
such Person, as they become absolute and matured.
SECTION 10.06. Waiver of Subrogation.
Until all Obligations under each of the Subsidiary Guarantees, the Notes
and this Indenture are paid in full, each of the Subsidiary Guarantors hereby
irrevocably waives any claims or other rights that it may now or hereafter
acquire against the Company that arise from the existence, payment, performance
or enforcement of its obligations under its Subsidiary Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification and any right to participate in any
claim or remedy of any Holder of Notes against the Company, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or
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other rights. If any amount shall be paid to any of the Subsidiary Guarantors
in violation of the preceding sentence and the Notes shall not have been
paid in full, such amount shall have been deemed to have been paid to such
Person for the benefit of, and held in trust for the benefit of, the Holders
of the Notes, and shall, forthwith be paid to the Trustee for the benefit
of such Holders to be credited and applied upon the Notes, whether matured
or unmatured, in accordance with the terms of this Indenture. Each of the
Subsidiary Guarantors acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and
that the waiver set forth in this Section 10.06 is knowingly made in
contemplation of such benefits.
SECTION 10.07. Execution of Guarantee.
To evidence their guarantee to the Noteholders set forth in this Article
Ten, each Subsidiary Guarantor hereby agrees to execute a Subsidiary Guarantee
in substantially the form of Exhibit E to this Indenture, which shall be
endorsed on each Note ordered to be authenticated and delivered by the Trustee.
Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth
in this Article Ten shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of a Subsidiary Guarantee. A
Subsidiary Guarantee shall be signed on behalf of a Subsidiary Guarantor by two
Officers, or an Officer and an Assistant Secretary, or one Officer shall sign
and one Officer or an Assistant Secretary (each of whom shall, in each case,
have been duly authorized by all requisite corporate or partnership actions)
shall attest to the Subsidiary Guarantee prior to the authentication of the
Note on which it is endorsed, and the delivery of such Note by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of
the Subsidiary Guarantee on behalf of such Subsidiary Guarantor. Such
signatures upon a Subsidiary Guarantee may be by manual or facsimile signature
of such officers and may be imprinted or otherwise reproduced on the Subsidiary
Guarantee and in case any such officer who shall have signed a Subsidiary
Guarantee shall cease to be such officer before the Note on which the
Subsidiary Guarantee is endorsed shall have authenticated and delivered by the
Trustee or disposed of by the Company, such Note nevertheless may be
authenticated and delivered or disposed of as though the Person who signed the
Subsidiary Guarantee had not ceased to be such officer of the Subsidiary
Guarantor. At any time after a Subsidiary Guarantee is terminated pursuant to
the terms of this Indenture, the Trustee shall upon written notice from the
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Company (and delivery of an Officer's Certificate) remove any such endorsement
which relates to such Subsidiary Guarantee.
SECTION 10.08. Waiver of Stay, Extension or Usury Laws.
Each Subsidiary Guarantor, if any, covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive such
Subsidiary Guarantor from performing a Subsidiary Guarantee as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performances of this Indenture; and (to the
extent that it may lawfully do so) each Subsidiary Guarantor, if any,
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 ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
SECTION 11.02. Notices.
Any notices or other communications required or permitted hereunder shall
be in writing, and shall be sufficiently given if made by hand delivery, by
commercial courier service, by telex, by telecopier or registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
if to the Company:
▇▇▇▇▇▇▇ Container Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Berkshire, Esq.
if to the Trustee:
Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Each of the Company and the Trustee by written notice to each other such
Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is confirmed if delivered by commercial courier; when
answered back, if telexed; when receipt is acknowledged, if faxed; and five (5)
calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
Any notice or communication mailed to a Noteholder shall be mailed to him
by first class mail or other equivalent means at his address as it appears on
the registration books of the Registrar and shall be sufficiently given to him
if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in
it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders
with Other Holders.
Noteholders may communicate pursuant to TIA Sec. 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and any other Person shall have the
protection of TIA Sec. 312(c).
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SECTION 11.04. Certificate and Opinion as
to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee upon
request:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture, other than the Officers' Certificate
required by Section 4.07, shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at a
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meeting of Noteholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 11.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment is a
Saturday, a Sunday or a day on which banking institutions in New York, New
York, Hartford, Connecticut, Boston, Massachusetts or at such place of payment
are not required to be open. If a payment date is a Legal Holiday at such
place, payment may be made at such place on the next succeeding day that is not
a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Indenture.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Noteholder by accepting a
Note waives and releases all such liability. Such waiver and release are part
of the consideration for the issuance of the Notes.
SECTION 11.11. Successors.
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its
successors.
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SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together shall represent the same
agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the date first written above.
▇▇▇▇▇▇▇ CONTAINER CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
FLEET NATIONAL BANK, as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name:▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE ACT) OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (C) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION,
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇, (▇) ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
(OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THE SECURITY, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE ACT.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF
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THE DEPOSITARY, OR BY ANY SUCH NOMINEE OF THE DEPOSITARY, OR BY THE
DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.17 OF THE INDENTURE.
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CUSIP No.: ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ CONTAINER CORPORATION
9 3/4% Senior Note due 2007, Series A
No. 1 $225,000,000
▇▇▇▇▇▇▇ CONTAINER CORPORATION, a Delaware corporation (the "Company,"
which term includes any successor entity), for value received promises to pay
to Cede & Co. or registered assigns, the principal sum of TWO HUNDRED AND
TWENTY FIVE MILLION Dollars, on June 15, 2007.
Interest Payment Dates: June 15 and December 15, commencing December 15,
1997
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
Dated: June 12, 1997
▇▇▇▇▇▇▇ CONTAINER CORPORATION
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
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101
This is one of the Notes described in the within-mentioned Indenture.
FLEET NATIONAL BANK, as Trustee
By ______________________________________
Authorized Signatory
Dated: June 12, 1997
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(REVERSE OF SECURITY)
▇▇▇▇▇▇▇ CONTAINER CORPORATION
9 3/4% Senior Note due 2007, Series A
1. Interest.
▇▇▇▇▇▇▇ CONTAINER CORPORATION, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. Interest on the Notes will accrue from the most recent date
on which interest has been paid or, if no interest has been paid, from the
Issue Date. The Company will pay interest semi-annually in arrears on each
Interest Payment Date, commencing December 15, 1997. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on
demand at the rate of 10 3/4% per annum; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the rate of 10 3/4% per annum.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted interest) to
the Persons who are the registered Holders at the close of business on the
Record Date immediately preceding the Interest Payment Date even if the Notes
are cancelled on registration of transfer or registration of exchange after
such Record Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts ("U.S. Legal Tender"). However, the Company may pay
principal and interest by its check payable in such U.S. Legal Tender. The
Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, Fleet National Bank (the "Trustee") will act as Paying Agent
and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the
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Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture, dated as of June 12, 1997
(the "Indenture"), between the Company and the Trustee. This Note is one of a
duly authorized issue of Notes of the Company designated as its 9 3/4% Senior
Notes due 2007, Series A (the "Notes"), limited (except as otherwise provided
in the Indenture) in aggregate principal amount to $225,000,000, which may be
issued under the Indenture. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sec.Sec. 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture. Notwithstanding anything to
the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the TIA for a statement of them. The
Notes are general unsecured obligations of the Company.
5. Optional Redemption.
The Notes may not be redeemed at the option of the Company prior to June
15, 2002. Thereafter, the Company may redeem all or any of the Notes at any
time at redemption prices (expressed in percentages of the principal amount),
set forth below plus accrued interest, if any, to the Redemption Date if
redeemed during the 12-month period beginning on June 15 in the years indicated
below:
Year Percentage
2002............... 104.875%
2003............... 103.250%
2004............... 101.625%
2005 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to June 15, 2000, the
Company may redeem up to 33% of the aggregate principal amount of Notes with
the net proceeds from one or more Equity Offerings of the Company at a
redemption price equal to 109.75% of the principal amount thereof, plus accrued
and unpaid interest, if any, thereon to the date of redemption; provided,
however, that, after giving effect to any such
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redemption, at least $100,000,000 aggregate principal amount of the Notes
originally issued remain outstanding. Any such redemption must occur on or
prior to 120 days after the receipt of such net proceeds.
In addition, upon the occurrence of a Change of Control prior to June 15,
2002, the Company, at its option, may redeem all, but not less than all, of the
outstanding Notes at a redemption price equal to 100% of the principal amount
thereof plus the applicable Make-Whole Premium (a "Change of Control
Redemption"). The Company shall give not less than 30 nor more than 60 days
notice of such redemption within 30 days following a Change of Control.
"Make-Whole Premium" with respect to a Note means an amount equal to the
greater of (i) 1.0% of the outstanding principal amount of such Note and (ii)
the excess of (a) the present value of the remaining interest, premium and
principal payments due on such Note as if such Note were redeemed on June 15,
2002 computed using a discount rate equal to the Treasury Rate plus 62.5 basis
points, over (b) the outstanding principal amount of such Note.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address. Notes in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, from and after any Redemption Date,
if monies for the redemption of the Notes called for redemption shall have been
deposited with the Paying Agent for redemption on such Redemption Date, then,
unless the Company defaults in the payment of such Redemption Price, the Notes
called for redemption will cease to bear interest and the only right of the
Holders of such Notes will be to receive payment of the Redemption Price.
7. Change of Control Offer.
In the event of a Change of Control, upon the satisfaction of the
conditions set forth in the Indenture, the Company shall be required to offer
to purchase all of the then outstanding Notes pursuant to a Change of Control
Offer at a purchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of
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purchase. Holders of Notes which are the subject of such an offer to
repurchase shall receive an offer to repurchase and may elect to have
such Notes repurchased pursuant to and in accordance with the terms of
the Indenture.
8. Limitation on Disposition of Assets.
Under certain circumstances the Company is required to apply the net
proceeds from Asset Sales to offer to repurchase Notes at a price equal to 100%
of the aggregate principal amount thereof, plus accrued interest to the date of
purchase.
9. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer
of or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Notes or portions
thereof selected for redemption.
10. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of it for
all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
one year, the Trustee and the Paying Agents will pay the money back to the
Company. After that, all liability of the Trustee and such Paying Agents with
respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations sufficient to pay the principal of and interest on
the Notes to redemption or maturity and complies with the other provisions of
the Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
▇-▇
▇▇▇
▇▇. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
Default or Event of Default or compliance with any provision may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Notes then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes, or
comply with Article Five of the Indenture or make any other change that does
not adversely affect in any material respect the rights of any Holder of a
Note.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Subsidiaries to, among other things, incur additional Indebtedness,
make payments in respect of its Capital Stock or certain Indebtedness, enter
into transactions with Affiliates, create dividend or other payment
restrictions affecting Subsidiaries, merge or consolidate with any other
Person, incur liens, sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its assets or adopt a plan of liquidation. Such
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
15. Successors.
When a successor assumes, in accordance with the Indenture, all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor will be released from those obligations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount, of Notes then
outstanding may declare all the Notes to be due and payable in the manner, at
the time and with the effect provided in the Indenture. Holders of Notes may
not enforce the Indenture
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or the Notes except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Notes unless it has received
indemnity satisfactory to it. The Indenture permits, subject to certain
limitations therein provided Holders of a majority in aggregate principal
amount of the Notes then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is
in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Notes and may otherwise deal with the
Company, its Subsidiaries or their respective Affiliates as if it were not the
Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Company shall have any liability for any obligation of the Company under
the Notes or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Note by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
19. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on this Note.
20. Governing Law.
The Laws of the State of New York shall govern this Note and the
Indenture, without regard to principles of conflict of laws.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
▇-▇▇
▇▇▇
▇▇. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Note
Identification Procedures, the Company will cause CUSIP numbers to be printed
on the Notes as a convenience to the Holders of the Notes. No representation
is made as to the accuracy of such numbers as printed on the Notes and reliance
may be placed only on the other identification numbers printed hereon.
23. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Series A Note for the Company's 9 3/4% Senior Notes due 2007, Series B,
which have been registered under the Securities Act, in like principal amount
at maturity and having terms identical in all material respects as the Series A
Securities. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
24. Indenture.
Each Holder, by accepting a Note, agrees to be bound by all of the terms
and provisions of the Indenture, as the same may be amended from time to time.
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: ▇▇▇▇▇▇▇ CONTAINER CORPORATION, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Secretary.
A-12
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[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
________________________________
_______________________________________________________________
(please print or type name and address)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________
attorney to transfer the Note on the books of the Issuer with full power of
substitution in the premises.
Dated:________________________ ________________________________________________
NOTICE: The signature on this assignment must
correspond with the name as it appears upon the
face of the within Note in every particular
without alteration or enlargement or any change
whatsoever and be guaranteed by the endorser's
bank or broker.
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) , the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Note is being transferred:
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[Check One]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule
144A under the Securities Act; or
(3) __ to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act) that has
furnished to the Trustee a signed letter
containing certain representations and
agreements (the form of which letter can
be obtained from the Trustee); or
(4) __ outside the United states to a "foreign
person" in compliance with Rule 904 of
Regulation S under the Securities Act; or
(5) __ pursuant to the exemption from
registration provided by Rule 144 under
the Securities Act; or
(6) __ pursuant to an effective registration
statement under the Securities Act; or
(7) __ pursuant to another available exemption
from the registration requirements of the
Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than
the registered Holder thereof; provided, that if box (3), (4), (5) or (7) is
checked, the Company or the Trustee may require, prior to registering any such
transfer of the Notes, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee or the Company has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not
be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall
have been satisfied.
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Dated: _______________________ Signed: ______________________________________
(Sign exactly as name appears on the
other side of this Security)
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: _____________________________ _________________________________________
NOTICE: To be executed by
an executive officer
A-15
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$___________________
Dated:________________________ ________________________________________________
NOTICE: The signature on this assignment must
correspond with the name as it appears upon the
face of the within Note in every particular
without alteration or enlargement or any change
whatsoever and be guaranteed by the endorser's
bank or broker.
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EXHIBIT B
CUSIP No.:
▇▇▇▇▇▇▇ CONTAINER CORPORATION
9 3/4% Senior Note due 2007, Series B
No. 2 $225,000,000
▇▇▇▇▇▇▇ CONTAINER CORPORATION, a Delaware corporation (the "Company,"
which term includes any successor entity), for value received promises to pay
to Cede & Co. or registered assigns, the principal sum of TWO HUNDRED AND
TWENTY FIVE MILLION Dollars, on June 15, 2007.
Interest Payment Dates: June 15 and December 15,
commencing December 15, 1997
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officers.
Dated: , 1997
▇▇▇▇▇▇▇ CONTAINER CORPORATION
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
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This is one of the Notes described in the within-mentioned Indenture.
FLEET NATIONAL BANK, as Trustee
By: _____________________________________
Authorized Signatory
Dated: , 1997
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(REVERSE OF SECURITY)
▇▇▇▇▇▇▇ CONTAINER CORPORATION
9 3/4% Senior Note due 2007, Series B
1. Interest.
▇▇▇▇▇▇▇ CONTAINER CORPORATION, a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. Interest on the Notes will accrue from the most recent date
on which interest has been paid or, if no interest has been paid, from the
Issue Date. The Company will pay interest semi-annually in arrears on each
Interest Payment Date, commencing December 15, 1997. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time on
demand at the rate of 10 3/4% per annum; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the rate of 10 3/4% per annum.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted interest) to
the Persons who are the registered Holders at the close of business on the
Record Date immediately preceding the Interest Payment Date even if the Notes
are cancelled on registration of transfer or registration of exchange after
such Record Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company shall pay principal and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts ("U.S. Legal Tender"). However, the Company may pay
principal and interest by its check payable in such U.S. Legal Tender. The
Company may deliver any such interest payment to the Paying Agent or to a
Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, Fleet National Bank (the "Trustee") will act as Paying Agent
and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders. The Company or any of its
Subsidiaries may, subject
B-3
116
to certain exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an indenture, dated as of June 12, 1997
(the "Indenture"), between the Company and the Trustee. This Note is one of a
duly authorized issue of Notes of the Company designated as its 9 3/4% Senior
Notes due 2007 (the "Notes"), limited (except as otherwise provided in the
Indenture) in aggregate principal amount to $225,000,000, which may be issued
under the Indenture. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sec.Sec. 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture. Notwithstanding anything to
the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and said Act for a statement of them. The
Notes are general unsecured obligations of the Company.
5. Optional Redemption.
The Notes may not be redeemed at the option of the Company prior to June
15, 2002. Thereafter, the Company may redeem all or any of the Notes at any
time at redemption prices (expressed in percentages of the principal amount),
set forth below plus accrued interest, if any, to the Redemption Date if
redeemed during the 12-month period beginning on June 15 in the years indicated
below:
Year Percentage
2002............... 104.875%
2003............... 103.250%
2004............... 101.625%
2005 and thereafter 100.000%
Notwithstanding the foregoing, at any time prior to June 15, 2000, the
Company may redeem up to 33% of the aggregate principal amount of Notes with
the net proceeds from one or more Equity Offerings of the Company at the
redemption price equal to 109.75% of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the date of redemption;
provided, however, that, after giving effect to any such redemption, at least
$100,000,000 aggregate principal amount of
B-4
117
the Notes originally issued remain outstanding. Any such redemption must
occur on or prior to 120 days after the receipt of such net proceeds.
In addition, upon the occurrence of a Change of Control prior to June 15,
2002, the Company, at its option, may redeem all, but not less than all, of the
outstanding Notes at a redemption price equal to 100% of the principal amount
thereof plus the applicable Make-Whole Premium (a "Change of Control
Redemption"). The Company shall give not less than 30 nor more than 60 days
notice of such redemption within 30 days following a Change of Control.
"Make-Whole Premium" with respect to a Note means an amount equal to the
greater of (i) 1.0% of the outstanding principal amount of such Note and (ii)
the excess of (a) the present value of the remaining interest, premium and
principal payments due on such Note as if such Note were redeemed on June 15,
2002 computed using a discount rate equal to the Treasury Rate plus 62.5 basis
points, over (b) the outstanding principal amount of such Note.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address. Notes in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, from and after any Redemption Date,
if monies for the redemption of the Notes called for redemption shall have been
deposited with the Paying Agent for redemption on such Redemption Date, then,
unless the Company defaults in the payment of such Redemption Price, the Notes
called for redemption will cease to bear interest and the only right of the
Holders of such Notes will be to receive payment of the Redemption Price.
7. Change of Control Offer.
In the event of a Change of Control, upon the satisfaction of the
conditions set forth in the Indenture, the Company shall be required to offer
to purchase all of the then outstanding Notes pursuant to a Change of Control
Offer at a purchase price equal to 101% of the principal amount thereof plus
accrued interest, if any, to the date of purchase Holders of the Notes which
are the subject of such an offer to
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118
repurchase shall receive an offer to repurchase and may elect to have such
Notes repurchased pursuant to and in accordance with the terms of the Indenture.
8. Limitation on Disposition of Assets.
Under certain circumstances the Company is required to apply the net
proceeds from Asset Sales to offer to repurchase Notes at a price equal to 100%
of the aggregate principal amount thereof, plus accrued interest to the date of
purchase.
9. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder shall register the transfer
of or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Notes or portions
thereof selected for redemption.
10. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of it for
all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
one year, the Trustee and the Paying Agents will pay the money back to the
Company. After that, all liability of the Trustee and such Paying Agents with
respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations sufficient to pay the principal of and interest on
the Notes to redemption or maturity and complies with the other provisions of
the Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Notes (including certain covenants, but
excluding its obligation to pay the principal of and interest on the Notes).
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119
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and any existing
Default or Event of Default or compliance with any provision may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Notes then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes, or
comply with Article Five of the Indenture or make any other change that does
not adversely affect in any material respect the rights of any Holder of a
Note.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Subsidiaries to, among other things, incur additional Indebtedness,
make payments in respect of its Capital Stock or certain Indebtedness, enter
into transactions with Affiliates, create dividend or other payment
restrictions affecting Subsidiaries, merge or consolidate with any other
Person, incur liens, sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its assets or adopt a plan of liquidation. Such
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
15. Successors.
When a successor assumes, in accordance with the Indenture, all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor will be released from those obligations.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount, of Notes then
outstanding may declare all the Notes to be due and payable in the manner, at
the time and with the effect provided in the Indenture. Holders of Notes may
not enforce the Indenture
B-7
120
or the Notes except as provided in the Indenture.
The Trustee is not obligated to enforce the Indenture or the Notes unless it
has received indemnity satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Notes then outstanding to direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest) if it determines that withholding notice is
in their interest.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may become the owner or pledgee of Notes and may otherwise deal with the
Company, its Subsidiaries or their respective Affiliates as if it were not the
Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such, of
the Company shall have any liability for any obligation of the Company under
the Notes or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Note by
accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Notes.
19. Authentication.
This Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on this Note.
20. Governing Law.
The Laws of the State of New York shall govern this Note and the
Indenture, without regard to principles of conflict of laws.
21 Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
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22 CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Note
Identification Procedures, the Company will cause CUSIP numbers to be printed
on the Notes as a convenience to the Holders of the Notes. No representation
is made as to the accuracy of such numbers as printed on the Notes and reliance
may be placed only on the other identification numbers printed hereon.
23 Indenture.
Each Holder, by accepting a Note, agrees to be bound by all of the terms
and provisions of the Indenture, as the same may be amended from time to time.
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: ▇▇▇▇▇▇▇ CONTAINER CORPORATION, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Secretary.
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[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
________________________________
_______________________________________________________________
(please print or type name and address)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________
attorney to transfer the Note on the books of the Issuer with full power of
substitution in the premises.
Dated:________________________ _______________________________________________
NOTICE: The signature on this assignment must
correspond with the name as it appears upon the
face of the within Note in every particular
without alteration or enlargement or any change
whatsoever and be guaranteed by the endorser's
bank or broker.
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123
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$___________________
Dated:________________________ _______________________________________________
NOTICE: The signature on this assignment must
correspond with the name as it appears upon the
face of the within Note in every particular
without alteration or enlargement or any change
whatsoever and be guaranteed by the endorser's
bank or broker.
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Exhibit C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
___________, ____
Fleet National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: ▇▇▇▇▇▇▇ Container Corporation
9 3/4% Senior Notes due 2007
Ladies and Gentlemen:
In connection with our proposed purchase of 9 3/4% Senior Notes due 2007
(the "Notes") of ▇▇▇▇▇▇▇ Container Corporation (the "Company"), we confirm
that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated June 5, 1997 relating to the Notes and such other
information as we deem necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated on pages
(i)-(ii) of the Offering Memorandum and in the section entitled "Transfer
Restrictions" of the Offering Memorandum, including the restrictions on
duplication and circulation of the Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is subject to
certain restrictions and conditions set forth in the Indenture relating to the
Notes (as described in the Offering Memorandum) and the undersigned agrees to
be bound by, and not to resell, pledge or otherwise transfer the Notes except
in compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered or
sold except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell or otherwise transfer any Notes prior to the
date which is two years after the original
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issuance of the Notes, we will do so only (i) to the Company or any of its
subsidiaries, (ii) inside the United States in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), (iii) inside the
United States to an institutional "accredited investor" (as defined below)
that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to the Trustee (as defined in the Indenture relating
to the Notes), a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Notes, (iv) outside
the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (v) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if available), or (vi) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated herein.
4. We are not acquiring the Notes for or on behalf of, and will not
transfer the Notes to, any pension or welfare plan (as defined in Section 3 of
the Employee Retirement Income Security Act of 1974), except as permitted in
the section entitled "Transfer Restrictions" of the Offering Memorandum.
5. We understand that, on any proposed resale of any Notes, we will be
required to furnish to the Trustee and the Company such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or their investment, as the case may be.
7. We are acquiring the Notes purchased by us for our account or for one
or more accounts (each of which is an institutional "accredited investor") as
to each of which we exercise sole investment discretion.
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You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
By: _____________________________________
Name:
Title:
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Exhibit D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
______________, ____
Attention:
Re: ▇▇▇▇▇▇▇ Container Corporation (the "Company")
9 3/4% % Senior Notes due 2007
(the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $___________ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to
and in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
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128
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ______________________________________
Authorized Signature
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Exhibit E
SUBSIDIARY GUARANTEE
The undersigned hereby unconditionally guarantees on a senior unsecured
basis to the Holder of this Note the payments of principal of and interest on
this Notes in the amounts and at the time when due and interest on the overdue
principal and interest, if any, of this Note, if lawful, and the payment or
performance of all other obligations of the Company under the Indenture or the
Notes, to the Holder of this Note and the Trustee, all in accordance with and
subject to the terms and limitations of this Note, Article Ten of the Indenture
and this Subsidiary Guarantee. This Subsidiary Guarantee will become effective
in accordance with Article Ten of the Indenture and its terms shall be
evidenced therein. The validity and enforceability of any Subsidiary Guarantee
shall not be affected by the fact that it is not affixed to any particular
Note.
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article Ten of the Indenture and reference is hereby made to the
Indenture for the precise terms of this Subsidiary Guarantee and all of the
other provisions of the Indenture to which this Subsidiary Guarantee relates.
The internal laws of the State of New York shall govern this Subsidiary
Guarantee without regard to principles of conflict of laws.
[ ]
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
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130
ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to the Senior Note Securities Purchase Agreement, dated
as of March 25, 1997 (as amended, supplemented or otherwise modified from time
to time, the "Note Purchase Agreement"), among Global Telesystems Holdings
Ltd. (the "Issuer"), and the Purchasers named therein (the "Purchasers"),
and the Preference Share Securities Purchase Agreement, dated as of March 25,
1997 (as amended, supplemented or otherwise modified from time, the "Preferred
Purchase Agreement", and, together with the Note Purchase Agreement, the
"Purchase Agreements"), among the Issuer and the Purchasers named therein.
Unless otherwise defined herein, terms defined in the Note Purchase Agreement
and used herein shall have the meanings given to them in the Note Purchase
Agreement.
CIBC Wood Gundy Securities Corp. ("CIBC Securities"), CIBC Wood Gundy
Capital (SFC) Inc. ("CIBC Capital" and, together with CIBC Securities, the
"Assignors") and the Assignee identified on Schedule 1 hereto (the
"Assignee") agree as follows:
1. CIBC Securities hereby irrevocably sells and assigns to the Assignee
without recourse to CIBC Securities, and the Assignee hereby irrevocably
purchases and assumes from CIBC Securities without recourse to CIBC Securities,
as of the Effective Date (as defined below), the interest in CIBC Securities'
Senior Note Commitment described in Schedule 1 hereto (the "Assigned Note
Interest") and CIBC Securities' rights and obligations under the Note Purchase
Agreement with respect to the Senior Note Commitment under the Note Purchase
Agreement.
2. CIBC Securities hereby irrevocably sells and assigns to the Assignee
without recourse to CIBC Securities, and the Assignee hereby irrevocably
purchases and assumes from CIBC Securities without recourse to CIBC Securities,
as of the Effective Date, the interest in CIBC Securities' Commitment (as
Defined in the Preferred Purchase Agreement) described in Schedule 1 hereto, or
if the Preference Shares (as defined in the Preferred Purchase Agreement) are
already outstanding, such Preference Shares (the "Assigned Preference Share
Interest") and CIBC Securities' rights and obligations under the Preferred
Purchase Agreement with respect to the Commitment under the Preferred Purchase
Agreement.
3. CIBC Capital hereby irrevocably assigns to the Assignee, as of the
Effective Date, the number of shares of
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Class A Common Stock of GT Parent Holdings LDC set forth on Schedule I (the
"Class A Common Stock").
4. The Assignors (a) make no representation or warranty and assume no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Purchase Agreements or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Purchase Agreements, any other Transaction Document or any other
instrument or document furnished pursuant thereto, except that each Assignor
represents that it has not created any adverse claim upon the interests being
assigned by it hereunder and that such interests are free and clear of any such
adverse claim, lien or encumbrance and, to the best of CIBC Securities'
knowledge, the obligations of the Issuer under the Purchase Agreements are not
subject to any defense, right of setoff, subordination, preference action,
recoupment, counterclaim, or claim of any other kind; and (b) make no
representation or warranty and assume no responsibility with respect to the
financial condition of the Issuer, any of its Subsidiaries or any other obligor
or the performance or observance by the Issuer, any of its Subsidiaries or any
other obligor of any of their respective obligations under the Purchase
Agreements or any other Transaction Document or any other instrument or
document furnished pursuant hereto or thereto, other than that, to CIBC
Securities' best knowledge, no default, Event of Default or event which with
the giving of notice and/or the passage of time would constitute a default or
an Event of Default has occurred under the Purchase Agreements.
5. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Assumption Agreement; (b) confirms
that it has received a copy of each of the Purchase Agreements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption Agreement;
(c) agrees that it will, independently and without reliance upon the Assignors,
or any Purchaser and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Purchase Agreement or any other instrument or
document furnished pursuant hereto or thereto; and (d) agrees that it will be
bound by the provisions of the Purchase Agreements and will perform in
accordance with its terms all the obligations which by the terms of the
Purchase Agreements are required to be performed by it as a Purchaser.
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6. The effective date of this Assignment and Assumption Agreement shall be
the Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date").
7. From and after the Effective Date, (a) the Assignee shall be a party to
the Purchase Agreements and, to the extent provided in this Assignment and
Assumption Agreement, have the rights and obligations of a Purchaser thereunder
and shall be bound by the provisions thereof and (b) CIBC Securities shall, to
the extent provided in this Assignment and Assumption Agreement, relinquish its
rights and be released from its obligations under the Purchase Agreements.
8. This Assignment and Assumption Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflicts of law principles.
9. IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed as of the Effective Date by their respective
duly authorized officers on Schedule 1 hereto.
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Schedule 1
to Assignment and Assumption Agreement
Name of Assignee:
---------------------------------------------------------------
Effective Date of Assignment:
---------------------------------------------------
Principal Amount of the Senior Note Commitment Assigned
$
----------------------
Preference Share Commitment or Preference Shares Assigned
$ Liquidation Preference plus $
---------------------- ----------------------
accrued dividends, for total consideration of $
------------------------------
Number of Shares of Common Stock
-----------------------
Assignee:
By:
---------------------------------
Title:
CIBC Wood Gundy Securities Corp.
By:
---------------------------------
Title:
CIBC Wood Gundy Capital (SFC) Inc.
By:
---------------------------------
Title: