EXHIBIT 4.4
BRAND SCAFFOLD
SERVICES, INC.
INDENTURE
Dated as of February 25, 1998
Between
BRAND SCAFFOLD
SERVICES, INC.
as Company,
and
U.S. TRUST COMPANY
OF TEXAS, N.A.,
as Trustee
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$130,000,000
10 1/4% Senior Securities due 2008
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.................................. 1
SECTION 1.1. Definitions................................................................ 1
SECTION 1.2. Other Definitions.......................................................... 26
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.......................... 26
SECTION 1.4. Rules of Construction...................................................... 27
ARTICLE II
THE SECURITIES................................................ 27
SECTION 2.1. Form and Dating............................................................ 27
SECTION 2.2. Execution and Authentication............................................... 29
SECTION 2.3. Registrar and Paying Agent................................................. 30
SECTION 2.4. Agent to Hold Money in Trust............................................... 30
SECTION 2.5. Holder Lists............................................................... 30
SECTION 2.6. Transfer and Exchange...................................................... 31
SECTION 2.7. Replacement Securities..................................................... 46
SECTION 2.8. Outstanding Securities..................................................... 47
SECTION 2.9. Treasury Securities........................................................ 47
SECTION 2.10. Temporary Securities....................................................... 47
SECTION 2.11. Cancellation............................................................... 48
SECTION 2.12. Defaulted Interest......................................................... 48
SECTION 2.13. CUSIP Numbers.............................................................. 49
SECTION 2.14. Record Date................................................................ 49
ARTICLE III
REDEMPTION.................................................. 49
SECTION 3.1. Notices to Trustee......................................................... 49
SECTION 3.2. Selection of Securities To Be Redeemed..................................... 50
SECTION 3.3. Notice of Redemption....................................................... 50
SECTION 3.4. Effect of Notice of Redemption............................................. 51
SECTION 3.5. Deposit of Redemption Price................................................ 51
SECTION 3.6. Securities Redeemed in Part................................................ 51
SECTION 3.7. Offer to Purchase by Application of Excess
Proceeds................................................................... 51
ARTICLE IV
COVENANTS.................................................. 54
SECTION 4.1. Payment of Securities...................................................... 54
SECTION 4.2. Maintenance of Office or Agency............................................ 54
SECTION 4.3. Limitation on Transactions with Affiliates................................. 55
SECTION 4.4. Limitation on Indebtedness................................................. 55
SECTION 4.5. Limitation on Asset Sales.................................................. 56
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SECTION 4.6. Limitation on Restricted Payments.......................................... 57
SECTION 4.7. Corporate Existence........................................................ 59
SECTION 4.8. Payment of Taxes and Other Claims.......................................... 59
SECTION 4.9. Notice of Defaults......................................................... 60
SECTION 4.10. Maintenance of Properties.................................................. 60
SECTION 4.11. Compliance Certificate..................................................... 60
SECTION 4.12. Provision of Financial Information......................................... 61
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.................................... 61
SECTION 4.14. Change of Control.......................................................... 62
SECTION 4.15. Limitation on Sale and Lease-Back Transactions............................. 63
SECTION 4.16. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries........................................ 64
SECTION 4.17. Limitation on Liens........................................................ 65
SECTION 4.18. Limitation on Line of Business............................................. 65
SECTION 4.19. Subsidiary Guarantees...................................................... 65
ARTICLE V
MERGERS; SUCCESSOR CORPORATION........................................ 66
SECTION 5.1. Restriction on Mergers, Consolidations and Certain
Sales of Assets............................................................ 66
SECTION 5.2. Successor Corporation Substituted.......................................... 67
ARTICLE VI
DEFAULT AND REMEDIES............................................. 68
SECTION 6.1. Events of Default.......................................................... 68
SECTION 6.2. Acceleration............................................................... 69
SECTION 6.3. Other Remedies............................................................. 70
SECTION 6.4. Waiver of Past Default..................................................... 71
SECTION 6.5. Control by Majority........................................................ 71
SECTION 6.6. Limitation on Suits........................................................ 71
SECTION 6.7. Rights of Holders To Receive Payment....................................... 72
SECTION 6.8. Collection Suit by Trustee................................................. 72
SECTION 6.9. Trustee May File Proofs of Claim........................................... 72
SECTION 6.10. Priorities................................................................. 73
SECTION 6.11. Undertaking for Costs...................................................... 73
ARTICLE VII
TRUSTEE................................................... 74
SECTION 7.1. Duties of Trustee.......................................................... 74
SECTION 7.2. Rights of Trustee.......................................................... 75
SECTION 7.3. Individual Rights of Trustee............................................... 76
SECTION 7.4. Trustee's Disclaimer....................................................... 76
SECTION 7.5. Notice of Defaults......................................................... 76
SECTION 7.6. Reports by Trustee to Holders.............................................. 77
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SECTION 7.7. Compensation and Indemnity................................................. 77
SECTION 7.8. Replacement of Trustee..................................................... 78
SECTION 7.9. Successor Trustee by Merger, etc. ......................................... 79
SECTION 7.10. Eligibility; Disqualification.............................................. 80
SECTION 7.11. Preferential Collection of Claims Against the
Company.................................................................... 80
SECTION 7.12. Money Held In Trust........................................................ 80
ARTICLE VIII
DISCHARGE OF INDENTURE............................................ 80
SECTION 8.1. Termination of Company's Obligations....................................... 80
SECTION 8.2. Application of Trust Money................................................. 81
SECTION 8.3. Repayment to the Company................................................... 82
SECTION 8.4. Reinstatement.............................................................. 82
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS..................................... 82
SECTION 9.1. Without Consent of Holders................................................. 82
SECTION 9.2. With Consent of Holders.................................................... 83
SECTION 9.3. Compliance with Trust Indenture Act........................................ 84
SECTION 9.4. Revocation and Effect of Consents.......................................... 84
SECTION 9.5. Notation on or Exchange of Securities...................................... 85
SECTION 9.6. Trustee To Sign Amendments, etc. .......................................... 85
ARTICLE X
MISCELLANEOUS................................................ 86
SECTION 10.1. Trust Indenture Act Controls............................................... 86
SECTION 10.2. Notices.................................................................... 86
SECTION 10.3. Communications by Holders with Other Holders............................... 88
SECTION 10.4. Certificate and Opinion as to Conditions Precedent......................... 88
SECTION 10.5. Statements Required in Certificate or Opinion.............................. 88
SECTION 10.6. Rules by Trustee, Paying Agent, Registrar.................................. 88
SECTION 10.7. Governing Law.............................................................. 89
SECTION 10.8. No Recourse Against Others................................................. 89
SECTION 10.9. Successors................................................................. 89
SECTION 10.10. Counterpart Originals...................................................... 89
SECTION 10.11. Severability............................................................... 89
SECTION 10.12. No Adverse Interpretation of Other Agreements.............................. 89
SECTION 10.13. Legal Holidays............................................................. 90
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Security: This Table of Contents shall not, for any purpose, be deemed
to be a part of this Indenture.
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CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
ss.310 (a)(1)...................................................................... 7.10
(a)(2)...................................................................... 7.10
(a)(3)...................................................................... N.A.
(a)(4)...................................................................... N.A.
(a)(5)...................................................................... 7.10
(b)......................................................................... 7.8; 7.10
(c)......................................................................... N.A.
ss. 311(a)......................................................................... 7.11
(b)......................................................................... 7.11
(c)......................................................................... N.A.
ss.312 (a)......................................................................... 2.5
(b)......................................................................... 10.3
(c)......................................................................... 10.3
ss.313 (a)......................................................................... 7.6
(b)(1)...................................................................... N.A.
(b)(2)...................................................................... 7.6
(c)......................................................................... 7.6; 10.2
(d)......................................................................... 7.6
ss.314 (a)......................................................................... 4.11; 4.12
(b)......................................................................... N.A.
(c)(1)...................................................................... 10.4
(c)(2)...................................................................... 10.4
(c)(3)...................................................................... N.A.
(d)......................................................................... N.A.
(e)......................................................................... 12.5
(f)......................................................................... N.A.
ss.315 (a)......................................................................... 7.1(b)
(b)......................................................................... 7.5; 10.2
(c)......................................................................... 7.1(a)
(d)......................................................................... 7.3(c)
(e)......................................................................... 6.11
ss.316 (a)(last sentence).......................................................... 2.9
(a)(1)(A)................................................................... 6.5
(a)(1)(B)................................................................... 6.4
(a)(2)...................................................................... N.A.
(b)......................................................................... 6.7
(c)......................................................................... 9.4
ss.317 (a)(1)...................................................................... 6.8
(a)(2)...................................................................... 6.9
(b)......................................................................... 2.4
ss.318 (a)......................................................................... 10.1
(a)......................................................................... 10.1
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N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be a part of this Indenture.
INDENTURE dated as of February 25, 1998, between BRAND SCAFFOLD
SERVICES, INC., a Delaware corporation (the "Company," as more specifically
defined herein), and U.S. TRUST COMPANY OF TEXAS, N.A., a national banking
association, as trustee (the "Trustee" as more specifically defined herein).
The parties hereto hereby agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the
Company's 10 1/4% Senior Notes due 2008 (the "Initial Securities") and the
Company's 10 1/4% Senior Notes due 2008, Series B (the "Exchange Securities,"
as more specifically defined herein) and, together with the Initial Securities,
the "Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"144A Global Security" means the Global Security in the form
of Exhibit A hereto bearing the Global Security Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee that will be issued in a denomination equal to
the outstanding principal amount of the Securities sold in reliance on Rule
144A.
"Acquired Indebtedness" means, with respect to any specified
Person, Indebtedness of any other Person existing at the time such other Person
merged with or into or became a subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a subsidiary of such specified Person,
but excluding Indebtedness which is extinguished, retired or repaid in
connection with such other Person merging with or into or becoming a subsidiary
of such specified Person.
"Acquisition Agreements" means (i) that certain Amended and
Restated Transaction Agreement, dated as of September 18, 1996, among DLJ
Merchant Banking Partners, L.P., DLJ International Partners, C.V., DLJ Offshore
Partners, C.V., DLJ Merchant Banking Funding, Inc., Carlisle Enterprises, L.P.,
DLJ Brand Holdings, Inc., Brand Scaffold Services, Inc., Brand Scaffold
Builders, Inc., Brand Scaffold Rental & Erection, Inc., 702569 Alberta Ltd.,
Rust International Inc., Rust Industrial Services Inc., Rust Scaffold Services
Inc., Rust Scaffold Builders Inc. and Rust Scaffold Rental & Erection Inc., as
amended, restated, supplemented or otherwise modified from time to time and
(ii) each other agreement (other than the Shareholders Agreement) entered into
by, between or among any one or more of the foregoing and one or more other
person, as the case may be, pursuant to or in connection with the transactions
contemplated by such Amended and
Restated Transaction Agreement, each as amended, restated, supplemented or
otherwise modified from time to time.
"Additional Interest" means the additional interest on the
Initial Securities which the Company has agreed to pay, as liquidated damages,
under the circumstances and to the extent set forth in Section 5 of the
Registration Rights Agreement.
"Affiliate" of any specified Person means another Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided, however, that beneficial ownership of 20% or more of the Voting Stock
of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or Co-Registrar.
"Applicable Procedures" means with respect to any transfer or
exchange of or for beneficial interests in any Global Security, the rules and
procedures of the DTC, Euroclear or Cedel that apply to such transfer or
exchange.
"Asset Sale" means any direct or indirect sale, conveyance,
transfer, lease or other disposition (including, without limitation, by way of
merger or consolidation or by means of a Sale and Lease-Back Transaction) by
the Company or any Subsidiary to any Person other than the Company or a
Subsidiary of (i) any Capital Stock of any Subsidiary (except for directors'
qualifying shares or certain minority interests sold to other Persons solely
due to local law requirements that there be more than one stockholder, but
which are not in excess of what is required for such purpose), or (ii) any
other Property or assets of the Company or any Subsidiary, in the case of
either clause (i) or (ii), whether in a single transaction or a series of
related transactions (A) that have a Fair Value in excess of $500,000 or (B)
for net proceeds in excess of $500,000. Notwithstanding the foregoing, the
following shall not constitute Asset Sales: (i) sales of obsolete, worn out,
lost, damaged or shortage equipment in the ordinary course of business or other
assets that, in the Company's reasonable judgment, are no longer used or useful
in the conduct of the business of the Company and its Subsidiaries), (ii) any
scaffolding rental contract or other lease of Property or other assets entered
into by the Company or any Subsidiary in the ordinary course of business, other
than any Bargain Purchase Contract, (iii) a Restricted Payment or Restricted
Investment permitted under Section 4.6, (iv) a Change of Control, (v) a
consolidation, merger, continuance or the disposition of all or substantially
all of the assets of the Company and the Subsidiaries, taken as a whole in
compliance with Section 5.1, (vi) any trade or exchange by the Company or any
Subsidiary of Property or assets for Replacement Assets owned or held by
another Person, provided that (x) the Fair Value of the Property or assets
2
traded or exchanged by the Company or such Subsidiary (including cash or cash
equivalents to be delivered by the Company or such Subsidiary) is reasonably
equivalent to the Fair Value of the Replacement Assets (together with cash or
cash equivalents to be received by the Company or such Subsidiary) or other
assets. An Asset Sale shall include the requisition of title to, seizure of or
forfeiture of any Property or assets, or any actual or constructive total loss
or an agreed or compromised total loss of any Property or assets.
"Attributable Indebtedness" in respect of a Sale and
Lease-Back Transaction means, at any date of determination, the present value
(discounted at the interest rate borne by the Securities, compounded annually)
of the total obligations of the lessee for rental payments during the remaining
term of the lease (or to the first date on which the lessee is permitted to
terminate such lease without the payment of a penalty) included in such Sale
and Lease-Back Transaction (including any period for which such lease has been
extended).
"Average Life" means, as of any date, with respect to any
debt security, the quotient obtained by dividing (i) the sum of the products of
(x) the number of years from such date to the date of each scheduled principal
payment (including any sinking fund or mandatory redemption payment
requirements) of such debt security multiplied in each case by (y) the amount
of such principal payment by (ii) the sum of all such principal payments.
"Bank Facility" means all financing provided to, or
Indebtedness incurred by, the Company pursuant to that certain Credit
Agreement, dated as of September 30, 1996, among Brand Scaffold Services, Inc.,
as the borrower, various financial institutions, as the lenders, DLJ Capital
Funding, Inc., as the syndication agent, Bank of America Illinois, as the
letter of credit issuer, and Bank of America National Trust & Savings
Association, as the administrative agent, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as by that certain First Amendment to
the Credit Agreement, dated as of November 21, 1996, and by that certain Second
Amendment to Credit Agreement, dated as of February 19, 1998, and as further
amended, modified, renewed, refunded, replaced, refinanced from time to time,
including any agreement extending the maturity of or refinancing or refunding
all or any portion of the Indebtedness thereunder or increasing the amount that
may be borrowed under such agreement or any successor agreement, whether or not
among the same parties.
"Bankruptcy Law" means (i) Title 11 of the U.S. Code or (ii)
any other law of the United States, any political subdivision thereof or any
other jurisdiction relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors or composition with creditors or other
similar law.
"Bargain Purchase Contract" means a scaffolding rental
contract or lease that provides for acquisition of Property by the other party
to such agreement during or at the end of the term thereof for less than Fair
Market Value thereof at the time such right to acquire such Property is
granted.
3
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the secretary, an assistant secretary or director
of such Person to have been duly adopted by the Board of Directors of such
Person and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in the City
of New York are authorized or obligated by law, resolution or executive order
to close.
"Capital Lease Obligation" means, at any time as to any
Person with respect to any Property leased by such Person as lessee, the amount
of the liability with respect to such lease that would be required at such time
to be capitalized and accounted for as a capital lease on the balance sheet of
such Person prepared in accordance with GAAP.
"Capital Stock" in any Person means any and all shares,
interests, partnership interests, participations or other equivalents in the
equity interest (however designated) in such Person and any rights (other than
debt securities convertible into an equity interest), warrants or options to
acquire any equity interest in such Person.
"Cash Equivalents" means (i) Government Securities, (ii) any
certificate of deposit maturing not more than 365 days after the date of
acquisition issued by, or time deposit of, an Eligible Institution or any
lender under the Bank Facility, (ii) commercial paper maturing not more than
365 days after the date of acquisition of an issuer (other than an Affiliate of
the Company) with a rating, at the time as of which any investment therein is
made, or "A-3" (or higher) according to S&P or "P-2" (or higher) according to
▇▇▇▇▇'▇ or carrying an equivalent rating by a nationally recognized rating
agency if both of the two named rating agency cease publishing ratings of
investments, (iv) any bankers acceptances or money market deposit accounts
issued by an Eligible Institution and (v) any fund investing exclusively in
investments of the types described in clauses (i) through (iv) above.
"Cash Proceeds" means, with respect to any Asset Sale by any
Person, the aggregate consideration received for such Asset Sale by such Person
in the form of cash or cash equivalents (including any amounts of insurance or
other proceeds received in connection with an Asset Sale of the type described
in the last sentence of the definition thereof), including payments in respect
of deferred payment obligations when received in the form of cash or cash
equivalents (except to the extent that such obligations are financed or sold
with recourse to such Person or any subsidiary thereof).
"Cedel" means Cedel Bank, sociedad anonyme.
4
"Change of Control" means (i) a determination by the Company
that any Person or group (as defined in Section 13 (d) (3) or 14(d) (2) of the
Exchange Act) has become the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of more than 50% of the Voting Stock of the Company other
than Permitted Holders; (ii) the Company is merged with or into or consolidated
with another corporation and immediately after giving effect to the merger or
consolidation, more than 50% of the outstanding voting securities entitled to
vote generally in the election of directors or persons who serve similar
functions of the surviving or resulting entity are then beneficially owned
(within the meaning of Rule 13d-3 of the Exchange Act) in the aggregate by
Persons other than (x) the stockholders of the Company immediately prior to
such merger or consolidation, or (y) if the record date has been set to
determine the stockholders of the Company entitled to vote on such merger or
consolidation, the stockholders of the Company as of such a record date; (iii)
the Company, either individually or in conjunction with one or more
Subsidiaries, sells, conveys, transfers or leases, or the Subsidiaries sell,
convey, transfer or lease, all or substantially all of the assets of the
Company or the Company and the Subsidiaries, taken as a whole (either in one
transaction or a series of related transactions), including Capital Stock of
the Subsidiaries, to any Person (other than a Subsidiary); (iv) the liquidation
or dissolution of the Company; or (v) the first day on which a majority of the
individuals who constitute the Board of Directors of the Company are not
Continuing Directors.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces such party pursuant to
the applicable provisions of Article V, and thereafter, "Company" shall mean
such successor.
"Consolidated Interest Coverage Ratio" means as of the date
of the transaction giving rise to the need to calculate the Consolidated
Interest Coverage Ratio (the "Transaction Date"), the ratio of the aggregate
amount of EBITDA to aggregate Consolidated Interest Expense of the Company and
its consolidated Subsidiaries for the four fiscal quarters for which financial
information in respect thereof is available immediately prior to the applicable
Transaction Date (the "Determination Period"); provided that if the Company or
any of its consolidated Subsidiaries is a party to any Interest Swap Obligation
that would have the effect of changing the interest rate on any Indebtedness of
the Company or any of its consolidated Subsidiaries for such four-quarter
period (or a portion thereof), the resulting rate shall be used for such
four-quarter period or portion thereof; provided, further, that in the event
that the Company or any of its Subsidiaries incurs, assumes, guarantees,
redeems or repays any Indebtedness (other than Indebtedness under the Revolving
Facility) subsequent to the commencement of the Determination Period but on or
prior to the Transaction Date, then the Consolidated Interest Coverage Ratio
shall be calculated giving pro forma effect to such incurrence, assumption,
guarantee, redemption or repayment of Indebtedness, as if the same had occurred
at the beginning of the Determination Period; provided, further, that if the
transaction giving rise to the need to calculate the Consolidated Interest
Coverage Ratio would have the effect of increasing or decreasing EBITDA in the
future and if such increase or decrease is readily quantifiable and is
attributable to such transaction, EBITDA shall be
5
calculated on a pro forma basis as if such transaction had occurred on the
first day of the Determination Period and if, during the Determination Period,
(x) the Company or any of its consolidated Subsidiaries shall have engaged in
any Asset Sale, EBITDA for such period shall be reduced by an amount equal to
the EBITDA (if positive), or increased by an amount equal to the EBITDA (if
negative), directly attributable to the assets which are the subject of such
Asset Sale for such period calculated on a pro forma basis as if such Asset
Sale and any related retirement of Indebtedness had occurred on the first day
of such period or (y) after the Issue Date, the Company or any of its
consolidated Subsidiaries shall have acquired any material assets other than in
the ordinary course of business, EBITDA and Consolidated Interest Expense shall
be calculated on a pro forma basis as if such acquisition had occurred on the
first day of such period.
"Consolidated Interest Expense" means, with respect to any
Person for any period, without duplication (A) the sum of (i) the aggregate
amount of cash and non-cash interest expense (including capitalized interest)
of such Person and its subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP in respect of Indebtedness
(including, without limitation, (w) net costs associated with Interest Swap
Obligations (including any amortization of discounts), (x) the interest portion
of any deferred payment obligation calculated in accordance with the effective
interest method, (y) all accrued interest and (z) all commissions, discounts
and other fees and charges owed with respect to letters of credit, bankers
acceptances or similar facilities) paid or accrued, or scheduled to be paid or
accrued, during such period; (ii) dividends on Preferred Stock or Redeemable
Stock of such Person (and Preferred Stock or Redeemable Stock of its
subsidiaries if paid to a Person other than such Person or its subsidiaries)
declared and payable in cash; (iii) the portion of any rental obligation of
such Person or its subsidiaries in respect of any Capital Lease Obligation
allocable to interest expense in accordance with GAAP; (iv) the portion of any
rental obligation of such Person or its subsidiaries in respect of any Sale and
Lease-Back Transaction allocable to interest expense (determined as if such
were treated as a Capital Lease Obligation); and (v) to the extent any debt of
any other Person is guaranteed by such Person or any of its subsidiaries, the
aggregate amount of interest paid, accrued or scheduled to be paid or accrued,
by such other Person during such period attributable to any such debt, less (B)
to the extent included in (A) above, amortization or write-off of deferred
financing costs of such Person and its subsidiaries during such period and any
charge related or any premium or penalty paid in connection with redeeming or
retiring any Indebtedness of such Person and its subsidiaries prior to its
stated maturity, in the case of both (A) and (B) above, after elimination of
intercompany accounts among such Person and its subsidiaries and as determined
in accordance with GAAP. For purposes of clause (ii) above, dividend
requirements attributable to any Preferred Stock or Redeemable Stock shall be
deemed to be an amount equal to the amount of dividend requirements on such
Preferred Stock or Redeemable Stock times a fraction, the numerator of which is
the amount of such dividend requirements, and the denominator of which is one
minus the applicable combined federal, state, local and foreign income tax rate
of the Company and its Subsidiaries (expressed as a decimal), on a consolidated
basis, for the fiscal
6
year immediately preceding the date of the transaction giving rise to the need
to calculate Consolidated Interest Expense.
"Consolidated Net Income" of any Person means, for any
period, the aggregate net income (or net loss, as the case may be) of such
Person and its subsidiaries for such period on a consolidated basis, determined
in accordance with GAAP; provided that there shall be excluded therefrom,
without duplication, (i) any net income of any Unrestricted Subsidiary, except
that the Company's or any Subsidiary's interest in the net income of such
Unrestricted Subsidiary for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash or cash equivalents actually
distributed by such Unrestricted Subsidiary during such period to the Company
or a Subsidiary as a dividend or other distribution, (ii) gains and losses, net
of taxes, from Asset Sales or reserves relating thereto, (iii) the net income
of any Person that is not a subsidiary or that is accounted for by the equity
method of accounting which shall be included only to the extent of the amount
of dividends or distributions paid to such Person or its subsidiaries, (iv)
items classified as extraordinary, unusual or non-recurring (other than the tax
benefit, if any, of the utilization of net operating loss carryforwards or
alternative minimum tax credits), (v) the net income of any Person acquired by
such specified Person or any of its subsidiaries in a pooling-of-interests
transaction for any period prior to the date of such acquisition, (vi) any gain
or loss, net of taxes, realized on the termination of any employee pension
benefit plan, (vii) the net income of any subsidiary of such specified Person
to the extent that the transfer to that Person of that income is not at the
time permitted, directly or indirectly, by any means (including by dividend,
distribution, advance or loan or otherwise), or by operation of the terms of
its charter or any agreement with a Person other than with such specified
Person, instrument held by a Person other than by such specified Person,
judgment, decree, order, statute, law, rule or governmental regulations
applicable to such subsidiary or its stockholders, except for any dividends or
distributions actually paid by such subsidiary to such Person, (viii) the
portion of the WMX Payments not included in net income (ix) gains or losses
associated with non-cash compensations items, including, without limitation,
the vesting of options to purchase shares of Capital Stock of the Company, (x)
amortization of fees incurred in connection with the Acquisition, (xi) one-time
write-offs of intangibles related to the transactions comprising or incidental
to the Offering, (xii) gains or losses associated with the cumulative effect of
a change in accounting principles and (xiii) with regard to a non-Subsidiary,
any aggregate net income (or loss) in excess of such Person's or such
subsidiary's pro rata share of such non-Subsidiary's net income (or loss).
"Consolidated Net Worth" of any Person means, as of any date,
the sum of the Capital Stock and additional paid-in capital plus retained
earnings (or minus accumulated deficit) of such Person and its subsidiaries on
a consolidated basis at such date, each item determined in accordance with
GAAP, less amounts attributable to Redeemable Stock of such Person or any of
its subsidiaries.
7
"Continuing Director" means an individual who (i) is a member
of the Board of Directors of the Company and (ii) either (A) was a member of
the Board of Directors of the Company on the Issue Date or (B) whose nomination
for election or election to the Board of Directors of the Company was approved
by vote of at least a majority of the directors then still in office who were
either directors on the Issue Date or whose election or nomination for election
was previously so approved.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 10.2 or such other address as the
Trustee may give notice to the Company.
"Currency Hedge Obligations" means, at any time as to any
Person, the obligations of such Person at such time which were incurred in the
ordinary course of business pursuant to any foreign currency exchange
agreement, option or future contract or other similar agreement or arrangement
designed to protect against or manage such Person's or any of its subsidiaries'
exposure to fluctuations in foreign currency exchange rates.
"Default" means any event, act or condition the occurrence of
which is, or after notice or the passage of time or both would be, an Event of
Default.
"Definitive Security" means a certificated Security
registered in the name of the Holder thereof and issued in accordance with
Section 2.6 hereof, in the form of Exhibit A hereto except that such Security
shall not bear the Global Security Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Security" attached thereto.
"Depositary" means, with respect to the Securities issuable
or issued in whole or in part in global form, the Person specified in Section
2.3 hereof as the Depositary with respect to the Securities, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Determination Period" has the meaning specified under clause
(i) of the definition of "Consolidated Interest Coverage Ratio."
"EBITDA" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period, plus (minus) to the
extent reflected in the income statement of such Person for such period from
which Consolidated Net Income is determined, without duplication, (i)
Consolidated Interest Expense, (ii) income tax expense, (iii) depreciation
expense, (iv) amortization expense, (v) any charge related to any premium or
penalty paid in connection with redeeming or retiring any Indebtedness prior to
its stated maturity, (vi) prior to january 1, 19999, the product of (A) the Pro
Forma Cost Reductions and (B) a fraction the numerator of which is the number
of days between the transaction date giving rise to this calculation and
January 1, 1998, inclusive, and the denominator of which is 365, (vii) the
one-time write-off of merger expenses incurred in connection with any
8
acquisition consummated after the Issue date, (viii) the one-time write-off of
severance costs associated with the cost reduction program implemented by the
Company in the fourth quarter of 1997, (ix) Non-Cash Claims and (x) any other
non-cash charges (revenues) to the extent deducted from (or added to)
Consolidated net Income except for any non-cash charges (revenues) that
represent accruals of, or reserves for, cash disbursements to be made in any
future accounting period.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus not less than $100.0 million or its
equivalent in foreign currency, whose short-term debt is rated "A-3" or higher
according to S&P or "P-2" or higher according to Moody's or carrying an
equivalent rating by a nationally recognized rating agency if both of the two
named rating agencies cease publishing ratings of investments.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York
(Brussels Office) as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Offer" has the meaning set forth in the
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Exchange Securities" means the Securities issued in the
Exchange Offer pursuant to Section 2.6(f).
"Existing Indebtedness" means the Indebtedness of the Company
and its Subsidiaries (other than Indebtedness under the Bank Facility) in
existence on the date hereof, until such amounts are repaid.
"Fair Market Value" means, with respect to consideration
received or to be received pursuant to any transaction by any Person, the fair
market value of such consideration as determined in good faith by the Board of
Directors of the Company.
"Fair Value" means, with respect to any asset or Property,
the price which could be negotiated in an arm's-length free market transaction,
for cash, between a willing
9
seller and a willing buyer, neither of whom is under undue pressure or
compulsion to complete the transaction.
"GAAP" means, at any date, United States generally accepted
accounting principles, consistently applied, as set forth in the opinions of
the Accounting Principles Board of the American Institute of Certified Public
Accountants ("AICPA") and statements of the Financial Accounting Standards
Board, or in such other statements by such other entity as may be designated by
the AICPA, that are applicable to the circumstances as of the date of
determination; provided, however, that all calculations made for purposes of
determining compliance with the provisions set forth in the Indenture shall
utilize GAAP in effect at the Issue Date.
"Global Securities" means, individually and collectively,
each of the Restricted Global Securities and the Unrestricted Global
Securities, in the form of Exhibit A or Exhibit B hereto issued in accordance
with Section 2.1, 2.6(b), 2.6(d) or 2.6(f) hereof.
"Global Security Legend" means the legend set forth in
Section 2.6(g)(ii), which is required to be placed on all Global Securities
issued under this Indenture.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Guarantor" means any Subsidiary that shall have guaranteed,
pursuant to a supplemental indenture and the requirements therefor set forth in
the Indenture, the payment of all principal of, and interest and premium, if
any, and Additional Interest, if any, on the Securities and all other amounts
payable under the Securities or the Indenture, which guarantee shall be
subordinate to all Senior Indebtedness and pari passu with or senior to all
other Indebtedness of such Subsidiary.
"Holder" means a Person in whose name a Security is
registered on the books of the Registrar or any co-Registrar.
"Holdings" means DLJ Brand Holdings, Inc., a Delaware
corporation.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, suffer to exist, incur (by
conversion, exchange or otherwise), assume, guarantee or otherwise become
liable in respect of such Indebtedness or other obligation or the recording, as
required pursuant to GAAP or otherwise, of any such Indebtedness or obligation
on the balance sheet of such Person (and "incurrence," "incurred," "incurrable"
and "incurring" shall have meanings correlative to the foregoing); provided
that a change in GAAP that results in an obligation of such Person that exists
at such time
10
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
Indebtedness of a Person which is outstanding at the time it becomes a
Subsidiary shall be deemed to have been incurred at the time at which it
becomes a Subsidiary.
"Indebtedness" as applied to any Person means, at any time,
without duplication, whether recourse is to all or a portion of the assets of
such Person, and whether or not contingent, (i) any obligation of such Person
for borrowed money; (ii) any obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including, without limitation,
any such obligations incurred in connection with acquisition of Property,
assets or businesses, excluding accounts payable made in the ordinary course of
business which are not more than 90 days overdue or which are being contested
in good faith and by appropriate proceedings; (iii) any obligation of such
Person for all or any part of the purchase price of Property or for the cost of
Property constructed or of improvements thereto (including any obligation under
or in connection with any letter of credit related thereto), other than
accounts payable incurred in respect of Property and services purchased in the
ordinary course of business which are no more than 90 days overdue or which are
being contested in good faith and by appropriate proceedings; (iv) any
obligation of such Person upon which interest charges are customarily paid
(other than accounts payable incurred in the ordinary course of business); (v)
any obligation of such Person under conditional sale or other title retention
agreements relating to purchased Property; (vi) any obligation of such Person
issued or assumed as the deferred purchase price of Property (other than
accounts payable incurred in the ordinary course of business which are no more
than 90 days overdue or which are being contested in good faith and by
appropriate proceedings); (vii) any Capital Lease Obligation or Attributable
Indebtedness pursuant to any Sale and Lease-Back Transaction of such Person;
(viii) any obligation of any other Person secured by (or for which the obligee
thereof has an existing right, contingent or otherwise, to be secured by) any
Lien on Property owned or acquired, whether or not any obligation secured
thereby has been assumed, by such Person; (ix) any obligation of such Person in
respect of any letter of credit supporting any obligation of any other Person;
(x) the maximum fixed repurchase price of any Redeemable Stock of such Person
(or if such Person is a subsidiary, any Preferred Stock of such Person); (xi)
the notional amount of any Interest Swap Obligation or Currency Hedge
Obligation of such Person at the time of determination; and (xii) any
obligation which is in economic effect a guarantee, regardless of its
characterization (other than an endorsement in the ordinary course of
business), with respect to any Indebtedness of another Person, to the extent
guaranteed. For purposes of the preceding sentence, the maximum fixed
repurchase price of any Redeemable Stock or subsidiary Preferred Stock that
does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Redeemable Stock or subsidiary Preferred Stock as if such
Redeemable Stock or subsidiary Preferred Stock were repurchased on any date on
which Indebtedness shall be required to be determined pursuant to the
Indenture; provided, however, that if such Redeemable Stock or subsidiary
Preferred Stock is not then permitted to be repurchased, the repurchase price
shall be the book value of such Redeemable Stock or subsidiary Preferred Stock.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all
11
unconditional obligations as described above and the maximum liability of any
guarantees at such date; provided that for purposes of calculating the amount
of any non-interest bearing or other discount security, such Indebtedness shall
be deemed to be the principal amount thereof that would be shown on the balance
sheet of the issuer dated such date prepared in accordance with GAAP but that
such security shall be deemed to have been incurred only on the date of the
original issuance thereof.
"Indenture" means this Indenture as amended, supplemented or
otherwise modified from time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Security through a Participant.
"Initial Securities" has the meaning assigned to it in the
preamble to this Indenture.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Securities.
"Interest Swap Obligation" means, with respect to any Person,
the obligation of such Person pursuant to any interest rate swap agreement,
interest rate cap, collar or floor agreement or other similar agreement or
arrangement designed to protect against or manage such Person's or any of its
subsidiaries' exposure to fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct,
indirect or contingent investment in another Person, whether by means of a
share purchase, capital contribution, loan, advance (other than advances to
employees for moving and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or similar credit extension
constituting Indebtedness of such other Person, and any guarantee of
Indebtedness of any other Person; provided that the term "Investment" shall not
include any transaction involving the purchase or other acquisition (including
by way of merger) of Property (including Capital Stock) by the Company or any
Subsidiary in exchange for Capital Stock (other than Redeemable Stock) of the
Company. The amount of any Person's Investment shall be the original cost of
such Investment to such Person, plus the cost of all additions thereto paid by
such Person, and minus the amount of any portion of such Investment repaid to
such Person in cash as a repayment of principal or a return of capital, as the
case may be, but without any other adjustments for increases or decreases in
value, or write-ups, writedowns, or write-offs with respect to such Investment.
In determining the amount of any Investment involving a transfer of any
Property or assets other than cash, such Property or assets shall be valued at
its Fair Value at the time of such transfer as determined in good faith by the
board of directors (or comparable body) of the Person making such transfer. The
Company shall be deemed to make an "Investment" in the amount of the Fair
12
Value of the Assets of a Subsidiary at the time such Subsidiary is designated
an Unrestricted Subsidiary.
"Issue Date" means the date on which the Securities are first
authenticated and delivered under the Indenture.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Securities for use by
such Holders in connection with the Exchange Offer.
"Lien" means any mortgage, pledge, hypothecation, charge,
assignment, deposit arrangement, encumbrance, security interest, lien
(statutory or other), or preference, priority or other security or similar
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any agreement to give or ▇▇▇▇▇ ▇ ▇▇▇▇ or any
lease, conditional sale or other title retention agreement having substantially
the same economic effect as any of the foregoing).
"Maturity" means the date on which the principal of a
Security becomes due and payable as provided therein or in the Indenture,
whether at the Stated Maturity or the Change of Control Payment Date or
purchase date established pursuant to the terms of the Indenture for an Asset
Sale Offer or by declaration of acceleration, call for redemption or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investor Services, Inc. and its
successors.
"Net Available Proceeds" means, (a) as to any Asset Sale
(other than a Bargain Purchase Contract), the Cash Proceeds therefrom, net of
all legal and title expenses, commissions and other fees and expenses incurred,
and all Federal, state, foreign, recording and local taxes payable as a
consequence of such Asset Sale, net of all payments made to any Person other
than the Company or a Subsidiary on any Indebtedness which is secured by such
assets, in accordance with the terms of any Lien upon or with respect to such
assets, or which must by its terms, or in order to obtain a necessary consent
to such Asset Sale, or by applicable law, be repaid out of the proceeds from
such Asset Sale and, as for any Asset Sale by a Subsidiary, net of the equity
interest in such Cash Proceeds of any holder of Capital Stock of such
Subsidiary (other than the Company, any other Subsidiary or any Affiliate of
the Company or any such other Subsidiary) and (b) as to any Bargain Purchase
Contract, an amount equal to (i) that portion of the rental or other payment
stream arising under a Bargain Purchase Contract that represents an amount in
excess of the Fair Market Value of the rental or other payments with respect to
the pertinent Property or other asset and (ii) the Cash Proceeds from the sale
of such Property or other asset, net of the amount set forth in clause (a)
above, in each case as and when received.
13
"Non-Cash Claims" means the non-cash portion of general
liability, auto liability, worker's compensation or post-retirement health
insurance and related benefits expense.
"Non-Recourse Indebtedness" means Indebtedness or that
portion of Indebtedness of an Unrestricted Subsidiary as to which (a) neither
the Company nor any other Subsidiary (other than an Unrestricted Subsidiary)
(i) provides credit support including any undertaking, agreement or instrument
which would constitute Indebtedness or (ii) is directly or indirectly liable
for such Indebtedness and (b) no default with respect to such Indebtedness
(including any rights which the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any other Indebtedness of the Company or its other
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity.
"Non-U.S. Person" means a person who is not a U.S. Person.
"Obligations" means, with respect to any Indebtedness, any
obligation thereunder, including, without limitation, principal, premium and
interest (including post petition interest thereon), penalties, fees, costs,
expenses, indemnifications, reimbursements, damages and other liabilities.
"Officer" means with respect to the Company, the Chairman of
the Board, a Vice Chairman of the Board, the President, the Chief Executive
Officer, the Chief Operating Officer or a Vice President, the Chief Financial
Officer, the Chief Accounting Officer, the Controller the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company or
any director or manager or similar position of the Company or a Subsidiary as
the case may be.
"Officer's Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the Chief
Executive Officer, the Chief Operating Officer, a Vice President, the Chief
Financial Officer, the Chief Accounting Officer, the Controller, the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company
or a Subsidiary.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel,
a Person who has an account with DTC, Euroclear or Cedel, respectively (and,
with respect to DTC, shall include Euroclear and Cedel).
14
"Permitted Holders" means DLJ Merchant Banking Partners, L.P.
and Carlisle Enterprises, L.P., and their respective Affiliates.
"Permitted Indebtedness" means (a) Indebtedness of the
Company under the Securities; (b) Indebtedness (and any guarantee thereof)
under one or more credit or revolving credit facilities with a bank or
syndicate of banks or financial institutions or other lenders, including the
Bank Facility, as such may be amended, modified, revised, extended, replaced,
or refunded from time to time, in an aggregate principal amount at any one time
outstanding not to exceed $180.0 million, less any amounts derived from Asset
Sales and applied to the required permanent reduction of Senior Debt under such
credit facilities as contemplated by Section 4.5; (c) Indebtedness of the
Company or any Subsidiary under Interest Swap Obligations; provided that (i)
such Interest Swap Obligations are related to payment obligations on
Indebtedness otherwise permitted under 4.4 and (ii) the notional principal
amount of such Interest Swap Obligations does not exceed the principal amount
of the Indebtedness to which such Interest Swap Obligations relate; (d)
Indebtedness of the Company or any Subsidiary under Currency Hedge Obligations;
provided that (i) such Currency Hedge Obligations are related to payment
obligations on Indebtedness otherwise permitted under Section 4.4 or to the
foreign currency cash flows reasonably expected to be generated by the Company
and the Subsidiaries and (ii) the notional principal amount of such Currency
Hedge Obligations does not exceed the principal amount of the Indebtedness and
the amount of the foreign currency cash flows to which such Currency Hedge
Obligations relate; (e) Indebtedness of the Company or any Subsidiary
outstanding on the Issue Date; (f) Indebtedness of the Company or any
Subsidiary in respect of bid performance bonds, surety bonds, appeal bonds and
letters of credit or similar arrangements issued for the account of the Company
or any Subsidiary, in each case in the ordinary course of business and other
than for an obligation for money borrowed; (g) Indebtedness of the Company to a
Subsidiary and Indebtedness of a Subsidiary to the Company; provided that upon
any subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Subsidiary ceasing to be a Subsidiary, as the case
may be, or any other subsequent transfer of any such Indebtedness (except to
the Company or a Subsidiary), such Indebtedness shall be deemed, in each case,
to be incurred and shall be treated as an incurrence for purposes of Section
4.4 at the time the Subsidiary in question ceased to be a Subsidiary; (h)
Subordinated Indebtedness of the Company to an Unrestricted Subsidiary for
money borrowed; (i) Indebtedness of the Company in connection with a purchase
of the Securities pursuant to a Change of Control Offer; provided that the
aggregate principal amount of such Indebtedness does not exceed 101% of the
aggregate principal amount at Stated Maturity of the Securities purchased
pursuant to such Change of Control Offer; provided, further, that such
Indebtedness (A) has an Average Life equal to or greater than the remaining
Average Life of the Securities and (B) does not mature prior to one day
following the Stated Maturity of the Securities; (j) Permitted Refinancing
Indebtedness; (l) Acquired Indebtedness not to exceed an aggregate of $5.0
million at any one time outstanding; (m) Permitted Subsidiary Refinancing
Indebtedness; and (n) additional Indebtedness in an aggregate principal amount
not in excess of $10.0 million at any one time outstanding. So as to avoid
duplication in
15
determining the amount of Permitted Indebtedness under any clause of this
definition, guarantees permitted to be incurred pursuant to the Indenture of,
or obligations permitted to be incurred pursuant to the Indenture in respect of
letters of credit supporting, Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Permitted Investments" means (a) certificates of deposit,
bankers acceptances, time deposits, Eurocurrency deposits and similar types of
Investments routinely offered by commercial banks with final maturities of one
year or less issued by commercial banks organized in the United States having
capital and surplus in excess of $300.0 million; (b) commercial paper issued by
any corporation, if such commercial paper has credit ratings of at least "A-l"
or its equivalent by S&P and at least "P-I" or its equivalent by ▇▇▇▇▇'▇; (c)
U.S. Government Obligations with a maturity of five years or less; (d)
repurchase obligations for instruments of the type described in clause (c) with
any bank meeting the qualifications specified in clause (a) above; (e) shares
of money market mutual or similar funds having assets in excess of $100.0
million; (f) payroll advances in the ordinary course of business; (g) other
advances and loans to officers and employees of the Company or any Subsidiary,
so long as the aggregate principal amount of such advances and loans does not
exceed $1.0 million at any one time outstanding; (h) Investments represented by
that portion of the proceeds from Asset Sales that is not required to be Cash
Proceeds by Section 4.5; (i) Investments made by the Company in its
Subsidiaries (or any Person that will be a Subsidiary or is merged with or into
the Company or a Subsidiary of the Company as a result of such Investment) or
by a Subsidiary in the Company or in one or more Subsidiaries (or any Person
that will be a Subsidiary as a result of such Investment); (j) Investments in
stock, obligations or securities received in settlement of debts owing to the
Company or any Subsidiary as a result of bankruptcy or insolvency proceedings
or upon the foreclosure, perfection or enforcement of any Lien in favor of the
Company or any Subsidiary, in each case as to debt owing to the Company or any
Subsidiary that arose in the ordinary course of business of the Company or any
such Subsidiary; (k) certificates of deposit, bankers acceptances, time
deposits, Eurocurrency deposits and similar types of Investments routinely
offered by commercial banks organized in the United States with final
maturities of one year or less and in an aggregate amount not to exceed $5.0
million at any one time outstanding with a commercial bank organized in the
United States having capital and surplus in excess of $50.0 million; (l)
Canadian and other foreign bank deposits and cash equivalents in jurisdictions
where the Company or its Subsidiaries are then actively conducting business;
(m) Interest Swap Obligations with respect to any floating rate Indebtedness
that is permitted by the terms of the Indenture to be outstanding; (n) Currency
Hedge Obligations; provided that such Currency Hedge Obligations constitute
Permitted Indebtedness permitted by clause (d) of the definition thereof; and
(o) Investments in prepaid expenses, negotiable instruments held for collection
and lease, utility, worker's compensation and performance and other similar
deposits in the ordinary course of business.
"Permitted Liens" means (a) Liens in existence on the Issue
Date; (b) Liens created for the benefit of the Securities; (c) Liens on
Property of a Person existing at the
16
time such Person is merged or consolidated with or into the Company or a
Subsidiary (and not incurred as a result of, or in anticipation of, such
transaction); provided that any such Lien relates solely to such Property; (d)
Liens on Property existing at the time of the acquisition thereof (and not
incurred as a result of, or in anticipation of such transaction); provided that
any such Lien relates solely to such Property; (e) Liens incurred or pledges
and deposits made in connection with worker's compensation, unemployment
insurance and other social security benefits, statutory obligations, bid,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business; (f) Liens imposed by law or
arising by operation of law, including, without limitation, landlords',
mechanics', carriers', warehousemen's, materialmen's, suppliers' and vendors'
Liens and Liens for master's and crew's wages and other similar maritime Liens,
and incurred in the ordinary course of business for sums not delinquent or
being contested in good faith, if such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made with
respect thereof; (g) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property and defects,
irregularities and deficiencies in title to real property that do not,
individually or in the aggregate, materially affect the ability of the Company
or any Subsidiary to conduct its business presently conducted; (h) Liens for
taxes or assessments or other governmental charges or levies not yet due and
payable, or the validity of which is being contested by the Company or a
Subsidiary in good faith and by appropriate proceedings upon stay of execution
or the enforcement thereof and for which adequate reserves in accordance with
GAAP or other appropriate provision has been made; (i) Liens to secure
Indebtedness incurred for the purpose of financing all or a part of the
purchase price or construction cost of Property acquired or constructed after
the Issue Date; provided that (1) the principal amount of Indebtedness secured
by such Liens shall not exceed 100% of the lesser of cost or Fair Market Value
of the Property so acquired or constructed plus transaction costs related
thereto, (2) such Liens shall not encumber any other assets or Property of the
Company or any Subsidiary (other than the proceeds thereof and accessions and
upgrades thereto) and (3) such Liens shall attach to such Property no later
than 120 days after the date of the completion of the construction or
acquisition of such Property; (j) Liens securing Capital Lease Obligations; (k)
Liens to secure any extension, renewal, refinancing or refunding (or successive
extensions, renewals, refinancings or refundings), in whole or in part, of any
Indebtedness secured by Liens referred to in the foregoing clauses (a), (c) and
(d); provided, further, that such Lien does not extend to any other Property of
the Company or any Subsidiary and the principal amount of the Indebtedness
secured by such Lien is not increased; (1) any rental or lease; (m) leases or
subleases of real property to other Persons; (n) Liens securing Permitted
Indebtedness described in clause (b) of the definition thereof; (o) judgment
liens not giving rise to an Event of Default so long as any appropriate legal
proceedings which may have been initiated for the review of such judgment shall
not have been finally terminated or the period within which such proceeding may
be initiated shall not have expired; (p) rights of off-set of banks and other
Persons; (q) liens in favor of the Company; (r) Liens existing on the Property
of an Unrestricted Subsidiary at the time it becomes a Subsidiary; (s) Liens
securing Indebtedness under one or more credit or revolving credit facilities
with a bank or
17
syndicate of banks or financial institutions or other lenders or securing any
permitted refinancing of any such Indebtedness; and (t) other Liens not to
exceed an aggregate of $1.5 million at any one time outstanding.
"Permitted Refinancing Indebtedness" means Indebtedness of
the Company or any Subsidiary, incurred in exchange for, or the net proceeds of
which are used to renew, extend, refinance, refund or repurchase, outstanding
Indebtedness of the Company; provided that (i) if the Indebtedness being
renewed, extended, refinanced, refunded or repurchased is pari passu with or
subordinated in right of payment (without regard to its being secured) to the
Securities, then such new Indebtedness is pari passu with or subordinated in
right of payment (without regard to its being secured) to, as the case may be,
the Securities at least to the same extent as the Indebtedness being renewed,
extended, refinanced, refunded or repurchased, (ii) such new Indebtedness is
scheduled to mature at the same time or later than the Indebtedness being
renewed, extended, refinanced, refunded or repurchased, (iii) such new
Indebtedness has an Average Life at the time such Indebtedness is incurred that
is equal to or greater than the Average Life of the Indebtedness being renewed,
extended, refinanced, refunded or repurchased, and (iv) such new Indebtedness
is in aggregate principal amount (or, if such Indebtedness is issued at a price
less than the principal amount thereof, the aggregate amount of gross proceeds
therefrom is) equal to or less than the aggregate principal amount then
outstanding of the Indebtedness being renewed, extended, refinanced, refunded
or repurchased (or if the Indebtedness being renewed, extended, refinanced,
refunded or repurchased was issued at a price less than the principal amount
thereof, then not in excess of the amount of liability in respect thereof
determined in accordance with GAAP) plus the amount of reasonable fees,
expenses, and premium, if any, incurred by the Company or such Subsidiary in
connection therewith.
"Permitted Subsidiary Refinancing Indebtedness" means
Indebtedness of any Subsidiary, incurred in exchange for, or the net proceeds
of which are used to renew, extend, refinance, refund or repurchase,
outstanding Indebtedness of such Subsidiary which outstanding Indebtedness was
incurred in accordance with, or is otherwise permitted by, the terms of clauses
(e), (f) or (g) of the definition of Permitted Indebtedness; provided that (i)
such new Indebtedness is scheduled to mature at the same time or later than the
Indebtedness being renewed, extended, refinanced, refunded or repurchased, (ii)
such new Indebtedness has an Average Life at the time such Indebtedness is
incurred that is equal to or greater than the Average Life of the Indebtedness
being renewed, extended, refinanced, refunded or repurchased, and (iii) such
new Indebtedness is in an aggregate principal amount (or, if such Indebtedness
is issued at a price less than the principal amount thereof, the aggregate
amount of gross proceeds therefrom is) equal to or less than the aggregate
principal amount then outstanding of the Indebtedness being renewed, extended,
refinanced, refunded or repurchased (or if the Indebtedness being renewed,
extended, refinanced, refunded or repurchased was issued at a price less than
the principal amount thereof, then not in excess of the amount of liability in
respect thereof determined in accordance with GAAP) plus the
18
amount of reasonable fees, expenses, and premium, if any, incurred by the
Company or such Subsidiary in connection therewith.
"Person" means any individual, corporation, limited liability
company, partnership, limited partnership, limited liability partnership, joint
venture, incorporated or unincorporated association, joint stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Preferred Stock" of any Person means Capital Stock of such
Person of any class or classes (however designated) that ranks prior, as to the
payment of dividends and/or as to the distribution of assets upon any voluntary
or involuntary liquidation, dissolution or winding up of such Person, to shares
of Capital Stock of at least one other class of such Person.
"principal" of a debt security means the principal of the
security plus, when appropriate, the premium, if any, on the security.
"Private Placement Legend" means the legend set forth in
Section 2.6(g)(i) to be placed on all Securities issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
"Pro Forma Cost Reductions" means the pro forma effect of the
cost reduction program implemented by the Company in the fourth quarter of
1997, including (i) eliminating 63 administrative and support positions and
consolidating certain administrative functions, (ii) restructuring and
renegotiating benefits programs, (iii) renegotiating the Company's insurance
premiums to reflect continued improvements in its safety record, (iv)
negotiating company-wide procurement contacts in order to take advantage of
volume pricing and (v) implementing a new management information system to
improve inventory utilization and reduce equipment transportation expenses.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible, excluding Capital Stock in any other Person.
"Purchase Date" has the meaning set forth in Section 3.7.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Equity Offering" means an offering of Capital
Stock (other than Redeemable Stock) of the Company for cash, whether pursuant
to an effective registration statement under the Securities Act or pursuant to
an exemption from registration under the Securities Act.
19
"Qualified Proceeds" means any of the following or any
combination of the following: (i) cash, (ii) Cash Equivalents, (iii) assets
that are used or useful in a Related Business and (iv) the Capital Stock of any
Person engaged in a Related Business, if, in connection with the receipt by the
Company or any Subsidiary of the Company of such Capital Stock, (a) such Person
becomes a Subsidiary of the Company or any Subsidiary of the Company or (b)
such Person is merged, consolidated or amalgamated with or into, or transfers
or conveys substantially all of its assets to, or is liquidated into, the
Company or any Subsidiary of the Company.
"Redeemable Stock" means, with respect to any Person, any
equity security that by its terms or otherwise is required to be redeemed, or
is redeemable at the option of the holder thereof, at any time prior to one day
following the Stated Maturity of the Securities or is exchangeable into
Indebtedness of such Person or any of its subsidiaries.
"redemption date" when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"redemption price" when used with respect to any Security to
be redeemed, means the price fixed for such redemption pursuant to this
Indenture as set forth in the form of Security annexed as Exhibit A or B.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof between the Company and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation, as initial purchaser.
"Regulation S" means Regulation S promulgated under the
Securities Act (including any successor regulation thereto) as it may be
amended from time to time.
"Regulation S Global Security" means a Regulation S Temporary
Global Security or Regulation S Permanent Global Security, as appropriate.
"Regulation S Permanent Global Security" means a permanent
global Security in the form of Exhibit A hereto bearing the Global Security
Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Security upon expiration of the Restricted Period.
"Regulation S Temporary Global Security" means a temporary
global Security in the form of Exhibit B hereto bearing the Global Security
Legend, the Private Placement Legend and the legend set forth in Section
2.6(g)(iii) hereto, and deposited with or on behalf of and registered in the
name of the Depositary or its nominee, issued in a denomination
20
equal to the outstanding principal amount of the Securities initially sold in
reliance on Rule 903 of Regulation S.
"Related Business" means the scaffolding rental, erection and
dismantlement business or any business related to the provision of industrial
maintenance services and activities incidental to any of the foregoing and any
business related or ancillary to any of the foregoing.
"Replacement Asset" means a Property or asset that is used or
is useful in a Related Business.
"Responsible Officer" means any officer within the corporate
trust department (or any successor group) of the Trustee including any vice
president, assistant vice president, senior trust officer, trust officer,
assistant secretary or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at that time shall be such officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such trust matter
is referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Restricted Definitive Security" means a Definitive Security
bearing the Private Placement Legend.
"Restricted Global Security" means a Global Security bearing
the Private Placement Legend.
"Restricted Investment" means any Investment in any Person,
including an Unrestricted Subsidiary or the designation of a Subsidiary as an
Unrestricted Subsidiary, other than a Permitted Investment.
"Restricted Payment" means to (i) declare or pay any dividend
on, or make any distribution in respect of, or purchase, redeem, retire or
otherwise acquire for value, any Capital Stock of the Company or any Affiliate
of the Company, or warrants, rights or options to acquire such Capital Stock,
other than (x) dividends payable solely in the Capital Stock (other than
Redeemable Stock) of the Company or such Affiliate, as the case may be, or in
warrants, rights or options to acquire such Capital Stock and (y) dividends or
distributions by a Subsidiary to the Company or to a Subsidiary; (ii) make any
principal payment on, or redeem, repurchase, defease (including an in-substance
or legal defeasance) or otherwise acquire or retire for value (including
pursuant to mandatory repurchase covenants), prior to any scheduled principal
payment, scheduled sinking fund payment or other stated maturity, Indebtedness
of the Company or any Subsidiary which is subordinated
21
(whether pursuant to its terms or by operation of law) in right of payment to
the Securities; or (iii) make any Restricted Investment in any Person.
"Restricted Period" means the 40-day restricted period as
defined in Regulation S.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"S&P" means Standard & Poor's Corporation and its successors.
"Sale and Lease-Back Transaction" means, with respect to any
Person, any direct or indirect arrangement pursuant to which Property is sold
or transferred by such Person or a subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its subsidiaries.
"SEC" or "Commission" means the Securities and Exchange
Commission and its successors.
"Securities" has the meaning assigned to it in the preamble
to this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Security Custodian" means the Trustee, as custodian with
respect to the Securities in global form, or any successor entity thereto.
"Senior Debt" means any Indebtedness incurred by the Company
other than Subordinated Indebtedness.
"Shareholders Agreement" means that certain Amended and
Restated Shareholders Agreement, dated as of September 30, 1996, among DLJ
Merchant Banking Partners, L.P., DLJ International Partners, C.V., DLJ Offshore
Partners, C.V., DLJ Merchant Banking Funding, Inc., Carlisle-Brand Investors,
L.P., Rust Industrial Services Inc., DLJ Brand Holdings, Inc., Brand Scaffold
Services, Inc. and certain individuals party thereto, as amended, supplemented
or otherwise modified from time to time.
"Shelf Registration Statement" shall have the meaning set
forth in the Registration Rights Agreement.
"Significant Subsidiary" means a Subsidiary that is a
"significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the
Securities Act.
22
"Stated Maturity" when used with respect to a Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Indebtedness" means any Indebtedness of the
Company that is subordinated in right of payment to the Securities, as the case
may be, and does not mature prior to one year following the Stated Maturity of
the Securities.
"Subsidiary" or "subsidiary" means, (i) with respect to any
Person other than the Company, (x) any corporation more than 50% of the
outstanding Voting Stock of which is owned, directly or indirectly, by such
Person, or by one or more other subsidiaries of such Person, or by such Person
and one or more other subsidiaries of such Person, (y) any general partnership,
joint venture or similar entity, more than 50% of the outstanding partnership
or similar interest of which is owned, directly or indirectly, by such Person,
or by one or more other subsidiaries of such Person, or by such Person and one
or more other subsidiaries of such Person and any limited partnership of which
such Person or any subsidiary of such Person is a general partner; and (ii)
with respect to the Company a subsidiary of the Company other than an
Unrestricted Subsidiary.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
▇▇.▇▇. 77aaa-77bbbb) as in effect on the date of this Indenture, except as
provided in Section 9.3.
"Transaction Date" has the meaning specified within the
definition of Consolidated Interest Coverage Ratio.
"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 Definitive Security" means one or more
Definitive Securities that do not bear and are not required to bear the Private
Placement Legend.
"Unrestricted Global Security" means a permanent Global
Security in the form of Exhibit A attached hereto that bears the Global
Security Legend and that has the "Schedule of Exchanges of Interests in the
Global Security" attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, but does no bear the Private
Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that at the
time of such designation such Subsidiary: (a) has no Indebtedness other than
Non-Recourse Indebtedness; (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any other Subsidiary of the
23
Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such other Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to which neither the
Company nor any of its other Subsidiaries has any direct or indirect obligation
(x) to subscribe for additional Equity Interests or (y) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results; and (d) has not guaranteed or otherwise
directly or indirectly provided credit support for any Indebtedness of the
Company or any of its other Subsidiaries. Notwithstanding any provisions of
this definition, all Subsidiaries of an Unrestricted Subsidiary shall be
Unrestricted Subsidiaries. Any such designation by the Board of Directors shall
be evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing conditions and was
permitted by Section 4.6. The Company will not, and will not permit any of its
Subsidiaries to, take any action or enter into any transaction or series of
transactions that would result in a Person (other than a newly formed
subsidiary having no outstanding Indebtedness (other than Indebtedness to the
Company or a Subsidiary) at the date of determination) becoming a Subsidiary
(whether through an acquisition, the redesignation of an Unrestricted
Subsidiary or otherwise) unless, after giving effect to such action,
transaction or series of transactions on a pro forma basis, (i) the Company
could incur at least $1.00 of additional Indebtedness pursuant to the first
sentence under Section 4.4 and (ii) no Default or Event of Default would occur.
Subject to the preceding provisions of this definition, an Unrestricted
Subsidiary may be redesignated as a Subsidiary. The designation of a subsidiary
as an Unrestricted Subsidiary or the designation of an Unrestricted Subsidiary
as a Subsidiary in compliance with the preceding paragraphs shall be made by
the Board of Directors pursuant to a Board Resolution delivered to the Trustee
and shall be effective as of the date specified in such Board Resolution, which
shall not be prior to the date such Board Resolution is delivered to the
Trustee. Any Unrestricted Subsidiary shall become a Subsidiary if it incurs any
Indebtedness other than Non-Recourse Indebtedness. If at any time Indebtedness
of an Unrestricted Subsidiary which was Non-Recourse Indebtedness no longer so
qualifies, such Indebtedness shall be deemed to have been incurred when such
Non-Recourse becomes Indebtedness.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged; (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii) above, are not callable or redeemable at the option
of the issuers thereof; or (iii) depository receipts issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligations or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a Depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
24
Depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation evidenced by such Depository receipt.
"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. Person" means (i) any individual resident in the United
States, (ii) any partnership or corporation organized or incorporated under the
laws of the United States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign law
and of which at least one executor or administrator is a non-U.S. Person who
has sole or shared investment which at least one executor or administrator is a
non-U.S. Person who has sole or shared investment discretion with respect to
its assets), (iv) any trust of which any trustee is a U.S. Person (other than a
trust of which at least one trustee is a non-U.S. Person who has sole or shared
investment discretion with respect to its assets and no beneficiary of the
trust (and no settler, if the trust is revocable) is a U.S. Person), (v) any
agency or branch of a foreign entity located in the United States, (vi) any
non-discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a U.S. Person, (vii)
any discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual)
resident in the United States (other than such an account held for the benefit
or account of a non-U.S. Person), (viii) any partnership or corporation
organized or incorporated under the laws of a foreign jurisdiction and formed
by a U.S. Person principally for the purpose of investing in securities not
registered under the Securities Act (unless it is organized or incorporated and
owned, by "accredited investors" within the meaning of Rule 501(a) under the
Securities Act who are not natural persons, estates or trusts); provided,
however that the term "U.S. Person" shall not include (A) a branch or agency of
a U.S. Person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the
banking or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of Regulation S under the Securities Act and any other
similar international organizations, and their agencies, affiliates and pension
plans.
"Voting Stock" means with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling the holder
thereof (whether at all times or at the times that such class of Capital Stock
has voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such
Person.
"WMX Payments" means all payments received by the Company
pursuant to that certain Transitional Services Agreement, dated as of September
30, 1996, by and among
25
Brand Scaffold Services, Inc., WMX Technologies Inc., Rust International Inc.
and Rust Industrial Service, Inc., as amended, supplemented or otherwise
modified from time to time.
SECTION 1.2. Other Definitions.
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.3(a)
"Asset Sale Offer" 3.7
"Asset Sale Purchase Price" 4.5
"Change of Control Offer" 4.14(a)
"Change of Control Purchase Price" 4.14(a)
"Change of Control Payment Date" 4.14(a)
"Custodian" 6.1
"DTC" 2.3
"Event of Default" 6.1
"Excess Proceeds" 4.5
"Guaranteed Indebtedness" 4.19
"Offer Amount" 3.7
"Offer Period" 3.7
"Paying Agent" 2.3
"Payment Default" 6.1
"Process Agent" 10.14
"Registrar" 2.3
"Required Filing Dates" 4.12
"Restricted Payments" 4.6
"Subsidiary Guarantee" 4.19
"Surviving Entity" 5.1(i)
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
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:
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
26
"obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by
Commission rule and not otherwise defined herein have the meanings assigned to
them therein.
SECTION 1.4. Rules of Construction.
Unless the context otherwise requires:
(A) a term has the meaning assigned to it;
(B) an accounting term not otherwise defined has the meaning
assigned to it in accordance with international accounting standards
in effect on the date hereof, and any other reference in this
Indenture to "international accounting standards" refers to IAS;
(C) "or" is not exclusive;
(D) words in the singular include the plural, and words in
the plural include the singular;
(E) provisions apply to successive events and transactions;
and
(F) "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 II
THE SECURITIES
SECTION 2.1. Form and Dating.
The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A or Exhibit B
hereto. The Securities may have notations, legends or endorsements required by
law, stock exchange rules, agreements to which the Company is subject, or
usage, as designated by the Company. Each Security shall be dated the date of
its authentication. The Securities shall be in denominations of $1,000 and
integral multiples thereof.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their
27
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. However, to the extent any provision of any
Security conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.
Securities issued in global form shall be substantially in
the form of Exhibits A or B attached hereto (including the Global Security
Legend and the "Schedule of Exchanges in the Global Security" attached
thereto). Securities issued in definitive form shall be substantially in the
form of Exhibit A attached hereto (but without the Global Security Legend and
without the "Schedule of Exchanges of Interests in the Global Security"
attached thereto). Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges and redemptions. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the
aggregate principal amount of outstanding Securities represented thereby shall
be made by the Trustee or the Security Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.6 hereof. Securities offered and sold to QIBs shall be
issued initially in the form of one or more Global Securities, which shall be
deposited with the Trustee, as custodian for DTC, in New York, New York, and
registered in the name of DTC or its nominee, in each case for credit to the
accounts of DTC's participants.
Securities offered and sold in reliance on Regulation S shall
be issued initially in the form of the Regulation S Temporary Global Security,
which shall be deposited on behalf of the purchasers of the Securities
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or the nominee of
the Depositary for the accounts of designated agents holding on behalf of
Euroclear or Cedel, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. Within a reasonable time after expiration of
the Restricted Period the Regulation S Temporary Global Securities will be
exchanged for the Regulation S Permanent Global Securities upon the receipt by
the Trustee of (i) a written certificate from the Depositary, together with
copies of certificates from Euroclear and Cedel certifying that they have
received certification of non-United States beneficial ownership of 100% of the
aggregate principal amount of the Regulation S Temporary Global Security
(except to the extent of any beneficial owners thereof who acquired an interest
therein during the Restricted Period pursuant to another exemption from
registration under the Securities Act and who will take delivery of a
beneficial ownership interest in a 144A Global Security or a Restricted Global
Security bearing a Private Placement Legend, all as contemplated by Section
2.6(a)(ii) hereof), and (ii) an Officer's Certificate from the Company.
Following such period, beneficial interests in the Regulation S Temporary
Global Security shall be exchanged for beneficial interests in Regulation S
Permanent Global Securities pursuant to the Applicable
28
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Securities, the Trustee shall cancel the Regulation S Temporary Global
Security. The aggregate principal amount of the Regulation S Temporary Global
Security and the Regulation S Permanent Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee, as the case may be, in connection with transfers
of interest as hereinafter provided.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall
be applicable to transfers of beneficial interests in the Regulation S
Temporary Global Security and the Regulation S Permanent Global Security that
are held by the agent members through Euroclear or Cedel.
SECTION 2.2. Execution and Authentication.
Two directors of the Company shall sign the Securities for
the Company by manual or facsimile signature, which signatures shall be
attested to by the secretary, an assistant secretary or another Officer of the
Company. Such signatures and attestation may be in counterparts, all of which
taken together shall constitute one and the same instrument.
If an Officer whose signature is on a Security no longer
holds that office at the time such Security is authenticated, the Security
shall nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by two Officers, authenticate the Initial Securities, for original issue up to
$130,000,000 in aggregate principal amount and shall authenticate the Exchange
Securities for original issue up to $130,000,000; provided that the Exchange
Securities shall be issuable only upon the valid surrender for cancellation of
Exchange Securities of a like aggregate principal amount. The aggregate
principal amount of Securities outstanding at any time may not exceed
$130,000,000 except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may
authenticate Securities 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
Holders or an Affiliate of the Company.
Securities shall be issuable only in fully registered form,
without coupons, in denominations of $1,000 and integral multiples thereof.
29
SECTION 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Securities are to be presented for
payment ("Paying Agent"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional Paying Agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such and shall be duly compensated therefor. The Company
may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Security Custodian with respect to the
Global Securities, and by its signature hereto, the Trustee agrees to so act.
The Trustee is authorized to enter into a letter of
representations with DTC in the form provided to the Trustee by the Company and
to act in accordance with such letter.
SECTION 2.4. Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, Additional Interest, if any, or
interest on the Securities, and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company) shall have no further liability for the money. If the Company
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Securities.
SECTION 2.5. Holder 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 all Holders and shall otherwise
30
comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Company
shall furnish or cause to be furnished to the Trustee at least five (5)
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Securities and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.6. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. A Global
Security may not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. All Global Securities
will be exchanged by the Company for Definitive Securities if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days after the date of
such notice from the Depositary, (ii) the Company in its sole discretion
determines that the Global Securities (in whole but not in part) should be
exchanged for Definitive Securities and delivers a written notice to such
effect to the Trustee or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Securities and the Trustee has received a
written request from the Depository to issue Definitive Securities; provided
that in no event shall the Regulation S Temporary Global Security be exchanged
by the Company for Definitive Securities prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
determined by the Company to be required pursuant to Rule 903 under the
Securities Act. Upon the occurrence of either of the preceding events in (i) or
(ii) above, the Company will notify the Trustee in writing that Definitive
Securities shall be issued in such names as the Depositary and the participants
shall instruct the Trustee in writing. Global Securities also may be exchanged
or replaced, in whole or in part, as provided in Sections 2.7 and 2.11 hereof.
Every Security authenticated and delivered in exchange for, or in lieu of, a
Global Security or any portion thereof, pursuant to Section 2.7 or 2.11 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Security. A Global Security may not be exchanged for another Security other
than as provided in this Section 2.6(a), however, beneficial interests in a
Global Security may be transferred and exchanged as provided in Section 2.6(b),
(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Securities. The transfer and exchange of beneficial interests in the
Global Securities shall be effected through the Depositary, in accordance with
the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall
31
require compliance with either subparagraph (i) or (ii) below, as applicable,
as well as subparagraph (iii) or (iv), as applicable:
(i) Transfer of Beneficial Interests in the Same
Global Security. Beneficial interests in any Restricted Global
Security may be transferred to Persons who take delivery thereof in
the form of a beneficial interest in the same Restricted Global
Security in accordance with the transfer restrictions set forth in the
Private Placement Legend; provided, however, that prior to the
expiration of the Restricted Period transfers of beneficial interests
in the Regulation S Temporary Global Security may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Beneficial interests in any Unrestricted Global
Security may be transferred only to Persons who take delivery thereof
in the form of a beneficial interest in an Unrestricted Global
Security. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.6(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Securities. In connection with all transfers and
exchanges of beneficial interests (other than a transfer of a
beneficial interest in a Global Security to a Person who takes
delivery thereof in the form of a beneficial interest in the same
Global Security), the transferor of such beneficial interest must
deliver to the Registrar either (A)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Security in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with
the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a
written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Security in an
amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Security shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall
Definitive Securities be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Security
prior to (x) the expiration of the Restricted Period and (y) the
receipt by the Registrar of any certificates determined by the Company
to be required pursuant to Rule 903 under the Securities Act;
provided, further, that in no event shall an Indirect Participant who
holds a beneficial interest in the Regulation S Temporary Global
Security transfer or exchange such interest to a U.S. Person who takes
delivery in the form of an interest in U.S. Global Securities prior to
the satisfaction of clauses (x) and (y) in the immediately preceding
proviso. Upon an Exchange Offer by the Company in accordance with
Section 2.6(f) hereof, the requirements of this Section
32
2.6(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Securities. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Securities
contained in this Indenture, the Securities and otherwise applicable
under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Security or Securities pursuant to
Section 2.6(h) hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Security. A beneficial interest in any Restricted
Global Security may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted
Global Security if the transfer complies with the requirements of
clause (ii) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Security, then
the transferor must deliver a certificate in the form of
Exhibit C hereto, including the certifications in item 1
thereof;
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Security or the Regulation S Global Security, then the
transferor must deliver a certificate in the form of Exhibit
C hereto, including the certifications in item 2 thereof; and
(C) if the transferee will take delivery in the form
of a beneficial interest in the Restricted Global Security,
then the transferor must deliver (x) a certificate in the
form of Exhibit C hereto, including the certifications
required by item 3 thereof, if applicable.
(iv) Transfer and Exchange of Beneficial Interests
in a Restricted Global Security for Beneficial Interests in the
Unrestricted Global Security. A beneficial interest in any Restricted
Global Security may be exchanged by any holder thereof for a
beneficial interest in an Unrestricted Global Security or transferred
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security if the exchange or
transfer complies with the requirements of clause (ii) above and:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of the beneficial interest to
be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Securities or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
33
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Security proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Security, a
certificate from such holder in the form of Exhibit
D hereto, including the certifications in item 1(a)
thereof;
(2) if the holder of such beneficial
interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global
Security, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in
item 4 thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private
Placement Legend are not required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.
Beneficial interests in an Unrestricted Global Security
cannot be exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Security.
34
(c) Transfer or Exchange of Beneficial Interests for
Definitive Securities.
(i) If any holder of a beneficial interest in a
Restricted Global Security proposes to exchange such beneficial
interest for a Definitive Security or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Definitive Security, then, upon receipt by the Registrar of the
following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such
beneficial interest for a Definitive Security, a certificate
from such holder in the form of Exhibit D hereto, including
the certifications in item 2(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit C
hereto, including the certifications in item 1 thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit C hereto,
including the certifications in item 2 thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item 3(a)
thereof;
(E) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit C hereto, including the
certifications in item 3(b) thereof; or
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item 3(c)
thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Security to be reduced accordingly pursuant to Section 2.6(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Security (accompanied by a
notation on the Subsidiary Guarantees duly endorsed by the Guarantors) in the
appropriate principal amount. Any Definitive Security issued in exchange for a
beneficial interest in a Restricted Global Security pursuant to this Section
2.6(c) shall be registered in such name or names and in such authorized
denomination or
35
denominations as the holder of such beneficial interest shall instruct the
Registrar through written instructions from the Depositary and the Participant
or Indirect Participant. The Trustee shall deliver such Definitive Securities
to the Persons in whose names such Securities are so registered. Any Definitive
Security issued in exchange for a beneficial interest in a Restricted Global
Security pursuant to this Section 2.6(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.6(c)(i)(A) and (C)
hereof, a beneficial interest in the Regulation S Temporary Global
Security may not be (A) exchanged for a Definitive Security prior to
(x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates determined by the Company to be required
pursuant to Rule 903(c)(3)(B) under the Securities Act or (B)
transferred to a Person who takes delivery thereof in the form of a
Definitive Security prior to the conditions set forth in clause (A)
above or unless the transfer is pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903 or
Rule 904.
(iii) Notwithstanding 2.6(c)(i) hereof, a holder of
a beneficial interest in a Restricted Global Security may exchange
such beneficial interest for an Unrestricted Definitive Security or
may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Security only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case of
a transfer, is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Securities
or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Security proposes to
exchange such beneficial interest for a Definitive
Security that does not bear the Private Placement
Legend, a certificate from such holder in the form
of Exhibit D hereto, including the certifications in
item 1(b) thereof;
36
(2) if the holder of such beneficial
interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
Definitive Security that does not bear the Private
Placement Legend, a certificate from such holder in
the form of Exhibit C hereto, including the
certifications in item 4 thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company, to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private
Placement Legend are not required in order to
maintain compliance with the Securities Act.
(iv) If any holder of a beneficial interest in an
Unrestricted Global Security proposes to exchange such beneficial
interest for a Definitive Security or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Definitive Security, then, upon satisfaction of the conditions set
forth in Section 2.6(b)(ii) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Global Security to be
reduced accordingly pursuant to Section 2.6(h) hereof, and the Company
shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Security in the
appropriate principal amount. Any Definitive Security issued in
exchange for a beneficial interest pursuant to this Section 2.6(c)(iv)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through written instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Securities to the Persons in
whose names such Securities are so registered. Any Definitive Security
issued in exchange for a beneficial interest pursuant to this Section
2.6(c)(iv) shall not bear the Private Placement Legend. A beneficial
interest in an Unrestricted Global Security cannot be exchanged for a
Definitive Security bearing the Private Placement Legend or
transferred to a Person who takes delivery thereof in the form of a
Definitive Security bearing the Private Placement Legend.
(d) Transfer and Exchange of Definitive Securities for
Beneficial Interests.
(i) if any Holder of a Restricted Definitive
Security proposes to exchange such Security for a beneficial interest
in a Restricted Global Security or to transfer such Definitive
Securities to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Security, then, upon
receipt by the Registrar of the following documentation:
37
(A) if the Holder of such Restricted Definitive
Security proposes to exchange such Security for a beneficial
interest in a Restricted Global Security, a certificate from
such Holder in the form of Exhibit D hereto, including the
certifications in item 2(b) thereof;
(B) if such Definitive Security is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit C
hereto, including the certifications in item 1 thereof;
(C) if such Definitive Security is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit C hereto,
including the certifications in item 2 thereof;
(D) if such Definitive Security is being transferred
pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item 3(a)
thereof;
(E) if such Definitive Security is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit C hereto, including the
certifications in item 3(b) thereof; or
(F) if such Definitive Security is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item 3(c)
thereof,
the Trustee shall cancel the Definitive Security, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Security, in the case of clause (B) above,
the 144A Global Security, in the case of clause (C) above, the Regulation S
Global Security, and in all other cases, the Restricted Global Security.
(ii) A Holder of a Restricted Definitive Security
may exchange such Security for a beneficial interest in an
Unrestricted Global Security or transfer such Restricted Definitive
Security to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, is not (l) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange
38
Securities or (3) a Person who is an affiliate (as defined in
Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive
Securities proposes to exchange such Securities for
a beneficial interest in the Unrestricted Global
Security, a certificate from such Holder in the form
of Exhibit D hereto, including the certifications in
Item 1(c) thereof;
(2) if the Holder of such Definitive
Securities proposes to transfer such Securities to a
Person who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted Global
Security, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in
item 4 thereof, and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on
transfer contained herein and in the Private
Placement Legend are not required in order to
maintain compliance with the Securities Act, and
such Definitive Securities are being exchanged or
transferred in compliance with any applicable blue
sky securities laws of any State of the United
States.
Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.6(d)(ii), the Trustee shall cancel the Definitive Securities and increase or
cause to be increased the aggregate principal amount of the Unrestricted Global
Security.
(iii) A Holder of an Unrestricted Definitive
Security may exchange such Security for a beneficial interest in an
Unrestricted Global Security or transfer such Definitive Securities to
a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security at any time. Upon receipt
of a written request for such an exchange or transfer, the Trustee
shall cancel the applicable Unrestricted Definitive Security and
increase or cause to be increased the aggregate principal amount of
one of the Unrestricted Global Securities.
39
If any such exchange or transfer from a Definitive Security
to a beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an authentication order in
accordance with Section 2.2 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraphs
(ii)(B), (ii)(D) or (iii) above.
(e) Transfer and Exchange of Definitive Securities for
Definitive Securities. Upon written request by a Holder of Definitive
Securities and such Holder's compliance with the provisions of this Section
2.6(e), the Registrar shall register the transfer or exchange of Definitive
Securities. Prior to such registration of transfer or exchange, the requesting
Holder shall present on surrender to the Registrar the Definitive Securities
duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by his attorney,
duly authorized in writing. In addition, the requesting Holder shall provide
any additional certifications, documents and information, as applicable,
pursuant to the provisions of this Section 2.6(e).
(i) Restricted Definitive Securities may be
transferred to and registered in the name of Persons who take delivery
thereof if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit C hereto,
including the certifications in item 1 thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit C hereto, including the
certifications in item 2 thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a
certificate in the form of Exhibit C hereto, including the
certifications, required by item 3 thereof.
(ii) Any Restricted Definitive Security may be
exchanged by the Holder thereof for an Unrestricted Definitive
Security or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Definitive Security if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, is not (1)
40
a broker-dealer, (2) a Person participating in the
distribution of the Exchange Securities or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Restricted
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Securities proposes to exchange such
Securities for an Unrestricted Definitive Security,
a certificate from such Holder in the form of
Exhibit D hereto, including the certifications in
item 1 (a) thereof,
(2) if the Holder of such Restricted
Definitive Securities proposes to transfer such
Securities to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive
Security, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in
item 4 thereof, and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with
the Securities Act, that the restrictions on
transfer contained herein and in the Private
Placement Legend are not required in order to
maintain compliance with the Securities Act, and
such Restricted Definitive Security is being
exchanged or transferred in compliance with any
applicable blue sky securities laws of any State of
the United States.
(iii) A Holder of Unrestricted Definitive Securities
may transfer such Securities to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Security. Upon receipt of a
written request for such a transfer, the Registrar shall register the
Unrestricted Definitive Securities pursuant to the written
instructions from the Holder thereof. Unrestricted Definitive
Securities cannot be exchanged for or transferred to Persons who take
delivery thereof in the form of a Restricted Definitive Security.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall issue
and, upon
41
receipt of an authentication order in accordance with Section 2.2 and an
Officer's Certificate, the Trustee shall authenticate (i) one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global
Securities tendered for acceptance by persons that are not (x) broker-dealers,
(y) Persons participating in the distribution of the Exchange Securities or (z)
Persons who are affiliates (as defined in Rule 144) of the Company and accepted
for exchange in the Exchange Offer and (ii) Definitive Securities in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Securities tendered for acceptance by persons that are not (x)
broker-dealers, (y) persons participating in the distribution of the Exchange
Securities or (z) Persons who are affiliates (as defined in Rule 144) of the
Company and accepted for exchange in the Exchange Offer. Concurrent with the
issuance of such Securities, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Securities to be reduced
accordingly, and the Company shall execute and the Trustee shall authenticate
and deliver to the Persons designated in writing by the Holders of Definitive
Securities so accepted, Definitive Securities in the appropriate principal
amount.
Concurrent with the issuance of the Exchange Securities in
the Exchange Offer, the Company shall deliver an Opinion of Counsel to the
Trustee to the effect that the Exchange Securities have been duly authorized
and, when executed and authenticated in accordance with the provisions of the
Indenture and delivered in exchange for Initial Securities in accordance with
the Indenture and the Exchange Offer, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, enforceable
in accordance with their terms except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) Legends. The following legends shall appear on the face
of all Global Securities and Definitive Securities issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Security and each Definitive Security (and all
Securities issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following
form:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT
42
AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT (A) IT IS
A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (B) IT HAS ACQUIRED THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OR REGULATION D UNDER
THE SECURITIES ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF
ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY OR ANY INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING."
(B) Notwithstanding the foregoing, any Global
Security or Definitive Security issued pursuant to
subparagraphs (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii),
(e)(ii), (e)(iii) or (f) to this Section 2.6 (and all
Securities
43
issued in exchange therefor or substitution thereof) shall
not bear the Private Placement Legend.
(ii) Global Security Legend. Each Global Security
shall bear a legend in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
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 (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), TO THE COMPANY 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
MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY
BE 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.
(iii) Regulation S Temporary Global Security Legend.
The Regulation S Temporary Global Security shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS
EXCHANGE FOR CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL
SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST
HEREON."
(h) Cancellation and/or Adjustment of Global Securities. At
such time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or cancelled in whole and not in part, each such Global
Security shall be returned to or retained and
44
cancelled by the Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any beneficial interest in a Global Security is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Security or for Definitive
Securities, the principal amount of Securities represented by such Global
Security shall be reduced accordingly and an endorsement shall be made on such
Global Security, by the Trustee or by the Depositary at the direction of the
Trustee, to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Security, such other Global
Security shall be increased accordingly and an endorsement shall be made on
such Global Security, by the Trustee or by the Depositary at the direction of
the Trustee, to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Global Securities and Definitive Securities upon the
Company's written order or at the Registrar's written request.
(ii) No service charge shall be made to a holder of
a beneficial interest in a Global Security or to a Holder of a
Definitive Security 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 exchange or transfer pursuant to Sections 2.10,
3.6, 4.14, 4.5 and 10.5 hereof).
(iii) The Registrar shall not be required (A) to
register the transfer of or to exchange Securities during a period
beginning at the opening of business 15 days before the day of mailing
of notice of redemption and ending at the close of business on the day
of such mailing, (B) to register the transfer of or to exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (C) to
register the transfer of or to exchange a Security between a record
date and the next succeeding Interest Payment Date.
(iv) All Global Securities and Definitive Securities
issued upon any registration of transfer or exchange of Global
Securities or Definitive Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Securities or Definitive
Securities surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue,
to register the transfer of or to exchange Securities during a period
beginning at the opening of
45
business 15 days before the day of mailing of notice of redemption and
ending at the close of business on the day of such mailing, (B) to
register the transfer of or to exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part or (C) to register the transfer of or
to exchange a Security between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration
of a transfer of any Security, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Security is registered
as the absolute owner of such Security for the purpose of receiving
payment of principal of, premium, if any, Additional Interest, if any,
and interest on such Securities and for all other purposes, and none
of the Trustee, any Agent or the Company shall be affected by notice
to the contrary.
(vii) The Trustee shall authenticate Global
Securities and Definitive Securities in accordance with the provisions
of Section 2.2 hereof.
(viii) All certifications, certificates and Opinions
of Counsel required to be submitted to the Registrar pursuant to this
Section 2.6 to effect a transfer or exchange may be submitted by
facsimile; provided original copies are promptly sent to the
Registrar.
(ix) Each Holder of a Security agrees to indemnify
the Company and the Trustee against any liability that may result from
the transfer, exchange or assignment of such Holder's Security in
violation of any provision of this Indenture and/or applicable United
States federal or state securities law.
(x) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Security other than to
require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
SECTION 2.7. Replacement Securities.
If any mutilated Security is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee, upon the written order of the Company signed by two Officers of the
Company, shall authenticate a replacement Security if the Trustee's
requirements are met. An indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any
46
Agent and any authenticating agent from any loss that any of them may suffer if
a Security is replaced. The Company may charge for its expenses (including the
fees and expenses of the Trustee) in replacing a Security.
Every replacement Security is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Securities duly issued hereunder.
SECTION 2.8. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.9 hereof, a Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds such Security.
If a Security is replaced pursuant to Section 2.7 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid
under Section 4.1 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate, of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay all of the principal, Additional Interest, if any, and
interest and premium, if any, due on the Securities payable on that date, then
on and after that date such Securities shall be deemed to be no longer
outstanding and shall cease to accrue interest.
SECTION 2.9. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company, shall be considered as though 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 Securities that a Responsible
Officer of the Trustee actually knows, without investigation by the Trustee,
are so owned shall be so disregarded.
SECTION 2.10. Temporary Securities.
47
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities
upon a written order of the Company signed by two Officers of the Company.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities
surrendered to it.
Holders of temporary Securities shall be entitled to all of
the benefits of this Indenture.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered
for registration of transfer, exchange, payment, replacement or cancellation
and shall destroy cancelled Securities (subject to the record retention
requirements of the Exchange Act) in accordance with the Trustee's standard
retention policies unless the Company directs the Trustee in writing to return
such Securities to the Company. Certification of the destruction of all
Securities shall be delivered to the Company. Subject to Section 2.7 hereof,
the Company may not issue new Securities to replace Securities that it has paid
or that have been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If either the Company defaults in a payment of interest on
the Securities, it shall pay the defaulted interest in any lawful manner plus,
to the extent lawful under applicable law, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date,
in each case at the rate provided in the Securities and in Section 4.1 hereof.
Such defaulted interest, and the interest thereon, may be paid by the Company,
at its election in each case, as provided in clause (i) or (ii) below.
(i) The Company shall notify the Trustee in writing
of the amount of defaulted interest, plus interest payable thereon,
proposed to be paid on each Security and the date of the proposed
payment. The Company shall fix or cause to be fixed each such special
record date and payment date, provided that no such special record
date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or
cause to be mailed to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be
paid, and, at the same time, the Company shall deposit with the
Trustee an amount of
48
U.S. Legal Tender equal to the aggregate amount proposed to be paid in
respect of such defaulted interest and shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment. Such U.S. Legal Tender shall be held in trust for
the benefit of the Persons entitled to such defaulted interest; or
(ii) The Company may make payment on any defaulted
interest and on the interest thereon in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Securities may be listed, and upon such notice as may be required
by such exchange, if, after written notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner
shall be deemed practicable by the Trustee.
SECTION 2.13. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the "CUSIP" numbers.
SECTION 2.14. Record Date.
The record date for purposes of determining the identity of
Holders of Securities entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be determined as
provided for in TIA ss. 316(c).
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee.
If the Company elects to redeem Securities pursuant to
paragraph 6 or 7 of the Securities at the applicable redemption price set forth
therein, it shall notify the Trustee and the Paying Agent in writing of the
redemption date and the principal amount of Securities to be redeemed.
The Company shall give the notice provided for in this
Section 3.1 at least 45 days before the redemption date (unless a shorter
notice shall be agreed to by the Trustee in
49
writing), together with an Officer's Certificate stating that such redemption
will comply with the conditions contained herein.
SECTION 3.2. Selection of Securities To Be Redeemed.
In the event that less than all of the Securities are to be
redeemed at any time, selection of such Securities for redemption will be made
by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which the Securities are listed, or, if the
Securities are not so listed, on a pro rata basis, by lot or by such other
method as the Trustee shall deem fair and appropriate; provided, that no
Securities of a principal amount of $1,000 or less shall be redeemed or
repurchased in part.
SECTION 3.3. Notice of Redemption.
Subject to Section 3.7 hereof, at least 30 days but not more
than 60 days before a redemption date, the Company shall mail or cause to be
mailed, by first-class mail a notice of redemption to each Holder whose
Securities are to be redeemed at its registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) the CUSIP or CINS number, if any;
(4) the name and address of the Paying Agent to which the
Securities are to be surrendered for redemption;
(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price and accrued
interest, if any;
(6) that, unless the Company defaults in making the
redemption payment, interest on Securities called for redemption
ceases to accrue on and after the redemption date and the only
remaining right of the Holders is to receive payment of the redemption
price upon surrender to the Paying Agent;
(7) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the redemption date, upon surrender of such Security, a new Security
or Securities in principal amount equal to the unredeemed portion
thereof will be issued.
50
On receipt of a written request signed by an Officer of the
Company, the Trustee shall give the notice of redemption on behalf of the
Company, in the name of the Company and at the Company's expense.
SECTION 3.4. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon to the redemption date.
SECTION 3.5. Deposit of Redemption Price.
At least one Business Day before the redemption date, the
Company shall deposit with the Paying Agent money sufficient to pay the
redemption price of, Additional Interest, if any, and accrued interest on, all
Securities to be redeemed on that date other than Securities or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation.
If the Company complies with the provisions of the preceding
paragraph and payment of the Securities called for redemption is not otherwise
prohibited or prevented, on and after the redemption date, interest shall cease
to accrue on the Securities or the portions of Securities called for
redemption. If a Security is redeemed on or after an interest record date but
on or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Security was registered
at the close of business on such record date. If any Security called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, interest shall
be paid on the unpaid principal, from the redemption date until such principal
is paid, and to the extent lawful on any interest or Additional Interest, if
any, not paid on such unpaid principal, in each case at the rate provided in
the Securities and in Section 4.1 hereof.
SECTION 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Security
(accompanied by a notation of the Subsidiary Guarantees duly endorsed by the
Guarantors) equal in principal amount to the unredeemed portion of the Security
surrendered.
SECTION 3.7. Offer to Purchase by Application of Excess Proceeds.
51
In the event that, pursuant to Section 4.5 hereof, the
Company shall be required to commence an offer to all Holders to purchase
Securities (an "Asset Sale Offer"), it shall follow the procedures specified
below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Securities
required to be purchased pursuant to Section 4.5 hereof (the "Offer Amount")
or, if less than the Offer Amount has been tendered, all Securities tendered in
response to the Asset Sale Offer. Payment for any Securities so purchased shall
be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Security is registered at
the close of business on such record date, and no additional interest shall be
payable to Holders who tender Securities pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The
notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant
to this Section 3.7 and Section 4.5 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the
Purchase Date;
(c) that any Security not tendered or accepted for
payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such
payment, any Security accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest on or after the Purchase Date;
(e) that Holders electing to have a Security
purchased pursuant to an Asset Sale Offer may only elect to have all of such
Security purchased and may not elect to have only a portion of such Security
purchased;
(f) that Holders electing to have a Security
purchased pursuant to any Asset Sale Offer shall be required to surrender the
Security, with the form entitled "Option
52
of Holder to Elect Purchase" on the reverse of the Security completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the case may
be, receives, not later than the expiration of the Offer Period, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Security purchased;
(h) that, if the aggregate principal amount of
Securities surrendered by Holders exceeds the Offer Amount, the Company shall
select the Securities to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only Securities
in denominations of $1,000, or integral multiples thereof, shall be purchased);
and
(i) that Holders whose Securities were purchased
only in part shall be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Securities or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Securities tendered, and shall deliver to the Trustee an Officer's Certificate
stating that such Securities or portions thereof were accepted for payment by
the Company in accordance with the terms of this Section 3.7. The Company, the
Depositary or the Paying Agent, as the case may be, shall promptly (but in any
case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Securities
tendered by such Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Security, and the Trustee, upon written
request from the Company, shall authenticate and mail or deliver such new
Security to such Holder, in a principal amount equal to any unpurchased portion
of the Security surrendered. Any Security not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.7, any
purchase pursuant to this Section 3.7 shall be made pursuant to the provisions
of Section 3.1 through 3.6 hereof.
53
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities.
The Company shall pay the principal of, premium, if any,
Additional Interest, if any, and interest on the Securities in the manner
provided in the Securities. An installment of principal or interest or other
amount shall be considered paid on the date due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay the installment
in full and is not prohibited from paying such money to the Holders of the
Securities pursuant to the terms of this Indenture. The Company shall pay all
Additional Interest, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.
The Company shall pay interest on overdue principal at the
same rate per annum borne by the Securities. The Company shall pay interest on
overdue installments of interest and Additional Interest, if any, at the same
rate per annum borne by the Securities, to the extent lawful.
SECTION 4.2. Maintenance of Office or Agency
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the address of the Trustee set forth in Section 10.2.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Trustee as one such office
or agency of the Company.
54
SECTION 4.3. Limitation on Transactions with Affiliates.
(a) Subsequent to the Issue Date, the Company will not, and
will not permit any Subsidiary to, directly or indirectly, enter into or permit
to exist any transaction or series of related transactions (including, but not
limited to, the purchase, sale or exchange of Property, the making of any
Investment, the giving of any guarantee or the rendering of any service with
any Affiliate of the Company, other than transactions between or among the
Company, and any Subsidiaries) unless (i) such transaction or series of related
transactions is on terms no less favorable to the Company or such Subsidiary
than those that could be obtained in a comparable arm's length transaction with
a Person that is not such an Affiliate and (ii) (a) with respect to a
transaction or series of related transactions that has a Fair Market Value in
excess of $500,000 but less than $5.0 million, the Company delivers an
Officer's Certificate to the Trustee certifying that such transaction or series
of related transactions complies with clause (i) above; (b) with respect to a
transaction or series of related transactions that has a Fair Market Value
equal to or in excess of $5.0 million but less than $10.0 million, the
transaction or series of related transactions is approved by a majority of the
Board of Directors of the Company (including a majority of the disinterested
directors), which approval is set forth in a Board Resolution certifying that
such transaction or series of transactions complies with clause (i) above; or
(c) with respect to a transaction or series of related transactions that has a
Fair Market Value equal to or in excess of $10.0 million, the Company shall
have received an opinion as to the fairness to the Company or such Subsidiary
from a financial point of view issued by an investment banking firm of national
standing.
(b) The restrictions set forth in clause (a) shall not be
applicable to (i) reasonable and customary compensation, indemnification and
other benefits paid or made available to an officer, director or employee of
the Company or a Subsidiary for services rendered in such person's capacity as
an officer, director or employee (including reimbursement or advancement of
reasonable out-of-pocket expenses and provisions of directors' and officers'
liability insurance) or agreements providing therefor, (ii) transactions
between the Company or its Subsidiaries on the one hand, and the Initial
Purchaser or its Affiliates on the other hand, involving the provision of
financial, consulting or underwriting services by the Initial Purchaser or its
Affiliates; provided that the fees payable to the Initial Purchaser or its
Affiliates do not exceed the usual and customary fees of the Initial Purchaser
and its Affiliates for similar services, (iii) any payments made, or
transactions entered into, by the Company or its Subsidiaries pursuant to or in
accordance with the Shareholders Agreement, the Acquisition Agreements or the
Bank Facility or (iv) the making of any Restricted Payment otherwise permitted
by the Indenture.
SECTION 4.4. Limitation on Indebtedness.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness), unless after giving pro
55
forma effect to the incurrence of such Indebtedness, the Consolidated Interest
Coverage Ratio for the Determination Period preceding the Transaction Date is
at least 2.0 to 1.0 if such Indebtedness is incurred prior to February 15, 2000
and at least 2.25 to 1.0 if such Indebtedness is incurred thereafter.
Notwithstanding the foregoing, the Company or any Subsidiary may incur
Permitted Indebtedness. Any Indebtedness of a Person existing at time at which
such Person becomes a Subsidiary (whether by merger, consolidation, acquisition
or otherwise) shall be deemed to be incurred by such Subsidiary at the time at
which it becomes a Subsidiary.
SECTION 4.5. Limitation on Asset Sales.
The Company will not engage in, and will not permit any
Subsidiary to engage in, any Asset Sale unless (a) except in the case of (i) an
Asset Sale resulting from the requisition of title to, seizure or forfeiture of
any Property or assets or any actual or constructive total loss or an agreed or
compromised total loss or (ii) a Bargain Purchase Contract, the Company or such
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 Property; (b) at
least 75% of such consideration consists of Cash Proceeds (or the assumption of
Indebtedness of the Company or such Subsidiary relating to the Capital Stock or
Property or asset that was the subject of such Asset Sale and the unconditional
release of the Company or such Subsidiary from such Indebtedness); and (c) the
Company delivers to the Trustee an Officer's Certificate certifying that such
Asset Sale complies with clauses (a) and (b). The Company or such Subsidiary,
as the case may be, may apply the Net Available Proceeds from each Asset Sale
(x) to the acquisition of one or more Replacement Assets, or (y) to repurchase
or repay Senior Debt.
Any Net Available Proceeds from any Asset Sale that are not used to so
acquire Replacement Assets or to repurchase or repay Senior Indebtedness within
270 days after consummation of the relevant Asset Sale shall constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million,
the Company shall within 60 days thereafter make a pro rata offer to purchase
from all Holders an aggregate principal amount of Securities equal to the
Excess Proceeds, at a price in cash (the "Asset Sale Offer Purchase Price")
equal to 100% of the outstanding principal thereof plus accrued interest, if
any, to the purchase date, plus Additional Interest, if any, in accordance with
the procedures set forth in Section 3.7. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset to zero and the Company may
use any remaining amount for general corporate purposes.
The Company will comply with any applicable tender offer rules
(including, without limitation, any applicable requirements of Rule 14e-1 under
the Exchange Act) in the event that an Asset Sale Offer is required under the
circumstances described herein.
56
SECTION 4.6. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any Subsidiary
to, make any Restricted Payment, unless at the time of and after giving pro
forma effect to the proposed Restricted Payment, (a) no Default shall have
occurred and be continuing (or would result therefrom), (b) the Company could
incur at least $1.00 of additional Indebtedness under Section 4.4 and (c) the
aggregate amount of all Restricted Payments declared or made on or after the
Issue Date by the Company or any Subsidiary shall not exceed the sum of (i) 50%
(or if such Consolidated Net Income shall be a deficit, minus 100% of such
deficit) of the aggregate Consolidated Net Income accrued during the period
beginning on the first day of the fiscal quarter in which the Issue Date falls
and ending on the last day of the fiscal quarter ending immediately prior to
the date of such proposed Restricted Payment, plus (ii) an amount equal to the
aggregate Qualified Proceeds received by the Company, subsequent to the Issue
Date, from contributions to the Company's capital or the issuance or sale
(other than to a Subsidiary) of shares of its Capital Stock (excluding
Redeemable Stock, but including Capital Stock issued upon the exercise of
options, warrants or rights to purchase Capital Stock (other than Redeemable
Stock) of the Company) and the liability (expressed as a positive number) as
expressed on the face of a balance sheet in accordance with GAAP in respect of
any Indebtedness of the Company or any of its Subsidiaries, or the carrying
value of Redeemable Stock, which has been converted into, exchanged for or
satisfied by the issuance of shares of Capital Stock (other than Redeemable
Stock) of the Company, subsequent to the Issue Date, plus (iii) 100% of the net
reduction in Restricted Investments, subsequent to the Issue Date, in any
Person, resulting from payments of interest on Indebtedness, dividends,
repayments of loans or advances, or other transfers of Property (but only to
the extent such interest, dividends, repayments or other transfers of Property
are not included in the calculation of Consolidated Net Income), in each case
to the Company or any Subsidiary from any Person (including, without
limitation, from Unrestricted Subsidiaries) or from redesignations of
Unrestricted Subsidiaries as Subsidiaries (valued in each case as provided in
the definition of "Investments"), not to exceed in the case of any Person the
amount of Restricted Investments previously made by the Company or any
Subsidiary in such Person and in each such case which was treated as a
Restricted Payment.
(b) The foregoing provisions will not prevent (A) the payment
of any dividend on Capital Stock of any class within 60 days after the date of
its declaration if at the date of declaration such payment would be permitted
by the Indenture; (B) any Restricted Payment made in exchange for Capital Stock
of the Company (other than Redeemable Stock), or out of the Qualified Proceeds
from the substantially concurrent issuance or sale (other than to a Subsidiary)
of Capital Stock of the Company (other than Redeemable Stock), provided that
the Qualified Proceeds from such sale are excluded from computations under
clause (c) (ii) above to the extent that such proceeds are applied to purchase
or redeem such Capital Stock or Subordinated Indebtedness; (C) so long as no
Default shall have occurred and be continuing or should occur as a consequence
thereof, any repurchase, redemption payment, defeasance, acquisition or other
retirement for value of Subordinated Indebtedness of the
57
Company or a Subsidiary solely in exchange for, or out of the Qualified
Proceeds from the substantially concurrent sale of, new Subordinated
Indebtedness of the Company or a Subsidiary, so long as such Subordinated
Indebtedness is permitted under Section 4.4 and (x) is subordinated to the
Securities at least to the same extent as the Subordinated Indebtedness so
exchanged, purchased or redeemed, (y) has a stated maturity later than the
stated maturity of the Subordinated Indebtedness so exchanged, purchased or
redeemed and (z) has an Average Life at the time incurred that is greater than
the remaining Average Life of the Subordinated Indebtedness so exchanged,
purchased or redeemed; (D) payments to Holdings to fund payments made or to be
made by Holdings for the benefit of the Company or any Subsidiary of the
Company, including, without limitation, the payment of management and other
professional fees, whether pursuant to the Shareholders Agreement or otherwise,
and the payment of taxes; (E) the repurchase, redemption or other acquisition
or retirement for value of any Equity Interests of Holdings, the Company or any
Subsidiary of the Company held by any future, present or former employee,
consultant or director of the Company (or any of its Subsidiaries) pursuant to
any management equity subscription agreement or stock option plan or agreement
or any other management or employee benefit plan or agreement in effect as of
the Issue Date; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests shall not exceed
(x) $1.5 million in any calendar year (with unused amounts in any calendar year
being carried over for two succeeding calendar years subject to a maximum
(without giving effect to clause (y) below) of $3.0 million in any calendar
year) plus (y) the aggregate cash proceeds received by the Company during such
calendar year from any issuance of Equity Interests by the Company to members
of management of the Company and its Subsidiaries; (F) repurchases of Equity
Interests deemed to occur upon exercise of stock options if such Equity
Interests represent a portion of the exercise price of such options; (G)
payments in accordance with or pursuant to the terms of any Permitted
Refinancing Indebtedness or any Permitted Subsidiary Refinancing Indebtedness;
(H) payments to redeem, or to avoid the issuance of, fractional shares of
Capital Stock of the Company; (I) the payment of dividends by a Subsidiary on
any class of common stock of such Subsidiary if such dividend is paid pro rata
to all holders of such class of common stock, (J) the repurchase of any class
of common stock of a Subsidiary if such repurchase is made pro rata with
respect to such class of common stock and (K) other Restricted Payments not to
exceed $3.0 million. Restricted Payments permitted to be made as described in
the first sentence of this paragraph will be excluded in calculating the amount
of Restricted Payments thereafter.
(c) The Board of Directors may designate any Subsidiary to be
an Unrestricted Subsidiary if such designation is permitted by this Section 4.6
and otherwise would not cause a Default. For purposes of making such
determination, all outstanding Investments by the Company and its Subsidiaries
(except to the extent repaid in cash) in the Subsidiary so designated will be
deemed to be Restricted Payments at the time of such designation and will
reduce the amount available for Restricted Payments under Section 4.6(a). All
such outstanding Investments will be deemed to constitute Investments in an
amount equal to the fair market value of such Investments at the time of such
designation.
58
Such designation shall only be permitted if such Restricted Payment would be
permitted at such time and if such Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
(d) For purposes of this Section 4.6, if a particular
Restricted Payment involves a non-cash payment, including a distribution of
assets, then such Restricted Payment shall be deemed to be an amount equal to
the cash portion of such Restricted Payment, if any, plus an amount equal to
the Fair Market Value of the non-cash portion of such Restricted Payment. Not
later than the date of making any Restricted Payment, the Company shall deliver
to the Trustee an Officer's Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this Section 4.6 were computed, which calculations may be based upon the
Company's latest available financial statements.
SECTION 4.7. Corporate Existence.
Except as provided in Article V, the Company shall do or
shall cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and the corporate, partnership or other
existence of each of the Restricted Subsidiaries in accordance with the
respective organizational documents of the Company and each such Restricted
Subsidiary and the rights (charter and statutory) and material franchises of
the Company and its Restricted Subsidiaries; provided, however, that the
Company and the Guarantors shall not be required to preserve any such right, or
the corporate, partnership, limited liability or other existence of any
Restricted Subsidiary if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
such Restricted Subsidiary and each of its respective Subsidiaries, taken as a
whole, and that the loss thereof is not, and will not be, adverse in any
material respect to the Holders.
SECTION 4.8. 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, (1) all material taxes,
assessments and governmental charges levied or imposed upon it or any of its
Subsidiaries or upon the income, profits or property of it or any of its
Subsidiaries and (2) all lawful claims for labor, materials and supplies which,
in each case, if unpaid, might by law become a material liability, or 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 whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate provision has been made.
59
SECTION 4.9. Notice of Defaults.
(1) In the event that any Indebtedness of the Company or any
of its Subsidiaries is declared due and payable before its maturity because of
the occurrence of any default under such Indebtedness, the Company shall
promptly give written notice to the Trustee of such declaration, the status of
such default and what action the Company is taking or proposes to take with
respect thereto.
(2) Upon becoming aware of any Default or Event of Default,
the Company shall promptly deliver an Officer's Certificate to the Trustee
specifying the Default or Event of Default.
SECTION 4.10. Maintenance of Properties.
The Company and each of its Subsidiaries shall cause all
material properties owned by or leased to it and used or useful in the conduct
of its business to be maintained and kept in normal condition, repair and
working order and supplied with all necessary equipment and shall cause to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company or such Subsidiary
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 4.10 shall prevent the Company or any of its
Subsidiaries from discontinuing the use, operation or maintenance of any of
such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors of the Company or of the
Board of Directors of the Subsidiary concerned, or of an officer (or other
agent employed by the Company or of any of its Subsidiaries) of the Company or
such Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any of its
Subsidiaries, and if such discontinuance or disposal is not adverse in any
material respect to the Holders.
SECTION 4.11. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officer's Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officer with a view to determining whether the Company, as the case may be, has
kept, observed, performed and fulfilled its obligations under this Indenture,
respectively, and further stating, as to such Officer signing such certificate,
that to the best of his or her knowledge the Company, as the case may be, is
not in default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which he or
she may have knowledge and what action the Company is taking or proposes to
take with respect thereto) and that to the best of his or her knowledge
60
no event has occurred and remains in existence by reason of which payments on
account of the principal of, premium, if any, Additional Interest, if any, or
interest on the Securities is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company
becoming aware of any Default or Event of Default, an Officer's Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.12. Provision of Financial Information.
From and after the earlier of (i) the date of the
commencement of the Exchange Offer or the effectiveness of the Shelf
Registration Statement referred to herein and (ii) September 30, 1998 in either
case, whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file with
the Commission the annual reports, quarterly reports and other documents which
the Company would have been required to file with the commission pursuant to
such Section 13(a) or 15(d) or any successor provision thereto if the Company
were subject thereto, such documents to be filed with the Commission on or
prior to the respective dates (the "Required Filing Dates") by which the
company would have been required to file them. The Company shall also (whether
or not it is required to file reports with the Commission), within 30 days of
each Required Filing Date, transmit by mail to all Holders of Securities, as
their names and addresses appear in the applicable Security Register, without
cost to such Holders of Securities, and file with the Trustee, (i) all
quarterly and annual financial information that is substantially equivalent to
that which would be required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if the Company were required to file such Forms, including
a "Management's Discussion and Analysis of Financial Condition and Result of
Operations" section and, with respect to the annual information only, a report
thereon by the Company's certified independent accounts and (ii) all reports
that are substantially equivalent to those that would be required to be filed
with the Commission on Form 8-K if the Company were required to file such
reports.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
The Company covenants hereby (to the extent that it may
lawfully do so) that it shall 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 which would prohibit or forgive the
Company from paying all or any portion of the principal of, premium, if any,
Additional Interest, if any, and interest on or with respect to the Securities
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
61
law, and covenants that it shall not hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 4.14. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder
will have the right to require the Company to repurchase all of such Holder's
Securities in whole or in part (the "Change of Control Offer") at a purchase
price (the "Change of Control Purchase Price") in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
if any, to the Change of Control Payment Date (as defined below), plus
Additional Interest, if any, on the terms described below.
Within 30 days following any Change of Control, the Company or the
Trustee (upon the written direction of and at the expense of the Company) will
mail a notice to each Holder and to the Trustee stating, among other things,
(i) that a Change of Control has occurred and a Change of Control Offer is
being made as provided for in the Indenture, and that, although Holders are not
required to tender their Securities, all Securities that are timely tendered
will be accepted for payment; (ii) the Change of Control Purchase Price and the
repurchase date, which will be no earlier than 30 days and no later than 60
days after the date such notice is mailed (the "Change of Control Payment
Date"); (iii) that any Security accepted for payment pursuant to the Change of
Control Offer (and duly paid for on the Change of Control Payment Date) will
cease to accrue interest after the Change of Control Payment Date; and (iv) the
instructions and any other information necessary to enable Holders to tender
their Securities and have such Securities purchased pursuant to the Change of
Control Offer. The Company will comply with any applicable tender offer rules
(including, without limitation, any applicable requirements of Rule 14e-1 under
the Exchange Act) in the event that the Change of Control Offer is triggered
under the circumstances described herein.
The existence of the Holders' rights to require, subject to certain
conditions, the Company to repurchase Securities upon a Change of Control may
deter a third party from acquiring the Company in a transaction that
constitutes a Change of Control. The source of funds for the repurchase of
Securities upon a Change of Control will be the Company's cash or cash
generated from operations or other sources, including borrowings or sales of
assets; however, a "Change of Control" (as defined in the Bank Facility)
constitutes an event of default thereunder that alleviates the lenders from any
obligation to make loans and allows them to accelerate the Indebtedness
outstanding thereunder. There can be no assurance that sufficient funds will be
available at the time of any Change of Control to repay all amounts owing under
such other Indebtedness or to make the required payments of the Securities. In
the event that a Change of Control Offer occurs at a time when the Company does
not have sufficient available funds to pay the Change of Control Purchase Price
for all Securities timely tendered pursuant to such offer or at a time when the
Company is prohibited from purchasing the Securities (and the Company is unable
either to obtain the consent of the
62
holders of the relevant Indebtedness or to repay such Indebtedness), an Event
of Default would occur under this Indenture. In addition, one of the events
that constitutes a Change of Control under this Indenture is a sale,
conveyance, transfer or lease of all or substantially all of the assets of the
Company or the Company and the Subsidiaries, taken as a whole. This Indenture
is governed by New York law, and there is no established quantitative
definition under New York law of "substantially all" of the assets of a
corporation. Accordingly, if the Company or its Subsidiaries were to engage in
a transaction in which it or they disposed of less than all of the assets of
the Company or the Company and its Subsidiaries taken as a whole, as
applicable, a question or interpretation could arise as to whether such
disposition was of "substantially all" of its assets and whether the Company
was required to make a Change of Control Offer.
The Company will not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Company and repurchases all Securities validly tendered and not withdrawn under
such Change of Control Offer.
Except as described above with respect to a Change of Control, this
Indenture does not contain provisions that permit the Holders to require the
Company to repurchase or redeem the Securities in the event of a takeover,
recapitalization or similar restructuring. The provisions of this Indenture may
not afford Holders protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger or similar transaction affecting the
Company that may adversely affect Holders because (i) such transactions may not
involve a shift in voting power or beneficial ownership or, even if they do,
may not involve a shift of the magnitude required under the definition of
Change of Control to require the Company to make a Change of Control Offer or
(ii) such transactions may include an actual shift in voting power or
beneficial ownership to a Permitted Holder which is excluded under the
definition of Change of Control from the amount of shares involved in
determining whether or not the transaction involves a shift of the magnitude
required to trigger the provisions. A transaction involving the management of
the Company or its Affiliates, or a transaction involving a recapitalization of
the Company, will result in a Change of Control only if it is the type of
transaction specified in such definition.
SECTION 4.15. Limitation on Sale and Lease-Back Transactions.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, enter into, assume, guarantee or otherwise become
liable with respect to any Sale and Lease-Back Transaction unless (i) the
proceeds from such Sale and Lease-Back Transaction are at least equal to the
Fair Market Value of such Property being transferred and (ii) the Company or
such Subsidiary would have been permitted to enter into such transaction under
Section 4.4, 4.16 and 4.17.
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SECTION 4.16. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any Subsidiary,
directly or indirectly, to create, enter into any agreement with any Person or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind which by its terms restricts the ability
of any Subsidiary to (a) pay dividends, in cash or otherwise, or make any other
distributions on its Capital Stock to the Company or any Subsidiary, (b) pay
any Indebtedness owed to the Company or any Subsidiary, (c) make loans or
advances to the Company or any Subsidiary or (d) transfer any of its Property
or assets to the Company or any Subsidiary except any encumbrance or
restriction contained in any agreement or instrument:
(i) existing on the Issue Date;
(ii) relating to any Property or assets acquired after the Issue Date,
so long as such encumbrance or restriction relates only to the Property or
assets so acquired and is not and are not created in anticipation of such
acquisition;
(iii) relating to any Acquired Indebtedness of any Subsidiary at the
date on which such Subsidiary was acquired by the Company or any Subsidiary
(other than Indebtedness incurred in anticipation of such acquisition);
(iv) effecting a refinancing of Indebtedness incurred pursuant to an
agreement referred to in the foregoing clauses (i) through (iii), so long as
the encumbrances and restrictions contained in any such refinancing agreement
are no more restrictive than the encumbrances and restrictions contained in
such agreements;
(v) constituting customary provisions restricting subletting or
assignment of any lease of the Company or any Subsidiary or provisions in
license agreements or similar agreements that restrict the assignment of such
agreement or any rights thereunder;
(vi) constituting restrictions on the sale or other disposition of any
Property securing Indebtedness as a result of a Permitted Lien on such
Property;
(vii) constituting any temporary encumbrance or restriction with
respect to a Subsidiary pursuant to an agreement that has been entered into for
the sale or disposition of all or substantially all of the Capital Stock of, or
Property and assets of, such Subsidiary; or
(viii) arising pursuant to applicable law.
64
SECTION 4.17. Limitation on Liens.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, create, affirm, incur, assume or suffer to exist any
Liens of any kind other than Permitted Liens on or with respect to any Property
or assets of the Company or such Subsidiary or any interest therein or any
income or profits therefrom, whether owned at the Issue Date or thereafter
acquired, without effectively providing that the Securities shall be secured
equally and ratably with (or prior to) the Indebtedness so secured for so long
as such obligations are so secured.
SECTION 4.18. Limitation on Line of Business.
Neither the Company nor any of its Subsidiaries will directly
or indirectly engage to any substantial extent in any line or lines of business
activity other than a Related Business.
SECTION 4.19. Subsidiary Guarantees.
(a) The Company will not permit any Subsidiary to guarantee
the payment of any Indebtedness of the Company or any Indebtedness of any other
Subsidiary, in each case except for Indebtedness described in (b) of Permitted
Indebtedness (in each case, the "Guaranteed Indebtedness") unless (i) if such
Subsidiary is not a Guarantor, such Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture providing for a Guarantee
of payment of the Securities by such Subsidiary (any such Guarantee, a
"Subsidiary Guarantee"), (ii) if the Securities or the Subsidiary Guarantee (if
any) of such Subsidiary are subordinated in right of payment to the Guaranteed
Indebtedness, the Subsidiary Guarantee under the supplemental indenture shall
be subordinated to such Subsidiary's guarantee with respect to the Guaranteed
Indebtedness substantially to the same extent as the Securities or the
Subsidiary Guarantee are subordinated to the Guaranteed Indebtedness under the
Indenture, (iii) if the Guaranteed Indebtedness is by its express terms
subordinated in right of payment to the Securities or the Subsidiary Guarantee
(if any) of such Subsidiary, any such guarantee of such Subsidiary with respect
to the Guaranteed Indebtedness shall be subordinated in right of payment to
such Subsidiary's Subsidiary Guarantee with respect to the Securities
substantially to the same extent as the Guaranteed Indebtedness is subordinated
to the Securities or the Subsidiary Guarantee (if any) of such Subsidiary, (iv)
such Subsidiary waives and will and not in any manner whatsoever claim or take
the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Subsidiary as
a result of any payment by such Subsidiary under its Subsidiary Guarantee, and
(v) such Subsidiary shall deliver to the Trustee an opinion of counsel to the
effect that (A) such Subsidiary Guarantee of the Securities has been duly
executed and authorized and (B) such Subsidiary Guarantee of the Securities
constitutes a valid, binding and enforceable obligation of such Subsidiary,
except insofar as enforcement thereof may be limited by bankruptcy, insolvency
or similar laws
65
(including, without limitation, all laws relating to fraudulent transfers) and
except insofar as enforcement thereof is subject to general principles of
equity.
(b) Notwithstanding the foregoing and the other provisions of
this Indenture, any Subsidiary Guarantee by a Subsidiary of the Securities
shall provide by its terms that it shall be automatically and unconditionally
released and discharged upon (i) any sale, exchange or transfer, to any Person
not an Affiliate of the Company, of all of the Company's Capital Stock in, or
all or substantially all the assets of, such Subsidiary (which sale, exchange
or transfer is not prohibited by this Indenture) or (ii) the release or
discharge of the guarantee which resulted in the creation of such Subsidiary
Guarantee, except a discharge or release by or as a result of payment under
such Guarantee.
ARTICLE V
MERGERS; SUCCESSOR CORPORATION
SECTION 5.1. Restriction on Mergers, Consolidations and Certain
Sales of Assets.
The Company will not, in any transaction or series
of transactions, consolidate with or merge into any other Person (other than a
merger of a Subsidiary into the Company in which the Company is the continuing
corporation or a merger for a purposes of reincorporation in another State of
the United States or the District of Columbia or a merger with a person that
owns 100% of the Capital Stock of the Company), or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the
Property and assets of the Company and the Subsidiaries, taken as a whole, to
any Person, unless:
(i) either (a) the Company shall be the continuing corporation or (b)
the corporation (if other than the Company) formed by such consolidation or
into which the Company is merged, or the Person which acquires, by sale,
assignment, conveyance, transfer, lease or disposition, all or substantially
all of the Property and assets of the Company and the Subsidiaries, taken as a
whole (such corporation or Person, the "Surviving Entity"), shall be a
corporation organized and validly existing under the laws of the United States
of America, any political subdivision thereof or any state thereof or the
District of Columbia, and shall expressly assume, by a supplemental indenture
in a form reasonably satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest (and Liquidating
Damages, if any) on all the Securities and the performance of the Company's
covenants and obligations under this Indenture;
(ii) immediately before and after giving effect to such transaction or
series of transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), no Event of Default or
Default shall have occurred and be continuing or would result therefrom; and
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(iii) immediately after giving effect to any such transaction or
series of transactions on a pro forma basis as if such transaction or series of
transactions had occurred on the first day of the Determination Period, the
Company (or the Surviving Entity if the Company is not continuing) would be
permitted to incur $1.00 of additional Indebtedness pursuant to the test
described in the first sentence under Section 4.4.
The provision of clause (iii) shall not apply to (a) a merger between
the Company and a wholly owned Subsidiary of a wholly owned Subsidiary of
Holdings created for the purpose of holding the Capital Stock of the Company,
(b) a merger between the Company and a wholly owned Subsidiary or (c) a merger
between the Company and an Affiliate incorporated solely for the purpose of
reincorporating the Company in another State of the United States or the
District of Columbia so long as, in each case, the amount of Indebtedness of
the company and its Subsidiaries is not increased thereby.
In connection with any consolidation, merger, continuance, transfer of
assets or other transactions contemplated by this provision, the Company shall
deliver, or cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officer's Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, continuance, sale,
assignment, conveyance or transfer and the supplemental indenture in respect
thereto comply with the provisions of this Indenture and that all conditions
precedent in this Indenture relating to such transactions have been complied
with.
Upon any transaction or series of transactions that are of the type
described in, and are effected in accordance with, the foregoing paragraphs,
the Surviving Entity shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under the Indenture and Securities with
the same effect as if such Surviving Entity had been named as the Company in
the Indenture; and when a Surviving Person duly assumes all of the obligations
and covenants of the Company pursuant to the Indenture and the Notes, except in
the case of a lease, the predecessor Person shall be relieved of all such
obligations.
SECTION 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), 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;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of, premium, if any, Additional
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Interest, if any, and interest on the Securities except in the case of a sale
of all of the Company's assets that meets the requirements of Section 5.1
hereof.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.
Each of the following is an "Event of Default" under this Indenture:
(a) default in the payment of interest on any Security issued pursuant
to this Indenture when the same becomes due and payable, and the continuance of
such default for a period of 30 days;
(b) default in the payment of the principal of (or premium, if any,
on) any Security issued pursuant to the Indenture at its Maturity, whether upon
optional redemption, required repurchase (including pursuant to a Change of
Control Offer or an Asset Sale Offer) or otherwise or the failure to make an
offer to purchase any such Security as required;
(c) the Company fails to comply with any of its covenants or
agreements described under Sections 4.4, 4.5, 4.6, 4.14 or Article V;
(d) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty addressed
in clause (a), (b) or (c) above) and continuance of such Default or breach for
a period of 30 days after written notice thereof has been given to the Company
by the Trustee or to the Company and the Trustee by Holders of at least 25% of
the aggregate principal amount at Stated Maturity of the outstanding
Securities;
(e) Indebtedness of the Company or any Subsidiary is not paid when due
within the applicable grace period, if any, or is accelerated by the holders
thereof and, in either case, the principal amount of such unpaid or accelerated
Indebtedness exceeds $5.0 million;
(f) the entry by a court of competent jurisdiction of one or more
final judgments against the Company or any Subsidiary in an uninsured or
unindemnified aggregate amount in excess of $5.0 million which is not
discharged, waived, appealed, stayed, bonded or satisfied for a period of 60
consecutive days;
(g) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or
(ii) a decree or order adjudging the Company or any Significant Subsidiary a
bankrupt or insolvent, or approving as properly filed a petition
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seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Significant Subsidiary under any Bankruptcy Law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or any Significant Subsidiary or of
any substantial part of the Property or assets of the Company or any
Significant Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company or any Significant Subsidiary, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(h) (i) the commencement by the Company or any Significant Subsidiary
of a voluntary case or proceeding under any Bankruptcy Law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent; or (ii) the consent by
the Company or any Significant Subsidiary to the entry of a decree or order for
relief in respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under any Bankruptcy Law or to the commencement
of any bankruptcy or insolvency case or proceeding against the Company or any
Significant Subsidiary; or (iii) the filing by the Company or any Significant
Subsidiary of a petition or answer or consent seeking reorganization or relief
under any Bankruptcy Law; or (iv) the consent by the Company or any Significant
Subsidiary to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary
or of any substantial part of the Property or assets of the Company or any
Significant Subsidiary or of any substantial part of the Property or assets of
the Company or any Significant Subsidiary, or the making by the Company or any
Significant Subsidiary of an assignment for the benefit of creditors; or (v)
the admission by the Company or any Significant Subsidiary in writing of its
inability to pay its debts generally as they become due; or (vi) the taking of
corporate action by the Company or any Significant Subsidiary in furtherance of
any such action.
The term "Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
SECTION 6.2. Acceleration.
If any Event of Default (other than an Event of Default
specified in clause (g)or (h) of Section 6.1) occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% of the
outstanding aggregate principal amount at Stated Maturity of the Securities,
may declare the principal amount at Stated Maturity, premium, if any, and any
accrued and unpaid interest on all such Securities then outstanding to be
immediately due and payable by a notice in writing to the Company (and to the
Trustee if given by Holders of such Securities), and upon any such declaration
all amounts payable in respect of the Securities will become and be immediately
due and payable. If any Event of Default specified in clause (g) or (h) of
Section 6.1 occurs, the principal amount at Stated Maturity, premium, if any,
and any accrued and unpaid interest on the Securities then
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outstanding shall become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder of such Securities. In the
event of a declaration of acceleration because an Event of Default set forth in
clause (e) of Section 6.1 has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to clause (e) of Section 6.1
shall be remedied or cured or waived by the holders of the relevant
Indebtedness within 30 days after such event of default; provided that no
judgment or decree for the payment of the money due on the Securities has been
obtained by the Trustee as provided in this Indenture.
At any time after a declaration of acceleration with respect
to the Securities as described in the preceding paragraph, the Holders of a
majority in principal amount of the Securities may rescind and cancel such
declaration and its consequences (i) if the rescission would not conflict with
any judgment or decree, (ii) if all existing Events of Default have been cured
or waived except nonpayment of principal, premium, Additional Interest or
interest that has become due solely because of the acceleration, (iii) to the
extent the payment of such interest is lawful, interest on overdue installments
of interest and Additional Interest, if any, and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if 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 an Event of Default of the type described in
clause (v) of Section 6.1, the Trustee shall have received an Officer's
Certificate and an Opinion of Counsel that such Event of Default has been cured
or waived. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue, in its own name and as trustee of an express trust, any available
remedy by proceeding at law or in equity to collect the payment of principal
of, premium, if any, Additional Interest, if any, or interest on the Securities
or to enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy maturing 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.
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SECTION 6.4. Waiver of Past Default.
The Holders of not less than a majority in principal amount
at Stated Maturity of the outstanding Securities may on behalf of the Holders
of all the Securities waive any past Default or Event of Default under this
Indenture and its consequences, except a Default or Event of Default (a) in the
payment of the principal of (or premium, if any) or interest (or Additional
Interest, if any) on any Security or (b) in respect of a covenant or provision
hereof which under Section 9.2 cannot be modified or amended without the
consent of the Holder of each outstanding Security affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 6.5. Control by Majority.
Holders of the Securities may not enforce this Indenture or
the Securities except as provided in this Article VI and under the TIA. The
Holders of not less than a majority in principal amount of the outstanding
Securities 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. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Holder, or that may involve the Trustee in
personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction. In the event the Trustee takes any action or follows any direction
pursuant to this Section, the Trustee shall be entitled to indemnification
(from the Holders so directing the Trustee to act) satisfactory to it in its
sole discretion against any loss, cost, expense or liability caused by taking
such action or following such direction.
SECTION 6.6. Limitation on Suits.
No Holder of any Securities may pursue any remedy with
respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the outstanding Securities make a written request to the Trustee to
pursue a remedy;
(3) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability, cost or expense to be incurred in compliance with such
request;
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(4) the Trustee does not comply with the request within 60
days after receipt of the notice, request and the offer and, if
requested, the provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities (excluding the Company
or Affiliates of the Company) do not give the Trustee a direction
which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights
of another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.7. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of, premium, if any,
Additional Interest, if any, or interest on the Security, on or after the
respective due dates expressed or provided for in the Security, 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 the Holder.
SECTION 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(i) or (ii)
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
Securities for the whole amount of principal of, premium, if any, Additional
Interest, if any, and interest remaining unpaid, together with interest overdue
on principal and to the extent that payment of such interest is lawful,
interest on overdue installments of interest and Additional Interest, if any,
in each case at the rate per annum borne by the Securities and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
SECTION 6.9. Trustee May File Proofs of Claim.
The Trustee 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,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to any of the Company or
the Guarantors (or any other obligor upon the Securities), its creditors or its
property and shall be entitled and empowered to collect and receive any monies
or other securities or property payable or deliverable upon the conversion or
exchange of the securities or upon 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
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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, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.7. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to
this Article VI, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for amounts due and unpaid on the
Securities for principal, premium, if any, Additional Interest, if
any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal, premium, if any, Additional Interest, if any, and interest,
respectively; and
Third: the balance, if any, to the Company.
The Trustee 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 shall not apply to a suit by the Trustee, a suit by
a Holder or group of Holders of more than 10% in aggregate principal amount of
the outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal of, premium, if any, Additional
Interest, if any, or interest on any Securities on or after the respective due
dates expressed or provided for in the Security.
ARTICLE VII
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TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee will perform such duties and only such duties
as are specifically set forth (or incorporated by reference) herein
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions 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 shall 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 7.1;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(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 Section 6.5 or any other
direction permitted by this Indenture, and the Trustee shall be
entitled from time to time to request such a direction.
(4) 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 to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
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(d) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(e) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(f) Every provision of this Indenture that in any way relates
to the Trustee is subject to the provisions of this Section 7.1 and to the
provisions of the TIA.
(g) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity satisfactory
to it against the losses, costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
SECTION 7.2. Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on and shall be 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 shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney, to the extent reasonably required
by such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate and an Opinion of Counsel. 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 agents and shall not be
responsible for the misconduct or negligence of any agent (other than
an agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers provided that the Trustee's
conduct does not constitute bad faith, wilful misconduct or
negligence.
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(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization
and protection from liability in respect to any action taken, omitted
or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The Trustee shall not be charged with notice or knowledge
of any Default or Event of Default unless either (i) a Responsible
Officer of the Trustee shall have actual knowledge thereof or (ii) the
Trustee shall have received written notice thereof in accordance with
Section 10.2 hereof from the Company or any Holder.
(g) The Trustee or Paying Agent shall not be liable for
interest on any money received by it except as the Trustee or Paying
Agent may agree in writing with the Company. Money held in trust by
the Trustee or Paying Agent need not be segregated from other funds
except to the extent required by law and except for money held in
trust under Article IX of this Indenture.
SECTION 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement of the
Company in this Indenture or any document issued in connection with the sale of
Securities or any statement in the Securities other than the Trustee's
certificate of authentication. The Trustee shall not be responsible for filing
any notice in any public office at any time or times.
SECTION 7.5. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing
and if the Trustee has actual knowledge thereof, the Trustee shall mail to each
Holder notice of the Default or Event of Default within 90 days after the
occurrence thereof. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, Additional Interest, if any, or
interest on any Security, the Trustee may withhold the notice if and so long as
a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders.
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SECTION 7.6. Reports by Trustee to Holders.
If required by TIA ss. 313(a), within 60 days after each May
15 beginning with May 15, 1998, the Trustee shall mail to each Holder a report
dated as of such May 15 that complies with TIA ss. 313(a). The Trustee also
shall comply with TIA ss. 313(b), (c) and (d).
A copy of each such report at the time of its mailing to the
Holders shall be filed with the SEC and each stock exchange, if any, on which
the Securities are listed.
The Company shall promptly notify the Trustee in writing if
the Securities become listed on any stock exchange or of any delisting thereof.
SECTION 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing 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 reasonable disbursements, expenses
and advances (including reasonable fees, disbursements and expenses of its
agents and counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or wilful misconduct. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 9.1 hereof.
The Trustee shall not be under any obligation to institute
any suit, or take any remedial action under this Indenture, or to enter any
appearance or in any way defend any suit in which it may be a defendant, or to
take any steps in the execution of the trusts created hereby or thereby or in
the enforcement of any rights and powers under this Indenture, until it shall
be indemnified to its satisfaction against any and all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture, including compensation for service, costs,
expenses, outlays, counsel fees and other disbursements, and against all
liability not due to its negligence or wilful misconduct. The Company shall
indemnify each of the Trustee, Paying Agent and Registrant for, and hold it
harmless against any and all loss, damage, claims, liability or expense,
including taxes (other than franchise taxes imposed on the Trustee and taxes
based upon, measured by or determined by the income of the Trustee), arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder and its duties hereunder as Trustee, Registrar and/or Paying
Agent, including the reasonable costs and expenses of enforcing this Indenture
against the Company (including this Section 7.7) and of defending itself
against any claim (whether asserted by any Holder or the Company) or liability
in connection with the exercise or performance of any of its powers or duties
77
hereunder, except to the extent that such loss, damage, claim, liability or
expense is due to its own negligence or wilful misconduct. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity. However, the failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense (and may
employ its own counsel) at the Company's expense; provided, however, that the
Company's reimbursement obligation with respect to counsel employed by the
Trustee will be limited to the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its written consent,
which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by
the Trustee as a result of the violation of this Indenture by the Trustee
caused by the Trustee's negligence or wilful misconduct.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a Lien prior to the Securities against all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of, premium, if any,
Additional Interest, if any, or interest on particular Securities. The
Trustee's right to receive payment of any amounts due under this Section 7.7
shall not be subordinated to any of the liabilities or indebtedness of the
Company (notwithstanding that the Securities may be subordinated).
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(viii) or (ix) occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any Bankruptcy Law and (without prejudice to any other
rights available to the Trustee under applicable law) are intended to
constitute expenses of administration under any Bankruptcy Law. The Company's
obligations under this Section 7.7 and any claim arising hereunder shall
survive the resignation or removal of any Trustee, the termination of this
Indenture, the discharge of the Company's obligations pursuant to Article VIII
and any rejection or termination under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee.
The Trustee may resign at any time by so notifying the
Company in writing. The Holders of a majority in principal amount of the
outstanding Securities may remove the Trustee by so notifying the Trustee and
the Company in writing and may appoint a successor Trustee with the Company's
consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent under
any Bankruptcy Law;
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(3) a custodian 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 Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities 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. As promptly as
practicable thereafter, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.7, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.7, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties
of the Trustee under this Indenture. A successor Trustee shall mail notice of
its succession to each Holder. Once the resignation or removal of the retiring
Trustee has become effective, the retiring Trustee shall have no further
obligations under this Indenture and no liability in respect of acts or
omissions of the successor Trustee.
If a successor Trustee does not take office within 30 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
Securities 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
who has been a bona fide Holder of a Security for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. Any successor Trustee shall comply with
TIA ss. 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Trustee.
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SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be
eligible to act as Trustee under TIA ▇▇.▇▇. 310(a)(1), 310(a)(2) and 310(a)(5).
The Trustee shall have, or be part of a holding company with, a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. If the Trustee has or shall acquire any
"conflicting interest" within the meaning of TIA ss. 310(b), the Trustee and
the Company shall comply with the provisions of TIA ss. 310(b) (subject to the
penultimate paragraph thereof). If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect hereinbefore specified in
this Article VII.
SECTION 7.11. Preferential Collection of Claims Against the
Company.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated
therein.
SECTION 7.12. Money Held In Trust.
The Trustee or Paying Agent shall not be liable for interest
on any money received by it except as the Trustee or Paying Agent may agree in
writing with the Company. Money held in trust by the Trustee or Paying Agent
need not be segregated from other funds except to the extent required by law
and except for money held in trust under Article VIII of this Indenture.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.1. Termination of Company's Obligations.
The Company may terminate its obligations under the
Securities and this Indenture when (i) either (A) all outstanding Securities
have been delivered to the Trustee for cancellation or (B) all such Securities
not therefore delivered to the Trustee for cancellation have become due and
payable, will become due and payable within one year or are to be called for
redemption within one year under irrevocable arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name and
at the expense of the Company, and the Company has irrevocably deposited or
caused to be deposited with the Trustee funds in an amount sufficient to pay
and discharge the entire indebtedness on the Securities not therefore delivered
to the Trustee for cancellation, for principal of (premium, if any, and
Additional Interest, if any, on) and interest to the date of deposit or
Maturity or date or redemption; (ii) the Company has paid or caused to be paid
all sums then due and
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payable by the Company under this Indenture; and (iii) the Company has
delivered to the Trustee an Officer's Certificate and an opinion of counsel
relating to compliance with the conditions set forth in this Indenture;
The Company, at its election, shall (a) be deemed to have paid and
discharged its debt on the Securities and this Indenture shall cease to be of
further effect as to all outstanding Securities (except as to (i) rights of
registration of transfer, substitution and exchange of Securities, (ii) the
Company's right of optional redemption, (iii) rights of Holders to receive
payments of principal of, premium, if any, interest and Additional Interest, if
any, on the Securities (but not the Change of Control Purchase Price or the
Asset Sale Offer Purchase Price) and any rights of the Holders with respect to
such amounts, (iv) the rights, obligations and immunities of the Trustee under
this Indenture, and (v) certain other specified provisions in this Indenture or
(b) cease to be under any obligation to comply with certain restrictive
covenants that are described in this Indenture, after the irrevocable deposit
by the Company with the Trustee, in trust, for the benefit of the Holders, at
any time prior to the Stated Maturity of the Securities, of (A) money in an
amount, (B) U.S. Government Obligations which through the payment of interest
and principal will provide, no later than one Business Day before the due date
of payment in respect of such Securities, money in an amount, or (C) a
combination thereof sufficient to pay and discharge the principal of, premium,
if any on, interest and Additional Interest, if any, on, such Securities then
outstanding on the dates on which any such payments are due in accordance with
the terms of this Indenture and of such Securities. Such defeasance or covenant
defeasance shall be deemed to occur only if certain conditions are satisfied,
including, among other things, delivery by the Company to the Trustee of an
opinion of outside counsel acceptable to the Trustee to the effect that (1)
such deposit, defeasance and discharge will not be deemed, or result in, a
taxable event for federal income tax purposes with respect to the Holders; and
(ii) the Company's deposit will not result in the trust or such Trustee being
subject to regulation under the Investment Company Act of 1940.
SECTION 8.2. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal
Tender or U.S. Government Obligations deposited with it pursuant to Section
8.1, and shall apply the deposited U.S. Legal Tender and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of the
principal of, premium, if any, Additional Interest, if any, and interest on the
Securities. The Trustee shall be under no obligation to invest said U.S. Legal
Tender or U.S. Government Obligations except as it may agree in writing with
the Company.
The Company and the Guarantors shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
Legal Tender or U.S. Government Obligations deposited pursuant to Section 8.1
or the interest received in respect
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thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of outstanding Securities.
SECTION 8.3. Repayment to the Company.
Subject to Section 8.1, the Trustee and the Paying Agent
shall promptly pay to the Company upon written request any excess (as
determined by the Trustee) U.S. Legal Tender or U.S. Government Obligations
held by them at any time and thereupon shall be relieved from all liability
with respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for the payment of
principal of, premium, if any, Additional Interest, if any, or interest on the
Securities that remains unclaimed for two years; provided, however, that the
Trustee or such Paying Agent, before being required to make any payment, may at
the expense of the Company cause to be published once in a newspaper of general
circulation in the City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein which shall be at least 30 days from the date of such publication or
mailing any unclaimed balance of such money then remaining will be repaid to
the Company. After payment to the Company, Holders entitled to such money must
look to the Company for payment as general creditors unless an applicable law
designates another Person.
SECTION 8.4. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S.
Legal Tender or U.S. Government Obligations in accordance with Section 8.1 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
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.1 until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in
accordance with Section 8.1; provided, however, that if the Company has made
any payment of principal of, premium, if any, Additional Interest, if any, or
interest on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the U.S. Legal Tender or U.S. Government Obligations
held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Without Consent of Holders.
The Company and the Trustee may, at any time and from time to
time, without notice to or consent of any Holder, enter into one or more
indentures supplemental to the Indenture:
(i) to evidence the succession of another Person to
the Company and the assumption by such successor of the covenants and
Obligations of the Company under the Indenture and contained in the
Notes;
(ii) to add to the covenants of the Company, for the
benefit of the Holders, or to surrender any right or power conferred
upon the Company by the Indenture;
(iii) to add any additional Events of Default;
(iv) to provide for uncertificated Securities in
addition to or in place of certificated Notes;
(v) to evidence and provide for the acceptance of
appointment under the Indenture by the successor Trustee;
(vi) to secure the Notes;
(vii) to provide for any guarantee of the Securities
by any subsidiary; and
(viii) to cure any ambiguity, to correct or
supplement any provision in the Indenture which may be inconsistent
with any other provision therein or to add any other provisions with
respect to matters or questions arising under the Indenture; provided
that such actions will not adversely affect the interests of the
Holders in any material respect.
SECTION 9.2. With Consent of Holders.
With the written consent of the Holders of not less than a
majority in principal amount at Stated Maturity of the outstanding Securities
(including consents obtained in connection with a tender offer or exchange
offer for the Securities), the Company and the Trustee may enter into one or
more indentures supplemental to this Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
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of this Indenture or of modifying in any manner the rights of the Holders;
provided, however, that no such supplemental indenture will, without the
consent of the Holders of not less than two-thirds in principal amount at
Stated Maturity of the Notes, modify the Obligations of the Company to make
offers to purchase Securities upon a Change of Control or from the proceeds of
Asset Sales; provided, further, that no such supplemental indenture will,
without the consent of the Holder of each outstanding Security affected
thereby:
(i) change the Stated Maturity of the principal of,
or any installment of interest on, any Security, or reduce the
principal amount thereof (or premium, if any, or Additional Interest,
if any), or the interest thereon that would be due and payable upon
Maturity thereof, or change the place of payment where, or the coin or
currency in which, any Security or any premium, Additional Interest or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof,
(ii) reduce the percentage in principal amount at
Stated Maturity of the Outstanding Notes, the consent of whose Holders
is necessary for any such supplemental indenture or required for any
waiver of compliance with certain provisions of the Indenture, or
certain Defaults thereunder,
(iii) subordinate in right of payment, or otherwise
subordinate, the Securities to any other Indebtedness or;
(iv) modify any of the provisions of this paragraph
(except to increase any percentage set forth herein).
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
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 9.3. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents.
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Until an amendment or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is
not made on such Security. Subject to the following paragraph, any such Holder
or subsequent Holder may revoke the consent as to such Holder's Security or
portion of such Security by notice to the Trustee or the Company received
before the date on which the Trustee receives an Officer's Certificate
certifying that the Holders of the requisite principal amount of Securities
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. 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 consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders after such record date. 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 Holder.
SECTION 9.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee (upon written instructions from the Company) shall
authenticate a new Security (accompanied by a notation of the Guarantors duly
endorsed by the Guarantors) that reflects the changed terms. Failure to make
the appropriate notation or issue a new Security shall not affect the validity
and effect of such amendment, supplement or waiver.
SECTION 9.6. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture and that such amendment or supplement
constitutes the legal, valid and binding obligation of the Company and the
Guarantors, enforceable in accordance with its terms. 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 or otherwise. In
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signing any amendment, supplement or waiver, the Trustee shall be entitled to
receive an indemnity reasonably satisfactory to it.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that
are required to be a part of this Indenture or are incorporated into this
Indenture, and shall, to the extent applicable, be governed by such provisions.
If any provision of this Indenture modifies any TIA provision that may be so
modified, such TIA provision shall be deemed to apply to this Indenture as so
modified. If any provision of this Indenture excludes any TIA provision that
may be so excluded, such TIA provision shall be excluded from this Indenture.
The provisions of TIA ▇▇.▇▇. 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 10.2. Notices.
Any notice or communication by the Company or the Trustee to
the others is duly given if in writing and delivered in person, or mailed by
first-class mail (registered or certified, return receipt requested),
telecopier or overnight courier guaranteeing next day delivery, to the other
party's address:
if to the Company:
Brand Scaffold Services, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
86
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to the
Trustee or to Holders) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged,
if telecopied; and the next business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to the Trustee shall be deemed to
have been duly given to the Trustee when received at the Corporate Trust Office
of the Trustee.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA ss. 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it shall not affect the sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
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SECTION 10.3. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and any other person shall have the
protection of TIA ss. 312(c).
SECTION 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture, the Company
shall furnish to the Trustee at the request of the Trustee:
(1) an Officer's Certificate in form 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 in form satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; provided, however, that with
respect to matters of fact an Opinion of Counsel may rely on an
Officer's Certificate or certificates of public officials.
SECTION 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture 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 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 such
person, such condition or covenant has been complied with.
SECTION 10.6. Rules by Trustee, Paying Agent, Registrar.
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The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 10.7. Governing Law.
This Indenture and the Securities, including, without
limitation, the interpretation, construction, validity and enforceability
hereof and thereof, shall be governed by the internal laws of the State of New
York, including Section 5-1401 of the General Obligations Law of the State of
New York, without regard to the principles of conflict of laws thereof
SECTION 10.8. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder
of the Company or the Trustee, as such, shall have any liability for any
obligations of the Company or the Trustee under the Securities, this Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. Each Holder of Securities by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities.
SECTION 10.9. Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 10.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 10.11. Severability.
In case any provision in this Indenture, in the Securities or
in the Subsidiary Guarantees shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and a Holder shall have no claim
therefor against any party hereto.
SECTION 10.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its Subsidiaries.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
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SECTION 10.13. Legal Holidays.
If a payment date is not a Business Day, payment may be made
on the next succeeding Business Day, and no interest shall accrue for the
intervening period.
[SIGNATURES CONTAINED ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
BRAND SCAFFOLD SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------
▇▇▇▇ ▇▇▇▇▇▇
Vice President
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EXHIBIT A
BRAND SCAFFOLD SERVICES, INC.
10 1/4% Senior Security due 2008
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
No. ______________ $________________
Brand Scaffold Services, Inc., a Delaware corporation (the
"Company"), promises to pay to Cede & Co. or registered assigns, the principal
sum of ____________________________________ Dollars on February 15, 2008.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A SECURITY IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE 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 (55 WATER STREET, NEW YORK, NEW
YORK ("DTC")), TO THE COMPANY 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 MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE 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.
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT HAS
ACQUIRED THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OR REGULATION D UNDER THE
SECURITIES ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR ANY INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
BRAND SCAFFOLD SERVICES, INC.
By: ___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
U.S. Trust Company of Texas, N.A., as Trustee, certifies that
this is one of the % Senior Securities due 2008 referred to in the
within-mentioned Indenture.
U.S. Trust Company of Texas, N.A.,
as Trustee
By: ________________________________ Dated: __________________
Authorized Signatory
A-3
[REVERSE OF SECURITY]
BRAND SCAFFOLD SERVICES, INC.
10 1/4% Senior Security due 2008
1. Interest.
Brand Scaffold Services, Inc., a Delaware corporation (the
"Company"), promises to pay interest at the rate of 10 1/4% per annum on the
principal amount of this Security semiannually in arrears on each Interest
Payment Date referred to on the face hereof commencing on August 15, 1998,
until the principal hereof is paid or made available for payment. Interest on
the Securities will accrue from and including the most recent date to which
interest has been paid or duly provided for, or if no interest has been paid or
duly provided for, from and including February 15, 1998, through but excluding
the date on which the principal hereof is paid or made available for payment.
If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Securities (except
defaulted interest) and Additional Interest, if any, to the Persons who are
registered Holders of Securities at the close of business on the February 1 or
August 1 next preceding the Interest Payment Date. The Securities will be
payable as to principal, premium, if any, Additional Interest, if any, and
interest at the office or agency of the Company maintained for such purpose
within the city and State of New York, or, at the option of the Company,
payment of interest and Additional Interest, if any, may be made by check
mailed to the Holders at their addresses set forth in the register of Holders;
provided that all payments with respect to Securities the Holders of which have
given wire transfer instructions to the Company shall be required to be made by
wire transfer of immediately available funds to the accounts specified by the
Holders thereof until the date the Exchange Offer is consummated. Thereafter,
such payments, except to DTC, will be made by check. Such payment shall be in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
A-4
3. Paying Agent.
Initially, U.S. Trust Company of Texas, N.A. (the "Trustee")
will act as Paying Agent. The Company may change any Paying Agent, without
notice to the Holders of Securities.
4. Indenture.
This Security is one of a duly authorized issue of Securities
of the Company, designated as its 10 1/4% Senior Securities due 2008 (the
"Securities"), limited in aggregate principal amount to $130,000,000 (except
for Securities issued in substitution for destroyed, lost or stolen Securities)
issuable under an indenture, dated as of February 25, 1998 (the "Indenture"),
between the Company and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939 (the "Act") (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb) as in
effect on the date of the Indenture and the date the Indenture is qualified
under the Act. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the Securities Act for a statement
of them. Each Holder, by accepting a Security, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time.
5. Optional Redemption.
(a) The Securities will be subject to redemption, at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of the
principal amount) set forth below plus accrued and unpaid interest thereon, and
Additional Interest, if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on February 15 of the year set forth
below:
Year Percentage
2003 105.125%
2004 103.417%
2005 101.708%
2006 and thereafter 100.000%
(b) At any time during the first 36 months after the Issue
Date, the Company may, at its option, redeem up to a maximum of 35% of the
aggregate principal amount of the Securities with the net cash proceeds of one
or more Qualified Equity Offerings at a redemption price equal to 110.25 % of
the principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date plus Additional Interest, if any; provided, that each such
redemption shall occur within 90 days of the closing of the related Qualified
Equity Offering.
A-5
6. Purchase upon Occurrence of a Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder
will have the right to require the Company to repurchase all of such Holder's
Securities in whole or in part at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
if any, to the Change of Control Payment Date, plus Additional Interest, if
any, on the terms described in the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds
$10.0 million, the Company shall within 60 days thereafter make a pro rata
offer to purchase from all Holders an aggregate principal amount of Securities
equal to the Excess Proceeds, at a price in cash equal to 100% of the
outstanding principal thereof plus accrued interest, if any, to the purchase
date, plus Additional Interest, if any, in accordance with the procedures set
forth in Section 3.7 of the Indenture. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset to zero and the Company may
use any remaining amount for general corporate purposes. If the aggregate
principal amount of Securities surrendered by Holders thereof exceeds the
amount of Excess Proceeds, the Trustee shall select the Securities to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
7. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. The transfer of
Securities may be registered and Securities may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents, and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Security or portion of a Security selected for redemption,
except for the unredeemed portion of any Security being redeemed in part. Also,
it need not exchange or register the transfer of any Securities for a period of
15 days before the mailing of a notice of redemption or during the period
between a record date and the corresponding Interest Payment Date.
8. Persons Deemed Owners.
The Holder of this Security may be treated as the owner of
this Security for all purposes.
9. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and cancelled except for
certain Sections thereof, subject to the terms of the Indenture, upon the
payment of all the Securities or upon
A-6
the irrevocable deposit with the Trustee of funds or U.S. Government Obligations
sufficient for such payment or redemption.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of
not less than a majority in principal amount at Stated Maturity of the
outstanding Securities, and any past default or compliance with any provision
may be waived with the consent of the Holders of not less than a majority in
principal amount at Stated Maturity of the outstanding Securities. Without
notice to or the consent of any Holder, the Company and the Trustee may amend
or supplement the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, or to make any other change that does not adversely affect the
rights of any Holder of Securities.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the
principal of all of the outstanding Securities, plus all accrued and unpaid
interest, if any, and Additional Interest, if any, to the date the Securities
become due and payable, may be declared due and payable in the manner and with
the effect provided in the Indenture.
12. Trustee Dealings with Company and its Affiliates.
The Trustee in its individual or any other capacity, may
become the owner or pledgee of Securities and make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not Trustee.
13. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder
of the Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or any Guarantor under the Securities, any
Subsidiary Guarantees, the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Holder of Securities
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
A-7
14. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
15. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities and has directed the Trustee to use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
[16. Registration Rights.
Pursuant to the Registration Rights Agreement between the
Company and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, as initial
purchaser, the Company will be obligated to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for the Company's 10 1/4% Senior Securities due 2008, Series B
(the "Exchange Securities"), which have been registered under the Securities
Act, in like principal amount and having terms identical in all material
respects as the Securities. The Holders of the Securities 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 and the
Indenture.]*
17. Governing Law.
The Indenture and this Security, including, without
limitation, the interpretation, construction, validity and enforceability
thereof and hereof, shall be governed by the internal laws of the State of New
York, including Section 5-1401 of the General Obligations Law of the State of
New York, without regard to the principles of conflict of laws thereof.
The Company will furnish to any Holder of record of
Securities upon written request and without charge a copy of the Indenture.
18. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants
*To be omitted from Exchange Securities.
A-8
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).
A-9
SCHEDULE OF EXCHANGES OF INTERESTS
IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or exchanges
of a part of another Global Security or Definitive Security for an interest in
this Global Security, have been made:
Principal Amount of
Amount of decrease Amount of increase this Global Security Signature of authorized
in Principal Amount in Principal Amount following such decrease signatory of Trustee or
Date of Exchange of this Global Security of this Global Security (or increase) Security Custodian
-------------------- ------------------------- ------------------------ ----------------------- ------------------------
A-10
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date: Your Signature:
________________________ ______________________
(Sign exactly as your name
appears on the face of
this Security)
Signature Guarantee:_____________________________
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to
Section 4.5 or 4.14 of the Indenture, check the box below:
|_| Section 4.5 |_| Section 4.14
If you want to elect to have only part of the Security purchased by the Company
pursuant to Section 4.5 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$_____________________
Date:__________ Your signature:___________
(sign exactly as your
name appears on the
face of this
Security)
Tax Identification No.:___
Signature Guarantee:______
A-12
EXHIBIT B
BRAND SCAFFOLD SERVICES, INC.
10 1/4% Senior Security due 2008
CUSIP ▇▇▇▇▇▇▇▇▇
ISIN USU10580AA32
No. ________ $________________
Brand Scaffold Services, Inc., a Delaware corporation (the "Company"),
promises to pay to Cede & Co. or registered assigns, the principal sum of
_________________________________ Dollars on February 15, 2008.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SECURITIES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR
THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR A SECURITY IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE 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 DEPOSITARY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK ("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 MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE 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.
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT HAS ACQUIRED THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR
(7) OR REGULATION D UNDER THE SECURITIES ACT (AN "IAI"), (2) AGREES THAT IT
WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT,
(D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE)
AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THIS SECURITY OR ANY INTEREST HEREIN IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY
RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
B-2
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
BRAND SCAFFOLD SERVICES, INC.
By: ___________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
U.S. Trust Company of Texas, N.A., as Trustee, certifies that
this is one of the % Senior Securities due 2008 referred to in the
within-mentioned Indenture.
U.S. Trust Company of Texas, N.A.,
as Trustee
By: ________________________________ Dated: ______________________
Authorized Signatory
B-3
[REVERSE OF SECURITY]
BRAND SCAFFOLD SERVICES, INC.
10 1/4% Senior Security due 2008
1. Interest.
Brand Scaffold Services, Inc., a Delaware corporation (the
"Company"), promises to pay interest at the rate of 10 1/4% per annum on the
principal amount of this Security semiannually in arrears on each Interest
Payment Date referred to on the face hereof commencing on August 15, 1998,
until the principal hereof is paid or made available for payment. Interest on
the Securities will accrue from and including the most recent date to which
interest has been paid or duly provided for, or if no interest has been paid or
duly provided for, from and including February 15, 1998, through but excluding
the date on which the principal hereof is paid or made available for payment.
If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Securities (except
defaulted interest) and Additional Interest, if any, to the Persons who are
registered Holders of Securities at the close of business on the February 1 or
August 1 next preceding the Interest Payment Date. The Securities will be
payable as to principal, premium, if any, Additional Interest, if any, and
interest at the office or agency of the Company maintained for such purpose
within the city and State of New York, or, at the option of the Company,
payment of interest and Additional Interest, if any, may be made by check
mailed to the Holders at their addresses set forth in the register of Holders;
provided that all payments with respect to Securities the Holders of which have
given wire transfer instructions to the Company shall be required to be made by
wire transfer of immediately available funds to the accounts specified by the
Holders thereof until the date the Exchange Offer is consummated. Thereafter,
such payments, except to DTC, will be made by check. Such payment shall be in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
3. Paying Agent.
Initially, U.S. Trust Company of Texas, N.A. (the
"Trustee") will act as Paying Agent. The Company may change any Paying Agent,
without notice to the Holders of Securities.
B-4
4. Indenture.
This Security is one of a duly authorized issue of Securities
of the Company, designated as its 10 1/4% Senior Securities due 2008 (the
"Securities"), limited in aggregate principal amount to $130,000,000 (except
for Securities issued in substitution for destroyed, lost or stolen Securities)
issuable under an indenture, dated as of February 25, 1998 (the "Indenture"),
between the Company and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by the Trust
Indenture Act of 1939 (the "Act") (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb) as in
effect on the date of the Indenture and the date the Indenture is qualified
under the Act. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the Securities Act for a statement
of them. Each Holder, by accepting a Security, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time.
5. Optional Redemption.
(a) The Securities will be subject to redemption, at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the redemption prices (expressed as percentages of the
principal amount) set forth below plus accrued and unpaid interest thereon, and
Additional Interest, if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on February 15 of the year set forth
below:
Year Percentage
2002 105.125%
2003 103.417%
2004 101.708%
2005 and thereafter 100.000%
(b) At any time during the first 36 months after the Issue
Date, the Company may, at its option, redeem up to a maximum of 35% of the
aggregate principal amount of the Securities with the net cash proceeds of one
or more Qualified Equity Offerings at a redemption price equal to 110.25% of
the principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date plus Additional Interest, if any; provided, that each such
redemption shall occur within 90 days of the closing of the related Qualified
Equity Offering.
6. Purchase upon Occurrence of a Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder
will have the right to require the Company to repurchase all of such Holder's
Securities in whole or in part at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
if any, to the Change of Control Payment Date, plus Additional Interest, if
any, on the terms described in the Indenture.
B-5
(b) When the aggregate amount of Excess Proceeds exceeds
$10.0 million, the Company shall within 60 days thereafter make a pro rata
offer to purchase from all Holders an aggregate principal amount of Securities
equal to the Excess Proceeds, at a price in cash equal to 100% of the
outstanding principal thereof plus accrued interest, if any, to the purchase
date, plus Additional Interest, if any, in accordance with the procedures set
forth in Section 3.7 of the Indenture. Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds shall be reset to zero and the Company may
use any remaining amount for general corporate purposes. If the aggregate
principal amount of Securities surrendered by Holders thereof exceeds the
amount of Excess Proceeds, the Trustee shall select the Securities to be
purchased on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
7. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. The transfer of
Securities may be registered and Securities may be exchanged as provided in the
Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents, and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Security or portion of a Security selected for redemption,
except for the unredeemed portion of any Security being redeemed in part. Also,
it need not exchange or register the transfer of any Securities for a period of
15 days before the mailing of a notice of redemption or during the period
between a record date and the corresponding Interest Payment Date.
8. Persons Deemed Owners.
The Holder of this Security may be treated as the owner of
this Security for all purposes.
9. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and cancelled except for
certain Sections thereof, subject to the terms of the Indenture, upon the
payment of all the Securities or upon the irrevocable deposit with the Trustee
of funds or U.S. Government Obligations sufficient for such payment or
redemption.
10. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of
not less than a majority in principal amount at Stated Maturity of the
outstanding Securities, and any past default or compliance with any provision
may be waived with the consent of the Holders of not less than a majority in
principal amount at Stated Maturity of the outstanding Securities. Without
notice to or the consent of any
B-6
Holder, the Company and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, or to make any
other change that does not adversely affect the rights of any Holder of
Securities.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the
principal of all of the outstanding Securities, plus all accrued and unpaid
interest, if any, and Additional Interest, if any, to the date the Securities
become due and payable, may be declared due and payable in the manner and with
the effect provided in the Indenture.
12. Trustee Dealings with Company and its Affiliates.
The Trustee in its individual or any other capacity, may
become the owner or pledgee of Securities and make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not Trustee.
13. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder
of the Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or any Guarantor under the Securities, any
Subsidiary Guarantees, the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Holder of Securities
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
14. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
15. CUSIP and ISIN Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP and
ISIN numbers to be printed on the Securities and has directed the Trustee to
use CUSIP and ISIN numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as
printed on the Securities or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
[16. Registration Rights.
B-7
Pursuant to the Registration Rights Agreement between the
Company and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, as initial
purchaser, the Company will be obligated to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for the Company's 10 1/4% Senior Securities due 2008, Series B
(the "Exchange Securities"), which have been registered under the Securities
Act, in like principal amount and having terms identical in all material
respects as the Securities. The Holders of the Securities 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 and the
Indenture.]**
17. Governing Law.
The Indenture and this Security, including, without
limitation, the interpretation, construction, validity and enforceability
thereof and hereof, shall be governed by the internal laws of the State of New
York, including Section 5-1401 of the General Obligations Law of the State of
New York, without regard to the principles of conflict of laws thereof.
The Company will furnish to any Holder of record of
Securities upon written request and without charge a copy of the Indenture.
18. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A/ (=
Uniform Gifts to Minors Act).
--------
**To be omitted from Exchange Sercurities.
B-8
SCHEDULE OF EXCHANGES OF INTERESTS
IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or exchanges
of a part of another Global Security or Definitive Security for an interest in
this Global Security, have been made:
Principal Amount of
Amount of decrease Amount of increase this Global Security Signature of authorized
in Principal Amount in Principal Amount following such decrease signatory of Trustee or
Date of Exchange of this Global Security of this Global Security (or increase) Security Custodian
-------------------- ------------------------- ------------------------ ----------------------- ------------------------
B-9
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date: ____________________________ Your Signature:________________________
(Sign exactly as your name
appears on the face of this
Security)
Signature Guarantee:___________________
B-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to
Section 4.5 or 4.14 of the Indenture, check the box below:
[ ] Section 4.5 [ ] Section 4.14
If you want to elect to have only part of the Security purchased by the Company
pursuant to Section 4.5 or Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$____________________
Date:__________ Your signature:________________________
(sign exactly as your name
appears on the face of this
Security)
Tax Identification No.:________________
Signature Guarantee:___________________
B-11
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
Brand Scaffold Services, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Trust Company of Texas, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Re: 10 1/4% Senior Securities due 2008 of Brand Scaffold Services, Inc.
Reference is hereby made to the Indenture, dated as of
February 25, 1998 (the "Indenture"), between Brand Scaffold Services, Inc., as
issuer (the "Company"), and U.S. Trust Company of Texas, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
______________________ (the "Transferor") owns and proposes
to transfer the Security or Securities or interest in such Security or
Securities specified in Annex A hereto, in the principal amount of $_________
in such Security or Securities or interests (the "Transfer"), to
_________________ (the "Transferee") as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO RULE
144A. The Transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further certifies
that the beneficial interest or Definitive Security is being transferred to a
Person that the Transferor reasonably believed and believes is purchasing the
beneficial interest or Definitive Security for its own account, or for one or
more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Security will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Security and/or the Definitive Security and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S TEMPORARY GLOBAL SECURITY, THE REGULATION S GLOBAL
SECURITY OR A DEFINITIVE SECURITY PURSUANT TO REGULATION S. The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and, accordingly, the Transferor hereby further certifies
that (i) the transfer is not being made to a person in the United States and
(x) at the time the buy order was originated, the transferee was outside the
United States or such Transferor and any Person acting on its behalf reasonably
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (iii) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act, and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the
transfer is not being made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Security, the Temporary Regulation S Global Security
and/or the Definitive Security and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF
A BENEFICIAL INTEREST IN THE RESTRICTED GLOBAL SECURITY OR A DEFINITIVE SECURITY
PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR
REGULATION S. The Transfer is being effected in compliance with the transfer
restrictions applicable to beneficial interests in Restricted Global Securities
and Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act; or
(b) [ ] such Transfer is being effected to the
Company or a subsidiary thereof; or
(c) [ ] such Transfer is being effect pursuant to an
effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE
SECURITY.
(a) [ ] CHECK IF TRANSFER IF PURSUANT TO RULE 144.
(i) The Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky
C-2
securities laws of any state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Security will not
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION
S. (i) The Transfer is being effect pursuant to and in accordance with Rule 903
or rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indentures, the
transferred beneficial interest or Definitive Security will no longer be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Securities, on Restricted Definitive
Securities and in the Indenture.
(c) [ ] CHECK IF TRANSFER IF PURSUANT TO OTHER
EXEMPTION. (i) The Transfer is being effected pursuant to nd in compliance with
an exemption from the registration requirements of the Securities Act other
than Rule 144m, Rule 903 or Rule 904 and in compliance with the transfer
restrictions in the Indenture and any applicable blue sky securities laws of
any State of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities or Restricted Definitive Securities and in the
Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Trustee and the Company.
----------------------------------
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
Dated: _________________, ____
C-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (A) OR (B)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CUSIP _____), or
(iii) [ ] Restricted Global Security (CUSIP _____); or
(b) [ ] a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (CUSIP _____), or
(iii) [ ] Restricted Global Security (CUSIP _____); or
(iv)[ ] (CUSIP _____), or Unrestricted Global Security (CUSIP
_____); or
(b) [ ] a Restricted Definitive Security; or
(c) [ ] an Unrestricted Definitive Security.
in accordance with the terms of the Indenture.
EXHIBIT D
FORM OF CERTIFICATE OF TRANSFER OR EXCHANGE
Brand Scaffold Services, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Trust Company of Texas, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Re: 10 1/4% Senior Securities due 2008 of Brand Scaffold Services,
Inc.
Reference is hereby made to the Indenture, dated as of February 25,
1998 (the "Indenture"), between Brand Scaffold Services, Inc., as issuer (the
"Company"), and U.S. Trust Company of Texas, N.A., as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
_________________ (the "Owner") owns and proposed to exchange the
Security or Securities specified herein, in the principal amount of
$______________ in such Security or Securities or interests (the "Exchange").
In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE
SECURITIES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SECURITY. In connection with he Exchange of the Owner's
beneficial interest in a Restricted Global Security for a beneficial interest
in an Unrestricted Global Security in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Securities
and pursuant to and in accordance with he United States Securities Act of 1933,
as amended (the "Securities Act"), (iii) the restriction on transfer contained
in the Indenture and the Private Placement Legend are not the restrictions on
transfer contained in the Indenture and the private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Security is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY.
In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Security for an Unrestricted
Definitive Security, the Owner hereby certifies (i) the Definitive Security is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
the Restricted Global Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Security is being
acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY.
In connection with the Owner's Exchange of a Restricted Definitive Security for
a beneficial interest in an Unrestricted Global Security, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Securities
and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act, and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the
Owner's Exchange of a Restricted Definitive Security for n Unrestricted
Definitive Security, the Owner hereby certifies (i) the Unrestricted Definitive
Security is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to restricted Definitive Securities and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Security is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITY OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITY
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Security for a Restricted Definitive Security with an equal principal
amount, the Owner hereby certifies that the Restricted Definitive Security is
being acquired for the Owner's own account without transfer. Upon consummation
of the proposed Exchange in accordance with the terms of the Indenture,the
restricted Definitive Security issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Security and in the Indenture and the Securities Act.
D-2
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE SECURITY TO BENEFICIAL INTEREST ON A RESTRICTED GLOBAL SECURITY. In
connection with the Exchange of the Owner's Restricted Definitive Security for
a beneficial interest in the [CHECK ONE] [ ] 144A Global Security,
[ ] Regulation S Global Security, [ ] Restricted Global Security, with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Securities and pursuant to and in
accordance with the Securities Act, and in compliance with any applicable blue
sky securities laws of any state of the United States. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Security
and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Trustee and the Company.
----------------------------------
[Insert Name of Owner]
By: ______________________________
Name:
Title:
Dated: _________________, ____
D-3