Exhibit 10.6
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WGL HOLDINGS, INC.
WGL ACQUISITION CORP.
SECURITIES PURCHASE AGREEMENT
13.0% Senior Subordinated Notes
Shares of Common Stock
Dated as of July 10, 1997
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TABLE OF CONTENTS
(Not Part of Agreement)
PARAGRAPH 1. AUTHORIZATION OF ISSUE OF SECURITIES ..................... 1
PARAGRAPH 2. PURCHASE AND SALE OF SECURITIES .......................... 2
PARAGRAPH 3. CONDITIONS PRECEDENT ..................................... 2
PARAGRAPH 4. COVENANTS ................................................ 5
PARAGRAPH 5. REPRESENTATIONS AND WARRANTIES ........................... 10
PARAGRAPH 6. REPRESENTATIONS AND AGREEMENT OF
THE PURCHASERS ........................................... 17
PARAGRAPH 7. DEFINITIONS .............................................. 19
PARAGRAPH 8. MISCELLANEOUS ............................................ 22
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Registration and Anti-Dilution Agreement
Exhibit C-1 - Certificate of Incorporation of each
of Holdings, Intermediate Holdings,
Acquisition, the Company and ▇▇▇▇▇▇
Exhibit C-2 - Shareholders' Agreements
Exhibit D-1 - Closing Documents
Exhibit D-2 - Form of Opinion of Counsel
Exhibit E - Form of Assumption Agreement
Exhibit F - Form of Note Registration Rights Agreement
Exhibit G - Confidential Information Memorandum
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WGL Holdings, Inc.
WGL Acquisition Corp.
Securities Purchase Agreement
Ladies and Gentlemen:
The undersigned, WGL Acquisition Corp., a New York corporation
("Acquisition") to be merged with and into ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Ltd. ("▇▇▇▇▇▇" and,
upon consummation of the Merger (as defined below), the "Company"), WGL
Holdings, Inc., a Delaware corporation ("Holdings" and, together with the
Company, the "Sellers"), hereby agree with the parties named on the signature
pages hereto (collectively, the "Purchasers") as follows:
PARAGRAPH 1. AUTHORIZATION OF ISSUE OF SECURITIES.
lA. General. The Securities are being issued and sold in connection
with the acquisition by Acquisition of all of the outstanding capital stock of
▇▇▇▇▇▇ and the merger of Acquisition (the "Merger") with and into ▇▇▇▇▇▇, with
▇▇▇▇▇▇ as the surviving corporation. At the time the Merger is consummated (the
"Effective Time"), the Company will be a direct wholly owned subsidiary of WGL
Intermediate Holdings, Inc. ("Intermediate Holdings") and an indirect wholly
owned subsidiary of Holdings. Capitalized terms used herein and not otherwise
defined have the meanings specified in paragraph 7.
lB. Authorization of Notes. Acquisition has authorized the issuance
of its 13.0% Senior Subordinated Notes (the "Notes") in the aggregate principal
amount of $25.0 million, to be dated the date of issuance thereof, to mature on
July 1, 2007, and to be in the form of Exhibit A attached hereto. The term
"Notes" as used in this agreement (the "Agreement") shall include the promissory
notes delivered pursuant to this Agreement and each such promissory note
delivered in substitution or exchange for any other Note pursuant to any such
provision hereof, of such Note or of the Indenture governing such Note. The
Notes will have the benefit of the Note Registration Rights Agreement.
1C. Authorization of Shares. Holdings has authorized the issuance
and delivery of an aggregate of 3,188,312 shares (the "Shares") of its Common
Stock, par value tool per
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share (the "Common Stock"), constituting approximately 7% of the ownership of
Holdings, such shares having the rights, restrictions, privileges and
preferences set forth in the Certificate of Incorporation of Holdings in the
form of such certificate of Holdings which, along with the certificate of
incorporation of Intermediate Holdings, the Company and ▇▇▇▇▇▇, is attached
hereto as Exhibit C-1 (the "Certificate of Incorporation") and being subject to
the provisions of the agreement among certain shareholders (including the
Purchasers as holders of the Shares) of Holdings and Holdings (the
"Shareholders' Agreement") in the form of such agreement which, along with the
two other agreements among Holdings and certain of its shareholders (the "Other
Shareholders' Agreements" and together with the Shareholders' Agreement, the
"Shareholders' Agreements"), is attached hereto as Exhibit C-2. The Shares will
have the benefit of the registration and anti-dilution rights set forth in the
Registration and Anti-Dilution Agreement.
PARAGRAPH 2. PURCHASE AND SALE OF SECURITIES.
2A. Purchase of Notes. Subject to and upon the terms and conditions
herein set forth, each Purchaser agrees, severally and not jointly, to purchase
from Acquisition Notes in the principal amounts and purchase prices set forth on
the signature page hereto of such Purchaser on July 10, 1997 (the "Date of
Closing")
2B. Purchase of Shares. Subject to and upon the terms and conditions
herein set forth, each Purchaser agrees, severally and not jointly, to purchase
from Holdings the number of Shares (at a purchase price of $1.00 per Share) set
forth on the signature page hereto of such Purchaser on the Date of Closing.
2C. Purchase Price Allocation. Each of Holdings, Acquisition and the
Purchasers agree to use the foregoing purchase prices as the issue prices for
U.S. federal income tax purposes.
PARAGRAPH 3. CONDITIONS PRECEDENT.
3. Conditions to Closing. The obligation of each Purchaser to
purchase and pay for the Notes and Shares to be
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purchased by it is subject to the satisfaction of the following conditions:
3A. Documents To Be Delivered. On or before the Date of Closing, the
Purchasers shall have received all of the following, duly executed and
delivered:
(i) the Notes being purchased by each Purchaser in the name and
denomination set forth on the signature page hereto of such Purchaser;
(ii) the Shares being purchased by each Purchaser in the name and
denomination set forth on the signature page hereto of such Purchaser;
(iii) certificates of the Secretary and of the Chairman of the Board
or President of each of Holdings and Acquisition, dated the Date of
Closing, which shall contain the names and signatures of the officers of
such Seller authorized to execute this Agreement and which shall certify
to the truth, correctness and completeness of the following exhibits
attached hereto as Exhibit D-l: (a) a copy of resolutions duly adopted by
the Board of Directors of each of Holdings and Acquisition and in full
force and effect at the time this Agreement is entered into, authorizing
the execution of this Agreement and the other Transaction Documents
delivered or to be delivered in connection herewith on the part of such
Sellers and the consummation of the transactions contemplated herein and
therein, (b) a copy of the charter documents of each of the Sellers and
each of their subsidiaries and all amendments thereto, certified by the
appropriate official of the state of organization, and (c) a copy of the
bylaws of each of the Sellers and each of their subsidiaries in effect on
the Date of Closing;
(iv) The representations and warranties of each of Holdings and
Acquisition contained in this Agreement shall be true and correct in all
material respects on and as of the date hereof and on and as of the Date
of Closing as if made on and as of the Date of Closing; the statements of
Holdings' and Acquisition's officers made pursuant to any certificate
delivered in accordance with the provisions hereof shall be true and
correct in all material respects on and as of the date made and on and as
of the Date of Closing; Holdings and Acquisition shall have complied in
all material respects with all agreements and satisfied all conditions on
their part to be performed or satisfied
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hereunder at or prior to the Date of Closing; and, there shall have been
no event or events that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect or any
development that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
(v) a certificate (or certificates) of the due formation, valid
existence and good standing of each of the Sellers and their subsidiaries
in its state of organization, issued by the appropriate authorities of
such jurisdiction;
(vi) a certificate of the president of each of the Sellers and their
subsidiaries dated the Date of Closing, in which such officer certifies to
the satisfaction of the conditions set out in subsections (i) and (ii) of
paragraph 3B;
(vii) a favorable opinion of each of ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to Holdings and Acquisition and ▇▇▇▇▇▇, dated the
Date of Closing and substantially in the form set forth in Exhibit D-2,
subject only to such qualifications, limitations or exceptions as may be
acceptable to each of the Purchasers;
(viii) a letter from ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Goodyear, LLP
allowing each of the Purchasers to rely, as if it had been addressed to
such Purchaser, on the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Goodyear, LLP delivered pursuant to Section 9.5 of the Stock Purchase
Agreement; and
(ix) certificates of Holdings', Intermediate Holdings',
Acquisition's and ▇▇▇▇▇▇'▇ good standing and due qualification to do
business, issued by appropriate officials in any states where each of
Holdings', Intermediate Holdings', Acquisition's and ▇▇▇▇▇▇'▇ ownership or
leasing of its properties or the conduct of its business requires such
qualification.
On or before the Date of Closing, the Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Purchasers, shall have received such further documents,
opinions, certificates and schedules or instruments relating to the business,
corporate, legal and financial affairs of each of Holdings, Acquisition, ▇▇▇▇▇▇,
the Company and their respective Subsidiaries as they shall reasonably request.
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3B. Representations; No Default.
(i) All representations and warranties made by each of the Sellers
in this Agreement shall be true and correct on and as of the Date of Closing as
if such representations and warranties had been made on and as of such date,
unless such representation and warranty expressly indicates that it is being
made as of any other specific date in which case on and as of such other date.
(ii) Each of the Sellers shall have performed and complied with all
agreements and conditions required in this Agreement to be performed or complied
with by it on or prior to the Date of Closing.
3C. Purchase permitted By Applicable Laws. On the Date of Closing,
the offer by Holdings and Acquisition of, and the purchase of and payment for,
the Securities on the terms and conditions herein provided (including the use of
the proceeds of the sale of such Securities by Holdings and Acquisition) shall
not violate any applicable law or governmental regulation (including, without
limitation, section 5 of the Securities Act or Regulation U, G, T or X of the
Board of Governors of the Federal Reserve System) and shall not subject any
purchaser to any tax, penalty, liability or other onerous condition under or
pursuant to any applicable law or governmental regulation.
3D. proceedings. On the Date of Closing, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incident thereto shall be reasonably
satisfactory in substance and form to the Purchasers, and the purchasers shall
have received all such counterpart originals or certified or other copies of
such documents as they or their counsel may reasonably request.
3E. Obligations. Each of the Sellers shall have satisfied any other
obligations to the Purchasers required to be paid or complied with by it on or
prior to the Date of Closing.
PARAGRAPH 4. COVENANTS.
4. Covenants. To induce the Purchasers to enter into this Agreement
and purchase the Securities, Holdings and
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Acquisition jointly and severally warrant, covenant and agree as follows:
4A. Financial Information, Reports, Notices, etc. Holdings will, and
will cause the Company to, furnish, or will cause to be furnished, to the
Holders copies of the following financial statements, reports, notices and
information, at the Sellers' expense:
(i) as soon as available and in any event within 45 days after the
end of each Fiscal Quarter of each Fiscal Year of Holdings, consolidated
balance sheets of each of Holdings and the Company as of the end of such
Fiscal Quarter and consolidated statements of operations and cash flow of
each of Holdings and the Company for such Fiscal Quarter and for the
period commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, certified by the chief financial officer
of each of Holdings and the Company, respectively, in each case with prior
period comparisons and a management's discussion and analysis of financial
condition and results of operations;
(ii) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a copy of the annual review report for such
Fiscal Year for each of Holdings and the Company, including therein
consolidated balance sheets of each of Holdings and the Company as of the
end of such Fiscal Year and consolidated statements of operations and cash
flow of each of Holdings and the Company for such Fiscal Year, certified
in a manner reasonably acceptable to the Holders by Price Waterhouse or
other independent public accountants acceptable to the Holders together,
in each case, with a management's discussion and analysis of financial
condition and results of operations;
(iii) promptly after (a) the sending or filing thereof, copies of
all reports which Holdings, the Company or any of their Subsidiaries send
to any lenders pursuant to the Credit Agreement and (b) the sending or
filing thereof, all reports and registration statements which Holdings,
the Company or any of their Subsidiaries file with the Securities and
Exchange Commission or any national securities exchange; and
(iv) such other information respecting the condition or operations,
financial or otherwise, of each of Holdings and the Company as any Holder
may reasonably request.
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In the event that, pursuant to the terms of the Notes, an indenture is qualified
under the Trust Indenture Act of 1939 with respect to the Notes, the information
required to be furnished pursuant to this ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ limited to
information regarding Holdings and shall be provided pursuant hereto only to
Holders of Shares.
4B. Information Required by Rule 144A. Holdings will, and will cause
the Company to, upon the request of any Holder, provide such Holder, and any
qualified institutional buyer designated by such Holder, such financial and
other information as such Holder may reasonably determine to be necessary in
order to permit compliance with the information requirements of Rule 144A under
the Securities Act in connection with the resale of Notes or Shares. For the
purpose of this paragraph 48, the term "qualified institutional buyer" shall
have the meaning specified in Rule 144A under the Securities Act. At the request
of holders of in excess of 25% of the aggregate principal amount of the Notes,
Acquisition will use its best efforts to cause the Notes to be eligible for
participation in the book-entry system of The Depository Trust Company.
4C. Indemnity. Holdings and Acquisition, jointly and severally,
agree and Holdings will cause Intermediate Holdings, jointly and severally with
Holdings and Acquisition, to agree, to indemnify each of the Purchasers, as
debtholders, shareholders, directors and officers of Acquisition and Holdings,
as the case may be, upon demand, from and against any and all liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (including reasonable fees of attorneys,
accountants, experts and advisors) of any kind or nature whatsoever (in this
section collectively called "liabilities and costs") which to any extent (in
whole or in part) may be imposed on, incurred by, or asserted against any of the
Purchasers arising out of, resulting from or in any other way associated with
the execution, delivery or performance of the Transaction Documents or such
Purchaser's being a debtholder, shareholder, director or officer of Holdings or
Acquisition. The foregoing indemnification shall apply whether or not such
liabilities and costs are in any way or to any extent caused, in whole or in
part, by any negligent act or omission of any kind by such holder, provided only
that no Purchaser shall be entitled under this paragraph to receive
indemnification for that portion, if any, of any liabilities and costs which is
proximately caused by such Purchaser's willful misconduct. If any Person
(including Holdings, Acquisition or any of their respective Affiliates) ever
alleges such willful misconduct by a purchaser, the indemnifi-
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cation provided for in this paragraph shall nonetheless be paid upon demand,
subject to later adjustment or reimbursement, until such time as a court of
competent jurisdiction enters a final judgment as to the extent and effect of
the alleged willful misconduct. As used in this section the term "Purchaser"
shall refer also to each director, officer, agent, attorney, employee,
representative and Affiliate of such Purchaser.
4D. Additional Interest On the Notes.
(a) Acquisition and the Purchasers agree that the holders of Notes
will suffer damages if Acquisition fails to fulfill its obligations under
Section 1 of the Note Registration Rights Agreement and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
Acquisition agrees to pay additional interest on the Notes ("Additional
Interest") under the circumstances and to the extent set forth below:
(i) if a registration statement relating to the Notes has not been
filed on or prior to the date that is 45 days after the first written
demand for the filing of such registration statement pursuant to Section
1(a) (1) of the Note Registration Rights Agreement (the "Required Filing
Date"), then commencing on the day after the Required Filing Date,
Additional Interest shall be accrued on the Notes at a rate of .50% per
annum;
(ii) if such registration statement is not declared effective on or
prior to the date that is 45 days after the Required Filing Date, then
commencing on the day after such date, Additional Interest shall be
accrued on the Notes at a rate of 50% per annum; and
(iii) if (A) such registration statement has been declared effective
and ceases to be effective at any time during the period in which it is
required to remain effective pursuant to Section 1(c) (2) of the Note
Registration Rights Agreement or (B) a notice under Section 1(c) (7) with
respect to such registration statement is effective or required to be
effective at a time when the aggregate number of days in any 365-day
period for which all such notices issued or required to be issued pursuant
to such section have been or were required to be in effect exceeds 30
days, whether or not consecutive, then Additional Interest shall be
accrued on the Notes at a rate of .50% per annum immediately following
the (y) day such registration
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statement ceases to be effective in the case of (A) above or (z) the date
on which the 30-day limit is exceeded in the case of (B) above;
provided, however, that (1) upon the filing of such registration statement (in
the case of (i) above), (2) upon the effectiveness of such registration
statement (in the case of (ii) above), or (3) upon the effectiveness of such
registration statement which had ceased to remain effective (in the case of
(iii) (A) above) or, on the date on which a notice issued, or required to be
issued, pursuant to Section 1 (c) (7) is no longer effective or required to be
effective (in the case of (iii) (B) above), Additional Interest on the Notes as
a result of such clause (i), (ii) or (iii) (or the relevant subclause thereof),
as the case may be, shall cease to accrue.
(b) Acquisition shall notify the Trustee (or, if there is no
Trustee, each Holder) within one business day after each and every date on which
an event occurs in respect of which Additional Interest is required to be paid
(an "Event Date"). Additional Interest shall be paid by depositing with the
Trustee, in trust, for the benefit of the holders of Notes, on or before the
semi-annual interest payment date provided in the Indenture (whether or not any
interest other than Additional Interest is then payable on the Notes),
immediately available funds in sums sufficient to pay the Additional Interest
then due to holders of Notes with respect to which the Trustee serves. The
Additional Interest due shall be payable on each interest payment date to the
record holders of Notes who would be entitled to receive the interest payment to
be made on such date as set forth in the Indenture. Each obligation to pay
Additional Interest shall be deemed to accrue on the applicable Event Date.
Additional Interest on the Notes may not exceed in the aggregate 1.0% per annum.
The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest rate set forth in clauses (i), (ii) and (iii)
above by the principal amount of the Notes, in each case, multiplied by a
fraction, the numerator of which is the number of days such Additional Interest
rate was applicable during such period (determined on a basis of a 360-day year
comprised of twelve 30-day months) and the denominator of which is 360.
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PARAGRAPH 5. REPRESENTATIONS AND WARRANTIES.
5. Representations and Warranties. To induce the Purchasers to enter
into this Agreement and to purchase the Securities, Holdings and Acquisition,
jointly and severally, represent and warrant as follows:
5A. Organization and Good Standing. Each of Holdings, Intermediate
Holdings, Acquisition, ▇▇▇▇▇▇ and their respective Subsidiaries is, and at and
as of the Effective Time the Company will be, duly incorporated, validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, and each has (and with respect to the Company, at and as of the
Effective Time, will have) the corporate power and authority to carry on its
business as it is currently being conducted and to own, lease and operate its
properties, and each is (and with respect to the Company, at and as of the
Effective Time, will be) duly qualified and is (and with respect to the Company,
at and as of the Effective Time, will be) in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. Each of Holdings', Intermediate Holdings', Acquisition's and ▇▇▇▇▇▇'▇
Subsidiaries and at and as of the Effective Time the Company's Subsidiaries,
that is a partnership has been duly formed and is (and with respect to the
Company, at and as of the Effective Time, will be) currently existing under the
laws of its jurisdiction of formation and has (and with respect to the Company,
at and as of the Effective Time, will have) the partnership power and authority
to carry on its business as it is currently being conducted and to own, lease
and operate its properties, and each is (and with respect to the Company, at and
as of the Effective Time, will be) duly qualified to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
5B. Authorization. Each of Holdings, Intermediate Holdings, and
Acquisition have, and as of the Effective Time the Company, will have taken all
corporate action necessary to authorize the execution and delivery by it of each
of this Agreement and the other Transaction Documents to which it is a
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party and to authorize the consummation of the transactions contemplated hereby
and thereby and the performance of its obligations hereunder and thereunder.
5C. No Conflicts or Consents. The execution, delivery and
performance of the Transaction Documents, compliance by each of Holdings,
Intermediate Holdings and Acquisition, and at and as of the Effective Time the
Company, with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not require any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may be required
under the securities or Blue Sky laws of the various states) and will not
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or bylaws of Holdings, Intermediate Holdings or
Acquisition, or at and as of the Effective Time the Company, or any of their
respective Subsidiaries or any agreement, indenture or other instrument to which
Holdings, Intermediate Holdings or Acquisition, or at and as of the Effective
Time the Company, or any of their respective Subsidiaries is a party or by which
Holdings, Intermediate Holdings or Acquisition or at and as of the Effective
Time the Company, or any of their respective Subsidiaries or their respective
property is bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to Holdings, Intermediate
Holdings or Acquisition, or at and as of the Effective Time the Company, or any
of their respective Subsidiaries or their respective property.
5D. Enforceable Obligations. Each of the Transaction Documents
constitutes (and with respect to the Assumption Agreement, at or prior to the
Effective Time will constitute) a valid and legally binding agreement of each of
Holdings, Intermediate Holdings, Acquisition and the Company to the extent each
is or will be a party thereto, enforceable against it in accordance with its
terms (assuming due authorization, execution and delivery of each Transaction
Document by any other party thereto), except that enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and the discretion of any court
before which any proceeding therefor may be brought.
5E. Shares. When issued and paid for in accordance with the terms
hereof, the Shares will be duly authorized, val-
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idly issued, fully paid and nonassessable and will not be subject to any
preemptive or similar rights. The aggregate number of shares of Common Stock
issued and outstanding on the Date of Closing is 42,973,312.
5F. Notes. The Notes have been duly and validly authorized by
Acquisition and, when executed by Acquisition in accordance with the provisions
thereof, and delivered to and paid for by the Purchasers in accordance with the
terms hereof, will be entitled to the benefits thereof and will constitute valid
and binding obligations of Acquisition (and at and as of the Effective Time, of
the Company) enforceable in accordance with their terms, except that the
enforcement thereof may be subject to (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity) and the discretion of any court before which any proceeding therefor may
be brought.
5G. No Conflict. None of Holdings, Intermediate Holdings,
Acquisition or ▇▇▇▇▇▇ is, and at and as of the Effective Time the Company will
not be, in violation of its respective charter or bylaws or in default in the
performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any other agreement,
indenture or instrument material to the conduct of the business of Holdings,
Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ and their respective Subsidiaries,
taken as a whole, to which Holdings, Intermediate Holdings, Acquisition, the
Company, ▇▇▇▇▇▇ or any of their respective Subsidiaries is a party or by which
Holdings, Intermediate Holdings, Acquisition, the Company, ▇▇▇▇▇▇ or any of
their respective Subsidiaries or property is bound except for such violations or
defaults which, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
5H. Financial Statements. The Financial Statements, together with
related schedules and notes, present fairly the consolidated financial position,
results of operations and changes in financial position of ▇▇▇▇▇▇ on the basis
stated in such Financial Statements at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with GAAP consistently applied
throughout the periods involved, except as disclosed therein and except that the
financial statements for the period ended May 25, 1997 do not include footnotes
or adjustments normally made at year end; and
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the other financial and statistical information and data set forth in the
Memorandum is, in all material respects, accurately presented.
5I. No Undisclosed Liabilities. Except as fully reflected or
reserved against in the Financial Statements and the notes thereto, there are no
liabilities or obligations with respect to Holdings, Intermediate Holdings,
Acquisition, ▇▇▇▇▇▇ or any of their respective Subsidiaries of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due) which, either individually or in the aggregate, would be material to
Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ and their respective
Subsidiaries, taken as a whole. Each of Holdings, Intermediate Holdings and
Acquisition and, to the best knowledge of Holdings or Acquisition, after due
inquiry, ▇▇▇▇▇▇ or any of its Subsidiaries does not know of any basis for the
assertion against Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ or any of
their respective Subsidiaries of any liability or obligation of any nature
whatsoever that is not fully reflected in the Financial Statements which, either
individually or in the aggregate, would reasonably be expected to be material to
Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ and their respective
Subsidiaries, taken as a whole.
5J. Full Disclosure. The information delivered herewith or
heretofore by Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ or the
Company to the Purchasers in connection with the negotiation of this Agreement
or in connection with any transaction contemplated hereby, does not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements contained herein or therein not misleading. There is no
fact known to Holdings, Intermediate Holdings, Acquisition or ▇▇▇▇▇▇ that has
not been disclosed to the Purchasers which, individually or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect.
5K. Litigation. Except as disclosed in Schedule 4.14 to the Stock
Purchase Agreement, there are no legal or governmental proceedings pending to
which any of Holdings, Intermediate Holdings, Acquisition or ▇▇▇▇▇▇ is, or at
and as of the Effective Time the Company will be, or any of their respective
Subsidiaries is a party or of which any of their respective property is the
subject which would reasonably be expected to result in a Material Adverse
Effect, and, to the best knowledge of Holdings, Intermediate Holdings,
Acquisition and ▇▇▇▇▇▇, no such proceedings are threatened or contemplated.
- 14 -
5L. Environmental and Other Laws. Except as disclosed in Schedule
4.23 or 4.14 to the Stock Purchase Agreement, none of Holdings, Intermediate
Holdings, Acquisition or ▇▇▇▇▇▇, nor any of their respective Subsidiaries has
violated any foreign, federal, state of local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), nor any
federal or state law relating to discrimination in the hiring, promotion or pay
of employees nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case would reasonably be
expected to result in any Material Adverse Effect.
5M. Permits. Each of Holdings, Intermediate Holdings, Acquisition,
▇▇▇▇▇▇ and their respective Subsidiaries has such permits, licenses, franchises,
consents, approvals, orders, certificates and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its business except for those the absence
of which, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect; each of Holdings, Intermediate Holdings,
Acquisition, ▇▇▇▇▇▇ and their respective Subsidiaries has fulfilled and
performed all of its obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other impairment of the rights of the
holder of any such permit, in each case where the same, individually or in the
aggregate, would reasonably be expected to result in a Material Adverse Effect;
each permit is in full force and effect; each of Holdings, Intermediate
Holdings, Acquisition, ▇▇▇▇▇▇ and their respective Subsidiaries is operating in
compliance with its permits, and there are no proceedings pending or, to
Holdings', Intermediate Holdings', Acquisition's or ▇▇▇▇▇▇'▇ knowledge,
threatened against Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ or any
of their respective Subsidiaries that seek to cause any permit of any of them to
be revoked, withdrawn, canceled, suspended or not renewed, except where the
failure of a permit to be in full force or effect or noncompliance with a permit
would not, individually or in the aggregate, to result in a Material Adverse
Effect.
5N. Title to Properties. Except as disclosed on Schedules 4.9 or
4.10 to the Stock purchase Agreement or as are
- 15 -
not material to the business, prospects, financial condition or results of
operations of Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ and their
respective Subsidiaries, taken as a whole, each of Holdings, Intermediate
Holdings, Acquisition, ▇▇▇▇▇▇ and their respective Subsidiaries has (and at and
as of the Effective Time will have) good and marketable title, free and clear of
all Liens, claims, encumbrances and restrictions, to all property and assets
described in the Memorandum as being owned by them. All leases to which
Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ and their respective
Subsidiaries is a party are valid and binding and no default has occurred or is
continuing thereunder, which, individually or in the aggregate, would reasonably
be expected to result in any Material Adverse Effect; and Holdings, Intermediate
Holdings, Acquisition, ▇▇▇▇▇▇ and their respective Subsidiaries enjoy peaceful
and undisturbed possession under all such leases to which any of them is a party
as lessee other than such exceptions that, individually or in the aggregate,
would not reasonably be expected to result in any Material Adverse Effect.
5O. Insurance. Each of Holdings, Intermediate Holdings, Acquisition,
▇▇▇▇▇▇ and their respective Subsidiaries maintain, and at and as of the
Effective Time, the Company will maintain reasonably adequate insurance.
5P. Reports. Each of Holdings, Intermediate Holdings, Acquisition,
▇▇▇▇▇▇ and their respective Subsidiaries has (and at and as of the Effective
Time will have) timely filed all reports, data and other information required by
any other regulatory agency with authority to regulate Holdings, Intermediate
Holdings, Acquisition, ▇▇▇▇▇▇, their respective Subsidiaries, or the business of
any of them in any manner except where the failure to do so would not reasonably
be expected to result in a Material Adverse Effect; and (i) each of Holdings,
Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ and their respective Subsidiaries are
(and at and as of the Effective Time will be) in compliance with all rules,
regulations and requirements of all regulatory agencies, except where such
noncompliance, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, and (ii) the conduct of the
business of each of Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ and
their respective Subsidiaries does not violate 42 U.S.C. ss. 1320a-7b (commonly
known as the "Anti-Kickback Statute") or 42 U.S.C. ss. 1395nn (commonly known as
the "▇▇▇▇▇ Amendments"), including all amendments thereto to the extent
effective on the date hereof, unless any noncompliance, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse
Effect.
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5Q. Investment Company. None of Holdings, Intermediate Holdings,
Acquisition, ▇▇▇▇▇▇, or their respective Subsidiaries is or upon application of
the proceeds from the sale of the Securities as contemplated by the Memorandum
will be and at and as of the Effective Time, the Company will not be, an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
5R. Intellectual Property. Each of Holdings, Intermediate Holdings,
Acquisition, ▇▇▇▇▇▇ and their respective Subsidiaries owns or otherwise
possesses all material licenses, patents, patent rights, patent applications,
inventions, trade secrets, know-how, proprietary information and techniques,
including processes, trademarks, service marks, trade names, computer software
and copyrights described or referred to in the Memorandum as owned or used by it
or that are necessary for and/or used in the conduct of its business as
described in the Memorandum. Any registrations covering such patents,
trademarks, service marks, trade names or copyrights owned by, or licensed to,
Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ or any of their respective
Subsidiaries are valid and subsisting, have not been cancelled, abandoned or
otherwise terminated and, if applicable, have been duly issued or filed. Except
as set forth in Schedule 4.11 to the Stock Purchase Agreement, none of Holdings,
Intermediate Holdings, Acquisition, ▇▇▇▇▇▇ or any of their respective
Subsidiaries is aware of or has received any notice of infringement of, or
conflict or claimed conflict with, asserted rights of others with respect to any
licenses, patents, patent rights, patent applications, inventions, trade
secrets, know-how, proprietary information or techniques, including processes,
trademarks, service marks, trade names, computer software or copyrights.
5S. Offering of Notes or Shares. Except for solicitations to no more
than 10 offerees reasonably believed by each of Holdings and Acquisition to be
"accredited investors" as such term is defined in Regulation D of the Securities
Act in connection with the Memorandum neither Holdings or Acquisition nor any
agent acting on their behalf has, directly or indirectly, offered the Notes or
Shares or any similar security of Holdings or Acquisition for sale to, or
solicited any offers to buy the Notes or Shares or any similar security of
Holdings or Acquisition from, or otherwise approached or negotiated with respect
thereto with, any Person other than the purchasers, and neither Holdings or
Acquisition nor any agent acting on their behalf has taken or will take any
action which would subject the issuance or sale of the Notes or Shares to the
provisions
- 17 -
of section 5 of the Securities Act or to the registration provisions of any
securities or Blue Sky law of any applicable jurisdiction in such a manner as to
require that the Notes or Shares actually be registered.
5T. Use of Proceeds. Neither Holdings or Acquisition nor any of
their respective Subsidiaries owns or has any present intention of acquiring any
"margin stock" as defined in Regulation U or Regulation G (12 CFR Part 207) of
the Board of Governors of the Federal Reserve System ("margin stock"). The
proceeds of sale of the Notes and Shares will be used to purchase all of the
outstanding capital stock of ▇▇▇▇▇▇. None of such proceeds will be used,
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any margin stock or for the purpose of
maintaining, reducing or retiring any indebtedness which was originally incurred
to purchase or carry any stock that is currently a margin stock or for any other
purpose which might constitute this transaction a "purpose credit" within the
meaning of such Regulation U or Regulation 0. Neither Holdings or Acquisition
nor any agent acting on its behalf has taken or will take any action which could
reasonably be expected to cause this Agreement or the Notes to violate
Regulation U, Regulation G, Regulation T or any other regulation of the Board of
Governors of the Federal Reserve System or to violate the Exchange Act, in each
case as in effect now or as the same may hereafter be in effect.
5U. Other Representations and Warranties. The representations and
warranties of each party to the Credit Agreement, the Stock Purchase Agreement
and the Equity Agreements are true and correct as of the date hereof and as of
the Date of Closing as if made on each such date.
Any certificate signed by any officer of Holdings or Acquisition and
delivered to any Purchaser or to counsel for the Purchasers shall be deemed a
representation and warranty by Holdings and Acquisition to each Purchaser as to
the matters covered thereby.
PARAGRAPH 6. REPRESENTATIONS AND AGREEMENT OF THE PURCHASERS.
6A. Acknowledgments of the Purchasers. Each Purchaser understands
and acknowledges to Holdings and Acquisition that:
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(i) the offering and sale of the Securities is intended to be exempt
from registration under the Securities Act by virtue of the provisions of
Section 4(2) of the Securities Act;
(ii) there is no existing public or other market for the Securities
and there can be no assurance that such Purchaser will be able to sell or
dispose of such Purchaser's Notes and Shares;
(iii) the Securities have not been registered under the Securities
Act and must be held indefinitely unless they are subsequently registered
under the Securities Act or such sale is permitted pursuant to an
available exemption from such registration requirement;
(iv) if any transfer of the Securities is to be made in reliance on
an exemption under the Securities Act, Holdings and Acquisition may
require an opinion of counsel reasonably satisfactory to it that such
transfer may be made pursuant to an exemption under the Securities Act;
and
(v) that the Securities will have the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THIS SECURITIES ACT OF 1933 OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE
REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS AND THE COMPANY
MAY REQUIRE AN OPINION OF COUNSEL WITH RESPECT TO SUCH EXEMPTION."
6B. Representations of the Purchasers. Each Purchaser, severally and
not jointly, represents and warrants to Holdings and Acquisition that:
(i) the Securities to be acquired by it pursuant to this Agreement
are being acquired for its own account, not as a nominee or agent for any
other Person, and without a view to the distribution of such Securities or
any interest therein in violation of the Securities Act;
- 19 -
(ii) it is an "Accredited Investor" as such term is defined in
Regulation D under the Securities Act and has such knowledge and
experience in financial and business matters so as to be capable of
evaluating the merits and risks of its investment in the Securities, and
such Purchaser is capable of bearing the economic risks of such investment
and is able to bear a complete loss of its investment in the Securities;
(iii) it has been provided, to its satisfaction, the opportunity to
ask questions concerning the terms and conditions of the offering and sale
of the Securities, has had all such questions answered to its satisfaction
and has been supplied all additional information as it has requested;
(iv) the execution, delivery, and performance of this Agreement is
within such Purchaser's powers (corporate or otherwise) and has been duly
authorized by all requisite action (corporate or otherwise); and
(v) it shall take all further actions necessary to facilitate the
issuance of the Securities to it under an appropriate exemption from
registration under the Securities Act of applicable Blue Sky Laws,
including, without limitation, providing the Company with such information
as the Company may require to complete a Form D and any related or similar
forms or applications required under the Securities Act or applicable Blue
Sky Laws.
PARAGRAPH 7. DEFINITIONS.
7. Definitions. For the purpose of this Agreement, the terms defined
in the indenture attached as part of Exhibit A hereto (the "Indenture") shall
have the respective meanings set forth in the Indenture, except that terms
defined in this Agreement shall have the respective meanings specified therein,
and the following terms shall have the meanings specified with respect thereto
below (such meanings to be equally applicable to both the singular and plural
forms of the terms defined)
"all or substantially all" shall have the meaning given such phrase
in the Revised Model Business Corporation Act.
- 20 -
"Assumption Agreement" means the agreement in the form of Exhibit E
attached hereto among the Company and each Purchaser whereby the Company assumes
all of the obligations and duties of Acquisition under this Agreement, the Notes
and the Note Registration Rights Agreement.
"Equity Agreements" means the subscription agreements relating to
the purchase of Capital Stock of Holdings dated as of the date hereof and the
Shareholders' Agreements.
"Financial Statements" means the audited annual consolidated
financial statements of ▇▇▇▇▇▇ for the years ended December 31, 1996, 1995 and
1994, as updated by the unaudited consolidated financial statements dated as of,
and for the period ended, May 25, 1997.
"Fiscal Quarter" shall mean a three-month period ending on March 31,
June 30, September 30 or December 31 of any year.
"Fiscal Year" means a twelve-month period ending on December 31 of
any year.
"Holder" means any holder of Securities from time to time.
"Lien" means, with respect to any property or assets, any right or
interest therein of a creditor to secure Indebtedness owed to such Person or any
other arrangement with such creditor which provides for the payment of such
Indebtedness out of such property or assets or which allows such Person to have
such Indebtedness satisfied out of such property or assets prior to the general
creditors of any owner thereof, including without limitation any lien, mortgage,
security interest, pledge, deposit, production payment, rights of a vendor under
any title retention or conditional sale agreement or lease substantially
equivalent thereto, or any other charge or encumbrance for security purposes,
whether arising by law or agreement or otherwise, but excluding any right of
offset which arises without agreement in the ordinary course of business.
"Material Adverse Effect" means a material adverse effect to the
business, financial condition, operations, assets, business or properties of
Holdings, Intermediate Holdings, Acquisition, ▇▇▇▇▇▇, the Company and their
respective Subsidiaries, taken as a whole or the ability or obligation of
Holdings, Acquisition, ▇▇▇▇▇▇ or the Company to perform on a
- 21 -
timely basis their respective obligations under this Agreement or the other
Transaction Documents.
"Memorandum" means the Confidential Information Memorandum of
Holdings dated June 1997 delivered to the Purchasers attached hereto as Exhibit
G.
"Note Registration Rights Agreement" means the Registration Rights
Agreement by and among Acquisition and the Purchasers, dated the Date of
Closing, in the form of Exhibit F hereto, as amended or supplemented from time
to time.
"Registration and Anti-Dilution Agreement" means the Registration
and Anti-Dilution Agreement by and among Holdings and the Purchasers, dated the
Date of Closing, in the form of Exhibit C hereto, as amended or supplemented
from time to time.
"Securities" means the Notes and the Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated
June 19, 1997, by and among Holdings and ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇.
"Transaction Documents" means this Agreement, the Notes, the Notes
Registration Rights Agreement, the Registration and Anti-Dilution Agreement, the
Shareholders' Agreements, the Credit Agreement, the Equity Agreements, the
Assumption Agreement and all other agreements, certificates, documents,
instruments and writings at any time delivered in connection herewith or
therewith.
"Transferee" means any direct or indirect transferee of all or any
part of any Security purchased under this Agreement.
7A. Terms and Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all determinations with
respect to accounting matters hereunder shall be made, and all unaudited
financial statements and certificates and reports as to financial matters
required to be furnished hereunder shall be prepared in accordance with GAAP as
in effect from time to time, applied on a basis consistent with the most recent
Financial Statements.
- 22 -
PARAGRAPH 8. MISCELLANEOUS.
8. Miscellaneous.
8A. Expenses. The Sellers, jointly and severally, agree, whether or
not the transactions contemplated hereby or the other Transaction Documents
shall be consummated, to pay, and save the Purchasers and any Transferee
harmless against liability for the payment of, all reasonable out-of-pocket
expenses arising in connection with such transactions promptly (and, in any
event, within 30 days after any invoice or other statement or notice), including
(i) all reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel
to the Purchasers, in connection with this Agreement, the other Transaction
Documents and the transactions contemplated hereby and thereby, (ii) all
document production and duplication charges and the reasonable fees and expenses
of one counsel engaged by the Purchasers or such Transferees in connection with
any subsequent proposed modification of, or proposed consent under, this
Agreement or the other Transaction Documents whether or not such proposed
modification shall be effected or proposed consent granted, and (iii) the costs
and expenses, including reasonable attorneys' fees, incurred by the Purchasers
or such Transferee in enforcing (or determining whether or how to enforce) any
rights under this Agreement or the other Transaction Documents or in responding
to any subpoena or other legal process or informal investigative demand issued
in connection with this Agreement, the other Transaction Documents or the
transactions contemplated hereby or thereby or by reason of the Purchasers' or
such Transferee's having acquired any Security, including without limitation
costs and expenses incurred in any bankruptcy case. The obligations of the
Company under this Paragraph 8A shall survive the transfer of any Note or Share
or portion thereof or interest therein by any Purchaser or any Transferee, and
the payment of any Note or Share.
8B. Consent to Amendments. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended and the Sellers may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Sellers have obtained the written consent of each
of the holders of Notes and/or Shares, as the case may be, purchased hereunder.
8C. Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein or made in writing by or on
behalf of the Sellers in
- 23 -
connection herewith shall survive the execution and delivery of this Agreement,
the Notes, the transfer by any Purchaser of any Note or Shares or portion
thereof or interest therein and the payment of any Note, and may be relied upon
by any Transferee, regardless of any investigation made at any time by or on
behalf of any Purchaser or any Transferee. Subject to the preceding sentence,
this Agreement and the other Transaction Documents embody the entire agreement
and understanding between each Purchaser and the Sellers and supersede all prior
agreements and understandings relating to the subject matter hereof.
8D. Successors and Assigns. All covenants and other agreements in
this Agreement contained by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of the parties
hereto (including, without limitation, any Transferee) whether so expressed or
not.
8E. Notices. All notices or other communications provided for
hereunder shall be in writing and sent by telecopy or nationwide overnight
delivery service (with charges prepaid) and (i) if to any Purchaser, addressed
to it at the address specified for such communications on the signature pages
hereof, or at such other address as such Purchaser shall have specified to
Holdings and Acquisition in writing, (ii) if to any other Holder, addressed to
such other Holder at such address as such other Holder shall have specified to
Holdings and Acquisition in writing or, if any such other Holder shall not have
so specified an address to Holdings and Acquisition, then addressed to such
other Holder in care of the last Holder which shall have so specified an address
to Holdings and Acquisition and (iii) if to Holdings and Acquisition, addressed
to them at WGL Holdings, Inc., 10,000 ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: President, or at such other address as Holdings and Acquisition shall
have specified to the holder of each Security in writing, with a copy to Weil,
Gotshal & ▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
8F. Satisfaction Requirement. If any agreement, certificate or other
writing, or any action taken or to be taken, is by the terms of this Agreement
required to be satisfactory to the Holders, the determination of such
satisfaction shall be made by the Holders in the sole and exclusive judgment
(exercised in good faith) of the Person or Persons making such determination.
- 24 -
8G. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. Any
legal action or proceeding with respect to this Agreement or any other
Transaction Document may be brought in the courts of the State of New York or of
the United States for the Southern District of New York, and, by execution and
delivery of this Agreement, each Seller hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts. Each of Holdings and Acquisition further
irrevocably consent to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to them at their address for
notices pursuant to paragraph 8E, such service to become effective 5 days after
such mailing. Holdings and Acquisition hereby irrevocably appoint CT Corporation
System and such other persons as may hereafter be selected by CT Corporation
System irrevocably agreeing in writing to serve as their agent for service of
process in respect of any such action or proceeding. Nothing herein shall affect
the right of any Holder to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against Holdings or
Acquisition in any other jurisdiction. Each of Holdings and Acquisition hereby
irrevocably waive any objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or any other Transaction Document brought in the
courts referred to above and hereby further irrevocably waive and agree not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
8H. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8I. Descriptive Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
- 25 -
8J. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument.
- 26 -
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same to
Holdings and Acquisition whereupon this letter shall become a binding agreement
by and among Holdings, Acquisition and each of you.
Very truly yours,
WGL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: President
WGL ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
SIGNATURE PAGE TO PURCHASE AGREEMENT
Accepted and Agreed as of the
date first above written:
DLJ INVESTMENT PARTNERS, L.P. Principal Amount Notes
Purchased: $10,101,010
($8,812,803 aggregate
By: DLJ INVESTMENT PARTNERS, INC., purchase price for
Managing General Partner Notes)
Number of Shares: 1,238,207
($1,258,207 aggregate
purchase price for
Shares)
Address of Purchaser:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr./▇▇▇ ▇▇▇▇▇
DLJ Investment Funding, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Designated Bank: Citibank, N.A.
ABA Number: 021 - 000 - 089
Account Name: DLJ Securities Corp. Special Reserve Account
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Account No.: 4061 - 0209
For further credit to: DLJ Internal Account 275 - 001295
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Taxpayer I.D. Number: 13 - 3868693
(if registered in the name of a
nominee, the nominee Taxpayer
I.D. Number)
Nominee (name in which Notes are to be registered, if different
than name of Purchaser)
-----------------------------------
SIGNATURE PAGE TO PURCHASE AGREEMENT
Accepted and Agreed as of the
date first above written:
DLJ INVESTMENT FUNDING, INC. Principal Amount Notes
Purchased: $1,439,394
($1,255,825 aggregate
purchase price for
Notes)
Number of Shares: 183,569
By: /s/ ▇▇▇ ▇▇▇▇▇ ($183,569 aggregate
-------------------------------- purchase price for
Name: ▇▇▇ ▇▇▇▇▇ Shares)
Title: Vice President
Address of Purchaser:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr./▇▇▇ ▇▇▇▇▇
DLJ Investment Funding, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Designated Bank: Citibank, N.A.
Account Name: DLJ Securities Corp. Special Reserve Account
ABA Number: 021 - 000 - 089
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Account No.: 4061 - 0209
For further credit to: DLJ Internal Account 295 - 001451
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Taxpayer I.D. Number: 13 - 3887953
(if registered in the name of a
nominee, the nominee Taxpayer
I.D. Number)
Nominee (name in which Notes are to be registered, if different
than name of Purchaser)
-----------------------------------
SIGNATURE PAGE TO PURCHASE AGREEMENT
Accepted and Agreed as of the
date first above written:
DLJ FIRST ESC L.L.C Principal Amount Notes
Purchased: $959,596
($837,216 aggregate
By: DLJ LBO PLANS MANAGEMENT purchase price for
CORPORATION Notes)
Number of Shares: 122,380
By: /s/ ▇▇▇ ▇▇▇▇▇ ($122,380 aggregate
-------------------------------- purchase price for
Name: ▇▇▇ ▇▇▇▇▇ Shares)
Title: Vice President
Address of Purchaser:
▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
DLJ First ESC L.L.C.
c/o DLJ LBO Plans Management Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Designated Bank: Citibank, N.A.
Account Name: DLJ Securities Corp Special Reserve Account
ABA Number: 021 - 000 - 089
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Account No.: 4061 - 0209
For further credit to: DLJ Internal Account 275 - 882652
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Taxpayer I.D. Number: 13 - 3790645
(if registered in the name of a
nominee, the nominee Taxpayer
I.D. Number)
Nominee (name in which Notes are to be registered, if different
than name of Purchaser)
-----------------------------------
SIGNATURE PAGE TO PURCHASE AGREEMENT
Accepted and Agreed as of the
date first above written:
THE NORTHWESTERN MUTUAL LIFE Principal Amount Notes
INSURANCE COMPANY Purchased: $7,500,000
($6,543,506 aggregate
By: /s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇ purchase price for
-------------------------------- Notes)
Name: A. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Number of Shares: 956,494
($956,494 aggregate
purchase price for
Shares)
Address of Purchaser:
For confirmation of payments: All other communications:
The Northwestern Mutual Life The Northwestern Mutual Life
Insurance Company Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Investment Operations Attn: Securities Department
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Designated Bank: Bankers Trust Company
ABA Number: ▇▇▇-▇▇▇-▇▇▇
Account Name: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Insurance ▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Account No.: ▇▇-▇▇▇-▇▇▇
Attention: The Northwestern Mutual Life Insurance Company
Taxpayer I.D. Number: ▇▇-▇▇▇▇▇▇▇
(if registered in the name of a
nominee, the nominee Taxpayer
I.D. Number)
Nominee (name in which Notes are to be registered, if different
than name of Purchaser)
-----------------------------------
SIGNATURE PAGE TO PURCHASE AGREEMENT
Accepted and Agreed as of the
date first above written:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Principal Amount Notes
SECURITIES CORPORATION Purchased: $5,000,000
($4,362,338 aggregate
purchase price for
Notes)
Number of Shares: 637,662
By: /s/ ▇▇▇ ▇▇▇▇▇ ($637,662 aggregate
-------------------------------- purchase price for
Name: ▇▇▇ ▇▇▇▇▇ Shares)
Title: Vice President
Address of Purchaser:
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Designated Bank: Citibank, N.A.
ABA Number: 021 - 000 - 089
Account Name: DLJ Securities Corp.
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Account No.: 3889 - 6041
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Taxpayer I.D. Number: 13 - 2741727
(if registered in the name of a
nominee, the nominee Taxpayer
I.D. Number)
Nominee (name in which Notes are to be registered, if different
than name of Purchaser)
-----------------------------------
Exhibit A to Securities
Purchase Agreement --
Form of 13% Senior
Subordinated Note due 2007
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, THIS
SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL
AMOUNT OF THIS SECURITY, (1) THE ISSUE PRICE IS $872.46752; (2) THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT IS $127.53248; (3) THE ISSUE DATE IS JULY 10, 1997; AND
(4) THE YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 15.556%. THIS NOTE (AND
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933 (THE "SECURITIES
ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICA-BLE EXEMPTION THEREFROM. THE HOLDER
OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (W) INSIDE THE UNITED STATES
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION
MEETING THE REQUIRE-MENTS OF RULE 144A, OR IN ACCORDANCE WITH RULE 144 UNDER THE
SECURITIES ACT, OR PURSUANT TO ANOTHER EXEMPTION FROM THE REG-ISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL, IF THE
COMPANY SO REQUESTS), (X) TO THE COMPANY, (Y) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SE-CURITIES ACT OR (Z) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (2) IN EACH CASE, IN AC-CORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NO-TIFY ANY PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE.
WGL ACQUISITION CORP.
13% SENIOR SUBORDINATED NOTE DUE 2007
No. ______ $___________
WGL ACQUISITION CORP., a New York corporation (the "Company,"
which term includes any successor entity, including
- 2 -
without limitation ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LTD.), for value received, promises to pay
to ____________________________, or registered assigns, the principal sum of
_________________________________, on July 1, 2007.
Interest Payment Dates: January 1 and July I
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Note
contained on the reverse hereof or elsewhere herein, which will for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto or imprinted hereon.
WGL ACQUISITION CORP.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
Dated: July 10, 1997
- 3 -
(REVERSE OF SECURITY)
13% SENIOR SUBORDINATED NOTE DUE 2007
1. INCORPORATION BY REFERENCE OF PROVISION OF THE INDENTURE.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the indenture (as amended in accordance herewith, the "Indenture")
attached hereto as Exhibit A. At all times during which an indenture is not
required to be qualified under the TIA with respect to the Notes or the
Indenture has not otherwise been executed and delivered, to the extent not
inconsistent with any other terms of the Notes set forth herein, all of the
terms and conditions of the Indenture shall be and are hereby incorporated by
this reference in the Notes as if fully set forth herein, and shall be binding
upon the Company and, by accepting a Note, each Holder and inure to the benefit
of the Holders of the Notes, except that, to the extent that the Indenture
requires (i) any notices, certificates or other items to be delivered by the
Company to the Trustee or any Paying Agent, such notices, certificates or other
items shall be delivered instead to each Holder, (ii) any notices, certificates
or other items to be delivered by the Holders or the holders of Senior Debt
(including the Representative) to the Trustee, such notices, certificates or
other item shall be delivered instead by the Holders or the holders of Senior
Debt (including the Representative), as the case may be, to the Company (and, in
respect of notices, certificates or other items delivered by the holders of
Senior Debt (including the Representative), shall be delivered by the Company to
each Holder), (iii) any notices, certificates or other items to be delivered by
the Trustee to the Holders, such notices, certificates or other items shall be
delivered instead by the Company to the Holders, (iv) any payments to be made by
the Company to the Paying Agent for payment to Holders, such payments shall
instead be paid directly by the Company to the applicable Holder in the same
manner as set forth in Section 3 below Section 2.04 of the Indenture not to
apply to any such payments), (v) approval of the form of Notes or notations,
legends or endorsements thereon by the Trustee, the Holders of a majority in
outstanding principal amount of the Notes shall instead approve such form and
notations, legends or
- 4 -
endorsements (the form of Notes delivered to the initial Holders on the date of
original issuance of the Notes and notations, legends and endorsements thereon
being deemed to have been so approved), (vi) any Note to be authenticated by the
Trustee, the Notes shall instead be authenticated by the Company (the execution
and delivery of any Note by manual signature of the Company to be deemed to
constitute such authentication for all purposes) (vii) that a Person other than
the Company and any Affiliate thereof act as Paying Agent for presentation or
surrender of Notes for payment, the Company or an Affiliate thereof may
nonetheless so act, (viii) the Company to initially appoint the Trustee as
Registrar, Paying Agent (to the extent of acting as agent for receiving
surrender or presentations of, but not deposits of payments on, Notes) and agent
for service of demands and notices in connection with the Notes, the Company
instead hereby appoints its office in New York City at WGL Acquisition Corp.,
10,000 ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ for such purpose (with Section 2.04 of
the Indenture not to apply thereto), (ix) Notes to be canceled by the Trustee,
such Notes shall instead be canceled by the Company, (x) any Opinion of Counsel
to be delivered to the Trustee, such documents shall instead be delivered to the
Holders, (xi) any Notes to be surrendered or forwarded to the Trustee or any
Paying Agent, such Notes shall be surrendered or forwarded instead to the
Company, (xii) any notices, certificates or other items to be delivered by the
Holders to the Paying Agent, such notices, certificates or other items shall be
delivered instead to the Company, and (xiii) Notes to be redeemed upon a partial
redemption to be selected by the Trustee, such Notes shall be selected instead
by the Company.
2. INTEREST. WGL ACQUISITION CORP., a New York corporation (the
"Company," which term includes any successor entity, including without
limitation ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LTD.), promises to pay interest on the principal
amount of this Note at the rate per annum shown above. Interest on the Notes
will accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from July 10, 1997. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing January 1,
1998. Interest
- 5 -
will be computed an the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Notes plus 2% per annum, and on overdue installments of interest (without regard
to any applicable grace periods) to the extent lawful.
3. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on the Record Date immediately preceding the Interest Payment
Date even if the Notes are cancelled on registration of transfer or registration
of exchange after such Record Date. Holders must surrender Notes to the Company
to collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by its check payable (in immediately available
funds) in U.S. Legal Tender or, at the request of a Holder, by wire transfer in
immediately available funds to an account specified in writing by a Holder. The
Company may deliver any such interest payment to the Holder's registered address
or such other address or account as the Holder may designate in writing.
4. PAYING AGENT AND REGISTRAR. Initially, the Company will act as
Paying Agent (for purposes of receiving surrender or presentment of, but not
deposits of payments on, Notes) and Registrar. The Company may change any such
Paying Agent, Registrar or co-Registrar without notice to the Holders.
5. INDENTURE. In the event an indenture is required to be qualified
under the Trust Indenture Act of 1939 (U.S. Code ▇▇.▇▇. 77aaa-77bbbb), as
amended from time to time (the "TIA"), with respect to the Notes, or upon the
request of holders of in excess of 25% in principal amount of outstanding Notes
the Company shall and at any other time the Company, in its sole discretion, may
appoint a Trustee who satisfies the eligibility requirements set forth in
Section 7.10 of the In-
- 6 -
denture and, in any such event, the Company shall take whatever actions are
necessary to cause an indenture substantially in the form of Exhibit A attached
hereto to be executed and delivered by the Company and the Trustee and to be
qualified under the TIA (which Indenture shall provide for the same restrictions
on transfer set forth hereon if such Indenture is executed and delivered at the
election of the Company). In such event, (i) this Note shall be deemed to be one
of an issue of Notes of the Company issued under the Indenture; (ii) the terms
of the Notes shall be deemed to include those stated in the Indenture and those
made part of the Indenture by reference to the TIA, as amended from time to
time; and (iii) the Notes shall be subject to all such terms. Holders of Notes
are referred to the Indenture and the TIA for a statement of all such term. In
such event, the Company may require holders of the Notes, and each Holder by his
or her acceptance hereof agrees upon the Company's request, to surrender to the
Trustee all Notes in the form hereof in exchange for replacement Notes
substantially in the form of Exhibit A to the Indenture. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the TIA, as in effect on the date of the Indenture. This Note is
one of a duly authorized issue of Notes of the Company consisting of any other
13% Senior Subordinated Notes due 2007 of the Company issued on July 10, 1997
and any replacement Notes issued in exchange for, or in lieu of, the foregoing
in accordance with the Indenture. The Notes are limited in aggregate principal
amount to $___________. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture and said Act for a statement of them. The Notes are general unsecured
obligations of the Company.
6. SUBORDINATION. The Notes are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt of the Company, whether
outstanding on the date of the Indenture or thereafter created, incurred,
assumed or guaranteed. Each Holder by his or her acceptance hereof agrees to be
bound by such provisions and to
- 7 -
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture.
7. REDEMPTION.
(a) OPTIONAL Redemption. The Notes will be redeemable, at the Company's
option, in whole at any time or in part from time to time, on and after July 1,
1999, at the following redemption prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period commencing
on July 1 of the year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption:
Year Percentage
---- ----------
1999 ......................................................110.11%
2000 ......................................................108.67%
2001 ......................................................107.22%
2002 ......................................................105.78%
2003 ......................................................104.33%
2004 ......................................................102.89%
2005 ......................................................101.44%
2006 ......................................................100.00%
(b) OPTIONAL REDEMPTION UPON PUBLIC EQUITY OFFERINGS. At any time, or
from time to time, on or prior to July 1, 1999, the company may, at its option,
use the net cash proceeds of one or more Public Equity offerings (as defined in
the Indenture) to redeem up to 100% but no less than 50% of the aggregate
principal amount of Notes originally issued at a redemption price equal to 112%
of the principal amount thereof plus, in each case, accrued and unpaid interest
to the date of redemption.
In order to effect the foregoing redemption with the proceeds of any
Public Equity offering, the Company shall make such redemption not more than 60
days after the consummation of any such Public Equity Offering.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at
- 8 -
such Holder's registered address. Notes in denominations larger than $1,000 may
be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then, unless the Company defaults in the
payment of such Redemption Price plus accrued and unpaid interest, if any, the
Notes called for redemption will cease to bear interest from and after such
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued and unpaid interest, if
any.
9. OFFERS TO PURCHASE. Sections 4.15 and 4.16 of the Indenture provide
that, after certain Asset Sales (as defined in the Indenture) and upon the
occurrence of a Change of Control (as defined in the Indenture), and subject to
further limitations contained therein, the Company will make an offer to
purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
10. REGISTRATION RIGHTS. Pursuant to the Registration Rights Agreement
(as defined in the Indenture), in certain instances, the Company will be
obligated to register this Note under the Securities Act.
11. DENOMINATIONS; TRANSFER; EXCHANGE. The Notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder shall register the transfer of or exchange Notes in accordance
with the Indenture. The Company may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Company need not register the transfer of or
exchange of any Notes or portions thereof selected for redemption.
12. PERSONS DEEMED OWNERS. The registered Holder of a Note shall be
treated as the owner of it for all purposes.
- 9 -
13. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Company at any
time deposits with a trustee who otherwise could qualify to serve as Trustee
under the Indenture U.S. Legal Tender or U.S. Government Obligations sufficient
to pay the principal of and interest on the Notes to redemption or maturity and
complies with the other provisions of the Indenture relating thereto, the
Company will be discharged from certain provisions of the Indenture and the
Notes (including certain covenants, but excluding its obligation to pay the
principal of and interest on the Notes) .
14. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain exceptions set
forth in Section 9.02(b) of the Indenture, the Indenture or the Notes may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing Default or Event of Default or noncompliance with any provision may be
waived with the written consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding. Without notice to or consent of
any Holder, the Company, when authorized by a Board Resolution, may amend or
supplement the Indenture or the Notes to cure any ambiguity, defect or
inconsistency, provide for uncertificated Notes in addition to or in place of
certificated Notes, or comply with Article Five of the Indenture, comply with
any requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA, make any change that would provide any additional
benefit or rights to the Holders or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
15. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, make payments in respect of its Capital
Stock or certain Indebtedness, enter into transactions with Affiliates, create
dividend or other payment restrictions affecting Subsidiaries, merge or
consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number
- 10 -
of important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations.
16. SUCCESSORS. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Notes and the
Indenture, the predecessor will be released from those obligations.
17. DEFAULTS AND REMEDIES. Events of Default shall be as set forth in
the Indenture. If an Event of Default occurs and is continuing, the Holders of
at least 25% in aggregate principal amount of Notes then outstanding may declare
all the Notes to be due and payable in the manner, at the time and with the
effect provided in the Indenture, except that in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
become due and payable immediately without further action or notice. If an Event
of Default occurs and is continuing, Holders of a majority in- principal amount
of the then outstanding Notes may pursue any available remedy at law or in
equity to collect the payment of principal or interest on the Notes or to
enforce the performance of any provision of the Notes. The Company shall pay all
costs of collecting or enforcing payment of the Notes, together with attorneys,
fees and expenses paid or incurred by holders, whether or not suit be brought by
the Holders.
18. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture (if
executed and delivered), in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Company, its
Subsidiaries or their respective Affiliates as if it were not the Trustee.
19. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer,
employee or incorporator, as such, of the Company shall have any liability for
any obligation of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of a Note by accepting a Note
- 11 -
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
20. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
NOTE AND THE INDENTURE, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS (OTHER
THAN NEW YORK GENERAL OBLIGATIONS LAW ss. 5-1401).
21. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations may be
used in the name of a Holder of a Note or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act) .
22. PROVISIONS OF INDENTURE. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time.
The Company will furnish to any Holder of a Note upon written request
and without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to:
WGL Acquisition Corp.
10,000 ▇▇▇▇▇▇ Drive .
Clarence, New York 14031
Attention: President
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint __________________________ agent to transfer this Note
on the books of the Company. The agent may substitute another to act for him.
Date: ______________________ Signed: ______________________
(Signed exactly as your name
appears on the other side of
this Note)
Signature Guarantee: ______________________
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) July 10, 1999, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Note is being transferred:
[CHECK ONE]
(1) __ to the Company or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities Act;
or
(3) __ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished
to the Company a signed letter containing certain representations and
agreements (the form of which letter is attached hereto); or
(4) __ outside the United states to a "foreign person, in compliance with Rule
904 of Regulation S under the Securities Act; or
(5) __ pursuant to the exemption from registration provided by Rule 144 under
the Securities Act; or
(6) __ pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Company will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; PROVIDED that if box (3), (4), (5) or (6) is checked,
the Company may require, prior to registering any such transfer of the Notes, in
its sole discretion, such legal opinions, certifications (including an
investment letter in the case of box (3) or (4)) and other information as the
Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Company shall not be obligated to
register this Note in the name of any person other than the Holder hereof unless
and until the conditions to any such transfer of registration set forth herein
shall have been satisfied.
Date: ______________________ Signed: ____________________________
(Signed exactly as your name appears
on the other side of this Note)
Signature Guarantee: ____________________________
[FORM OF LETTER TO BE COMPLETED]
BY PURCHASER IF (3) ABOVE IS CHECKED]
Ladies and Gentlemen:
1. The undersigned understands that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set forth in the Notes
and in the Indenture and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes except in compliance with, such
restrictions and conditions and the Securities Act.
2. The undersigned understands that the offer and sale of the Notes
have not been registered under the Securities Act, and that the Notes may not be
offered or sold except as permitted in the following sentence. The undersigned
agrees, on its own behalf and on behalf of any accounts for which it is acting
as hereinafter stated, that if it should sell, pledge or otherwise transfer any
Notes it will do so only (1)(W) inside the United States to a person who the
seller reasonably believes is a qualified institutional buyer within the meaning
of rule 144A under the securities act in a transaction meeting the requirements
of Rule 144A, or in accordance with Rule 144 under the Securities Act, or
pursuant to another exemption from the registration requirements of the
Securities Act (and based upon an opinion of counsel, if the company so
requests), (x) to the Company, (y) outside the United States to a foreign person
in a transaction meeting the requirements of Rule 904 under the Securities Act
or (z) pursuant to an effective registration statement under the Securities Act
and (2) in each case, in accordance with the applicable securities laws of any
state of the United States or any other applicable jurisdiction, and the
undersigned further agrees to provide to any person purchasing any of the Notes
from us a notice advising such purchaser that resales of the Notes are
restricted as stated herein.
3. The undersigned understands that, on any proposed resale of any
Notes, it may be required to furnish the Company such certification and other
information as the Company may reasonably require to confirm that the proposed
sale complies with the foregoing restrictions. The undersigned further
un-
- 2 -
derstands that the Notes purchased by it will bear a legend to the foregoing
effect.
4. The undersigned is an institutional "accredited investor" (as
defined in Rule 501(a) (1), (2), (3) and (7) under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and the
undersigned and any accounts for which it is acting are each able to bear the
economic risk of our or its investment, as the case may be.
5. The undersigned is acquiring the Notes purchased by us f or our
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which the undersigned exercises sole
investment discretion.
Date: ____________________________ ____________________________
NOTICE: To be executed by an
executive officer
- 3 -
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: ____________________________ ____________________________
NOTICE: To be executed by an
executive officer
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount you elect to have purchased:
$ ____________________________
Dated: ____________________________ __________________________
NOTICE: The signature on
this assignment, must
correspond with the name
as it appears upon the
face of the within Note in
every particular without
alteration or enlargement
or any change whatsoever
and be guaranteed by the
endorser's bank or broker.
Signature Guarantee: ____________________________
Exhibit A to 13% Senior
Subordinated Note due 2007
of WGL Acquisition Corp.
Issued on July 10, 1997
================================================================================
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LTD.,
as Issuer
and
[ ],
as Trustee
----------------------
INDENTURE
Dated as of [ ]
----------------------
$25,000,000
13% Senior Subordinated Notes due 2007
================================================================================
CROSS - REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1) ................................................ 7.10
(a)(2) ................................................ 7.10
(a)(3) ................................................ N.A.
(a)(4) ................................................ N.A.
(a)(5) ................................................ 7.08; 7.10
(b) ................................................... 7.08; 7.10; 11.02
(c) ................................................... N.A.
311(a) ................................................... 7.11
(b) ................................................... 7.11
(c) ................................................... N.A.
312(a) ................................................... 2.05
(b) ................................................... 11.03
(c) ................................................... 11.03
313(a) ................................................... 7.06
(b)(1) ................................................ N.A.
(b)(2) ................................................ 7.06
(c) ................................................... 7.06; 11.02
(d) ................................................... 7.06
314(a) ................................................... 4.07; 4.08; 11.02
(b) ................................................... N.A.
(c)(1) ................................................ 11.04
(c)(2) ................................................ 11.04
(c)(3) ................................................ N.A.
(d) ................................................... N.A.
(e) ................................................... 11.05
(f) ................................................... N.A.
315(a) ................................................... 7.01(b)
(b) ................................................... 7.05; 11.02
(c) ................................................... 7.01(a)
(d) ................................................... 7.01(c)
(e) ................................................... 6.11
316(a)(last sentence) .................................... 2.09
(a)(1)(A) ............................................. 6.05
(a)(1)(B) ............................................. 6.04
(a)(2) ................................................ N.A.
(b) ................................................... 6.07
(c) ................................................... 9.05
317(a)(1) ................................................ 6.08
(a)(2) ................................................ 6.09
(b) ................................................... 2.04
318(a) ................................................... 11.01
(c) ................................................... 11.01
----------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions ................................................. 1
SECTION 1.02. Incorporation by Reference of TIA ........................... 28
SECTION 1.03. Rules of Construction ....................................... 28
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating ............................................. 29
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount .... 29
SECTION 2.03. Registrar and Paying Agent .................................. 30
SECTION 2.04. Paying Agent To Hold Assets in Trust ........................ 31
SECTION 2.05. Noteholder Lists ............................................ 31
SECTION 2.06. Transfer and Exchange ....................................... 32
SECTION 2.07. Replacement Notes ........................................... 32
SECTION 2.08. Outstanding Notes ........................................... 33
SECTION 2.09. Treasury Notes .............................................. 33
SECTION 2.10. Temporary Notes ............................................. 34
SECTION 2.11. Cancellation ................................................ 34
SECTION 2.12. Payment of Interest; Defaulted Interest ..................... 34
SECTION 2.13. CUSIP Number ................................................ 35
SECTION 2.14. Deposit of Moneys ........................................... 35
SECTION 2.15. Persons Deemed Owners ....................................... 35
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee .......................................... 36
SECTION 3.02. Selection of Notes To Be Redeemed ........................... 36
SECTION 3.03. Notice of Redemption ........................................ 37
SECTION 3.04. Effect of Notice of Redemption .............................. 38
- i -
Page
----
SECTION 3.05. Deposit of Redemption Price ................................. 38
SECTION 3.06. Notes Redeemed in Part ...................................... 38
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes ............................................ 38
SECTION 4.02. Maintenance of Office or Agency ............................. 39
SECTION 4.03. Corporate Existence ......................................... 39
SECTION 4.04. Payment of Taxes and Other Claims ........................... 40
SECTION 4.05. Maintenance of Properties and Insurance ..................... 40
SECTION 4.06. Compliance Certificate; Notice of Default ................... 41
SECTION 4.07. Compliance with Laws ........................................ 42
SECTION 4.08. SEC Reports ................................................. 42
SECTION 4.09. Waiver of Stay, Extension or Usury Laws ..................... 43
SECTION 4.10. Limitation on Restricted Payments ........................... 43
SECTION 4.11. Limitation on Transactions with Affiliates .................. 46
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness ......... 47
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries .................................... 48
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated Debt ....... 48
SECTION 4.15. Change of Control ........................................... 49
SECTION 4.16. Limitation on Asset Sales ................................... 51
SECTION 4.17. Limitation on Preferred Stock of Restricted Subsidiaries .... 55
SECTION 4.18. Limitation on Liens ......................................... 55
SECTION 4.19. Limitation of Guarantees by Restricted Subsidiaries ......... 56
SECTION 4.20. Limitation on Issuance of Shares of Restricted Subsidiaries . 57
SECTION 4.21. Conduct of Business ......................................... 57
SECTION 4.22. Consummation of Acquisition ................................. 57
- ii -
Page
----
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets .................... 58
SECTION 5.02. Successor Corporation Substituted ........................... 59
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default ........................................... 60
SECTION 6.02. Acceleration ................................................ 62
SECTION 6.03. Other Remedies .............................................. 63
SECTION 6.04. Waiver of Past Defaults ..................................... 63
SECTION 6.05. Control by Majority ......................................... 63
SECTION 6.06. Limitation on Suits ......................................... 64
SECTION 6.07. Rights of Holders To Receive Payment ........................ 64
SECTION 6.08. Collection Suit by Trustee .................................. 65
SECTION 6.09. Trustee May File Proofs of Claim ............................ 65
SECTION 6.10. Priorities .................................................. 66
SECTION 6.11. Undertaking for Costs ....................................... 66
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee ........................................... 67
SECTION 7.02. Rights of Trustee ........................................... 68
SECTION 7.03. Individual Rights of Trustee ................................ 69
SECTION 7.04. Trustee's Disclaimer ........................................ 69
SECTION 7.05. Notice of Default ........................................... 70
SECTION 7.06. Reports by Trustee to Holders ............................... 70
SECTION 7.07. Compensation and Indemnity .................................. 70
SECTION 7.08. Replacement of Trustee ...................................... 72
SECTION 7.09. Successor Trustee by Merger, Etc. ........................... 73
SECTION 7.10. Eligibility; Disqualification ............................... 73
SECTION 7.11. Preferential Collection of Claims Against Company ........... 74
- iii -
Page
----
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations ................... 74
SECTION 8.02. Legal Defeasance and Covenant Defeasance ................... 76
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance ...... 77
SECTION 8.04. Application of Trust Money ................................. 79
SECTION 8.05. Repayment to the Company ................................... 80
SECTION 8.06. Reinstatement .............................................. 80
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. without Consent of Holders ................................. 81
SECTION 9.02. With Consent of Holders .................................... 82
SECTION 9.03. Effect on Senior Debt ...................................... 83
SECTION 9.04. Compliance with TIA ........................................ 83
SECTION 9.05. Revocation and Effect of Consents .......................... 83
SECTION 9.06. Notation on or Exchange of Notes ........................... 84
SECTION 9.07. Trustee To Sign Amendments, Etc. ........................... 84
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Debt .......................... 85
SECTION 10.02. No Payment on Notes in Certain Circumstances ............... 85
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc. ............ 87
SECTION 10.04. Payments May Be Paid Prior to Dissolution .................. 89
SECTION 10.05. Subrogation ................................................ 89
SECTION 10.06. Obligations of the Company Unconditional ................... 90
SECTION 10.07. Notice to Trustee .......................................... 90
- iv -
Page
----
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating
Agent .................................................... 91
SECTION 10.09. Trustee's Relation to Senior Debt .......................... 91
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt ................. 92
SECTION 10.11. Noteholders Authorize Trustee
To Effectuate Subordination of Notes ..................... 92
SECTION 10.12. This Article Ten Not To Prevent Events of Default .......... 93
SECTION 10.13. Trustee's Compensation Not Prejudiced ...................... 93
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls ............................................... 93
SECTION 11.02. Notices .................................................... 94
SECTION 11.03. Communications by Holders with Other Holders ............... 95
SECTION 11.04. Certificate and Opinion as to Conditions Precedent ......... 95
SECTION 11.05. Statements Required in Certificate or Opinion .............. 95
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar .................. 96
SECTION 11.07. Legal Holidays ............................................. 96
SECTION 11.06. Governing Law .............................................. 96
SECTION 11.09. No Adverse Interpretation of Other Agreements .............. 97
SECTION 11.10. No Recourse Against Others ................................. 97
SECTION 11.11. Successors ................................................. 97
SECTION 11.12. Duplicate Originals ........................................ 97
SECTION 11.13. Severability ............................................... 97
Signatures
Exhibit A - Form of Note .................................................. A-1
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
- v -
INDENTURE, dated as of July 10, 1997, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Ltd., a New York corporation (the "Company"), and [ ],
a [ ], as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 13%
Senior Subordinated Notes due 2007 (the "Notes") and, to provide therefor, the
Company has duly authorized the execution and delivery of this Indenture. All
things necessary to make the Notes, when duly issued and executed by the
Company, and authenticated and delivered hereunder, the valid obligations of the
Company, and to make this Indenture a valid and binding agreement of the
Company, have been done.
Each party hereto agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acceleration Notice" has the meaning provided in Section 6.02 (a).
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with the Company or any of
its Restricted Subsidiaries or assumed in connection with the acquisition of
assets from such Person and in each case not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"Acquisition" means the acquisition of all of the capital stock of
the Company by Holdings on the Issue Date.
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
- 2 -
a Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative of the foregoing. For purposes of Section 2.09, the term "Affiliate"
shall not include any Permitted Holder.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprise any division or line of business of
such Person or any other properties or assets of such Person other than in the
ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Restricted Subsidiaries (including any Sale and Leaseback
Transaction) to any Person other than the Company or a Wholly Owned Restricted
Subsidiary of the Company of (a) any Capital Stock of any Restricted Subsidiary
of the Company or (b) any other property or assets of the Company or any
Restricted Subsidiary of the Company other than in the ordinary course of
business; provided, however, that Asset Sales shall not include (i) a
transaction or series of related transactions for which the Company or its
Restricted Subsidiaries receive aggregate consideration of less than $50,000 and
(ii) the sale, lease, conveyance, disposition or other transfer of all or
substantially all of the assets of the Company as permitted under Section 5.01.
"Authenticating Agent" has the meaning provided in Section 2.02.
- 3 -
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Blockage Period" has the meaning provided in Section 10.02.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations that is included on a balance sheet of such Person at
such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of such Person's corporate stock,
including each class of Common Stock and Preferred Stock of such Person and (ii)
with respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
- 4 -
obtainable from either Standard & Poor's Ratings Service ("S&P") or ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $500,000,000; (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company or Holdings to any Person or group of related Persons
for purposes of Section 13(d) of the Exchange Act (a "Group"), together with any
Affiliates thereof (whether or not otherwise in compliance with the provisions
of this Indenture); (ii) the approval by the holders of Capital Stock of the
Company or Holdings, as the case may be, of any plan or proposal for the
liquidation or dissolution of the Company or Holdings, as the case may be
(whether or not otherwise in compliance with the provisions of this Indenture);
(iii) any Person or Group (other than the Permitted Holders) becomes, directly
or indirectly, the "beneficial owner," as defined in Rule 13d-3 under the
Exchange Act (in a single transaction or in a related series of transactions, by
way of merger, consolidation or other business combination or otherwise) of
greater than (a) 35% of the total voting power entitled to vote in the election
of directors of the Company, Holdings or WGL Intermediate Holdings, Inc. or such
other person surviving the transaction and (b) the total voting power entitled
to vote in the election of directors of the Company, Holdings or WGL
Intermediate Holdings, Inc. beneficially owned by the Permitted Holders; or (iv)
the replacement of a majority of the Board of Directors of the Company, Holdings
or WGL Intermediate Holdings, Inc. over a two-year period from the directors who
constituted the Board of Directors of the Company, Holdings or WGL Intermediate
Holdings, Inc., as the case may be, at the beginning of such period, and such
re-
- 5 -
placement shall not have been approved by a vote of at least a majority of the
Board of Directors of the Company, Holdings or WGL Intermediate Holdings, Inc.,
as the case may be, then still in office who either were members of such Board
of Directors at the beginning of such period or whose election as a member of
such Board of Directors was previously so approved or who were nominated by, or
designees of, any of the Permitted Holders.
"Change of Control Date" has the meaning provided in Section 4.15.
"Change of Control Offer" has the meaning provided in Section 4.15.
"Change of Control Payment Date" has the meaning provided in Section
4.15.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period, (B) Consolidated Interest Expense and (C)
Consolidated Non-cash Charges less any non-cash items increasing Consolidated
Net Income for such period, all as determined on a consolidated basis for such
Person and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to
any Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal Quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "Transaction Date") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and
- 6 -
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to (i) the incurrence or
repayment of any Indebtedness of such Person or any of its Restricted
Subsidiaries (and the application of the proceeds thereof) giving rise to the
need to make such calculation and any incurrence or repayment of other
Indebtedness (and the application of the proceeds thereof), other than the
incurrence or repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities, occurring
during the Four Quarter Period or at any time subsequent to the last day of the
Four Quarter Period and on or prior to the Transaction Date, as if such
incurrence or repayment, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four Quarter Period and (ii) any
Asset Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of such
Person or one of its Restricted Subsidiaries (including any Person who becomes a
Restricted Subsidiary as a result of the Asset Acquisition) incurring, assuming
or otherwise becoming liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Securities Act)
attributable to the assets which are the subject of the Asset Acquisition or
Asset Sale during the Four Quarter Period) occurring during the Four Quarter
Period or at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such Asset Sale or Asset Acquisition
(including the incurrence, assumption or becoming liable for any such
Indebtedness or Acquired Indebtedness) occurred on the first day of the Four
Quarter Period. Furthermore, in calculating "Consolidated Fixed Charges" for
purposes of determining the denominator (but not the numerator) of this
"Consolidated Fixed Charge Coverage Ratio," (1) interest on outstanding
Indebtedness determined on a fluctuating basis as of the Transaction Date and
which will continue to be so determined thereafter shall be deemed to have
accrued at a fixed rate per annum equal to the rate of interest on such
Indebtedness in effect on the Transaction Date and (2) notwithstanding clause
(1) above, interest on Indebtedness determined on a fluctuating basis, to the
extent such interest is covered by agreements relating to Interest Swap
Obligations, shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of (i) Consolidated Interest Expense
(excluding amortization of
- 7 -
debt discount or amortization or write-off of deferred financing costs), plus
(ii) the product of (x) the amount of all dividend payments on any Preferred
Stock of such Person (other than dividends paid in Qualified Capital Stock) paid
in cash or, without duplication and with respect to Disqualified Capital Stock,
accrued during such period times (y) a fraction, the numerator of which is one
and the denominator of which is one minus the then current effective
consolidated federal, state and local tax rate of such Person, expressed as a
decimal.
"Consolidated Interest Expense" means, with respect to any Person
for any period, the sum of, without duplication: (i) the aggregate of the
interest expense of such Person and its Restricted Subsidiaries for such period
determined on a consolidated basis in conformity with GAAP, including, without
limitation, (a) any amortization of debt discount and amortization or write-off
of deferred financing costs, (b) the net costs under Interest Swap Obligations,
(c) all capitalized interest and (d) the interest portion of any deferred
payment obligation; and (ii) without duplication of any amount in clause (i),
the interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued (in each case, without duplication) by such
Person and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom (a) after-tax gains
and losses from Asset Sales (without regard to the exclusions set forth in the
proviso to the definition thereof), (b) after-tax items classified as
extraordinary or non-recurring gains, (c) the net income of any Person acquired
in a "pooling of interests" transaction accrued prior to the date it becomes a
Restricted Subsidiary of the referent Person or is merged or consolidated with
the referent Person or any Restricted Subsidiary of the referent Person, (d) the
net income (but not loss) of any Restricted Subsidiary of the referent Person to
the extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is restricted by contract, operation of law
or otherwise, except to the extent of cash dividends or distributions paid to
the referent Person or a Wholly Owned Restricted Subsidiary of the referent
Person by such Person, (e) the net income of any Person, other than a Restricted
Subsidiary of the referent Person, except to the extent of cash dividends or
distributions paid to
- 8 -
the referent Person or a Wholly Owned Restricted Subsidiary of the referent
Person by such Person, (f) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date, (g) income
or loss attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued), (h) in the case of a successor to the referent
Person by consolidation or merger or as a transferee of the referent Person's
assets, the aggregate net income (or loss) of the successor corporation prior to
such consolidation, merger or transfer of assets and (i) the amount deducted in
determining Consolidated Net Income representing executive, board and
shareholder payments described in Sections 7.5(c), (d) and (g) of the Stock
Purchase Agreement and fees, expenses and financing costs incurred in connection
with the Acquisition.
"Consolidated Non-cash Charges" means, with respect to any Person,
for any period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Restricted Subsidiaries reducing Consolidated
Net Income of such Person and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP (excluding any such
non-cash charge which requires an accrual of or a reserve for cash charges for
any future period).
"Covenant Defeasance" has the meaning provided in Section 8.02.
"Credit Agreement" means the Credit Agreement dated as of the Issue
Date, among Holdings, the Company, the lenders party thereto in their capacities
as lenders thereunder and DLJ Capital Funding, Inc., as agent, together with the
related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including,
without limitation, adding Restricted Subsidiaries of the Company as additional
guarantors thereunder, to the extent permitted by Section 4.19) all or any
portion of the Indebtedness under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group of
lenders; provided that no such amendment, supplement or other modification shall
increase the amount of available borrowings or letter of credit exposure
thereunder, except to the extent other-
- 9 -
wise permitted under this Indenture, to any amount in excess of that which is
available in the absence of any such amendment, supplement or other
modification.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Default Notice" has the meaning provided in Section 10.02.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof on or prior to the final maturity date of the Notes.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"fair market value" means, with respect to any asset or property,
the price which could be negotiated in an arm's-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of whom
is under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
- 10 -
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession of the United States, which are in effect as of December
31, 1996.
"Guarantee" has the meaning provided in Section 4.19.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Holdings" means WGL Holdings, Inc., a Delaware corporation, and the
parent corporation of the Company.
"incur" has the meaning provided in Section 4.12.
"Indebtedness" means with respect to any Person, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Capitalized Lease Obligations of such Person,
(iv) all obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all obligations under
any title retention agreement (but excluding trade accounts payable and other
accrued liabilities arising in the ordinary course of business that are not
overdue by 90 days or more or are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted), (v) all obligations
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction, (vi) guarantees and other contingent
obligations in respect of Indebtedness referred to in clauses (i) through (v)
above and clause (viii) below, (vii) all obligations of any other Person of the
type referred to in clauses (i) through (vi) which are secured by any lien on
any property or asset of such Person, the amount of such obligation being deemed
to be the lesser of the fair market value of such property or asset or the
amount of the obligation so secured, (viii) all obligations under currency swap
agreements and interest swap agreements of such Person and (ix) all Disqualified
Capital Stock issued by such Person with the amount of Indebtedness represented
by such Disqualified Capital Stock being equal to the greater of its voluntary
or involuntary liquidation preference and its maximum fixed repurchase price,
but excluding accrued dividends, if any. For purposes hereof,
- 11 -
the "maximum fixed repurchase price" of any Disqualified Capital Stock which
does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Disqualified Capital Stock as if such Disqualified Capital
Stock were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock, such fair
market value shall be determined reasonably and in good faith by the Board of
Directors of the issuer of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Independent Financial Advisor" means a firm (i) which does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Notes.
"Interest Swan Obligations" means the obligations of any Person,
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter.
"Investment" means, with respect to any Person, any direct or
indirect loan or other extension of credit (including, without limitation, a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition by such Person of any Capital
Stock, bonds, notes, debentures or other securities or evidences of Indebtedness
issued by, any Person.
- 12 -
"Investment" shall exclude (i) extensions of trade credit by the Company and its
Restricted Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of the Company or such Restricted Subsidiary, as the case
may be, and (ii) any transaction involving the purchase or other acquisition
(including by way of merger) of Capital Stock by the Company and its Restricted
Subsidiaries to the extent such purchase or other acquisition is in exchange for
Qualified Capital Stock of the Company or Holdings. For the purposes of Section
4.10, (i) "Investment" shall include and be valued at the fair market value of
the net assets of any Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary and shall exclude the fair
market value of the net assets of any Unrestricted Subsidiary at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced
by any repayment of principal or a return of capital, as the case may be, and by
the payment of dividends or distributions in connection with such Investment or
any other amounts received in respect of such Investment; provided that no such
repayment of principal, return of capital, payment of dividends or distributions
or receipt of any such other amounts shall reduce the amount of any Investment
if such repayment of principal, return of capital, payment of dividends or
distributions or receipt of any such amounts would be included in Consolidated
Net Income. If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, 100% of the
outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted Subsidiary
not sold or disposed of.
"Issue Date" means July 10, 1997.
"Junior Security" means any Qualified Capital Stock, any Qualified
Rights and any Indebtedness of the Company that is (i) subordinated in right of
payment to Senior Debt at least to the same extent as the Notes, as applicable,
(ii) has no scheduled installment of principal due, by redemption, sinking fund
payment or otherwise, on or prior to the stated maturity
- 13 -
of the Notes and (iii) has no terms more beneficial in the aggregate to the
holders thereof than those in effect with respect to the Notes on the Issue
Date.
"Legal Defeasance" has the meaning provided in Section 8.02.
"Legal Holiday" has the meaning provided in Section 11.07.
"Lien" means, with respect to any property, any lien, mortgage, deed
of trust, pledge, security interest, charge or encumbrance of any kind thereon
(including any conditional sale or other title retention agreement, any lease in
the nature thereof and any agreement to give any security interest) and any
assignment or other conveyance of a right to receive income or profits
therefrom.
"Maturity Date" means July 1, 2007.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements, (c) repayment of
Indebtedness that is required to be repaid in connection with such Asset Sale,
(d) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, and (e) all
distributions and other payments made to minority interest holders in Restricted
Subsidiaries or joint ventures as a result of such Asset Sale.
"Net Proceeds Offer" has the meaning provided in Section 4.16.
- 14 -
"Net Proceeds Offer Payment Date" has the meaning provided in
Section 4.16.
"Net Proceeds Offer Trigger Date" has the meaning provided in
Section 4.16.
"Notes" has the meaning provided in the preamble to this Indenture.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing or otherwise relating to
any Indebtedness, including with respect to any rights to rescission.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary of such
Person, or any other officer designated by the Board of Directors serving in a
similar capacity.
"Officer's Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 11.04 and 11.05, as they relate to the making of an
Officers' Certificate.
"Opinion of Counsel" means a written opinion from legal counsel, who
may be counsel for the Company, and who is reasonably acceptable to the Trustee
and not rendered by any employee of the Company or any of its Affiliates or
Subsidiaries complying with the requirements of Sections 11.04 and 11.05, as
they relate to the giving of an Opinion of Counsel.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Holders" means DLJ Merchant Banking II, Inc. and its
Affiliates.
"Permitted Holdings Payments" means any loans, advances, dividends
and distributions by the Company to Holdings to the extent necessary to permit
Holdings to pay, directly or indirectly, (A) (i) expenses (including
professional fees and expenses) in connection with conducting the ongoing
operations of Holdings as the holding company for the Company or complying
- 15 -
with reporting obligations and obligations to prepare and distribute business
records, proxy or other stockholder materials, financial statements or other
documents to any lender or other persons or as may be required by any laws,
rules or regulations; (ii) costs and expenses (including any funding
arrangements in respect thereof) in connection with the determination and
payment of foreign, federal, state, local or foreign taxes and other
governmental charges, indemnification agreements, insurance premiums, surety
bonds and insurance brokers' fees; (iii) expenses for directors', officers' and
employees' compensation and benefits, professional fees and any other
administrative expenses incurred in the ordinary course of business; (iv) for
shares of Capital Stock of Holdings repurchased or redeemed by Holdings solely
for purposes of eliminating fractional shares (including upon exercise of any
warrants); and (v) the expenses and obligations of Holdings in connection with
Holdings' obligations arising pursuant to, or expenses relating to, that certain
securities purchase agreement entered into on the Issue Date in connection with
the initial offering of the Notes, but only to the extent that all such loans,
dividends and distributions under this clause (A) do not exceed $300,000 in the
aggregate in any fiscal year of the Company; provided, however, that, at any
time after the consolidated assets of the Company and its Restricted
Subsidiaries are less than 90% of the consolidated assets of Holdings and its
Subsidiaries, the amounts specified in subclauses (i), (ii) and (iii) above
shall be adjusted to exclude therefrom such portion thereof as shall be
allocable to Subsidiaries of Holdings other than the Company and its Restricted
Subsidiaries, (B) to the extent not duplicative of amounts paid under subclause
(A) (ii) above, Permitted Tax Payments and (C) so long as no Default shall have
occurred and be continuing on the date such Restricted Payment is declared or
made, after giving effect thereto, (y) purchase, redeem, acquire or otherwise
retire for value shares of Capital Stock of Holdings held by directors, officers
or employees of Holdings or the Company or any of its Restricted Subsidiaries,
if any, or options on any such shares or related stock appreciation rights or
similar securities owned by such directors, officers or employees (or any
Management Holder Permitted Transferee (as defined in the Stockholders Agreement
to be entered into between Holdings and certain members of management of the
Company) and (z) pay interest or principal in cash on notes issued to members of
management in respect of any purchase, redemption, acquisition or other
retirement referred to in subclause (y) above, in all cases under this clause
(C), only upon death, disability, retirement, termination of employment or
pursuant to the terms of such stock option plan or any other agreement under
which such shares of Capital Stock, op-
- 16 -
tions, related rights or similar securities were issued in an aggregate amount
not to exceed $4,000,000 in the aggregate. For purposes of the definition,
payments which may be made to holdings may also be made to any stockholder of
the Company which is wholly owned by Holdings.
"Permitted Indebtedness" means, without duplication, each of the
following:
(i) Indebtedness under the Notes and this Indenture;
(ii) Indebtedness incurred pursuant to the Credit Agreement in an
aggregate principal amount at any time outstanding not to
exceed $60 million (A) less the amount of all scheduled
amortization payments and mandatory principal payments,
whether or not actually made by the Company in respect of term
loans thereunder (excluding any such payments to the extent
refinanced at the time of payment under a replaced Credit
Agreement) and (B) in the case of a revolving credit facility,
reduced by any required permanent repayments (which are
accompanied by a corresponding permanent commitment reduction)
thereunder;
(iii) Interest Swap Obligations of the Company covering Indebtedness
of the Company or any of its Restricted Subsidiaries and
Interest Swap Obligations of any Restricted Subsidiary of the
Company covering Indebtedness of such Restricted Subsidiary;
provided, however, that such Interest Swap Obligations are
entered into to protect the Company and its Restricted
Subsidiaries from fluctuations in interest rates on
Indebtedness incurred in accordance with this Indenture to the
extent the notional principal amount of such Interest Swap
Obligation does not exceed the principal amount of the
Indebtedness to which such Interest Swap Obligation relates;
(iv) Indebtedness under Currency Agreements; provided that in the
case of Currency Agreements which relate to Indebtedness, such
Currency Agreements do not increase the Indebtedness of the
Company and its Restricted Subsidiaries outstanding other than
as a result of fluctuations in foreign currency exchange rates
or by reason of
- 17 -
fees, indemnities and compensation payable thereunder;
(v) Indebtedness of a Wholly Owned Restricted Subsidiary of the
Company to the Company or to a Restricted Subsidiary of the
Company for so long as such Indebtedness is held by the
Company or a Wholly Owned Restricted Subsidiary of the
Company, in each case subject to no Lien held by a Person
other than the Company or a Wholly Owned Restricted
Subsidiary of the Company; provided that if as of any date
any Person other than the Company or a Wholly Owned
Restricted Subsidiary of the Company owns or holds any such
Indebtedness or holds a Lien in respect of such
Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness by the
issuer of such Indebtedness;
(vi) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary of the Company for so long as such Indebtedness is
held by a Wholly Owned Restricted Subsidiary of the Company,
in each case subject to no Lien; provided that (a) any
Indebtedness of the Company to any Wholly Owned Restricted
Subsidiary of the Company is unsecured and subordinated,
pursuant to a written agreement, to the Company's
obligations under this Indenture and the Notes and (b) if as
of any date any Person other than a Wholly Owned Restricted
Subsidiary of the Company owns or holds any such Indebtedness
or any Person holds a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not
constituting Permitted Indebtedness by the Company;
(vii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (including in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of
business; provided, however, that such Indebtedness is
extinguished within five Business Days of incurrence;
(viii) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of
- 18 -
credit for the account of the Company or such Restricted
Subsidiary, as the case may be, in order to provide security
for workers' compensation claims, payment obligations in
connection with self-insurance, performance bonds, surety
bonds or similar requirements in the ordinary course of
business;
(ix) Capitalized Lease Obligations and Purchase Money Indebtedness
of the Company and its Restricted Subsidiaries incurred in
the ordinary course of business not to exceed $7,000,000 at
any one time outstanding;
(x) Refinancing Indebtedness;
(xi) guarantees by the Company and its Wholly Owned Restricted
Subsidiaries of each other's Indebtedness; provided that such
Indebtedness is permitted to be incurred under this
Indenture, including, with respect to guarantees by Wholly
Owned Restricted Subsidiaries of the Company, the provisions
of Section 4.19; and
(xii) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed
$10,000,000 at any one time outstanding (which Indebtedness
may be incurred as additional Indebtedness under the Credit
Agreement).
For the purpose of determining compliance with Section 4.12, (A) in the event
that an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described in the above clauses, the Company, in its sole
discretion, shall classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of such clauses, (B) the
amount of Indebtedness issued at a price which is less than the principal amount
thereof shall be equal to the amount of the liability in respect thereof
determined in accordance with GAAP and (C) so as to avoid duplication in
determining the amount of Permitted Indebtedness under any clause of this
definition, guarantees of, or obligations in respect of letters of credit
supporting, Indebtedness otherwise included in the determination of such amount
shall not also be included.
"Permitted Investments" means: (i) Investments by the Company or any
Restricted Subsidiary of the Company in any
- 19 -
Person that is or will become immediately after such Investment a Wholly Owned
Restricted Subsidiary of the Company or that will merge or consolidate into the
Company or a Wholly Owned Restricted Subsidiary of the Company, provided that
such Wholly Owned Restricted Subsidiary is not restricted from making dividends
or similar distributions by contract, operation of law or otherwise; (ii)
Investments in the Company by any Restricted Subsidiary of the Company; provided
that any Indebtedness evidencing such Investment is unsecured and subordinated,
pursuant to a written agreement, to the Company's obligations under the Notes
and this Indenture; (iii) Investments in cash and Cash Equivalents; (iv) loans
and advances to employees and officers of the Company and its Restricted
Subsidiaries in the ordinary course of business for bona fide business purposes
not in excess of $250,000 at any one time outstanding; (v) Currency Agreements
and Interest Swap Obligations entered into in the ordinary course of the
Company's or its Restricted Subsidiaries' businesses and otherwise in compliance
with this Indenture; (vi) Investments (x) constituting accounts receivable if
credited or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms, provided that nothing in
this clause shall prevent the Company or any Restricted Subsidiary from
providing such concessionary trade terms as management deems reasonable in the
circumstances, (y) resulting from settlements or compromises of accounts
receivable or trade payables in the ordinary course of business, and (z) in
securities of trade creditors or customers received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers; (vii) Investments consisting of non-cash proceeds,
or made by the Company or its Restricted Subsidiaries as a result of
consideration, received in connection with an Asset Sale made in compliance with
Section 4.16; (viii) guarantees permitted by Section 41.9; (ix) Investments by
the Company in any Person (including any Unrestricted Subsidiary of the Company)
engaged in substantially the same line of business as the Company and its
Restricted Subsidiaries in an aggregate amount not to exceed $7,500,000 at any
time outstanding; and (x) Permitted Holdings Payments.
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required
pursuant to GAAP;
- 20 -
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not
yet delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have
been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money), including, in any such case, any Lien securing letters of credit
issued in the ordinary course of business consistent with past practice in
connection therewith;
(iv) judgment Liens not giving rise to an Event of Default so long
as such Lien is adequately bonded and any appropriate legal proceedings
which may have been duly initiated for the review of such judgment shall
not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property or minor
irregularities of title incident thereto in each case not interfering in
any material respect with the ordinary conduct of the business of the
Company or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property or
assets which is not leased property subject to such Capitalized Lease
Obligation;
(vii) Liens securing Capitalized Lease Obligations and Purchase
Money Indebtedness permitted under clause (ix) of the definition of
"Permitted Indebtedness"; provided, however, that in the case of Purchase
Money Indebtedness (A) the Indebtedness shall not exceed the cost of such
property or assets being acquired or constructed and shall not be secured
by any property or assets of the Company or any Restricted Subsidiary of
the Company other than the property and assets being acquired or
constructed and (B) the
- 21 -
Lien securing such Indebtedness shall be created within 180 days of such
acquisition or construction;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
(xii) Liens securing Indebtedness under Currency Agreements;
(xiii) Liens securing Acquired Indebtedness incurred in accordance
with Section 41.2; provided that (A) such Liens secured such Acquired
Indebtedness at the time of and prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company and
were not granted in connection with, or in anticipation of, the incurrence
of such Acquired Indebtedness by the Company or a Restricted Subsidiary of
the Company and (B) such Liens do not extend to or cover any property or
assets of the Company or of any of its Restricted Subsidiaries other than
the property or assets that secured the Acquired Indebtedness prior to the
time such Indebtedness became Acquired Indebtedness of the Company or a
Restricted Subsidiary of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary of the Company; and
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"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Rights" means options, warrants or other rights to
purchase Capital Stock (other than Disqualified Stock), other than any such
rights that, by their terms or upon the happening of any event, are mandatorily
redeemable or redeemable at the sole option of the holder thereof on or prior to
the final maturity date of the Notes.
"Quarter" means, with respect to any Person, a fiscal quarterly
period of such Person. If during the 50-day period immediately following the
completion of any Quarter (or, if the Quarter is the last Quarter of the fiscal
year, then the 100-day period immediately following the completion of such
Quarter), a calculation is required to be made under Article Four and financial
statements of such Person for such Quarter are unavailable, any calculation for
the immediately preceding four Quarters (or, if fewer, all Quarters as shall
have ended after the Issue Date and prior to the Quarter for which such
financial statements are unavailable) required under Article Four shall be based
instead upon the four Quarters (or, if fewer, all Quarters as shall have ended
after the Issue Date and prior to the Quarter for which such financial
statements are unavailable) immediately preceding the Quarter for which such
financial statements are not available (giving effect to all adjustments
required under Article Four in respect of events occurring subsequent to the
close of such Quarters on which such calculation is to be based).
"Record Date" means the Record Dates specified in the Notes, whether
or not a Legal Holiday.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Notes.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and the Notes.
"Reference Date" has the meaning provided in Section 4.10.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebted-
- 24 -
ness in whole or in part. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or
any Restricted Subsidiary of the Company of Indebtedness incurred in accordance
with Section 4.12 (other than pursuant to clauses (ii), (iii), (iv), (v), (vi),
(vii), (viii), (ix), (xi) or (xii) of the definition of Permitted Indebtedness),
in each case that does not (1) result in an increase in the aggregate principal
amount of Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of any premium required to be paid under the terms
of the instrument governing such Indebtedness and plus the amount of reasonable
expenses incurred by the Company in connection with such Refinancing) or (2)
create Indebtedness with (A) a Weighted Average Life to Maturity that is less
than the Weighted Average Life to Maturity of the Indebtedness being Refinanced
or (B) a final maturity earlier than the final maturity of the Indebtedness
being Refinanced; provided that (x) if such Indebtedness being Refinanced is
Indebtedness of the Company, then such Refinancing Indebtedness shall be
Indebtedness solely of the Company and (y) if such Indebtedness being Refinanced
is subordinate or junior to the Notes, then such Refinancing Indebtedness shall
be subordinate to the Notes at least to the same extent and in the same manner
as the Indebtedness being Refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement dated July 10, 1997 among the Company, the parties named therein, as
the same may be amended or modified from time to time in accordance with the
terms thereof.
"Replacement Assets" has the meaning provided in Section 4.16.
"Representative" means Fleet National Bank, as administrative agent
under the Credit Agreement.
"Restricted Payment" has the meaning provided in Section 4.10.
"Restricted Security" has the meaning assigned to such term in Rule
144(a) (3) under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to
whether any Note constitutes a Restricted Security.
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"Restricted Subsidiary" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such Property.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor statute or statutes thereto.
"Senior Debt" means the principal of, premium, if any, interest
(including any interest accruing subsequent to the filing of, or which would
have accrued but for the filing of, a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, and all other amounts
owing in respect of, (x) all monetary obligations (including guarantees thereof)
of every nature of the Company under the Credit Agreement, including, without
limitation, obligations to pay principal and interest, reimbursement obligations
under letters of credit, fees, expenses and indemnities and (y) all Interest
Swap Obligations (including guarantees thereof) to the extent incurred in
connection with the Company's obligations under the Credit Agreement, in each
case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, Senior Debt shall not include that portion of any
Indebtedness incurred in violation of the provisions set forth under clauses
(ii) and, if applicable, (xii) of the definition of "Permitted Indebtedness"
(but, as to any such obligation, no such violation shall be deemed to exist for
purposes of this clause if the holder(s) of such obligation or their
representative and the Trustee shall have received an Officers' Certificate of
the Company to the effect that the incurrence of such Indebtedness does not (or,
in the case of revolving credit Indebtedness, that the incurrence of the entire
committed amount thereof at the date on which the initial borrowing thereunder
is made would not) violate such provisions of this Indenture).
- 27 -
sidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, the Company or
any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; provided that (x) the Company certifies to the Trustee that
such designation complies with Section 4.10 and (y) each Subsidiary to be so
designated and each of its Subsidiaries has not at the time of designation, and
does not thereafter, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to which
the lender has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries. The Board of Directors of the Company may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary only if (x) immediately
after giving effect to such designation, the Company is able to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12 and (y) immediately before and immediately after
giving effect to such designation, no Default or Event of Default shall have
occurred and be continuing. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
"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.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any
Restricted Subsidiary of such Person of which all the
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outstanding voting securities (other than in the case of a foreign Restricted
Subsidiary, directors' qualifying shares or an immaterial amount of shares
required to be owned by other Persons pursuant to applicable law) are owned by
such Person or any Wholly Owned Restricted Subsidiary of such Person.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture security holder" means a Holder or a Note-holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular; and
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(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or depository rule
or usage. The Company and the Trustee shall approve the form of the Notes and
any notation, legend or endorsement on them. Each Note shall be dated the date
of its issuance and shall show the date of its authentication.
The terms and provisions contained in the Notes, annexed hereto as
Exhibit A, shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount.
Two Officers, or an Officer and an Assistant Secretary, shall sign,
or one Officer shall sign and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company by manual or facsimile
signature. The Company's seal shall also be reproduced on the Notes.
If an Officer or Assistant Secretary whose signature is on a Note
was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office or position at the time the Trustee authenticates the
Note, the Note shall nevertheless be valid.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authenti-
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cation on the Note. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee shall authenticate Notes for original issue in the
aggregate principal amount not to exceed $25,000,000, upon written orders of the
Company in the form of an Officers' Certificate. The Officers' Certificate shall
specify the amount of Notes to be authenticated, the date on which the Notes are
to be authenticated and the aggregate principal amount of Notes outstanding on
the date of authentication. The aggregate principal amount of Notes outstanding
at any time may not exceed $25,000,000, except as provided in Section 2.07.
The Trustee shall not be required to authenticate Notes if the
issuance of such Notes pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Notes and this Indenture in a manner
which is not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent (the "Authenticating
Agent") reasonably acceptable to the Company to authenticate Notes. Unless
otherwise provided in the appointment, an Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in the City of New York, State of New York)
where (a) Notes may be presented or surrendered for registration of transfer or
for exchange ("Registrar"), (b) Notes may be presented or surrendered for
payment ("Paying Agent") and (c) notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Registrar shall keep
a register of the Notes and of their transfer and exchange. The Company, upon
prior written notice to the Trustee, may have one or more co-Registrars and one
or more additional paying agents reasonably acceptable to the Trustee. The term
"Paying Agent" includes any addi-
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tional Paying Agent. Neither the Company nor any Affiliate of the Company may
act as Paying Agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee, in advance, of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such.
The Company initially appoints the Trustee as Registrar, Paying
Agent and agent for service of demands and notices in connection with the Notes,
until such time as the Trustee has resigned or a successor has been appointed.
The Paying Agent or Registrar may resign upon 30 days notice to the Company.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the benefit
of the Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, or interest on, the Notes (whether such assets have
been distributed to it by the Company or any other obligor on the Notes), and
the Company and the Paying Agent shall notify the Trustee of any Default by the
Company (or any other obligor on the Notes) in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment Default, upon written request to
a Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.
SECTION 2.05. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. If the Trustee is not the Registrar, the Company shall furnish or
cause the Registrar to furnish to the Trustee before each Record Date and at
such other times as the Trustee may request in writing a list as of
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such date and in such form as the Trustee may reasonably require of the names
and addresses of the Holders, which list may be conclusively relied upon by the
Trustee.
SECTION 2.06. Transfer and Exchange.
When Notes are presented to the Registrar or a co-Registrar with a
request to register the transfer of such Notes or to exchange such Notes for an
equal principal amount of Notes of other authorized denominations, the Registrar
or co-Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; provided, however, that the Notes
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Registrar or co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit registrations of
transfer and exchanges, the Company shall execute and the Trustee shall
authenticate Notes at the Registrar's or co-Registrar's request. No service
charge shall be made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchanges or
transfers pursuant to Sections 2.10, 3.06, 4.15, 4.16 or 9.06, in which event
the Company shall be responsible for the payment of such taxes).
The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Note being redeemed in part.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder
of a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Company, such
Holder must provide an affidavit of lost certificate and an indemnity bond or
other indemnity, sufficient in the judgment of both the Company and the Trustee,
to protect the
- 33 -
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Note is replaced. The Company may charge such Holder for its reasonable,
out-of-pocket expenses in replacing a Note, including reasonable fees and
expenses of counsel. Every replacement Note shall constitute an additional
obligation of the Company, and shall be entitled to the benefits of this
Indenture.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section as not outstanding. Subject
to the provisions of Section 2.09, a Note does not cease to be outstanding
because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives an Opinion of Counsel that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of
such Note and replacement thereof pursuant to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Notes payable on that date and is not
prohibited from paying such money to the Holders thereof pursuant to the terms
of this Indenture, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury ▇▇▇▇▇.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver, consent or notice, Notes owned
by the Company or any of its Affiliates shall be considered as though they are
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee actually knows are so owned shall be
so considered. The Company shall notify the Trustee, in writing, when it or any
of its Affiliates repurchases or otherwise acquires Notes, of the aggregate
principal amount of such Notes so repurchased or otherwise acquired.
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SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon receipt of a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Notes to be
authenticated and the date on which the temporary Notes are to be authenticated.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate upon receipt of a written order of the Company pursuant to Section
2.02 definitive Notes in exchange for temporary Notes.
SECTION 2.2.1. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and, at the written direction of the Company, shall dispose
of all Notes surrendered for transfer, exchange, payment or cancellation.
Subject to Section 2.07, the Company may not issue new Notes to replace Notes
that it has paid or delivered to the Trustee for cancellation. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Notes unless
and until the same are surrendered to the Trustee for cancellation pursuant to
this Section 2.11.
SECTION 2.12. Payment of Interest; Defaulted Interest.
Interest on any Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Note is registered in the register maintained by the Registrar
at the close of business on the Record Date for such interest.
If the Company defaults in a payment of interest on the Notes, such
interest shall forthwith cease to be payable to the Holder on the relevant
Record Date by virtue of having been such Holder, and the Company shall pay the
defaulted interest, plus (to the extent lawful) any interest payable on the de-
- 35 -
faulted interest to the Persons who are Holders on a subsequent special record
date, which date shall be the fifteenth day next preceding the date fixed by the
Company for the payment of defaulted interest or the next succeeding Business
Day if such date is not a Business Day. At least 15 days before the subsequent
special record date, the Company shall mail to each Holder, as of a recent date
selected by the Company, with a copy to the Trustee, a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and if
so, the Trustee shall use the CUSIP number in notices of redemption or exchange
as a convenience to Holders; provided that no representation is hereby deemed to
be made by the Trustee as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest Payment Date
and on the Maturity Date, the Company shall have deposited with the Paying Agent
in immediately available funds money sufficient to make cash payments, if any,
due on such Interest Payment Date or Maturity Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date or Maturity Date, as the case may be.
SECTION 22.5. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered in the register maintained by the
Registrar as the owner of such Note for the purpose of receiving payment of
principal of and (subject to Section 2.12) interest on such Note and for all
other purposes whatsoever, whether or not such Note be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Paragraph 7 of the
Notes, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of the Notes to be redeemed.
The Company shall give each notice provided for in this Section 3.01
at least 60 days before the Redemption Date (unless a shorter notice period
shall be satisfactory to the Trustee, as evidenced in a writing signed on behalf
of the Trustee), together with an Officers' Certificate stating that such
redemption shall comply with the conditions contained herein and in the Notes.
SECTION 3.02. Selection of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, selection of the
Notes to be redeemed will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not then listed on a national securities
exchange, on a pro rata basis, by lot or in such other fair and reasonable
manner chosen at the discretion of the Trustee; provided, however, that if a
partial redemption is made with the proceeds of a Public Equity Offering,
selection of the Notes or portion thereof for redemption shall be made by the
Trustee only on a pro rata basis, unless such method is otherwise prohibited.
The Company shall promptly notify the Trustee and the Paying Agent in writing of
the date of listing and the name of the securities exchange if and when the
Notes are listed on a principal national securities exchange. The Trustee shall
make the selection from the Notes outstanding and not previously called for
redemption and shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes in denominations
of $l,000 may be redeemed only in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Notes that have denominations larger than $1,000. Provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
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SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption by first
class mail, postage prepaid, to each Holder whose Notes are to be redeemed, with
a copy to the Trustee and any Paying Agent. At the Company's written request,
the Trustee shall give the notice of redemption in the Company's name and at the
Company's expense.
Each notice for redemption shall identify the Notes to be redeemed
and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such redemption
is being made;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if
any;
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of
such Notes is to receive payment of the Redemption Price plus accrued
interest, if any, to the Redemption Date, upon surrender to the Paying
Agent of the Notes redeemed;
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, and upon surrender of such Note, a new Note or Notes in
the aggregate principal amount equal to the unredeemed portion thereof
will be issued; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
- 38 -
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price plus accrued interest, if any. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at the
Redemption Price (which shall include accrued interest thereon to the Redemption
Date), but installments of interest, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business
on the relevant record dates referred to in Section 2.12.
SECTION 3.05. Deposit of Redemption Price.
On or before 11:00 a.m. New York City time on the Redemption Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price plus accrued interest, if any, of all Notes to be
redeemed on that date. The Paying Agent shall promptly return to the Company any
U.S. Legal Tender so deposited which is not required for that purpose, except
with respect to monies owed as obligations to the Trustee pursuant to Article
Seven.
If the Company complies with the preceding paragraph, then, unless
the Company defaults in the payment of such Redemption Price plus accrued
interest, if any, interest on the Notes to be redeemed will cease to accrue on
and after the applicable Redemption Date, whether or not such Notes are
presented for payment.
SECTION 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is to be redeemed in part, the Company
shall execute and the Trustee shall authenticate for the Holder a new Note or
Notes equal in principal amount to the unredeemed portion of the Note
surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the Notes on
the dates and in the manner provided in the
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Notes and in this Indenture. An installment of principal of or interest on the
Notes shall be considered paid on the date it is due if the Trustee or Paying
Agent (other than the Company or an Affiliate of the Company) holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment in full
and is not prohibited from paying such money to the Holders pursuant to the
terms of this Indenture.
The Company shall pay, to the extent such payments are lawful,
interest on overdue principal and on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
borne by the Notes plus 2% per annum. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.02.
SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Article Five and Section 4.16, the
Company shall do or cause to be done, at its own cost and expense, all things
necessary to preserve and keep in full force and effect its corporate existence
and the corporate existence of each of its Restricted Subsidiaries in accordance
with the respective organizational documents of each such Restricted Subsidiary
and the material rights (charter and statutory) and franchises of the Company
and each such Restricted Subsidiary; provided, however, that the Company shall
not be required to preserve any such right or franchise, or the corporate,
partnership or other existence of the Company or any Restricted Subsidiary of
the Company, if the Board of Directors of the Company shall determine in good
faith (which such determination shall be evidenced by a Board Resolution) that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its respective Restricted Subsidiaries taken as a whole and
the loss thereof is not adverse in any material respect to the Holders; and
provided further that any Restricted Subsidiary of the Company may consolidate
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with, merge into, or transfer or distribute all or part of its properties and
assets to, the Company or any Wholly Owned Restricted Subsidiary of the Company.
SECTION 4.04. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (y) whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted for which adequate
reserves have been taken or (z) the failure to pay or discharge, or cause to be
paid or discharged such tax, assessment, charge or claim would not reasonably be
expected to result in a material adverse effect on the business operations or
financial condition of the Company.
SECTION 4.05. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, maintain its material properties in good working order and
condition (subject to ordinary wear and tear) and make all necessary repairs,
renewals, replacements, additions, betterments and improvements thereto and
actively conduct and carry on its business; provided, however, that nothing in
this Section 4.05 shall prevent the Company or any of its Restricted
Subsidiaries from discontinuing the operation and maintenance of any of its
properties, if such discontinuance is, in the good faith judgment of the Board
of Directors of the Company or the Restricted Subsidiary, as the case may be,
desirable in the conduct of their respective businesses and is not
disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for itself
and each of its Restricted Subsidiaries, insurance against loss or damage of the
kinds that, in the good faith judgment of the Board of Directors of the Company,
are adequate and appropriate for the conduct of the business of the Company and
such Restricted Subsidiaries in a prudent manner,
- 41 -
with reputable insurers or with the government of the United States of America
or an agency or instrumentality thereof, in such amounts, with such deductibles,
and by such methods as shall be customary, in the good faith judgment of the
Board of Directors of the Company, for companies similarly situated in the
industry.
SECTION 4.06. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of the Company's fiscal year, an Officers' Certificate stating that a
review of its activities and the activities of its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
such Officer's knowledge the Company during such preceding fiscal year has kept,
observed, performed and fulfilled each and every such covenant and no Default or
Event of Default occurred during such year and at the date of such certificate
there is no Default or Event of Default that has occurred and is continuing or,
if such signers do know of such Default or Event of Default, the certificate
shall describe the Default or Event of Default and its status with
particularity. The Officers' Certificate shall also notify the Trustee should
the Company elect to change the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to Section
4.08 shall be accompanied by a written report of the Company's independent
accountants (who shall be a firm of established national reputation) that in
conducting their audit of such financial statements nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article Four, Five or Six of this Indenture insofar as they relate
to accounting matters or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 11.02 hereof,
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by registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five Business Days of its
becoming aware of such occurrence.
SECTION 4.07. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries
to comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as are not in the aggregate
reasonably likely to have a material adverse effect on the financial condition
or results of operations of the Company and its Restricted Subsidiaries, taken
as a whole.
SECTION 4.08. SEC Reports.
(a) So long as the Notes are outstanding, if the Company is required
to file annual or quarterly reports with the SEC under Section 13 or 15(d) of
the Exchange Act, the Company (at its own expense) shall file with the SEC and
shall file with the Trustee within 15 days after it files them with the SEC
copies of the quarterly and annual reports and of the information, documents,
and other reports (or copies of such portions of any of the foregoing as the SEC
may by rules and regulations prescribe) required to be filed pursuant to Section
13 or 15(d) of the Exchange Act. Upon qualification of this Indenture under the
TIA, the Company shall also comply with the provisions of TIA ss. 314(a).
(b) At the Company's expense, the Company shall cause an annual
report, if furnished by it to its stockholders generally and each quarterly or
other financial report if furnished by it to its stockholders generally to be
filed with the Trustee and mailed to the Holders at their addresses appearing in
the register of Notes maintained by the Registrar at the time of such mailing or
furnishing to stockholders.
(c) If the Company is not required to file annual or quarterly
reports with the SEC under Section 13 or 15(d) of the Exchange Act for any
fiscal period ending after the Issue Date, the Company shall cause its
consolidated financial statements,
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including any notes thereto (and, in the case of a fiscal year end, an auditor's
report by an accounting firm of nationally established reputation), and a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" comparable to that which would have been required to appear in
annual or quarterly reports filed under Section 13 or 15(d) of the Exchange Act
if the Company had a class of securities listed on a national securities
exchange, to be so filed with the Trustee and mailed to the Holders at their
addresses appearing in the register of Notes maintained by the Registrar within
100 days after the end of each fiscal year and within 50 days after the end of
each of the Company's first three fiscal quarters in each fiscal year.
(d) The Company shall provide to any Holder any information
reasonably requested by such Holder concerning the Company (including financial
statements) necessary in order to permit such Holder to sell or transfer Notes
in compliance with Rule 144A under the Securities Act.
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.10. Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock or Qualified Rights of the Company) on or in respect
of shares of the Company's Capital Stock to holders of such Capital Stock, (b)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company or any warrants,
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rights or options to purchase or acquire shares of any class of such Capital
Stock, (c) make any principal payment on, purchase, defease, redeem, prepay,
decrease or otherwise acquire or retire for value, prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness of the Company that is subordinate or junior in right of payment to
the Notes or (d) make any Investment (other than Permitted Investments) (each of
the foregoing actions set forth in clauses (a), (b) (c) and (d) being referred
to as a "Restricted Payment"), if at the time of such Restricted Payment or
immediately after giving effect thereto, (i) a Default or an Event of Default
shall have occurred and be continuing or (ii) the Company is not able to incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12 or (iii) the aggregate amount of Restricted
Payments (including such proposed Restricted Payment) made subsequent to the
Issue Date (the amount expended for such purposes, if other than in cash, being
the fair market value of such property) shall exceed the sum of: (w) 50% of the
cumulative Consolidated Net Income (or if cumulative Consolidated Net Income
shall be a loss, minus 100% of such loss) of the Company earned subsequent to
the Issue Date and on or prior to the date the Restricted Payment occurs (the
"Reference Date") (treating such period as a single accounting period); plus (x)
100% of (i) the aggregate net cash proceeds received by the Company from any
Person (other than a Subsidiary of the Company) from the issuance and sale
subsequent to the Issue Date and on or prior to the Reference Date of Qualified
Capital Stock of the Company and (ii) the aggregate net proceeds (as defined
below) received by the Company from any Person (other than a Subsidiary of the
Company) from the issuance subsequent to the Issue Date and on or prior to the
Reference Date of Qualified Capital Stock of the Company upon conversion or
exchange of Indebtedness of the Company (other than such Indebtedness that is
subordinate or junior in right of payment to the Notes); plus (y) without
duplication of any amounts included in clause (iii) (x) above, 100% of the
aggregate net cash proceeds of any equity contribution received by the Company
from a holder of the Company's Capital Stock; plus (z) without duplication and
to the extent amounts would not be included in Consolidated Net Income, the sum
of (1) the aggregate amount returned in cash on or with respect to Investments
(other than Permitted Investments) made subsequent to the Issue Date, (2) the
net cash proceeds received by the Company or any Restricted Subsidiary from the
disposition of all or any portion of such Investments (other than to the Company
or a Restricted Subsidiary of the Company) and (3) upon redesignation of an
Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of
such
- 45 -
Subsidiary; provided, however, that with respect to all Investments made in any
Unrestricted Subsidiary or joint venture, the sum of clauses (1), (2) and (3)
above with respect to such Investment shall not exceed the aggregate amount of
all such Investments made subsequent to the Issue Date in such Unrestricted
Subsidiary or joint venture.
For the purposes of this Section 4.10, the net proceeds from the
issuance of shares of Qualified Capital Stock of the Company upon conversion or
exchange of Indebtedness shall be deemed to be an amount equal to the net book
value of such Indebtedness (plus the additional amount required to be paid upon
such conversion, if any), less any cash payment on account of fractional shares;
the "net book value" of Indebtedness shall be the amount received by the
Company on the incurrence of such Indebtedness, as adjusted on the books of the
Company to the date of conversion or exchange.
Notwithstanding the foregoing, the provisions of (ii) and (iii) set
forth in the first paragraph of this Section do not prohibit: (l) the payment of
any dividend within 60 days after the date of declaration of such dividend if
the dividend would have been permitted on the date of declaration; (2) the
acquisition or retirement for value of any shares of Capital Stock of the
Company or warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock, either (i) solely in exchange for shares of
Qualified Capital Stock or Qualified Rights of the Company or (ii) through the
application of net proceeds of a substantially concurrent sale for cash (other
than to a Subsidiary of the Company) of shares of Qualified Capital Stock or
Qualified Rights of the Company; (3) the acquisition or retirement for value of
any Indebtedness of the Company that is subordinate or junior in right of
payment to the Notes solely in exchange for shares of Qualified Capital Stock or
Qualified Rights of the Company; (4) Permitted Holdings Payments; or (5) any
Restricted Payment designated by written notice to the Trustee as being made
pursuant to this clause (5) which, when added together with all other Restricted
Payments previously so designated, does not exceed $1,000,000. In determining
the aggregate amount of Restricted Payments made subsequent to the Issue Date in
accordance with clause (iii) of the first paragraph of this Section, (y) amounts
expended pursuant to clauses (1), (2) (ii), (4) (to the extent such payments are
made pursuant to clause (B) or (C) of the definition of Permitted Holdings
Payment", but with respect to such clause (B), solely to the extent of any
Permitted Holdings Payment made to permit Holdings to pay an expense specified
therein that is an expense of Holdings and its Subsidiaries, but is not
- 46 -
an expense of the Company and its Restricted Subsidiaries, as determined on a
consolidated basis in accordance with GAAP) and (5) as well as amounts expended
pursuant to clause (ix) of the definition of "Permitted Investments" shall be
included in such calculation and (z) amounts expended pursuant to clauses
(2)(i), (3) and (4) (except as aforesaid) shall be excluded from such
calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
SECTION 4.11. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under paragraph (b) below and (y) Affiliate Transactions conducted in
good faith, the terms of which are fair and reasonable to the Company or such
Restricted Subsidiary and which are no less favorable to the Company or such
Restricted Subsidiary than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person that
is not an Affiliate of the Company or such Restricted Subsidiary. All Affiliate
Transactions (and each series of related Affiliate Transactions which are
similar or part of a common plan) involving aggregate payments or other property
with a fair market value in excess of $500,000 shall be approved by the Board of
Directors of the Company or such Restricted Subsidiary, as the case may be, such
approval to be evidenced by a Board Resolution stating that such Board of
Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary of the Company enters
into an Affiliate Transaction (or a series of related Affiliate Transactions
related to a common plan) that involves an aggregate fair market value or
payments to an Affiliate, as the case may be, of more than $2,500,000, the
Company or such Restricted Subsidiary, as the case may be, shall, prior to the
consumma-
- 47 -
tion thereof, obtain a favorable opinion as to the fairness of such transaction
or series of related transactions to the Company or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Trustee.
(b) The foregoing restrictions shall not apply to (i) reasonable
fees, compensation and out-of-pocket expenses paid to and indemnity provided on
behalf of, officers, directors, employees or consultants of the Company or any
Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management; (ii) transactions between or
among the Company and any of its Restricted Subsidiaries or exclusively between
or among such Restricted Subsidiaries, provided that such transactions are not
otherwise prohibited by this Indenture; (iii) the agreement between the Company
and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation as in effect as of the
Issue Date or any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement agreement
thereto so long as any such amendment or replacement agreement is not more
disadvantageous to the Holders in any material respect than the original
agreement as in effect on the Issue Date; (iv) Restricted Payments and Permitted
Investments permitted by this Indenture; and (v) any Permitted Holdings Payment.
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
(other than Permitted Indebtedness); provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the time or as a
consequence of the incurrence of any such Indebtedness, the Company may incur
Indebtedness (including, without limitation, Acquired Indebtedness) and the
Restricted Subsidiaries of the Company may incur Acquired Indebtedness, in each
case if on the date of the incurrence of such Indebtedness, after giving effect
to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the
Company is greater than 2.0 to 1.0.
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SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock; (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company; or (c) transfer any of its
property or assets to the Company or any other Restricted Subsidiary of the
Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law; (2) this Indenture; (3) customary non-assignment
provisions of any contract or lease governing a leasehold or ownership interest
of any Restricted Subsidiary of the Company; (4) any instrument governing
Acquired Indebtedness, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired or relating to any property
acquired by the Company or any of its Restricted Subsidiaries after the Issue
Date, provided that such encumbrance or restriction exists of the time such
property is acquired, relates only to the property which is acquired and was not
incurred in connection with, or in anticipation or contemplation of, such
acquisition; (5) agreements existing on the Issue Date (including, without
limitation, the Credit Agreement) to the extent and in the manner such
agreements are in effect on the Issue Date; (6) an agreement governing
Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred
pursuant to an agreement referred to in clause (2), (4) or (5) above; provided,
however, that the provisions relating to such encumbrance or restriction
contained in any such Indebtedness are no less favorable to the Company in any
material respect than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clause (2), (4) or (5); or (7)
agreements restricting the sale or other disposition of any property securing
Indebtedness which constitutes a Permitted Lien on such property.
SECTION 4.14. Prohibition on Incurrence of Senior Subordinated Debt.
The Company shall not incur or suffer to exist Indebtedness that is
senior in right of payment to the Notes and
- 49 -
subordinate in right of payment to any other Indebtedness of the Company.
SECTION 4.15. Change of Control.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer to purchase all outstanding Notes pursuant to the offer described
in paragraph (b) below (the "Change of Control Offer") at a purchase price equal
to 101% of the principal amount thereof plus accrued interest, if any, to the
date of purchase, but installments of interest, the maturity of which is on or
prior to the Change of Control Payment Date, shall be payable to Holders of
record at the close of business on the relevant record dates referred to in
Section 2.12. Prior to the mailing of the notice referred to below, but in any
event within 30 days following any Change of Control, the Company shall (i)
repay in full and terminate all commitments under Indebtedness under the Credit
Agreement or offer to repay in full and terminate all commitments under all
Indebtedness under the Credit Agreement and to repay the Indebtedness owed to
each lender which has accepted such offer or (ii) obtain the requisite consents
under the Credit Agreement to permit the repurchase of the Notes as provided
below. The Company shall first comply with the covenant in the immediately
preceding sentence before it shall be required to repurchase Notes pursuant to
the provisions described in this Section 4.15. The Company's failure to comply
with the covenants described in this paragraph shall constitute an Event of
Default hereunder.
(b) Within 30 days following the date upon which the Change of
Control occurred (the "Change of Control Date"), the Company shall send, by
first class mail, a notice to each Holder, with a copy to the Trustee, which
notice shall govern the terms of the Change of Control Offer. The notice to the
Holders shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Change of Control Offer. Such notice
shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Notes tendered and not withdrawn will be
accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be no earlier than 30 days nor later
than 45 days from the date such notice is mailed, other than as may be
required by law) (the "Change of Control Payment Date");
- 50 -
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Notes purchased;
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided that each Note purchased and each new Note
issued shall be in an original principal amount of $1,000 or integral
multiples thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Notes or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest, if any, of all Notes
so tendered and (iii) forward to the Trustee Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price plus accrued interest,
if any, and the Trustee shall promptly authenticate and mail to such Holders new
Notes equal in principal amount to any unpurchased portion of the Notes
surrendered. Any Notes not so ac-
- 51 -
cepted shall be promptly mailed by the Company to the Holder thereof. For
purposes of this Section 4.15, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a
Change of Control Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.15 by virtue thereof.
SECTION 4.16. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
the applicable Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the fair market value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors); (ii) at least 7S% of the consideration received
by the Company or the Restricted Subsidiary, as the case may be, from such Asset
Sale shall be in the form of cash or Cash Equivalents (provided that the amount
of any liabilities (as shown on the Company's or such Restricted Subsidiary's
most recent balance sheet) of the Company or any such Restricted Subsidiary
(other than liabilities that are by their terms subordinated to the Notes) that
are assumed by the transferee of any such assets shall be deemed to be cash for
the purposes of this provision) and is received at the time of such disposition
or within 180 days thereafter; and (iii) upon the consummation of an Asset Sale,
the Company shall apply, or cause such Restricted Subsidiary to apply, the Net
Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof
either (A) to prepay any Senior Debt or Indebtedness of a Wholly Owned
Restricted Subsidiary and, in the case of any Indebtedness under any revolving
credit facility, effect a permanent reduction in the availability under such
revolving credit facility, (B) to make an investment in properties and assets
that replace the properties and assets that were the subject of such Asset Sale
or in properties and assets that
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will be used in the business of the Company and its Restricted Subsidiaries as
existing on the Issue Date or in businesses the same, similar or reasonably
related thereto ("Replacement Assets"), or (C) a combination of prepayment and
investment permitted by the foregoing clauses (iii) (A) and (iii) (B). Subject
to the last sentence of this paragraph, on the 366th day after an Asset Sale or
such earlier date, if any, as the Board of Directors of the Company or of such
Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to
such Asset Sale as set forth in clause (iii) (A), (iii) (B) or (iii) (C) of the
next preceding sentence (each, a "Net Proceeds Offer Trigger Date"), such
aggregate amount of Net Cash Proceeds which have not been applied on or before
such Net Proceeds Offer Trigger Date as permitted in clauses (iii) (A), (iii)
(B) and (iii) (C) of the next preceding sentence (each a "Net Proceeds Offer
Amount") shall be applied by the Company or such Restricted Subsidiary to make
an offer to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds
Offer Payment Date") not less than 30 nor more than 45 days following the
applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata
basis, that amount of Notes equal to the Net Proceeds Offer Amount at a price
equal to 100% of the principal amount of the Notes to be purchased, plus accrued
and unpaid interest thereon, if any, to the date of purchase, but installments
of interest, the maturity of which is on or prior to the Proceeds Purchase Date,
shall be payable to Holders of record at the close of business on the relevant
record dates referred to in Section 2.12; provided, however, that if at any time
any non-cash consideration received by the Company or any Restricted Subsidiary
of the Company, as the case may be, in connection with any Asset Sale is
converted into or sold or otherwise disposed of for cash (other than interest
received with respect to any such non-cash consideration), then such conversion
or disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with this covenant.
The Company may defer the Net Proceeds Offer until there is an
aggregate unutilized Net Proceeds Offer Amount equal to or in excess of
$2,000,000 resulting from one or more Asset Sales (at which time, the entire
unutilized Net Proceeds Offer Amount, and not just the amount in excess of
$2,000,000, shall be applied as required pursuant to the preceding paragraph).
In the event of the transfer of substantially all (but not all) of
the property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a trans-
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action permitted under Section 5.01, the successor entity shall be deemed to
have sold such portion, if any, of the properties and assets of the Company and
its Restricted Subsidiaries not so transferred the fair market value of which
exceeds the fair market value (as determined in good faith by the Company's
Board of Directors) of the property and assets of such successor entity
immediately prior to consummation of such transaction for purposes of this
covenant, and shall comply with the provisions of this covenant with respect to
such deemed sale as if it were an Asset Sale. In addition, the fair market value
of such properties and assets of the Company or its Restricted Subsidiaries
deemed to be sold as aforesaid shall be deemed to be Net Cash Proceeds for
purposes of this Section 4.16.
Each Net Proceeds Offer will be mailed to the record Holders as
shown on the register of Holders within 25 days following the Net Proceeds Offer
Trigger Date, with a copy to the Trustee, and shall comply with the procedures
set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer,
Holders may elect to tender their Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering
Holders will be purchased on a pro rata basis (based on amounts tendered). To
the extent that the aggregate amount of Notes tendered pursuant to a Net
Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use
such excess Net Proceeds Offer Amount for general corporate purposes or for any
other purpose not prohibited by this Indenture. Upon completion of any such Net
Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net
Proceeds Offer shall remain open for a period of 20 Business Days or such longer
period as may be required by law.
(b) Subject to the deferral of the Net Proceeds Offer Trigger Date
contained in the second paragraph of subsection (a) above, each notice of a Net
Proceeds Offer pursuant to this Section 4.16 shall be mailed or caused to be
mailed, by first class mail, by the Company not more than 25 days after the Net
Proceeds Offer Trigger Date to all Holders at their last registered addresses as
of a date within 15 days of the mailing of such notice, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Net Proceeds Offer and shall
state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section
4.16 and that all Notes tendered will be
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accepted for payment; provided, however, that if the aggregate principal
amount of Notes tendered in a Net Proceeds Offer exceeds the aggregate
amount of the Net Proceeds Offer, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000
or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be 20 Business Days from the date of
mailing of notice of such Net Proceeds Offer, or such longer period as
required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net
Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days prior to the
Proceeds Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; provided that each Note purchased and each new Note
issued shall be in an original principal amount of $1,000 or integral
multiples thereof;
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On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with item (b) (1) above,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Notes to be purchased and
(iii) deliver to the Trustee Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price plus accrued interest,
if any. For purposes of this Section 4.16, the Trustee shall act as the Paying
Agent.
Any amounts remaining after the purchase of Notes pursuant to a Net
Proceeds Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-l under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.16, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.16 by virtue thereof.
SECTION 4.17. Limitation on Preferred Stock of Restricted Subsidiaries.
The Company shall not permit any of its Restricted Subsidiaries to
issue any Preferred Stock (other than to the Company or to a Wholly Owned
Restricted Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company.
SECTION 4.18. Limitation on Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or suffer to exist any Liens of any kind
against or upon any of its property or assets of the Company or any of its
Restricted Subsidiaries whether owned on the Issue Date or acquired after the
Issue Date, or any proceeds therefrom, unless, except in the case of Liens
securing Indebtedness that is subordinate or junior in
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right of payment to the Notes which shall not be permitted, the Notes are
equally and ratably secured, except for (A) Liens existing as of the Issue Date
to the extent and in the manner such Liens are in effect as of the Issue Date;
(B) Liens securing Senior Debt and Liens on assets of Restricted Subsidiaries
securing guarantees of Senior Debt; (C) Liens securing the Notes; (D) Liens of
the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of
any Restricted Subsidiary of the Company; (E) Liens securing Refinancing
Indebtedness which is incurred to Refinance Indebtedness which has been secured
by a Lien permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; provided, however, that such
Liens (A) are no less favorable to the Holders and are no more favorable to the
lienholders with respect to such Liens than the Liens in respect of the
Indebtedness being Refinanced and (B) do not extend to or cover any property or
assets of the Company or any of its Restricted Subsidiaries not securing the
Indebtedness so Refinanced; and (F) Permitted Liens.
SECTION 4.19. Limitation of Guarantees by Restricted Subsidiaries.
The Company shall not permit any of its Restricted Subsidiaries,
directly or indirectly, by way of the pledge of any intercompany note or
otherwise, to assume, guarantee or in any other manner become liable with
respect to any Indebtedness of the Company or any other Restricted Subsidiary
(other than with respect to Permitted Indebtedness specified in clause (v),
(vi), (vii) or (viii) of the definition thereof), unless, in any such case (a)
such Restricted Subsidiary executes and delivers a supplemental indenture to
this Indenture providing a guarantee of payment of the Notes by such Restricted
Subsidiary (the "Guarantee") and (b) such assumption, guarantee or other
liability of such Restricted Subsidiary is provided in respect of Senior Debt,
and the guarantee or other instrument provided by such Restricted Subsidiary in
respect of such Senior Debt may be superior to the Guarantee pursuant to
subordination provisions no less favorable to the Holders of the Notes than
those contained in this Indenture.
Notwithstanding the foregoing, any such Guarantee of the Notes by a
Restricted Subsidiary of the Company shall provide by its terms that it shall be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon: (i) the
unconditional release of such Restricted Subsidiary from its liability in
respect of the Indebtedness in connection
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with which such Guarantee was executed and delivered pursuant to the preceding
paragraph; or (ii) any sale or other disposition (by merger or otherwise) to any
Person which is not a Restricted Subsidiary of the Company, of all of the
Company's Capital Stock in, or all or substantially all of the assets of, such
Restricted Subsidiary; provided that (a) such sale or disposition of such
Capital Stock or assets is otherwise in compliance with the terms of this
Indenture and (b) such assumption, guarantee or other liability of such
Restricted Subsidiary has been released by the holders of the other Indebtedness
so guaranteed.
SECTION 4.20. Limitation on Issuance of Shares of Restricted Subsidiaries.
The Company shall not permit any of its Restricted Subsidiaries to
issue shares of Capital Stock (other than director's qualifying shares) to any
Person other than the Company or a Wholly Owned Restricted Subsidiary of the
Company; provided that (i) if the issuing Restricted Subsidiary is not a Wholly
Owned Restricted Subsidiary, the issuing Restricted Subsidiary may also
simultaneously issue additional shares of Capital Stock of the same class to
other shareholders of the issuing Restricted Subsidiary so long as such issuance
will not reduce the percentage of Capital Stock of the issuing Restricted
Subsidiary which was owned by the Company or its Restricted Subsidiaries
immediately prior to such issuance; and (ii) a Restricted Subsidiary may issue
Capital Stock to any Person to the extent that and subject to the conditions
under which the Company or another Restricted Subsidiary of the Company holding
the Capital Stock of such issuing Restricted Subsidiary would be permitted to
sell, transfer or otherwise dispose of such Capital Stock in an Asset Sale
pursuant to Section 4 16.
SECTION 4.21. Conduct of Business.
The Company shall not, and shall not permit its Restricted
Subsidiaries to, engage in any businesses which are not the same as, similar or
reasonably related to the businesses in which the Company and its Restricted
Subsidiaries are engaged on the Issue Date.
SECTION 4.22. Consummation of Acquisition.
No provision of this Indenture shall prevent the Company or any
Restricted Subsidiary thereof from consummating the Acquisition and the
transactions contemplated thereby.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company shall not, in a single transaction or a series of
related transactions, consolidate with or merge with or into any Person (other
than the merger of a Wholly Owned Restricted Subsidiary of the Company into the
Company), or sell, assign, transfer, lease, convey or otherwise dispose of (or
cause or permit any Restricted Subsidiary of the Company to sell, assign,
transfer, lease, convey or otherwise dispose of) all or substantially all of the
Company's properties and assets (determined on a consolidated basis for the
Company and its Restricted Subsidiaries) to any Person whether as an entirety or
substantially as an entirety unless:
(1) either (A) the Company shall be the surviving or continuing
corporation or (B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company and its Restricted
Subsidiaries substantially as an entirety (the "Surviving Entity") (x)
shall be a corporation, partnership, limited liability company or business
trust organized and validly existing under the laws of the United States
or any State thereof or the District of Columbia and (y) shall expressly
assume, by supplemental indenture (in form and substance reasonably
satisfactory to the Trustee), executed and delivered to the Trustee, the
due and punctual payment of the principal of and premium, if any, and
interest on all of the Notes and the performance of every covenant of the
Notes, this Indenture and, if applicable, the Registration Rights
Agreement on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and the
assumption contemplated by clause (1) (B) (y) above (including giving
effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be,
shall be able to incur at least $1.00 of additional In-
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debtedness (other than Permitted Indebtedness) in compliance with Section
4.12;
(3) immediately before and immediately after giving effect to such
transaction and the assumption contemplated by clause (1) (B) (y) above
(including, without limitation, giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred and any Lien
granted in connection with or in respect of the transaction), no Default
or Event of Default shall have occurred and be continuing; and
(4) the Company or the Surviving Entity, as the case may be, shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to
such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties and assets of one or
more Restricted Subsidiaries of the Company, the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
Notwithstanding the foregoing, this Section shall not prohibit a
transaction, the principal purpose of which is (as determined in good faith by
the Board of Directors of the Company) to change the state of incorporation of
the Company and such transaction does not have as one of its purposes the
evasion of the limitations imposed by this Section.
When a successor assumes all of the obligations of the Company under
the Notes and this Indenture in a transaction permitted by this Section 5.01,
the Company will be deemed to be released from those obligations.
SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation, combination or merger or any transfer of all
or substantially all of the assets of the Com-
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pany in accordance with the foregoing, in which the Company is not the
continuing corporation, the successor Person formed by such consolidation or
into which the Company is merged or to which such conveyance, lease or transfer
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture and the Notes with the same
effect as if such surviving entity had been named as such.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following constitutes an "Event of Default":
(1) failure to pay interest on any Notes when the same becomes due
and payable and the Default continues for a period of 20 days (whether or
not such payment shall be prohibited by Article Ten of this Indenture); or
(2) failure to pay the principal on any Notes when such principal
becomes due and payable, at maturity, upon redemption or otherwise
(including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer or a Net Proceeds Offer) (whether or
not such payment shall be prohibited by Article Ten); or
(3) a default in the observance or performance of any other covenant
or agreement contained in this Indenture which default continues for a
period of 30 days after the Company receives written notice specifying the
default (and demanding that such default be remedied) from the Trustee or
the Holders of at least 25% of the outstanding principal amount of the
Notes (except in the case of a failure to comply with Section 4.10,
Section 4.12 or Section 5.01, which shall constitute Events of Default
upon notice but without passage of time); or
(4) the Company fails to pay at final stated maturity (giving effect
to any applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness for borrowed money of the Company or any
Restricted Subsidiary of the Company or interest thereon, or the ac-
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celeration of the final stated maturity of any such Indebtedness if the
aggregate principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness not paid at final stated
maturity or which has been accelerated aggregates $2,000,000 or more at
any time; or
(5) one or more judgments for the payment of money in an aggregate
amount in excess of $2,000,000 shall have been rendered against the
Company or any of its Restricted Subsidiaries and such judgments remain
undischarged, unpaid or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable; or
(6) the Company or any Significant Subsidiary of the Company (A)
commences a voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (B) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to the appointment of a Custodian of it or
for substantially all of its property, (D) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(E) makes a general assignment for the benefit of its creditors, or (F)
takes any corporate action to authorize or effect any of the foregoing; or
(7) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any Significant Subsidiary
of the Company in an involuntary case or proceeding under any Bankruptcy
Law, which shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Company or any such Significant Subsidiary, (B) appoint a Custodian of the
Company or any such Significant Subsidiary or for substantially all of its
property or (C) order the winding-up or liquidation of its affairs; and
such judgment, decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(8) the lenders under the Credit Agreement commence proceedings to
foreclose upon any assets of the Company or any of its Restricted
Subsidiaries as a result of a default with respect to Obligations of at
least $2,000,000; or
(9) any Guarantee ceases to be in full force and effect or any
Guarantee is declared to be null and void and
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unenforceable or any Guarantee is found to be invalid or any guarantor
denies its liability under its Guarantee (other than by reason of release
of a Guarantee in accordance with Section 4.19).
SECTION 6.02. Acceleration.
(a) If an Event of Default (other than an Event of Default specified
in Section 6.01(6) or (7) with respect to the Company) occurs and is continuing
and has not been waived pursuant to Section 6.04, then the Trustee or the
Holders of at least 25% in principal amount of outstanding Notes may declare the
principal of and accrued interest on all the Notes to be due and payable by
notice in writing to the Company and the Trustee specifying the respective Event
of Default and that it is a "notice of acceleration" (the "Acceleration
Notice"), and the same (i) shall become immediately due and payable or (ii) if
there are any amounts or letters of credit outstanding under the Credit
Agreement, shall become immediately due and payable upon the first to occur of
an acceleration under the Credit Agreement or five business days after receipt
by the Company and the Representative under the Credit Agreement of such
Acceleration Notice but only if such Event of Default is then continuing. Upon
any such declaration, but subject to the immediately preceding sentence, such
amount shall be immediately due and payable.
(b) If an Event of Default specified in Section 6.01(6) or (7)
occurs and is continuing with respect to the Company, all unpaid principal of
and premium, if any, and accrued and unpaid interest on all of the outstanding
Notes shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
(c) At any time after a declaration of acceleration with respect to
the Notes in accordance with Section 6.02(a), the Holders of a majority in
principal amount of the Notes may, on behalf of the Holders of all of the Notes,
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 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 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
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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 Section 6.01(6) or (7), the Trustee shall have received an Officers'
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. The Holders of a majority in principal amount of the
Notes may waive any existing Default or Event of Default under this Indenture,
and its consequences, except a default in the payment of the principal of or
interest on any Notes.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority
in principal amount of the outstanding Notes by notice to the Trustee may waive
an existing Default or Event of Default and its consequences, except a Default
in the payment of principal (other than principal due by reason of acceleration)
of or interest on any Note as specified in clauses (l) and (2) of Section 6.01.
When a Default or Event of Default is waived, it is cured and ceases.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal
amount of the outstanding Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it, including, without limitation, any remedies
provided for in Section 6.03. Subject to Section 7.01, however,
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the Trustee may refuse to follow any direction that the Trustee reasonably
believes conflicts with any 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 that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction; and provided further that this provision shall not affect the rights
of the Trustee set forth in Section 7.01(d).
SECTION 6.06. Limitation on Suits.
A Holder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(l) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) Holders of at least 25% in principal amount of the outstanding
Notes make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee indemnity in its sole
discretion satisfactory to the Trustee against any loss, liability or
expense to be incurred in compliance with such request;
(4) the Trustee does not comply with the request within 45 days
after receipt of the request and the offer of satisfactory indemnity; and
(5) during such 45-day period the Holders of a majority in principal
amount of the outstanding Notes do not give the Trustee a direction which,
in the opinion of the Trustee, is inconsistent with the request.
A 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 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and interest on a Note, on or
after the respective due dates expressed in such Note, or to bring suit for the
enforcement of
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any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified
in clause (l) or (2) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Notes for the whole amount of principal and
accrued interest remaining unpaid, together with interest on overdue ,principal
and, to the extent that payment of such interest is lawful, interest on overdue
installments of interest at the rate set forth in Section 4.01 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, consultants and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relating to the Company or any other
obligor upon the Notes, any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same, and any Custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, taxes, disbursements and advances of the Trustee, its
agents, consultants and counsel, and any other amounts due the Trustee under
Section 7.07. The Company's payment obligations under this Section 6.09 shall be
secured in accordance with the provisions of Section 7.07 hereunder. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
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SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal
and interest, respectively; and
Fourth: to the Company or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Notes.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(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 6.02, 6.04 or 6.05.
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(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not herein expressly provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate, an Opinion of
Counsel or both, which shall conform to Sections 11.04 and 11.05. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or indirectly or by or
through agents or attorneys and the Trustee shall not be responsible for
the misconduct or negligence of any agent or attorney appointed with due
care.
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(d) The Trustee shall not be liable for any action that it takes or
omits to take in good faith which it reasonably believes to be authorized
or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon reasonable
notice to the Company, to examine the books, records, and premises of the
Company, personally or by agent or attorney and to consult with the
officers and representatives of the Company, including the Company's
accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to the Trustee in its sole discretion against
the costs, expenses and liabilities which may be incurred by it in
compliance with such request, order or direction.
(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, any
Subsidiary of the Company, or their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The recitals contained herein and in the Notes shall be taken as
statements of the Company and the Trustee assumes no responsibility for their
correctness. The Trustee makes no
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representation as to the validity or adequacy of this Indenture or the Notes,
and it shall not be accountable for the Company's use of the proceeds from the
Notes, and it shall not be responsible for any statement of the Company in this
Indenture or the Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Holder notice of the
uncured Default or Event of Default within 90 days after such Default or Event
of Default occurs. Except in the case of a Default or an Event of Default in
payment of principal of, or interest on, any Note, including an accelerated
payment and the failure to make payment on the Change of Control Payment Date
pursuant to a Change of Control Offer or on the Proceeds Purchase Date pursuant
to a Net Proceeds Offer and, except in the case of a failure to comply with
Article Five hereof, the Trustee may withhold the notice if and so long as its
Board of Directors, the executive committee of its Board of Directors or a
committee of its directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15, the Trustee shall, to the extent
that any of the events described in TIA ss. 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such date that complies with TIA ss. 313(a). The Trustee also shall comply with
TIA ▇▇.▇▇. 313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each stock exchange, if any, on
which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any stock exchange and the Trustee shall comply with TIA ss. 313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable fees and expenses, in-
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cluding reasonable out-of-pocket expenses incurred or made by it in connection
with the performance of its duties under this Indenture. Such expenses shall
include the reasonable fees and expenses of the Trustee's agents, consultants
and counsel.
The Company shall indemnify the Trustee and its agents, employees,
stockholders and directors and officers for, and hold them harmless against, any
loss, liability or expense incurred by them except for such actions to the
extent caused by any negligence, bad faith or willful misconduct on their part,
arising out of or in connection with the administration of this trust including
the reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their rights,
powers or duties hereunder. The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek indemnity. At the
Trustee's sole discretion, the Company shall defend the claim and the Trustee
shall cooperate and may participate in the defense; provided that any settlement
of a claim shall be approved in writing by the Trustee. Alternatively, the
Trustee may at its option have separate counsel of its own choosing and the
Company shall pay the reasonable fees and expenses of such counsel; provided
that the Company will not be required to pay such fees and expenses if it
assumes the Trustee's defense and there is no conflict of interest between the
Company and the Trustee in connection with such defense as reasonably determined
by the Trustee. The Company need not pay for any settlement made without its
written consent. The Company need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of or interest on particular Notes. The Trustee's
right to receive payment of any amounts due under this Section 7.07 shall not be
subordinate to any other liability or indebtedness of the Company (even though
the Notes may be subordinate to such other liability or indebtedness).
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(6) or (7) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law; provided, however, that this shall not
affect
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the Trustee's rights as set forth in the preceding paragraph or Section 6.10.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee by
so notifying the Company and the Trustee and may appoint a successor Trustee.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition any
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court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee in connection with the rights and duties
hereunder prior to such replacement.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA ss. ss. 310(a) (1), (2) and (5). The Trustee (or, in the case
of a corporation included in a bank holding company system, the related bank
holding company) shall have a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition. In
addition, if the Trustee is a corporation included in a bank holding company
system, the Trustee, independently of such bank holding company, shall meet the
capital requirements of TIA ss. 310(a)(2). The Trustee shall comply with TIA ss.
310(b); provided, however, that there shall be excluded from the operation of
TIA ss. 310(b) (1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA ss.
310(b) (1) are met. The provisions of TIA ss. 310 shall apply to the Company, as
obligor of the Notes.
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SECTION 7.11. Preferential Collection of Claims Against 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. The
provisions of TIA ss. 311 shall apply to the Company, as obligor on the Notes.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.
The Company may terminate its obligations under the Notes and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 8.01, if all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes which have been replaced or paid or Notes
for whose payment U.S. Legal Tender has theretofore been deposited with the
Trustee or the Paying Agent in trust or segregated and held in trust by the
Company and thereafter repaid to the Company, as provided in Section 8.05) have
been delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, a notice of redemption to
each Holder of the redemption of all of the Notes shall be given within
one year under arrangements satisfactory to the Trustee for the giving of
such notice or (ii) all Notes have otherwise become due and payable
hereunder;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the
benefit of the Holders for that purpose, U.S. Legal Tender in such amount
as is sufficient without consideration of reinvestment of such interest,
U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms,
will provide, not later than one day before the due date
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of any payment on the Notes, U.S. Legal Tender, or a combination thereof,
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay principal of,
premium, if any, and interest on the outstanding Notes, on the dates on
which such payments are due and payable in accordance with the terms of
this Indenture, to maturity or redemption; provided that the Trustee shall
have been irrevocably instructed to apply such U.S. Legal Tender to the
payment of said principal, premium, if any, and interest with respect to
the Notes and, provided, further, that from and after the time of deposit,
the money deposited shall not be subject to the rights of holders of
Senior Debt pursuant to the provisions of Article Ten;
(c) no Default or Event of Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will
not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by it
hereunder; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for or relating to the termination of the Company's
obligations under the Notes and this Indenture have been complied with.
Such Opinion of Counsel shall also state that such satisfaction and
discharge does not result in a default under the Credit Agreement (if then
in effect) or any other agreement or instrument then known to such counsel
that binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's obligations
in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 8.05 and 8.06 shall
survive until the Notes are no longer outstanding pursuant to the last paragraph
of Section 2.08. After the Notes are no longer outstanding, the Company's
obligations in Sections 7.07, 8.05 and 8.06 shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes and this Indenture except for those surviving obligations specified
above.
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SECTION 8.02. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution of the Board
of Directors of the Company, at any time, elect to have either paragraph (b) or
(c) below be applied to all outstanding Notes upon compliance with the
conditions set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.03, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.04 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), and Holders of the Notes and any amounts deposited
under Section 8.03 hereof shall cease to be subject to any obligations to, or
the rights of, any holder of Senior Debt under Article Ten or otherwise, except
for the following provisions, which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of and interest
on such Notes when such payments are due, (ii) the Company's obligations with
respect to such Notes under Article Two and Section 4.02 hereof, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (iv) this Article Eight.
Subject to compliance with this Article Eight, the Company may exercise its
option under this paragraph (b) notwithstanding the prior exercise of its option
under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.03 hereof, be released
from its obligations under the covenants contained in Sections 4.03 through 4.21
and Article Five hereof with respect to the outstanding Notes on
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and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes) and Holders of the Notes and any amounts deposited
under Section 8.03 hereof shall cease to be subject to any obligations to, or
the rights of, any holder of Senior Debt under Article Ten or otherwise. For
this purpose, such Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event or Default under Section
6.01(3) hereof, but, except as specified above, the remainder of this Indenture
and such Notes shall be unaffected thereby. In addition, upon the Company's
exercise under paragraph (a) hereof of the option applicable to this paragraph
(c), subject to the satisfaction of the conditions set forth in Section 8.03
hereof, Sections 6.01(3), 6.01(4), 6.01(5), 6.01(6) (solely with respect to
Persons other than the Company) or 6.01(7) (solely with respect to Persons other
than the Company) shall not constitute Defaults or Events of Default.
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02(b) or 8.02(c) hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, U.S. Legal Tender or U.S. Government
Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms, will provide, not later
than one day before the due date of any payment on the Notes, U.S. Legal
Tender, or a combination thereof, in such amounts as will be sufficient,
in the opinion of a
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nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the Notes on the stated
date for payment thereof or on the applicable redemption date, as the case
may be, of such principal or installment of principal of or interest on
the Notes; provided that the Trustee shall have received an irrevocable
written order from the Company instructing the Trustee to apply such U.S.
Legal Tender or the proceeds of such U.S. Government Obligations to said
payments with respect to the Notes;
(b) in the case of an election under Section 8.02(b) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there
has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of an election under Section 8.02(c) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default or event which with notice or
lapse of time or both would become a Default or an Event of Default with
respect to the Notes shall have occurred and be continuing (x) on the date
of such deposit (other than a Default or Event of Default resulting from
the incurrence of Indebtedness all or a portion of the proceeds of which
will be used to defease the Notes pursuant to this Article Eight
concurrently with such incurrence) or (y) insofar as Sections 6.01(6) and
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6.01(7) hereof are concerned, at any time in the period ending on the 91st
day after the date of such deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of or constitute a default under this Indenture or
any other material agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with (other than the condition in clause (d)
(y)); and
(h) the Company shall have delivered to the Trustee an Opinion of
Counsel substantially to the effect that (i) the trust funds will not be
subject to any rights of any holders of Senior Debt, including, without
limitation, those arising under this Indenture, and (ii) assuming no
intervening bankruptcy or insolvency of the Company between the date of
deposit and the 91st day following the deposit and that no Holder is an
insider of the Company, after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable Bankruptcy
Law.
SECTION 8.04. 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 Article Eight, and
shall apply the deposited U.S. Legal Tender and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of principal of and
interest on the Notes. The Trustee shall be under no obligation to invest said
U.S. Legal Tender or U.S. Government Obligations except as it may agree with the
Company.
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The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.03 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any U.S. Legal Tender or U.S. Government Obligations held by it as
provided in Section 8.03 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
SECTION 8.05. Repayment to the Company.
Subject to Article Eight, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess U.S. Legal Tender or U.S.
Government Obligations held by them at any time and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years; provided that the
Trustee or such Paying Agent, before being required to make any payment, may at
the expense of the Company cause to be published once in a newspaper of general
circulation in the City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein which shall be at least 30 days from the date of such publication or
mailing any unclaimed balance of such money then remaining will be repaid to the
Company. After payment to the Company, Holders entitled to such money must look
to the Company for payment as general creditors unless an applicable law
designates another Person.
SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Article Eight 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
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application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Article
Eight 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 Article
Eight; provided that if the Company has made any payment of interest on or
principal of any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the U.S. Legal Tender or U.S. Government Obligations
held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee,
together, may amend or supplement this Indenture or the Notes without notice to
or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not, in the opinion of the Trustee,
adversely affect the rights of any Holder in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(4) to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(5) to make any change that would provide any additional benefit or
rights to the Holders or that does not adversely affect the rights of any
Holder; or
(6) to make any other change that does not, in the opinion of the
Trustee, adversely affect in any material respect the rights of any
Holders hereunder;
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provided that the Company has delivered to the Trustee an Opinion of Counsel
stating that such amendment or supplement complies with the provisions of this
Section 9.01.
SECTION 9.02. With Consent of Holders.
(a) Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder or
Holders of at least a majority in aggregate principal amount of the outstanding
Notes, may amend or supplement this Indenture or the Notes, without notice to
any other Holders. Subject to Section 6.07, the Holder or Holders of a majority
in aggregate principal amount of the outstanding Notes may waive compliance by
the Company with any provision of this Indenture or the Notes without notice to
any other Holder.
(b) No amendment, supplement or waiver, including a waiver pursuant
to Section 6.04, shall, without the consent of each Holder of each Note affected
thereby:
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, including defaulted interest, on any Notes;
(3) reduce the principal of or change or have the effect of changing
the fixed maturity of any Notes, or change the date on which any Notes may
be subject to redemption or repurchase, or reduce the redemption or
repurchase price therefor;
(4) make any Notes payable in money other than that stated in the
Notes;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Note on or after the due date thereof or to bring suit to enforce
such payment, or permitting Holders of a majority in principal amount of
Notes to waive Defaults or Events of Default, other than ones with respect
to the payment of principal of or interest on the Notes;
(6) amend, modify, change or waive any provision of this Section
9.2;
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(7) amend, modify or change in any material respect the obligation
of the Company to make or consummate a Change of Control Offer in the
event of a Change of Control or make and consummate a Net Proceeds Offer
in respect of any Asset Sale that has been consummated or modify any of
the provisions or definitions with respect thereto after a Change of
Control has occurred or the subject Asset Sale has been consummated; or
(8) modify Article Ten or the definitions used in Article Ten to
adversely affect the Holders of the Notes in any material respect.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Effect on Senior Debt.
No amendment of this Indenture shall adversely affect the rights of
any holder of Senior Debt under Article Ten of this Indenture, without the
consent of such holder.
SECTION 9.04. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Notes
shall, except as may otherwise be provided in any order of the SEC pursuant to
TIA ss 304(d), comply with the TIA as then in effect.
SECTION 9.05. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or
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portion of such Note by notice to the Trustee or the Company received before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Notes have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record
date. No such consent shall be valid or effective for more than 90 days after
such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (8) of Section 9.02(b), in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note.
SECTION 9.06. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note,
the Trustee may require the Holder of such Note to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Any such notation
or exchange shall be made at the sole cost and expense of the Company.
SECTION 9.07. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized or permitted pursuant to this Article Nine; provided that the Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and
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an Officers' Certificate each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture. Such Opinion of Counsel shall not be an expense of
the Trustee.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Notes Subordinated to Senior Debt.
The Company covenants and agrees, and each Holder of the Notes, by
its acceptance thereof, likewise covenants and agrees, that all Notes shall be
issued subject to the provisions of this Article Ten; and each Person holding
any Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that the payment of all Obligations on the Notes by
the Company shall, to the extent and in the manner herein set forth, be
subordinated and junior in right of payment to the prior payment in full in cash
or Cash Equivalents of all Obligations on the Senior Debt; that the
subordination is for the benefit of, and shall be enforceable directly by, the
holders of Senior Debt, and that each holder of Senior Debt whether now
outstanding or hereafter created, incurred, assumed or guaranteed shall be
deemed to have acquired Senior Debt in reliance upon the covenants and
provisions contained in this Indenture and the Notes; provided however that the
Indebtedness represented by the Notes shall cease to be so subordinate, junior
and subject in right of payment upon any defeasance thereof in accordance with
Article Eight.
SECTION 10.02. No Payment on Notes in Certain Circumstances.
(a) Unless Section 10.03 shall be applicable, if any default occurs
and is continuing in the payment when due, whether at maturity, upon redemption,
by declaration or otherwise, of any principal of, interest on, unpaid drawings
for letters of credit issued in respect of, or regularly accruing fees with
respect to, any Senior Debt, and such default shall not have ceased to exist or
have been cured or waived by or on behalf of the holders of such Senior Debt, no
payment of any kind or character (other than payments by a trust previously
established pursuant to Article Eight), by set-off or other
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wise, shall be made by, or on behalf of, the Company or any other Person on its
or their behalf with respect to any Obligations on the Notes, or to acquire any
of the Notes for cash or property or otherwise, in each case, other than
payments in Junior Securities. In addition, unless Section 10.03 shall be
applicable, if any other event of default occurs and is continuing with respect
to any Senior Debt, as such event of default is defined in the instrument
creating or evidencing such Senior Debt, permitting the holders of such Senior
Debt then outstanding to accelerate the maturity thereof and if the
Representative for the Senior Debt gives notice of the event of default to the
Trustee (a "Default Notice"), then, unless and until all events of default have
been cured or waived or have ceased to exist or the Trustee receives notice
thereof from the Representative for the respective issue of Senior Debt
terminating the Blockage Period (as defined below), during the 179 days after
the delivery of such Default Notice (the "Blockage Period"), neither the Company
nor any other Person on its behalf shall (x) make any payment of any kind or
character (other than payments by a trust previously established pursuant to
Article Eight), by set-off or otherwise, with respect to any Obligations on the
Notes or (y) acquire any of the Notes for cash or property or otherwise, in each
case, other than payments in Junior Securities. Notwithstanding anything herein
to the contrary, in no event will a Blockage Period extend beyond 179 days from
the date the payment on the Notes was due and only one such Blockage Period may
be commenced within any 360 consecutive days. No event of default which existed
or was continuing on the date of the commencement of any Blockage Period with
respect to the Senior Debt shall be, or be made, the basis for the commencement
of a second Blockage Period by the Representative of the Senior Debt whether or
not within a period of 360 consecutive days, unless such event of default shall
have been cured or waived for a period of not less than 90 consecutive days (it
being acknowledged that any subsequent action, or any breach of any financial
covenants for a period commencing after the date of commencement of such
Blockage Period that, in either case, would give rise to an event of default
pursuant to any provisions under which an event of default previously existed or
was continuing shall constitute a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 10.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Debt (pro rata to such
holders on the basis of the respective amount of Senior
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Debt held by such holders) or their respective Representatives, as their
respective interests may appear. The Trustee shall be entitled to rely on
information regarding amounts then due and owing on the Senior Debt, if any,
received from the holders of Senior Debt (or their Representatives) or, if such
information is not received from such holders or their Representatives, from the
Company and only amounts included in the information provided to the Trustee
shall be paid to the holders of Senior Debt.
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder.
SECTION 10.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character (other than payments by a trust previously
established pursuant to Article Eight) is made on account of any Obligations on
the Notes, or for the acquisition of any of the Notes for cash or property or
otherwise, other than payments or distributions in Junior Securities. Upon any
such dissolution, winding-up, liquidation, reorganization, receivership or
similar proceeding, any payment or distribution of assets of the Company of any
kind or character (other than payments by a trust previously established
pursuant to Article Eight), whether in cash, property or securities, other than
payments or distributions in Junior Securities, to which the Holders of the
Notes or the Trustee under this Indenture would be entitled, except for the
provisions of this Article Ten, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the Holders or by the Trustee under this
Indenture if received by them, directly to the holders of Senior Debt (pro rata
to such
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holders on the basis of the respective amounts of Senior Debt held by such
holders) or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, for application to the payment
of Senior Debt remaining unpaid until all such Senior Debt has been paid in full
in cash or Cash Equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Senior Debt or part thereof originally intended to
be satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character (other than
payments by a trust previously established pursuant to Article Eight), whether
in cash, property or securities, other than in Junior Securities, shall be
received by any Holder when such payment or distribution is prohibited by this
Section 10.03(c), such payment or distribution shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior Debt
(pro rata to such holders on the basis of the respective amount of Senior Debt
held by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of Senior Debt remaining unpaid until all such Senior Debt has been paid
in full in cash or Cash Equivalents, after giving effect to any concurrent
payment, distribution or provision thereof or to or for the holders of such
Senior Debt.
(d) The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the terms of
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the Senior Debt shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other corporation shall,
as a part of such consolidation, merger, conveyance or transfer, assume the
Company's obligations hereunder in accordance with Article Five hereof.
SECTION 10.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Sections
10.02 and 10.03, from making payments at any time for the purpose of making
payments of principal of and interest on the Notes, or from depositing with the
Trustee any moneys for such payments, or (ii) in the absence of actual knowledge
by the Trustee that a given payment would be prohibited by Section 10.02 or
10.03, the application by the Trustee of any moneys deposited with it for the
purpose of making such payments of principal of, and interest on, the Notes to
the Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable a Trust Officer
shall have actually received the written notice provided for in the second
sentence of Section 10.02(a) or in Section 10.07. The Company shall give prompt
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of the Company.
SECTION 10.05. Subrogation.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Debt, the Holders of the Notes shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Debt until the Notes shall be
paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt by or on behalf of the Company
or by or on behalf of the Holders by virtue of this Article Ten which otherwise
would have been made to the Holders shall, as between the Company and the
Holders of the Notes, be deemed to be a payment by the Company to or on account
of the Senior Debt, it being understood that the provisions of this Article Ten
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Notes, on the one hand, and the holders of the Senior Debt,
on the other hand.
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SECTION 10.06. Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Debt, and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders the
principal of and any interest on the Notes as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent the
Holder of any Note or the Trustee on its behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
SECTION 10.07. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes pursuant to the provisions of this
Article Ten. Regardless of anything to the contrary contained in this Article
Ten or elsewhere in this Indenture, the Trustee shall not be charged with
knowledge of the existence of any default or event of default with respect to
any Senior Debt or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing from the Company, or from a holder of Senior Debt or a
Representative therefor, together with proof satisfactory to the Trustee of
such holding of Senior Debt or of the authority of such Representative, and,
prior to the receipt of any such written notice, the Trustee shall be entitled
to assume (in the absence of actual knowledge to the contrary) that no such
facts exist.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amounts of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this
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Article Ten, and if such evidence is not furnished the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization
or similar case or proceeding is pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, receiver, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or the Holders of the Notes, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Ten.
SECTION 10.09. Trustee's Relation to Senior Debt.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and nothing in
this Indenture shall deprive the Trustee or any such agent of any of its rights
as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
Whenever a distribution is to be made or a notice given to holders
or owners of Senior Debt, the distribution may
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be made and the notice may be given to their Representative, if any.
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee, without incurring
responsibility to the Trustee or the Holders of the Notes and without impairing
or releasing the subordination provided in this Article Ten or the obligations
hereunder of the Holders of the Notes to the holders of the Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt, or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the payment or collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 10.11. Noteholders Authorize Trustee To Effectuate Subordination
of Notes.
Each Holder of Notes by its acceptance of them authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior Debt
and the Holders of Notes, the subordination provided in this Article Ten, and
appoints the Trustee its attorney-in-fact for such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company (whether in bankruptcy,
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insolvency, receivership, reorganization or similar proceedings or upon an
assignment for the benefit of creditors or otherwise) tending towards
liquidation of the business and assets of the Company, the filing of a claim for
the unpaid balance of its Notes and accrued interest in the form required in
those proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Debt or their
Representative are or is hereby authorized to have the right (but not the
obligation) to file and are or is hereby authorized to file an appropriate claim
for and on behalf of the Holders of said Notes. Nothing herein contained shall
be deemed to authorize the Trustee or the holders of Senior Debt or their
Representative to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee or the holders of Senior Debt or their Representative to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 10.12. This Article Ten Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article Ten will not be
construed as preventing the occurrence of an Event of Default.
SECTION 10.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten will apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
Except as may otherwise be provided in any order of the SEC pursuant
to TIA ss 304(d), if any provision of this Indenture limits, qualifies, or
conflicts with another provision
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which is required to be included in this Indenture by the TIA, the required
provision shall control.
SECTION 11.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by commercial courier service, by telex, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to the Company:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Ltd.
10,000 ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: President
with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
if to the Trustee:
[ ]
Facsimile No.: [ ]
Attn: Corporate Trust Department
Each of the Company and the Trustee by written notice to each other
such Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is confirmed if delivered by commercial courier service;
when answered back, if telexed; when receipt is acknowledged, if faxed; and five
(5) calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
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Any notice or communication mailed to a Holder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the registration books of the Registrar and shall be sufficiently given to
him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA ss 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other Person shall have the protection of TIA ss
312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed by the Company, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action have
been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
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(1) a statement that the Person making such certificate or opinion
has read such covenant or condition and the definitions relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. Legal Holidays,
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York or at such place of payment are not required to be open. If a payment date
is a Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS (OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW ss 5-1401). EACH
OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE.
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SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such,
of the Company or of the Trustee shall not have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. Such waiver
and release are part of the consideration for the issuance of the Notes.
SECTION 11.11. Successors.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture or in
the Notes shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
Issuer:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LTD.
By:
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Name:
Title:
Trustee:
[ ],
as Trustee
By:
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Name:
Title:
