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EXHIBIT 4.2
Indenture, dated August 22, 1996, between Printpack, Inc. and Fleet National
Bank relating to the 10-5/8% Senior Subordinated Notes due 2006.
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EXECUTION COPY
________________
PRINTPACK, INC.
the Company
_________________
SERIES A AND SERIES B
10-5/8% SENIOR SUBORDINATED NOTES DUE 2006
_________________
INDENTURE
Dated as of August 22, 1996
_________________
FLEET NATIONAL BANK
________________________
As Trustee
_________________
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CROSS REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1).......................................... 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.10
(b)............................................. 7.10
(c)............................................. N.A.
311 (a)............................................. 7.11
(b)............................................. 7.11
(c)............................................. N.A.
312 (a)............................................. 2.05
(b)............................................. 10.03
(c)............................................. 10.03
313 (a)............................................. 7.06
(b)(1).......................................... N.A.
(b)(2).......................................... 7.06;7.07
(c)............................................. 7.06;10.0
(d)............................................. 7.06
314 (a)............................................. 4.03;4.04
(b)............................................. N.A.
(c)(1).......................................... 10.04
(c)(2).......................................... 10.04
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 10.05
(f)............................................. N.A.
315 (a)............................................. N.A.
(b)............................................. N.A.
(c)............................................. N.A.
(d)............................................. N.A.
(e)............................................. 6.11
316 (a)(last sentence).............................. 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... N.A.
(a)(2).......................................... N.A.
(b)............................................. 6.07
(c)............................................. N.A.
317 (a)(1).......................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
318 (a)............................................. N.A.
(b)............................................. N.A.
(c)............................................. 10.01
*This Cross Reference Table is not part of the Indenture.
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INDENTURE dated as of August 22, 1996 between PRINTPACK, INC., a Georgia
corporation (the "Company") and Fleet National Bank, as trustee (the
"Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the holders (the "Holders") of the
10-5/8% Series A Senior Subordinated Notes due 2006 of the Company (the "Series
A Notes") and the 10-5/8% Series B Senior Subordinated Notes due 2006 of the
Company (the "Series B Notes" and, together with the Series A Notes, the
"Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition" means the acquisition of assets of JR Flexible by the
Company pursuant to an Asset Purchase Agreement, dated as of April 10, 1996,
between the Company and Xxxxx River, as amended.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
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"Agent" means any Registrar, Paying Agent or co-registrar or any successor
thereto.
"Asset Sale" means (i) the sale, lease, conveyance or other disposition of
any assets (including, without limitation, by way of a sale and leaseback)
other than sales of inventory or obsolete or excess equipment or equipment that
is no longer useable, in each case, in the ordinary course of business
consistent with past practices (provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole shall be governed by the provisions of
Section 4.16 and/or Section 5.01 hereof and not by the provisions of Section
4.10 hereof), and (ii) the issue or sale by the Company or any of its
Subsidiaries of Equity Interests of any of the Company's Subsidiaries, in the
case of either clause (i) or (ii), whether in a single transaction or a series
of related transactions (a) that have a fair market value in excess of $1.0
million or (b) for net proceeds in excess of $1.0 million. Notwithstanding the
foregoing: (i) a transfer of assets by the Company to a Controlled Subsidiary
or by a Controlled Subsidiary to the Company or to another Controlled
Subsidiary, (ii) an issuance of Equity Interests by a Wholly Owned Subsidiary
to the Company or to another Wholly Owned Subsidiary, (iii) sales of Target
Assets, (iv) a sale of Receivables to or by the Receivables Subsidiary and (v)
a Permitted Investment or Restricted Payment that is permitted by the
provisions of Section 4.07 hereof shall not be deemed to be Asset Sales.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Beneficial Owner" (including, with correlative meanings, "Beneficially
Owned" and "Beneficial Ownership") means, with respect to any Capital Stock, a
"person," as such term is used in Section 13(d)(3) of the Exchange Act, that is
a "beneficial owner," as such term is defined in Rule 13d-3 and Rule 13d-5
under the Exchange Act, of such Capital Stock.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (iii) in the case of a partnership, partnership
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interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition, (iii) certificates of deposit and
eurodollar time deposits with maturities of twelve months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding twelve
months and overnight bank deposits, in each case with any domestic commercial
bank having capital and surplus in excess of $500.0 million and a Xxxxxxxx Bank
Watch Rating of "B" or better, (iv) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in
clauses (ii) and (iii) above without regard to the maturities of such
underlying securities entered into with any financial institution meeting the
qualifications specified in clause (iii) above, (v) commercial paper having the
highest rating obtainable from Xxxxx'x Investors Service, Inc. or Standard &
Poor's Corporation and in each case maturing within six months after the date
of acquisition, and (vi) deposit accounts with domestic commercial banks.
"Certificated Securities" means Notes that are in the form of the Notes
attached hereto as Exhibit A, that do not include the information called for by
footnotes 1 and 3 thereof.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act) other than the Principals or their Related Parties (as defined below),
(ii) the adoption of a plan relating to the liquidation or dissolution of the
Company, (iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals and their Related
Parties, becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than
35% of the voting stock of the Company or (iv) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors.
"Claim" means any claim arising from rescission of the purchase or sale of
the Notes, for damages arising from the purchase or sale of the Notes or for
reimbursement or contribution on account of such a claim.
"Commission" means the Securities and Exchange Commission.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus (i) an amount
equal to any extraordinary loss plus any net loss realized in connection with
an Asset Sale of such Person or any of its Subsidiaries (to the extent such
losses were deducted in computing such Consolidated
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Net Income), plus (ii) provision for taxes based on income or profits of such
Person and its Subsidiaries for such period, to the extent that such provision
for taxes was included in computing such Consolidated Net Income, plus (iii)
consolidated interest expense of such Person and its Subsidiaries for such
period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings or any Receivables Facility, and net payments (if any)
pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (iv) depreciation,
amortization (including amortization of goodwill and other intangibles and
transaction fees and expenses incurred by the Company in connection with the
Acquisition, the New Credit Agreement, any Receivables Facility and the Notes
and in connection with subsequent acquisitions and financings) and other
non-cash charges (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Subsidiaries for such period, to the extent that such
depreciation, amortization and other non-cash charges were deducted in
computing such Consolidated Net Income, plus (v) charges and expenses related
to the termination or modification of JR Flexible employee benefit plans in
effect on the date of this Indenture, to the extent that such charges and
expenses were deducted in computing such Consolidated Net Income, in each case,
on a consolidated basis and determined in accordance with GAAP. Notwithstanding
the foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash charges of, a Subsidiary of
the referent Person shall be added to Consolidated Net Income to compute
Consolidated Cash Flow only to the extent (and in same proportion) that the Net
Income of such Subsidiary was included in calculating the Consolidated Net
Income of such Person and only if a corresponding amount would be permitted at
the date of determination to be dividended to the Company by such Subsidiary
without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmenntal regulations applicable to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income (but not loss) of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Wholly Owned Subsidiary thereof, (ii) the Net
Income of any Subsidiary shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
that Subsidiary or its stockholders, (iii) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the
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date of such acquisition shall be excluded, (iv) the cumulative effect of a
change in accounting principles shall be excluded, (v) any extraordinary items
and any gains or losses in connection with Asset Sales or reserves related
thereto shall be excluded, (vi) any charges or reserves taken for severance,
plant closings, equipment relocations and other charges related to the
consolidation and rationalization of JR Flexible initiated within 18 months of
the date of this Indenture shall be excluded and (vii) any charge taken for
severance relating to the early retirement program implemented in fiscal year
1996 shall be excluded.
"Continuing Directors" means, as of any date of determination, any member
of the board of directors of the Company who (i) was a member of such board of
directors on the date of this Indenture or (ii) was nominated for election or
elected to such board of directors with the approval of a majority of the
Continuing Directors who were members of such board of directors at the time of
such nomination or election.
"Controlled Subsidiary" of any Person means a Subsidiary of such Person
(which may include the Receivables Subsidiary) (i) 90% or more of the total
Equity Interests or other ownership interests of which (other than directors
qualifying shares) shall at the time be owned by such Person or by one or more
Controlled Subsidiaries of such Person and (ii) of which such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies, whether through the ownership of voting securities, by
agreement or otherwise.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.02 of this Indenture or such other address as
to which the Trustee gives notice to the Company.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture and, thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Debt" means (i) so long as any Senior Bank Debt is
outstanding, the Senior Bank Debt, (ii) thereafter, any other Senior Debt
permitted under this Indenture, the principal amount of which is $25.0 million
or more and that has been designated by the Company as "Designated Senior Debt"
and (iii) holders of at least 25% of the then outstanding Senior Notes.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise,
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or redeemable at the option of the Holder thereof, in whole or in part, on or
prior to the date that is 91 days after the date on which the Notes mature.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer that may be made by the Company pursuant
to the Registration Rights Agreement to issue Series B Notes in exchange for
Series A Notes.
"Existing Employment Agreements" means (a) the Deferred Income Agreements,
dated as of December 17, 1984, with each of Xxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxxx, Xx. and a deferred Income Agreement dated as of July 11, 1996 with
Xxxx Xxxxxxxx, (b) the Deferred Compensation Agreement, dated as of July 1,
1985, with Xxxxxx X. Xxxxx, (c) the Family Security Agreements with each of
Xxxxxx X. Love, R. Xxxxxxx Xxxxxxx, Xxxxxx X. Xxxx and Xxxxxxx X. Xxxxxx and
(d) the Amended and Restated Employment Agreement, dated June 23, 1983, by and
between the Company and X. Xxxxxxx Love, Jr.
"Existing Indebtedness" means up to $18.0 million in aggregate principal
amount of Indebtedness of the Company and its Subsidiaries (other than
Indebtedness under the New Credit Agreement) in existence on the date of this
Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period, the sum
of (i) the consolidated interest expense of such Person and its Subsidiaries
for such period, whether paid or accrued (including, without limitation,
amortization of original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers' acceptance
financings or any Receivables Facility, and net payments (if any) pursuant to
Hedging Obligations) and (ii) the consolidated interest expense of
such Person and its Subsidiaries that was capitalized during such period, and
(iii) any interest expense on Indebtedness of another Person that is Guaranteed
by such Person or one of its Subsidiaries or secured by a Lien on assets of
such Person or one of its Subsidiaries (whether or not such Guarantee or Lien
is called upon) and (iv) the product of (a) all cash dividend payments (and
non-cash dividend payments in the case of a Person that is a Subsidiary) on any
series of preferred stock of such Person, times (b) a fraction, the numerator
of which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person, expressed
as a decimal, in each case, on a consolidated basis and in accordance with
GAAP.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
Company or any of its Subsidiaries incurs, assumes,
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Guarantees or redeems any Indebtedness (other than revolving credit borrowings)
or issues preferred stock subsequent to the commencement of the period for
which the Fixed Charge Coverage Ratio is being calculated but prior to the date
on which the event for which the calculation of the Fixed Charge Coverage Ratio
is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption, Guarantee or
redemption of Indebtedness, or such issuance or redemption of preferred stock,
as if the same had occurred at the beginning of the applicable four-quarter
reference period. In addition, for purposes of making the computation referred
to above, (i) acquisitions that have been made by the Company or any of its
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
shall be deemed to have occurred on the first day of the four-quarter reference
period and Consolidated Cash Flow for such reference period shall be calculated
without giving effect to clause (iii) of the proviso set forth in the
definition of Consolidated Net Income, and (ii) the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to the Calculation Date, shall
be excluded, and (iii) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded, but only to the
extent that the obligations giving rise to such Fixed Charges shall not be
obligations of the referent Person or any of its Subsidiaries following the
Calculation Date.
"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 have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Note" means a Note that contains the paragraph referred to in
footnote 1 and the additional schedule referred to in footnote 3 to the form of
the Note attached hereto as Exhibit A.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hedging Obligations" means, with respect to any Person, the obligations
of such Person under (i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
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"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, for purposes of the Indenture, with respect to any
Person, any indebtedness of such Person, whether or not contingent, in respect
of borrowed money, including without limitation certificates of participation
in Receivables or any similar instruments and certificates (or other than any
interests in the Receivables held by the Receivables Subsidiary), or evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable,
if and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, as well as all such
indebtedness of others secured by a Lien on any asset of such Person (whether
or not such indebtedness is assumed by such Person) and, to the extent not
otherwise included, the Guarantee by such Person of any such indebtedness of
any other Person; provided, however, that Indebtedness shall not include any
servicing or guarantee of servicing obligations with respect to Receivables or
any payments pursuant to a Tax Incentive Program. The amount of Indebtedness
evidenced by a certificate of participation or other interests in Receivables
and similar instruments or certificates will be deemed to be the outstanding
amount of such certificate of participation or other interests.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time.
"Initial Public Offering" means an underwritten public offering of common
Capital Stock of the Company registered under Securities Act (other than a
public offering registered on Form S-8 under the Securities Act).
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
provided that an acquisition of assets, Equity Interests or other securities by
the Company for consideration consisting of common equity securities of the
Company shall not be deemed to be an Investment. If the Company or any
Subsidiary of the Company sells or otherwise disposes of any Equity Interests
of any direct or indirect Subsidiary of the Company such that, after giving
effect to any such sale or disposition, such Person is no longer a Subsidiary
of the Company, 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
Equity Interests of such Subsidiary not sold or disposed of.
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"Issue Date" means August 22, 1996.
"Xxxxx River" means Xxxxx River Corporation of Virginia, a Virginia
corporation.
"JR Flexible" means the Flexible Packaging Group of Xxxxx River.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or in the city in which the principal
corporate trust office of the Trustee or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction), other than liens and setoff rights with respect to deposit
accounts.
"Liquidated Damages" means all liquidated damages owed pursuant to Section
5 of the Registration Rights Agreement.
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b)
the disposition of any securities by such Person or any of its Subsidiaries or
the extinguishment of any Indebtedness of such Person or any of its
Subsidiaries and (ii) any extraordinary or nonrecurring gain (but not loss),
together with any related provision for taxes on such extraordinary or
nonrecurring gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the Company
or any of its Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees, and sales commissions) and any other expenses
incurred or to be incurred as a result thereof (including, without limitation,
severance, relocation, lease termination and other similar expenses), taxes
paid or payable as a result thereof (after taking into account any available
tax credits or deductions and any tax sharing arrangements), amounts required
to be applied to the repayment of Indebtedness (other than term Indebtedness or
revolving Indebtedness under the New Credit Agreement or any one or more
successor or additional bank facilities)
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secured by a Lien on the asset or assets that were the subject of such Asset
Sale and any reserve for adjustment in respect of the sale price of such asset
or assets established in accordance with GAAP.
"New Credit Agreement" means that certain Credit Agreement, dated as of
August 22, 1996, by and among the Company, the Lenders named therein and The
First National Bank of Chicago, as Agent, providing for term loans, revolving
credit borrowings and other financial accommodations, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced, in whole or in part, from time to time.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the Company
nor any of its Subsidiaries (other than the Receivables Subsidiary) (a)
provides any credit support that would constitute Indebtedness or (b) is
directly or indirectly liable (as a guarantor or otherwise); and (ii) as to
which the lenders have agreed or been notified in writing that they will not
have any recourse to the stock or assets of the Company or any of its
Subsidiaries (other than the Receivables Subsidiary); provided that,
notwithstanding the foregoing, the Company and any of its other Subsidiaries
that sell Receivables to the Receivables Subsidiary shall be allowed to provide
such representations, warranties, covenants and indemnities as are customarily
required in such transactions so long as no such representations, warranties,
covenants or indemnities constitute a Guarantee of payment or recourse against
credit losses.
"Note Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chief Executive Officer,
the President, the Vice President - Finance and Administration, the Vice
President - Business Development, the Treasurer, any Assistant Treasurer, the
Controller or the Secretary.
"Officers' Certificate" means a certificate signed on behalf of a Person
by two Officers of such Person, one of whom must be the principal executive
officer, the principal financial officer or the principal accounting officer of
such Person, that meets the requirements of Section 10.05 hereof.
"Opinion of Counsel" means a written opinion in form and substance
satisfactory to, and from legal counsel who is reasonably acceptable to the
Trustee that meets the requirements of Section 10.05 hereof. Such counsel may
be an employee of or counsel to the Company, any Subsidiary of the Company or
the Trustee.
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"Pari Passu Debt" means Indebtedness that ranks pari passu in right of
payment with the Notes or the Senior Notes, as the case may be.
"Permitted Investments" means (a) any Investment in the Company or in a
Controlled Subsidiary of the Company; (b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Subsidiary of the Company in a Person,
if as a result of such Investment (i) such Person becomes a Controlled
Subsidiary of the Company or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Controlled Subsidiary of the
Company; provided, however, that if the Person in either of subclauses (i) and
(ii) of this clause (c) owns Equity Interests of the Company at the time of
such Investment by the Company or a Subsidiary, such Investment shall not be a
Permitted Investment; (d) any Restricted Investment made as a result of the
receipt of non-cash consideration from an Asset Sale that was made pursuant to
and in compliance with the provisions of Section 4.10 hereof; (e) any
Investment in trade receivables or interests therein in the ordinary course of
business; (f) Investments received in settlement of trade receivables created
in the ordinary course of business and owing to the Company or any Subsidiary
or in satisfaction of any judgment with respect to any such trade receivable;
and (g) other Investments in any Person (other than a Person that is an
Affiliate of the Company on the Issue Date) having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (g) that are at the time outstanding,
not to exceed $25.0 million.
"Permitted Junior Securities" means equity securities or any subordinated
debt securities of the Company, or of any successor obligor (with respect to
Senior Debt), that, in the case of any such subordinated securities, (i) are
subordinated in right of payment to all Senior Debt and all securities issued
in exchange for Senior Debt that may at the time be outstanding to at least the
same extent as the Notes are subordinated as provided in this Indenture and
(ii) have a Weighted Average Life to Maturity not less than the Notes.
"Permitted Liens" means (i), Liens on assets of the Company and its
Subsidiaries, whether owned on the date of this Indenture or thereafter
acquired, securing any Senior Debt that is permitted by the terms of this
Indenture to be incurred; provided, however, that in the case of Liens granted
by Subsidiaries, each such Subsidiary shall execute a Guarantee in compliance
with Section 4.14 hereof; (ii) Liens in favor of the Company or a Subsidiary;
(iii) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature incurred
in the ordinary course of business; (iv) Liens on assets of Subsidiaries to
secure Indebtedness of Subsidiaries that is permitted by the terms of this
Indenture to be incurred; (v) Liens existing on the date of this Indenture;
(vi) Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, provided that any
reserve or other appropriate provision as shall be required in conformity with
GAAP shall have been made therefor; (vii) Liens to secure Indebtedness
permitted to be incurred pursuant to clauses (vi) or (vii) of the second
paragraph of 4.09 hereof; (viii) Liens to secure Attributable Debt in respect
of sale and leaseback transactions that were permitted by the terms of this
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Indenture to be entered into; (ix) Liens on assets of the Company to secure
Hedging Obligations that were permitted to be incurred pursuant to the
provisions of Section 4.09 hereof; (x) Liens on Receivables to reflect sales of
Receivables to and by the Receivables Subsidiary pursuant to the Receivables
Facility; (xi) Liens on assets of the Receivables Subsidiary; and (xii) in
addition to the foregoing, Liens on assets of the Company or any Subsidiary of
the Company with respect to Obligations that do not exceed $25.0 million at any
one time outstanding.
"Permitted Refinancing Debt" means any Indebtedness of the Company or any
of its Subsidiaries issued in exchange for, or the net proceeds of which are
used to extend, refinance, renew, replace, defease or refund other Indebtedness
of the Company or any of its Subsidiaries (other than Indebtedness permitted to
be incurred pursuant to clauses (i) or (ii) of the second paragraph of Section
4.09; provided that: (i) the principal amount (or accreted value, if
applicable) of such Permitted Refinancing Debt does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of accrued
interest and premium thereon, if any, reasonable expenses incurred in
connection therewith); (ii) such Permitted Refinancing Debt has a final
maturity date later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Notes, such Permitted Refinancing Debt has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes
on terms at least as favorable to the Holders of the Notes as those contained
in the subordination provisions governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such Indebtedness
is incurred either by the Company or by the Subsidiary who is the obligor on
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"Principals" means Xxxxxx X. Love, Xxxxx X. Love, III, Xxxxx Xxxx Love
Xxxxxxxx, Xxxxxxx X. Love, Xxxxxxx Xxxxx Love, Xxxxx X. Love and Gay Love.
"Purchase Agreement" means the Purchase Agreement, dated as of August 15,
1996, between the Company and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation ("DLJ"), relating to the initial sale by the Company and the
purchase by DLJ of the Notes and the Senior Notes.
"Receivables" means, collectively, (a) the Indebtedness and other
obligations owed to the Company or any of its Subsidiaries (before giving
effect to any sale or transfer thereof pursuant to a Receivables Facility),
whether constituting an account, chattel paper, an instrument, a document or
general intangible, arising in connection with the sale of goods, insurance
and/or services by the Company or such Subsidiary, including, without
limitation, the obligation to pay
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any late fees, interest or other finance charges with respect thereto (each of
the foregoing, collectively, an "Account Receivable"), (b) all of the Company's
or such Subsidiary's interest in the goods (including returned goods), if any,
the sale of which gave rise to any Account Receivable, and all insurance
contracts with respect thereto, (c) all other security interests or Liens and
property subject thereto from time to time, if any, purporting to secure
payment of any Account Receivable, together with all financing statements and
security agreements describing any collateral securing such Account Receivable,
(d) all Guarantees, insurance and other agreements or arrangements of whatever
character from time to time supporting or securing payment of any Account
Receivable, (e) all contracts, invoices, books and records of any kind related
to any Account Receivable, (f) all cash collections in respect of, and cash
proceeds of, any of the foregoing and any lockboxes, lockbox accounts,
collection accounts, concentration accounts and similar accounts in or into
which such collections and cash proceeds are now or hereafter deposited,
collected or concentrated, and (g) all proceeds of any of the foregoing.
"Receivables Facility" means, with respect to any Person, any Receivables
securitization program pursuant to which such Person receives proceeds pursuant
to a pledge, sale or other encumbrance of its Receivables.
"Receivables Subsidiary" means Flexible Funding Corp., created primarily
to purchase or finance the receivables of the Company and/or its Subsidiaries
pursuant to a Receivables Facility, so long as it: (a) has no Indebtedness
other than Non-Recourse Debt; (b) is not party to any agreement, contract,
arrangement or understanding with the Company or any other Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Subsidiary than
those that might be obtained at the time from Persons who are not Affiliates of
the Company; (c) is a Person with respect to which neither the Company nor any
of its other Subsidiaries has any direct obligation to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results other than to act as servicer of
Receivables; (d) has not Guaranteed or otherwise directly provided credit
support for any Indebtedness of the Company or any of its other Subsidiaries;
and (e) has at least one director on its board of directors that is not a
director or executive officer of the Company or any of its other Subsidiaries.
Notwithstanding the foregoing and without otherwise limiting Permitted
Investments, the Company may make capital contributions in the form of
Receivables transferred to the Receivables Subsidiary for non-cash
consideration to the extent necessary or desirable to prevent a disruption of
purchases of Receivables or to avoid a default under the Receivables Facility.
If, at any time, such Receivables Subsidiary would fail to meet the foregoing
requirements as a Receivables Subsidiary (other than a failure to meet the
requirements set forth in clause (e) above as a result of the death or
resignation of a director, provided that such director is promptly replaced),
it shall thereafter cease to be a Receivables Subsidiary for purposes of the
Indentures and any Indebtedness of such Receivables Subsidiary shall be deemed
to be incurred by a Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under the covenant
described under Section 4.09 hereof, the Company shall be in default of such
covenant).
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"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of August 22, 1996, by and among the Company and the other parties
named on the signature pages thereto, as such agreement may be amended,
modified or supplemented from time to time.
"Related Party" with respect to any Principal means (A) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Debt.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the corporate trust administration department of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers, and also means, with respect to a particular
corporate trust matter, any other employee to whom such matter is referred
because of his knowledge of, and familiarity with, the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Bank Debt" means the Indebtedness outstanding under the New Credit
Agreement (including, without limitation, Hedging Obligations owing to lenders
that are parties to the New Credit Agreement or to Affiliates of such lenders),
as such agreement may be restated, further amended, supplemented or otherwise
modified or replaced from time to time hereafter, together with any refunding
or replacement, in whole or in part, of such Indebtedness, to the extent that
any such Indebtedness was permitted by this Indenture to be incurred.
"Senior Debt" means (a) the Senior Notes, (b) the Senior Bank Debt, (c)
all additional Indebtedness and Attributable Debt that is permitted under this
Indenture that is not by its terms pari passu with or subordinated to the
Notes, (d) all Obligations of the Company and its Subsidiaries with respect to
the foregoing clauses (a), (b) and (c), including post-petition interest and
(e) all (including all subsequent) renewals, extensions, amendments,
refinancings, repurchases or redemptions, modifications, replacements or
refundings thereto (whether or not coincident therewith), in whole or in part,
that are permitted by this Indenture. Notwithstanding anything to the contrary
in the foregoing, Senior Debt shall not include (i) any Indebtedness of the
Company to any of its Subsidiaries, (ii) any trade payables or (iii) any
Indebtedness incurred in violation of this Indenture.
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"Senior Note" means 9-7/8% Series A Senior Notes due 2004 and 9-7/8%
Series B Senior Notes due 2004 issued pursuant to the Senior Note Indenture.
"Senior Note Indenture" means the Senior Note Indenture, dated August 22,
1996, between the Company and the Trustee.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Act, as such Regulation is in effect on the date hereof.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Target Assets" means any assets acquired from JR Flexible that are sold
or otherwise disposed of (other than pursuant to a Restricted Payment) for
aggregate consideration not to exceed $25.0 million.
"Tax Allocation Agreement" means that certain Tax Allocation Agreement,
dated as of the first day of the fiscal year of the parties thereto that began
after June 29, 1996, allocating tax liabilities and payments among the Company
and its Affiliates.
"Tax Incentive Program" means (i) the Payment in Lieu of Taxes Program
sponsored by the Industrial Development Board ("IDB") of the City of Jackson,
Tennessee pursuant to which JR Flexible (and after the Acquisition if approval
is granted by the IDB, the Company) (a) transfers to the IDB real property and
equipment associated with the Jackson, Tennessee operations in return for a
non-interest bearing promissory note from the IDB, which promissory note
represents the fair market value of the real property and equipment so
transferred, (b) JR Flexible or the Company, as applicable, pays a fee in lieu
of taxes to the IDB that is less than the taxes that it would otherwise pay if
it were not participating in such Payment in Lieu of Taxes Program and (c) the
IDB leases such real property and equipment back to JR Flexible or the Company,
as applicable, pursuant to a lease that has no interest component and (ii) any
other program sponsored by state or local governments, authorities or political
subdivisions that is materially similar to the Payment in Lieu of Taxes Program
and is equally beneficial from the Holders' perspective.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as in effect on the date on which this Indenture is qualified
under the TIA, except as provided by Section 9.03 hereof.
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"Total Assets" means, with respect to any Person as of any date, the total
consolidated assets of such Person and its Subsidiaries as of such date, as
reflected on the most recently available internal consolidated financial
statements of such Person prepared in accordance with GAAP.
"Transfer Restricted Securities" means securities that bear or are
required to bear the legend set forth in Section 2.06 hereof.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person and one or
more Wholly Owned Subsidiaries of such Person.
SECTION 1.02.OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction" ........... 4.11
"Asset Sale Offer" ................ 3.09
"Asset Sale Offer Purchase Date ... 4.10
"Asset Sale Offer Trigger Date .... 4.10
"Calculation Date" ................ 1.01
"Change of Control Offer" ......... 4.16
"Change of Control Payment" ....... 4.16
"Change of Control Payment Date" .. 4.16
"Covenant Defeasance" ............. 8.03
"DTC" ............................. 2.03
"Event of Default" ................ 6.01
"Excess Proceeds" ................. 4.10
"incur" ........................... 4.09
"Legal Defeasance" ................ 8.02
"Offer Amount" .................... 3.09
"Offer Period" .................... 3.09
"Paying Agent" .................... 2.03
"Payment Default" ................. 6.01
"Purchase Date" ................... 3.09
"Registrar" ....................... 2.03
"Restricted Payments" ............. 4.07
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SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligors" on the Notes means the Company and any successor obligors upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
SECTION 1.04.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;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include
the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement or successor sections or rules
adopted by the Commission from time to time.
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ARTICLE 2
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 terms of which are
incorporated in and made part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Note shall be dated the date of
its authentication. The Notes shall be issued initially in denominations of
$1,000 and integral multiples thereof.
Notes issued in global form shall be substantially in the form of Exhibit
A attached hereto (including the text referred to in footnote 1 and the
additional schedule referred to in footnote 3 thereto). Notes issued in
definitive form shall be substantially in the form of Exhibit A attached hereto
(but without including the text referred to in footnote 1 and the additional
schedule referred to in footnote 3 thereto). Each Global Note shall represent
such of the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or the Note
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes by manual or facsimile
signature. The seal of the Company, if any, shall be reproduced on the Notes
and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture. The form of the Trustee's certificate of
authentication to be borne by the Notes shall be substantially as set forth in
Exhibit A attached hereto.
The Trustee shall, upon a written order of the Company signed by two
Officers of the Company directing the Trustee to authenticate the Notes and
certifying that all conditions precedent to the issuance of the Notes contained
herein have been complied with, authenticate Notes for original issue up to the
aggregate principal amount stated in paragraph 4 of the Notes. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.07 hereof.
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The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
an Agent to deal with the Company or Affiliates of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and (ii)
an office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent, Registrar or co-registrar without prior notice to any
Holder. The Company shall notify the Trustee in writing and the Trustee shall
notify the Holders of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any
of its Subsidiaries may act as Paying Agent, Registrar or co-registrar. The
Company shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture, which shall incorporate the provisions of the TIA.
Such agreement shall implement the provisions of this Indenture that relate to
such Agent. The Company shall notify the Trustee of the name and address of
any such Agent. If the Company fail to maintain a Registrar or Paying Agent,
or fail to give the foregoing notice, the Trustee shall act as such, and shall
be entitled to appropriate compensation in accordance with Section 7.07 hereof.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoint the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company will require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, interest and Liquidated Damages, if any, on the
Notes, and will promptly notify the Trustee of any Default by the Company in
making any such payment. While any such Default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed by it prior to such time. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money delivered to the
Trustee. If the Company or a Subsidiary acts as Paying Agent, such Person
shall segregate and
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hold in a separate trust fund for the benefit of the Holders all money held by
such Person as Paying Agent. Upon any bankruptcy or reorganization proceedings
relating to the Company, the Trustee shall serve as Paying Agent.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee, at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders, including the aggregate principal amount of Notes held by each
thereof, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Certificated Securities. When Certificated
Securities are presented by a Holder to the Registrar or a co-registrar with a
request:
(x) to register the transfer of the Certificated Securities; or
(y) to exchange such Certificated Securities for an
equal principal amount of Certificated Securities of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided, however, that the
Certificated Securities presented or surrendered for register of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney,
duly authorized in writing; and
(ii) in the case of a Certificated Security that is a Transfer
Restricted Security, such request shall be accompanied by
the following additional information and documents, as
applicable:
(A) if such Transfer Restricted Security is being delivered
to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification
to that effect from such Holder (in substantially the
form of Exhibit B attached hereto); or
(B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act)
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in accordance with Rule 144A under the Securities Act or
to an "Accredited Investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) in
accordance with Regulation D under the Securities Act,
or pursuant to an exemption from registration in
accordance with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to
that effect from such Holder (in substantially the form
of Exhibit B attached hereto); or
(C) if such Transfer Restricted Security
is being transferred in reliance on another exemption
from the registration requirements of the Securities
Act, a certificate to that effect from such Holder (in
substantially the form of Exhibit B attached hereto) and
an Opinion of Counsel from such Holder or the transferee
reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in
compliance with the Securities Act.
(b) Transfer of a Certificated Security for a Beneficial Interest in a
Global Note. A Certificated Security may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set
forth below. Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) if such Certificated Security is a Transfer Restricted
Security, a certification from the Holder thereof (in substantially
the form of Exhibit B hereto) to the effect that such Certificated
Security is being transferred by such Holder either (x) to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities
Act or (y) based upon an Opinion of Counsel from such Holder or the
transferee reasonably acceptable to the Company, the Trustee and to
the Registrar, pursuant to another exemption from the registration
requirements of the Securities Act; and
(ii) whether or not such Certificated Security is a Transfer
Restricted Security, written instructions from the Holder thereof
directing the Trustee to make, or to direct the Note Custodian to
make, an endorsement on the Global Note to reflect an increase in
the aggregate principal amount of the Notes represented by the
Global Note,
in which case the Trustee shall cancel such Certificated Security in accordance
with Section 2.11 hereof and cause, or direct the Note Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Note Custodian, the aggregate principal amount of Notes
represented by the Global Note to be increased accordingly. If no Global Notes
are then outstanding, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof, the Trustee shall
authenticate, a new Global Note in the appropriate principal amount.
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(c) Transfer and Exchange of Global Notes. The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Note for a
Certificated Security.
(i) Any Person having a beneficial interest in a Global
Note may upon request exchange such beneficial interest for a
Certificated Security. Upon receipt by the Trustee of written
instructions or such other form of instructions as is customary
for the Depositary, from the Depositary or its nominee on
behalf of any Person having a beneficial interest in a Global
Note, and, in the case of a Transfer Restricted Security, the
following additional information and documents (all of which
may be submitted by facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the
beneficial owner, a certification to that effect
(B) if such beneficial interest is being transferred to (1)
a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in accordance with Rule
144A under the Securities Act or (2) to an "Accredited
Investor" (as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) in accordance with Regulation
D under the Securities Act, or pursuant to an exemption
from registration in accordance with Rule 144 or Rule
904 under the Securities Act or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from the transferor (in
substantially the form of Exhibit B attached hereto); or
(C) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification to
that effect from the transferor (in substantially the
form of Exhibit B attached hereto) and an Opinion of
Counsel from the transferee or transferor reasonably
acceptable to the Company, the Trustee and to the
Registrar to the effect that such transfer is in
compliance with the Securities Act.
in which case the Trustee or the Note Custodian, at the direction
of the Trustee, shall, in accordance with the standing
instructions and procedures existing between the Depositary and
the Note Custodian, cause the aggregate principal amount of
Global Notes to be reduced accordingly and, following such
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reduction, the Company shall execute and the Trustee shall
authenticate and deliver to the transferee, a Certificated
Security in the appropriate principal amount.
(ii) Certificated Securities issued in exchange for a
beneficial interest in a Global Note pursuant to this Section
2.06(d) shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall
deliver such Certificated Securities to the Persons in whose
names such Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Certificated Securities in Absence of
Depositary. If at any time:
(i) the Depositary for the Notes notifies the Company
that the Depositary is unwilling or unable to continue as
Depositary for the Global Notes and a successor Depositary
for the Global Notes is not appointed by the Company within
90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the
Trustee in writing it elects to cause the issuance of
Certificated Securities under this Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Certificated Securities in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
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(g) Legends.
(i) Except as permitted by the following paragraphs
(ii) and (iii), each Note certificate evidencing Global Notes
and Certificated Securities (and all Notes issued in exchange
therefor or substitution thereof) shall bear legends in
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE U.S. SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE
THE U.S. TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS (i) A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A UNDER THE SECURITIES ACT or (ii) AN ACCREDITED INVESTOR (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) IN ACCORDANCE WITH REGULATION D UNDER THE SECURITIES ACT,
(b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144, (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY OR ITS TRANSFER AGENT OR REGISTRAR SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE U.S. OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE."
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(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) pursuant to Rule 144 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act:
(A) in the case of any Transfer Restricted Security that is a
Certificated Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Certificated Security that does not bear the legend
set forth in (i) above and rescind any restriction on
the transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security
shall not be required to bear the legend set forth in (i)
above, but shall continue to be subject to the provisions of
Section 2.06(c) hereof; provided, however, that with respect
to any request for an exchange of a Transfer Restricted
Security that is represented by a Global Note for a
Certificated Security that does not bear the legend set
forth in (i) above, which request is made in reliance upon
Rule 144, the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to Rule
144 (such certification to be substantially in the
form of Exhibit B attached hereto).
(iii) Notwithstanding the foregoing, upon consummation
of the Exchange Offer, the Company shall issue and, upon
receipt of an authentication order in accordance with Section
2.02 hereof, the Trustee shall authenticate, Series B Notes in
exchange for Series A Notes accepted for exchange in the
Exchange Offer, which Series B Notes shall not bear the legend
set forth in (i) above, and the Registrar shall rescind any
restriction on the transfer of such Notes, in each case unless
the Holder of such Series A Notes is either (A) a broker-dealer
who purchased such Series A Notes directly from the Company to
resell pursuant to Rule 144A or any other available exemption
under the Securities Act, (B) a Person participating in the
distribution of the Series A Notes or (C) a Person who is an
affiliate (as defined in Rule 144) of the Company.
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in Global Notes have been exchanged for Certificated
Securities, or are redeemed, repurchased or canceled, all Global Notes shall be
returned to or retained and canceled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for Certificated Securities, or are
redeemed, repurchased or canceled, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee or the Note Custodian, at the direction of
the Trustee, to reflect such reduction.
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(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall
authenticate Certificated Securities and Global Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder
for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or
transfer pursuant to Sections 3.07, 4.10, 4.16 and 9.05
hereof).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Note selected for
redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(iv) All Certificated Securities and Global Notes
issued upon any registration of transfer or exchange of
Certificated Securities or Global Notes shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the
Certificated Security or Global Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required:
(A) to issue, to register the transfer of
or to exchange Notes during a period beginning at the
opening of business 15 days before the date on which a
notice of redemption is mailed under Section 3.03 hereof
and ending at the close of business on the date on which
such notice is mailed; or
(B) to register the transfer of or to
exchange any Note so selected for redemption in whole or
in part, except the unredeemed portion of any Note being
redeemed in part; or
(C) to register the transfer of or to
exchange a Note between a record date and the next
succeeding interest payment date.
(vi) Prior to due presentment for the registration
of a transfer of any Note, the Trustee, any Agent and the
Company may deem and treat the Person in whose name any Note
is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, premium, if
any, interest and Liquidated Damages, if any, on such Note,
and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
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(vii) The Trustee shall authenticate Certificated Securities and
Global Notes in accordance with the provisions of Section
2.02 hereof.
(viii) Each Holder of a Note agrees to indemnify the Trustee
against any liability that may result from the transfer,
exchange or assignment of such Holder's Note in violation of
any provision of this Indenture and/or applicable United
States federal or state securities law.
SECTION 2.07. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, the Note Custodian,
the Depositary or the Company and the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, the Company shall
issue and the Trustee, upon the written order of the Company signed by two
Officers of the Company directing the Trustee to authenticate the Notes and
certifying that all conditions precedent to the issuance of the Notes contained
herein have been complied with, shall authenticate a replacement Note if the
Trustee's requirements for replacements of Notes are met. An indemnity bond
must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company and the Trustee may charge for their expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser; provided that the aggregate
principal amount of the Notes shall not increase by reason of this Section 2.08
or Section 2.07 hereof.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
Subject to Section 2.09 hereof, a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
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If the Paying Agent (other than the Company, a Subsidiary or any Affiliate
thereof) holds, on a redemption date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or by any Affiliate thereof shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Responsible Officer actually knows to be so owned shall be so
considered.
SECTION 2.10. TEMPORARY NOTES.
Until Certificated Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Company signed by two Officers of the Company directing the Trustee to
authenticate the Notes and certifying that all conditions precedent
to the issuance of the Notes contained herein have been complied with.
Temporary Notes shall be substantially in the form of Certificated Securities
but may have variations that the Company and the Trustee consider appropriate
for temporary Notes and as shall be reasonably acceptable to the Trustee.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Certificated Securities in exchange for temporary Notes. Holders
of temporary Notes shall be entitled to all of the benefits of this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall return
canceled Notes to the Company. The Company may not issue new Notes to replace
Notes that the Company has redeemed or paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12. RECORD DATE.
The record date for purposes of determining the identity of Holders of the
Notes entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture shall be determined as provided for in TIA
Section 316 (c).
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SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, which date shall be at the earliest practicable
date but in all events at least five Business Days prior to the payment date,
in each case at the rate provided in the Notes and in Section 4.01 hereof. The
Company shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment. The
Company shall, with the consent of the Trustee, fix or cause to be fixed each
such special record date and payment date. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to
be mailed to the Holders a notice that states the special record date, the
related payment date and the amount of such interest to be paid.
SECTION 2.14. CUSIP NUMBERS.
The Company in issuing the Notes may use CUSIP numbers (if then generally
in use), and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof and paragraph 5 or the Notes, it shall
furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers' Certificate setting forth (i) the Section of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
If the Company is required to make an offer to redeem Notes pursuant to
the provisions of Section 3.09 or 4.16 hereof, it shall furnish to the Trustee
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the Section of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the
maximum principal amount of Notes to be redeemed, (iv) the redemption price and
(v) further setting forth a statement to the effect that (a) the Company or one
of its Subsidiaries has effected an Asset Sale and the conditions set forth in
Section 4.10 have been satisfied or (b) a Change of Control has occurred and
the conditions set forth in Section 4.16 have been satisfied.
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The Company shall also provide the Trustee with any additional information
that the Trustee reasonably requests in connection with any redemption.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time, the Trustee
shall select the Notes to be redeemed among the Holders 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 so listed, on a pro rata basis,
by lot or in accordance with any other method the Trustee deems fair and
appropriate; provided that no Notes of $1,000 or less shall be redeemed in
part. In the event of partial redemption by lot, the particular Notes to be
redeemed shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption. The Company shall
promptly notify the Trustee in writing of the listing of the Notes on any
national securities exchange.
The Trustee 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 and portions of
them selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all Notes of a Holder are to be redeemed, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
In the event the Company is required to make an offer to redeem Notes
pursuant to Sections 3.09 and 4.10 hereof and the amount of the Excess Proceeds
from the Asset Sale are not evenly divisible by $1,000, the Trustee shall
promptly refund to the Company any remaining Excess Proceeds.
SECTION 3.03. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed (including CUSIP
numbers) and shall state:
(a) the redemption date;
(b) the redemption price;
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(c) if any Note is being redeemed in part, that, after the redemption
date, upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued in the name of the Holder
thereof upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
painterest on Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
One Business Day prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent immediately available funds
sufficient to pay the redemption price of and accrued interest and Liquidated
Damages on all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall promptly return to the Company any money deposited with the Trustee
or the Paying Agent by the Company in excess of the amounts necessary to pay
the redemption price of, and accrued interest and Liquidated Damages on, all
Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in
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whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender
for redemption because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal from the
redemption date until such principal is paid and, to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the rate provided
in the Notes and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request, the Trustee shall authenticate for the
Holder at the expense of the Company, a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) below of this Section 3.07, the
Company shall not have the option to redeem the Notes prior to August 15, 2001.
Thereafter, the Company shall have the option to redeem the Notes at any time,
in whole or in part, upon not less than 30 nor more than 60 days' prior written
notice at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on August 15 of each of the years indicated
below:
YEAR PERCENTAGE
2001 ................. 105.313%
2002 ................. 103.542%
2003 ................. 101.771%
2004 and thereafter .. 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07, on
or prior to August 22, 1999, the Company may redeem up to 35% in aggregate
principal amount of the Notes originally issued under this Indenture at a
redemption price of 109-5/8% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the redemption date,
with the net proceeds of an Initial Public Offering; provided that at least
$100.0 million in aggregate principal amount of the Notes remain outstanding
following such redemption; and provided further, that such redemption shall
have occurred within 60 days of the closing of any such Initial Public
Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made, to the
extent applicable, pursuant to the provisions of Sections 3.01 through 3.06
hereof.
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SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Sections 4.10 and 4.16 hereof, the Company shall
not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company shall be
required to commence an offer to all Holders (an "Asset Sale Offer"), it shall
follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the same
manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send, by
first class mail, a notice to the Trustee and to each of the Holders, with a
copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders of Notes. The
notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest after the Purchase Date;
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(e) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may only elect to have all of such Note purchased and may not
elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
titled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a depositary,
if appointed by the Company, or a Paying Agent at the address specified in
the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receive,
not later than the expiration of the Offer Period, a facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, 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
integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and
shall deliver to the Trustee an Officers' Certificate stating that such Notes
or portions thereof were accepted for payment by the Company in accordance with
the terms of this Section 3.09. The Company, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than three
Business Days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a
new Note, and the Trustee, upon written request from the Company, shall
authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered. Any Note not
so accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Asset Sale
Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
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ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of, premium, if
any, interest and Liquidated Damages, if any, on the Notes on the dates and in
the manner provided in the Notes. Principal of, premium, if any, and interest
and Liquidated Damages, if any, on the Notes shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal of, premium, if any, interest and Liquidated Damages, if any,
on the Notes then due. The Paying Agent shall return to the Company, no later
than five days following the date of payment, any money (including accrued
interest) that exceeds such amount of principal of, premium, if any, interest
and Liquidated Damages, if any, paid on the Notes.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; they shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
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SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain within the City and State of New York an office
or agency (which may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency within the City and
State of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee,
located at 00 Xxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx, N.Y. 10005, as one such office
or agency of the Company in accordance with Section 2.03 hereof.
SECTION 4.03. REPORTS.
(a) whether or not required by the rules and regulations of the Securities
and Exchange Commission (the "Commission"), so long as any Notes are
outstanding, beginning October 31, 1996, the Company shall furnish to the
Holders of Notes (i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms 10-Q (such
Form 10-Q shall be filed within 45 days of the end of the applicable fiscal
quarter) and 10-K (such Form 10-K shall be filed within 90 days of the end of
the applicable fiscal year) if the Company were required to file such Forms,
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants and (ii) all
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports. In addition, whether or
not required by the rules and regulations of the Commission, beginning October
31, 1996, the Company shall file a copy of all such information and reports
with the Commission for public availability (unless the Commission will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company shall at all
times comply with TIA Section 314(a).
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(b) For so long as any Notes remain outstanding, the Company shall furnish
to the Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
(c) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of the covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether each 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 his or her knowledge, each has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action each is taking or
proposes to take with respect thereto) and that, to the best of his or her
knowledge, no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium, if any, interest or
Liquidated Damages, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action each is taking or proposes
to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by
a written statement of the Company's independent public accountants (who shall
be a firm of established national reputation reasonably satisfactory to the
Trustee) that in making the examination necessary for certification 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 4 or Article
5 hereof 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) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default
or Event of Default and what action the Company is taking or propose to take
with respect thereto.
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SECTION 4.05. TAXES.
The Company shall, and shall cause each of its Subsidiaries to, pay prior
to delinquency all material taxes, assessments and governmental levies, except
such as are contested in good faith and by appropriate proceedings.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly: (i) declare or pay any dividend or make any other
payment or distribution on account of the Company's Equity Interests
(including, without limitation, any payment in connection with any merger or
consolidation involving the Company) or to the direct or indirect holders of
the Company's Equity Interests in their capacity as such (other than dividends
or distributions payable in Equity Interests (other than Disqualified Stock) of
the Company); (ii) purchase, redeem or otherwise acquire or retire for value
any Equity Interests of the Company or any direct or indirect parent of the
Company; (iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to
the Notes, except at final maturity; or (iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv)
above being collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of the Section
4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Subsidiaries after the date
of this Indenture (excluding Restricted Payments permitted by clauses (x)
and (y) of the next succeeding paragraph), is less than the sum of (i) 50%
of the Consolidated Net Income of the Company
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for the period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the Issue Date to the end of the
Company's most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus (ii) 100% of the aggregate net cash proceeds received by the
Company from the issue or sale since the Issue Date of Equity Interests of
the Company or of debt securities of the Company that have been converted
into such Equity Interests (other than Equity Interests (or convertible debt
securities) sold to a Subsidiary of the Company and other than Disqualified
Stock or debt securities that have been converted into Disqualified Stock),
plus (iii) to the extent that any Restricted Investment that was made after
the Issue Date is sold for cash or otherwise liquidated or repaid for cash,
the lesser of (A) the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and (B) the initial amount
of such Restricted Investment, plus (iv) $10.0 million.
The foregoing provisions shall not prohibit:
(v) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture;
(w) the redemption, repurchase, retirement or other acquisition of any
Equity Interests of the Company in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary of the Company) of
other Equity Interests of the Company (other than any Disqualified Stock);
provided that the amount of any such net cash proceeds that are utilized for
any such redemption, repurchase, retirement or other acquisition shall be
excluded from clause (c) (ii) of the preceding paragraph;
(x) the defeasance, redemption or repurchase of subordinated Indebtedness
with the net cash proceeds from an incurrence of Permitted Refinancing Debt or
the substantially concurrent sale (other than to a Subsidiary of the Company)
of Equity Interests of the Company (other than Disqualified Stock); provided
that the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded from
clause (c) (ii) of the preceding paragraph;
(y) the payment of dividends to the Company's direct parent to pay
administrative expenses in an aggregate amount not to exceed $200,000 in any
12-month period; and
(z) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company or any Subsidiary of the Company
held by any member of the Company's (or any of its Subsidiaries') management
pursuant to any management equity subscription agreement or stock option
agreement in effect as of the Issue Date or entered into after the Issue Date
with members of the management of any Person acquired after the Issue Date in
connection with the acquisition of such Person or the repurchase of Equity
Interests of the Company or any Subsidiary of the Company held by employees,
former employees, directors or former directors pursuant to the terms of
agreements (including employment agreements)
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approved by the Board of Directors; provided that the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $3.0 million in any 12-month period following the date of this Indenture
or $10.0 million in the aggregate since the date of this Indenture; and no
Default or Event of Default shall have occurred and be continuing
immediately after such transaction.
The amount of all Restricted Payments (other than cash) shall be the fair
market value (as determined by the Board of Directors in good faith, whose
determination shall be conclusive evidence thereof and shall be evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) on the date of the Restricted Payment of the asset(s)
proposed to be transferred by the Company or such Subsidiary, as the case may
be, pursuant to the Restricted Payment. 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 is permitted and setting forth
the basis upon which the calculations required by the covenant "Restricted
Payments" were computed, which calculations may be based upon the Company's
latest available financial statements.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to
(i)(a) pay dividends or make any other distributions to the Company or any of
its Subsidiaries (1) on its Capital Stock or (2) with respect to any other
interest or participation in, or measured by, its profits, or (b) pay any
indebtedness owed to the Company or any of its Subsidiaries, (ii) make loans or
advances to the Company or any of its Subsidiaries or (iii) transfer any of its
properties or assets to the Company or any of its Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (a) Existing
Indebtedness as in effect on the Issue Date, (b) the New Credit Agreement as in
effect as of the Issue Date and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings are, taken as
a whole, no more restrictive with respect to such dividend and other payment
restrictions than those contained in the New Credit Agreement as in effect on
the Issue Date, (c) this Indenture and the Notes, (d) applicable law, (e) any
instrument governing Indebtedness of a Subsidiary of the Company that was
permitted by the terms of this Indenture to be incurred, (f) by reason of
customary non-assignment provisions in leases entered into in the ordinary
course of business and consistent with past practices, (g) purchase money
obligations for property acquired in the ordinary course of business that
impose restrictions of the nature described in clause (iii) above on the
property so acquired, (h) Permitted Refinancing Debt provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Debt are, taken as a whole, no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced, (i) an agreement that
has been entered into for the sale or disposition of all or substantially all
of the Equity Interests or property or assets of a Subsidiary of the Company or
(j) restrictions on the Receivables Subsidiary pursuant to the Receivables
Facility.
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SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK .
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guaranty or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to (collectively, "incur") any Indebtedness (including Acquired Debt) and that
the Company shall not issue any Disqualified Stock and shall not permit any of
its Subsidiaries to issue any shares of preferred stock; provided, however,
that the Company may incur Indebtedness (including Acquired Debt) or issue
shares of Disqualified Stock if the Fixed Charge Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock is issued would
have been at least 2.5 to 1, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred, or the Disqualified Stock had been issued, as
the case may be, at the beginning of such four-quarter period.
The foregoing provisions shall not apply to:
(i) the incurrence by the Company of term Indebtedness under the New
Credit Agreement or any one or more successor or additional bank
facilities and/or Attributable Debt in respect of sale and leaseback
transactions the net proceeds of which were applied to repay any such
term Indebtedness in an aggregate principal amount at any time
outstanding not to exceed an amount equal to $170.0 million less the
aggregate amount of all repayments, optional or mandatory, of the
principal of any such term Indebtedness (other than repayments that are
immediately reborrowed and other than repayments made with the proceeds
of sale and leaseback transactions pursuant to this clause (i))
that have been made since the Issue Date;
(ii) (a) the incurrence by the Company of revolving Indebtedness
under the New Credit Agreement (or any one or more successor or
additional bank facilities) and letters of credit (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the Company thereunder) and (b) the incurrence by the
Receivables Subsidiary of Non-Recourse Debt under the Receivables
Facility; provided, however, that, the aggregate principal amount at any
time outstanding pursuant to subclauses (a) and (b) of this clause (ii)
(excluding intercompany Indebtedness of the Receivables Subsidiary
permitted by clause (viii) below) shall not exceed an amount equal to
$155.0 million less the aggregate amount of all Net Proceeds of Asset
Sales applied to permanently reduce the commitments with respect to such
revolving Indebtedness pursuant to the provisions of Section 4.10 hereof;
(iii) the incurrence by the Company and its Subsidiaries of the
Existing Indebtedness;
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(iv) the incurrence by the Company of Indebtedness represented by
the Senior Notes and the Notes;
(v) the incurrence by the Company of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or
any part of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of the Company, in an
aggregate principal amount not to exceed $25.0 million at any time
outstanding;
(vi) the incurrence by any of the Company's Subsidiaries of
Indebtedness in connection with the acquisition of assets or a new
Subsidiary; provided that (1) such Indebtedness was incurred by the prior
owner of such assets or such Subsidiary prior to such acquisition and was
not incurred in connection with, or in contemplation of, such acquisition
or is in the nature of an earnout payment or holdback payment incurred by
one of the Company's Subsidiaries in connection with the acquisition of
assets or a new Subsidiary, (2) the principal amount (or accreted value,
as applicable) of such Indebtedness, together with any other outstanding
Indebtedness incurred pursuant to this clause (vi), does not exceed $10.0
million and (3) the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such
additional Indebtedness is incurred would have been at least 2.5 to 1,
determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been
incurred at the beginning of such four-quarter period;
(vii) the incurrence by the Company or any of its Subsidiaries of
Permitted Refinancing Debt in exchange for, or the net proceeds of which
are used to extend, refinance, renew, replace, defease or refund,
Indebtedness that was permitted by this Indenture to be incurred;
(viii) the incurrence by the Company or any of its Subsidiaries of
intercompany Indebtedness between or among the Company and any of its
Subsidiaries, and any intercompany Indebtedness arising in connection
with a Receivables Facility; provided, however, that (1) if the Company
is the obligor on such Indebtedness, such Indebtedness is expressly
subordinate to the payment in full of all Obligations with respect to the
Notes and (2)(A) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other than
the Company or a Subsidiary and (B) any sale or other transfer of any
such Indebtedness to a Person that is not either the Company or a
Subsidiary thereof shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Subsidiary, as the
case may be;
(ix) the incurrence by the Company of Hedging Obligations that are
incurred for the purpose of fixing or hedging interest rate risk with
respect to any floating rate
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Indebtedness that is permitted by the terms of this Indenture to be
outstanding or for the purpose of hedging against currency exchange rate
fluctuations;
(x) Guarantees by the Company and its Subsidiaries of Indebtedness
of Subsidiaries, and Guarantees by Subsidiaries of Indebtedness of the
Company, which Indebtedness is, in each case, permitted to be incurred
under this covenant other than Indebtedness permitted to be incurred
pursuant to subclause (b) of clause (ii) above; and
(xi) the incurrence by the Company or any of its Subsidiaries of
Indebtedness (in addition to Indebtedness permitted by any other clause
of this paragraph) in an aggregate principal amount (or accreted value,
as applicable) at any time outstanding not to exceed $25.0 million.
SECTION 4.10. ASSET SALES.
The Company shall not, and shall not permit any of its Subsidiaries to,
engage in an Asset Sale unless (i) the Company (or the Subsidiary, as the case
may be) receives consideration at the time of such Asset Sale at least equal to
the fair market value (as determined by the Board of Directors in good faith,
whose determination shall be conclusive evidence thereof and shall be evidenced
by a resolution of the Board of Directors set forth in an Officers' Certificate
delivered to the Trustee) of the assets or Equity Interests issued or sold or
otherwise disposed of and (ii) at least 80% of the consideration therefor
received by the Company or such Subsidiary is in the form of cash; provided
that the amount of (x) any liabilities (as shown on the Company's or such
Subsidiary's most recent balance sheet), of the Company or any Subsidiary
(other than contingent liabilities and liabilities that are by their terms
subordinated to the Notes or any guarantee thereof) that are assumed by the
transferee of any such assets pursuant to an agreement that releases the
Company or such Subsidiary from further liability and (y) any notes or other
obligations received by the Company or any such Subsidiary from such transferee
that are immediately converted by the Company or such Subsidiary into cash (to
the extent of the cash received), shall be deemed to be cash for purposes of
this provision.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds, at its option, (a) to permanently
reduce, repurchase, repay or redeem term Indebtedness under the New Credit
Agreement or any one or more successor or additional bank facilities, (b) to
permanently reduce or repay revolving Indebtedness (and to correspondingly
reduce commitments with respect thereto) under the New Credit Agreement or any
one or more successor or additional bank facilities, or (c) to the acquisition
of a controlling interest in another business, the making of a capital
expenditure or the acquisition of other long-term assets, in each case, in the
same or a similar line of business as the Company was engaged in on the date of
such Asset Sale or another line of business that is reasonably related thereto.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving Indebtedness under the New Credit Agreement or any
one or more successor or additional bank facilities or otherwise invest such
Net Proceeds in any manner that is not prohibited by this Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested
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as provided in the first sentence of this paragraph shall be deemed to
constitute "Excess Proceeds."
As soon as practical, but in no event later than 10 business days, in the
case of clause (i) below, and 45 business days, in the case of clause (ii)
below, after any date (each, an "Asset Sale Offer Trigger Date") that the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall
(i) commence an offer to purchase the maximum principal amount of Senior Notes
and other Indebtedness of the Company that ranks pari passu in right of payment
with the Senior Notes (to the extent required by the instrument governing such
other Indebtedness), that may be purchased out of the Excess Proceeds and (ii)
to the extent that more than $10.0 million of Excess Proceeds remain following
consummation of the offer to purchase Senior Notes contemplated by the
preceding clause (i), commence an offer to purchase the maximum principal
amount of Notes and other Indebtedness of the Company that ranks pari passu in
right of payment with the Notes (to the extent required by the instrument
governing such other Indebtedness), that may be purchased out of the Excess
Proceeds (each, an "Asset Sale Offer"). Any Notes and other Pari Passu Debt to
be purchased pursuant to an Asset Sale Offer shall be purchased pro rata based
on the aggregate principal amount of Notes and such other applicable Pari Passu
Debt outstanding and all Notes shall be purchased at an offer price in cash
equal to 100% of the principal amount thereof, plus accrued and unpaid interest
and Liquidated Damages, if any, to the date of purchase (or if such Asset Sale
Offer is with respect to any discount or zero coupon securities prior to the
date of their full accretion, 100% of the accreted value thereof on the date of
purchase). To the extent that any Excess Proceeds remain after completion of
an Asset Sale Offer, the Company may use the remaining amount for general
corporate purposes and the amount of Excess Proceeds shall be reset at zero.
In connection with each Asset Sale Offer, the Company shall mail to the
Trustee and each Holder of Notes at such Holder's registered address a notice
stating: (i) that an Asset Sale Trigger Date has occurred and that the Company
is offering to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds, at an offer price in cash equal to 100%
of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase which date of purchase (the
"Asset Sale Offer Purchase Date") shall be a Business Day specified in such
notice that is not earlier than 30 days nor later than 60 days from the date
such notice is mailed, (ii) the amount of accrued and unpaid interest and
Liquidated Damages, if any, as of the Asset Sale Offer Purchase Date, (iii)
that any Note not tendered shall continue to accrue interest (iv) that, unless
the Company defaults in the payment of the purchase price for the Notes payable
pursuant to the Asset Sale Offer, any Notes accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest after the Asset Sale Offer
Purchase Date, (v) the procedures, consistent with this Indenture, to be
followed by Holders of Notes in order to accept an Asset Sale Offer or to
withdraw such acceptance, and (vi) such other information as may be required by
this Indenture or applicable laws and regulations.
On the Asset Sale Offer Purchase Date, the Company shall (i) accept for
payment the maximum principal amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer that can be purchased out of the Excess
Proceeds, (ii) deposit with the Paying Agent the
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aggregate purchase price of all Notes or portions thereof accepted for payment
and any accrued and unpaid interest and Liquidated Damages, if any, on such
Notes as of the Asset Sale Offer Purchase Date, and (iii) deliver or cause to
be delivered to the appropriate Trustee all Notes tendered pursuant to the
Asset Sale Offer. If less than all of the Notes tendered pursuant to the Asset
Sale Offer are accepted for payment by the Company for any reason consistent
with this Indenture, selection of the Notes to be purchased by the Company
shall be 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 so listed, among Notes of a particular series and Pari Passu Debt on a pro
rata basis; provided that Notes accepted for payment in part shall only be
purchased in integral multiples of $1,000. The appropriate Paying Agent shall
promptly mail to each Holder of Notes or portions thereof accepted for payment
an amount equal to the purchase price for such Notes plus any accrued and
unpaid interest and Liquidated Damages, if any, thereon, and the Trustee shall
promptly authenticate and mail to such Holder of Notes accepted for payment in
part a new Note equal in principal amount of any unpurchased portion of the
Notes, and any Note not accepted for payment in whole or in part shall be
promptly returned to the Holder of such Note. The Company shall announce the
results of the Asset Sale Offer to Holders of the Notes on or as soon as
practicable after the Asset Sale Purchase Date.
The Company shall comply, to the extent applicable, with the requirements
of Section 14(e) of the Exchange Act, and any other securities laws or
regulations in connection with any Asset Sale Offer.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an
"Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms
that are no less favorable to the Company or the relevant Subsidiary than those
that would have been obtained in a comparable transaction by the Company or
such Subsidiary with an unrelated Person and (ii) the Company delivers to the
Trustee (a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $1.0
million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (i)
above and that such Affiliate Transaction has been approved by a majority of
the disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 million, an opinion as to the
fairness to the Holders of such Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of national
standing; provided that (v) sales of Receivables to the Receivables Subsidiary
on arm's length terms, (w) any transaction in accordance with the terms of any
Existing Employment Agreement as the same are in effect on the Issue Date and
any employment agreement entered into by the Company or any of its Subsidiaries
in the ordinary course of business and consistent with the past practice of the
Company or such Subsidiary, (x)
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transactions between or among the Company and/or its Controlled Subsidiaries,
(y) transactions pursuant to the Tax Allocation Agreement as in effect on the
date of this Indenture and (z) Restricted Payments and Permitted Investments
that are permitted by the provisions of Section 4.07 hereof, in each case,
shall not be deemed Affiliate Transactions. In addition, the Company shall
not, and shall not permit any of its Subsidiaries to, merge with or into, or
purchase all or substantially all of the assets of, any Affiliate, unless (i)
such Affiliate had positive Consolidated Cash Flow in each of its most recently
ended two full fiscal years and (ii) the Fixed Charge Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
transaction is entered into, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom), as if the transaction had
been entered into at the beginning of such four-quarter period, would have been
higher than the actual Fixed Charge Coverage Ratio for such
four-quarter period.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien
securing Indebtedness on any asset now owned or hereafter acquired, or any
income or profits therefrom or assign or convey any right to receive income
therefrom, except Permitted Liens.
SECTION 4.13. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Subsidiaries to,
enter into any sale and leaseback transaction; provided that the Company or any
of its Subsidiaries may enter into a sale and leaseback transaction if (i) the
Company could have incurred Indebtedness in an amount equal to the Attributable
Debt relating to such sale and leaseback transaction pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of Section 4.09
hereof (ii) the gross cash proceeds of such sale and leaseback transaction are
at least equal to the fair market value (as determined in good faith by the
Board of Directors and set forth in an Officers' Certificate delivered to the
Trustee) of the property that is the subject of such sale and leaseback
transaction and (iii) the transfer of assets in such sale and leaseback
transaction is permitted by, and the Company applies the proceeds of such
transaction in compliance with, the provisions of Section 4.10 hereof.
Payments or arrangements pursuant to a Tax Incentive Program shall not
constitute sale and leaseback transactions.
SECTION 4.14. LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS.
The Company shall not permit any of its Subsidiaries, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any
other Indebtedness of the Company unless such Subsidiary simultaneously
executes and delivers supplemental indentures to this Indenture providing for
the Guarantee of the payment of the Notes by such Subsidiary, which Guarantee
shall be unsecured, but otherwise shall be senior to or pari passu with such
Subsidiary's Guarantee of or pledge to secure such other Indebtedness;
provided, however, that
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such Guarantee may be subordinated to any Guarantee of Senior Debt to the same
extent that the Notes are subordinated to such Senior Debt. Notwithstanding
the foregoing, any such Guarantee by a Subsidiary of the Notes shall provide by
its terms that it shall be automatically and unconditionally released and
discharged upon any sale, exchange or transfer, to any Person not an Affiliate
of the Company, of all of the Company's stock in, or all or substantially all
the assets of, such Subsidiary, which sale, exchange or transfer is made in
compliance with the applicable provisions of this Indenture. The form of such
Guarantee is attached as an exhibit to this Indenture.
SECTION 4.15. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a corporation and the corporate, partnership or other existence of each
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or each Subsidiary
thereof and the rights (charter and statutory), licenses and franchises of the
Company and each Subsidiary; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
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SECTION 4.16. REPURCHASE AT THE OPTION OF HOLDERS - CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of purchase (the
"Change of Control Payment"). Within ten days following any Change of Control,
the Company shall mail a notice to the Trustee and each Holder stating (1) that
the Change of Control Offer is being made pursuant to this Section 4.16 and
that all Notes tendered shall be accepted for payment; (2) the purchase price
and purchase date, which shall be no later than 30 business days from the date
such notice is mailed (the "Change of Control Payment Date"); (3) that any Note
not tendered shall continue to accrue interest; (4) that, unless the Company
defaults in the payment of the Change of Control Payment, all Notes 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 any Notes purchased pursuant to a Change of Control Offer shall be
required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date; (6) that Holders
shall be entitled to withdraw their election if the Paying Agent receives, not
later than the close of business on the second Business Day preceding the
Change of Control Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing his election to have
the Notes purchased; and (7) that Holders whose Notes are being purchased only
in part shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple thereof. 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 the Notes as a
result of a Change of Control.
On the Change of Control Payment Date, the Company shall, to the extent
lawful, (i) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating
the aggregate principal amount of Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof. The Company shall
publicly
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announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Company shall not be required to make a Change of Control Offer upon
the occurrence of a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Indenture are applicable. Except
as described above with respect to a Change of Control, this Indenture does not
contain provisions that permit the Holders of the Notes to require the Company
to repurchase or redeem the Notes in the event of a takeover, recapitalization
or similar transaction.
Prior to complying with the provisions of this Section 4.16, but in any
event within 90 days following a Change of Control, the Company shall either
repay all outstanding Senior Debt or obtain the requisite consents, if any,
under all agreements governing outstanding Senior Debt to permit the repurchase
of Notes required by this Section 4.16. The Company shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
SECTION 4.17. LIMITATION ON OTHER SENIOR SUBORDINATED DEBT.
The Company shall not, and shall not permit any Subsidiary to incur,
create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to any Senior
Debt and senior in any respect in right of payment to the Notes.
SECTION 4.18. LIMITATION ON ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY
OWNED SUBSIDIARIES.
The Company (i) shall not, and shall not permit any Wholly Owned
Subsidiary of the Company to, transfer, convey, sell, lease or otherwise
dispose of any Capital Stock of any Wholly Owned Subsidiary of the Company to
any Person (other than the Company or a Wholly Owned Subsidiary of the
Company), unless (a) such transfer, conveyance, sale, lease or other
disposition is of all the Capital Stock of such Wholly Owned Subsidiary and (b)
the cash Net Proceeds in excess of $1.0 million from such transfer, conveyance,
sale, lease or other disposition are applied in accordance with the provisions
of Section 4.10 hereof, and (ii) shall not permit any Wholly Owned Subsidiary
of the Company to issue any of its Equity Interests (other than, if necessary,
shares of its Capital Stock constituting directors' qualifying shares) to any
Person other than to the Company or a Wholly Owned Subsidiary of the Company,
unless (a) such issuance is of all the Equity Interests of such Wholly Owned
Subsidiary and (b) the cash Net Proceeds in excess of
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$1.0 million from such issuance are applied in accordance with the provisions
of Section 4.10 hereof.
SECTION 4.19. PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or is
paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 5
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company may not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to another corporation, Person or entity
unless (i) the Company is the surviving corporation or the entity or the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the Notes
and this Indenture pursuant to supplemental indentures in a form reasonably
satisfactory to the Trustee; (iii) immediately after such transaction no
Default or Event of Default exists; and (iv) except in the case of a merger of
the Company with or into a Wholly Owned Subsidiary of the Company, the Company
or the entity or Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made shall, at the time
of such transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company in
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accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which such Company is merged or to which such
sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that, in the case of any
consolidation or merger, or any sale, assignment transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Company,
from and after the date of such event, the provisions of this Indenture
referring to the Company shall refer instead to the successor corporation and
not to the Company), and may exercise every right and power of the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; provided, however, that the predecessor shall not
be relieved from the obligation to pay the principal of and interest on the
Notes, except in the case of a sale of all of the predecessor's assets
that meets the requirements of Section 5.01 hereof.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) default which continues for 30 days in the payment when due of
interest on, or Liquidated Damages with respect to, the Notes (whether or
not such payment is prohibited by the provisions of Article 10 hereof);
(b) default in payment when due of the principal of or premium, if
any, on the Notes (whether or not such payment is prohibited by the
provisions of Article 10 hereof);
(c) failure by the Company to comply with the provisions of Section
4.10 or 4.16 hereof;
(d) failure by the Company for 60 days after notice to comply with
any of its other agreements in this Indenture or the Notes;
(e) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Subsidiaries
(or the payment of which is guaranteed by the Company or any of its
Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the date of this Indenture, which default (i) is caused by
a failure to pay principal of, premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (ii)
results in the acceleration of such Indebtedness prior to its express
maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $10.0 million or more;
(f) (i) failure by the Company or any of its Subsidiaries to pay
final judgments not covered by insurance aggregating in excess of $10.0
million, which judgments are not paid, discharged, bonded or stayed for a
period of 60 days or (ii) the Company, any Significant Subsidiary or
group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary generally is (or are) not paying its (or their)
debts as they become due;
(g) except as permitted by this Indenture, any Subsidiary Guarantee
shall be held invalid or shall cease to be in full force and effect, or
any Person acting on behalf of any Guarantor shall deny or disaffirm its
obligations under its Subsidiary Guarantee;
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(h) the Company, any Significant Subsidiary or group of Subsidiaries
that, taken together, would constitute a Significant Subsidiary, pursuant
or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it
in an involuntary case;
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property;
(iv) makes a general assignment for the benefit of its
creditors;
(v) admits in writing the failure generally to pay debts as
they become due; or
(i) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company, any Significant
Subsidiary or group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary, in an involuntary
case;
(ii) appoints a custodian of the Company, any Significant
Subsidiary or group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary for all or
substantially all of the property of the Company or any of its
Significant Subsidiary or group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary;
(iii) orders the liquidation of the Company, any Significant
Subsidiary or group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.02. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes
issued under this Indenture may declare all such Notes to be due and payable
immediately; provided, however, that so long as any Designated Senior Debt is
outstanding, such declaration shall not become effective until the
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earlier of (i) the day which is five Business Days after the receipt by
Representatives of Designated Senior Debt of written notice of acceleration or
(ii) the date of acceleration of any Designated Senior Debt. Notwithstanding
the foregoing, in the case of an Event of Default arising from an event
specified in clause (h) or (i) of Section 6.01 hereof with respect to the
Company, any Significant Subsidiary or any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary, all outstanding Notes
shall become due and payable without further action or notice. Holders of the
Notes may not enforce this Indenture or the Notes except as provided in this
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had to pay if the Company then had elected to redeem the Notes pursuant to the
optional redemption provisions of this Indenture, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes. If an Event of Default occurs under this
Indenture prior to August 15, 2001 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding the prohibition on redemption of the Notes prior to such
date, then an additional premium shall also become and be immediately due and
payable to the extent permitted by law upon the acceleration of the Notes, in
an amount, for each of the years beginning on August 15 of the years set forth
below, as set forth below:
YEAR PERCENTAGE
---- ----------
1996 ......... 110.625%
1997 ......... 109.563%
1998 ......... 108.500%
1999 ......... 107.438%
2000 ......... 106.375%
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, premium, if any,
interest and Liquidated Damages, if any, 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 of a Note in exercising any right or
remedy accruing upon an Event of Default shall not
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impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
such Notes waive any existing Default or Event of Default and its consequences
under this Indenture except a continuing Default or Event of Default in the
payment of principal of, premium, if any, interest and Liquidated Damages, if
any, of such Notes.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
SECTION 6.06.LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any
loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
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SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of, premium, if any, interest
and Liquidated Damages, if any, on the Note, on or after the respective due
dates expressed in the Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, interest and Liquidated Damages, if any,
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), their creditors or their
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. 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, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Section 6.10, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the reasonable
costs and expenses of collection actually incurred;
Second: to Holders for amounts due and unpaid on the Notes for principal,
premium, interest and Liquidated Damages, if any, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, interest and Liquidated Damages, if any, respectively;
and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes 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 a 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 and expenses, 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 does not apply to a suit instituted by the
Trustee, any suit instituted by a Holder of a Note (whether pursuant to Section
6.07 hereof or otherwise) or a suit instituted by Holders of more than 10% in
principal amount of the then outstanding Notes.
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) 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,
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(iii) 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 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), (c), (e) and (g) of this Section 7.01 and to Section 7.02.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability.
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(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) Except with respect to Sections 4.01 and 4.04 hereof, the Trustee
shall have no duties to inquire as to the performance of the Company's
covenants in Article 4 hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Sections 6.01(a) or 6.01(b) hereof or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. Subject
to Section 7.01(b)(ii) hereof, the Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. 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. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(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 or direction of any of
the Holders unless such Holders shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense that might
be incurred by it in compliance with such request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same
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rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict
within 90 days, apply to the Commission for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision hereof,
it shall not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee, and it shall not be responsible for
any statement or recital herein or any statement in the Notes or any other
document furnished or issued in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to the Holders of the Notes a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal of,
or premium, interest or Liquidated Damages, if any, on, any Note, the Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each December 15 beginning with the December 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if
no event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the Commission and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation
as shall be agreed in writing between the Company and the Trustee for its
acceptance of this Indenture and for its services hereunder. To the extent
permitted by law, the Trustee's compensation shall not
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be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances, fees and expenses incurred or made by it in addition
to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company shall indemnify and hold harmless the Trustee against any and
all losses, liabilities, damages, claims or expenses including taxes (other
than taxes based on the income of the Trustee) incurred by it arising out of or
in connection with the acceptance or administration of its duties under this
Indenture, including the reasonable costs and expenses actually incurred of
enforcing this Indenture against the Company (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company or any
Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim and the Trustee shall reasonably cooperate in the defense. The Trustee
may have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal of, premium, if any,
interest and Liquidated Damages, if any, on particular Notes. Such Lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to
the extent applicable.
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.
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The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) 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 promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
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 then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder
of a Note for at least six months fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, 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. The successor Trustee shall mail a notice of its succession to the
Holders of the Notes. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided that all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. 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.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or
state authorities and that has a combined capital and surplus of at least
$100.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of the Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from their 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 8.05 hereof and the other Sections of this
Indenture referred to in (i) and (ii) below, and to have satisfied all their
other obligations under such Notes and this Indenture (and the Trustee, on the
written demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of outstanding Notes to receive payments in respect of the
principal of, premium, if any, interest and Liquidated Damages, if any, on such
Notes when such payments are due from the trust referred to in Section 8.04
hereof, (ii) the Company's obligations with respect to the Notes under Article
2 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 8. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.18 and 4.19 hereof with respect to the
outstanding Notes on 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
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outstanding for accounting purposes). For this purpose, 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 of Default under Section 6.01 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 Section 8.01
hereof of the option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(c) through 6.01(g) hereof shall no longer constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(i) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as shall be sufficient, in the opinion of a nationally
recognized investment bank or firm of independent public accountants, to
pay the principal of, premium, if any, interest and Liquidated Damages,
if any, on such outstanding Notes on the stated maturity or on the
applicable redemption date, as the case may be, and the Company must
specify whether such Notes are being defeased to maturity or to a
particular redemption date;
(ii) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the applicable 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 hereof, 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 outstanding
Notes shall not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and shall 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;
(iii) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the applicable Trustee an Opinion of
Counsel in the United States reasonably acceptable to such Trustee
confirming that the Holders of such outstanding 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
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amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Sections 6.01(h) or 6.01(i) hereof are concerned,
at any time in the period ending on the 91st day after the date of
deposit (or greater period of time in which any such deposit of trust
funds may remain subject to bankruptcy or insolvency laws insofar as
those apply to the deposit by the Company);
(v) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(vi) the Company must have delivered to the Trustee an Opinion of
Counsel to the effect that, as of the date of such opinion, (A) the
trust funds shall not be subject to rights of holders of Indebtedness
other than the Notes and (B) assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following the
deposit and assuming no Holder of Notes is an insider of the Company,
after the 91st day following the deposit, the trust funds shall not be
subject to the effects of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally
under any applicable United States or state law;
(vii) the Company must deliver to the applicable Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over the
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(viii) the Company must deliver to the applicable Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine,
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to the Holders of such Notes of all sums due and to become due thereon in
respect of principal of, premium, if any, interest and Liquidated Damages, if
any, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 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 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the request of the
Company any money or non-callable Government Securities held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(i) hereof), 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 8.06. REPAYMENT TO THE COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, or premium, interest
or Liquidated Damages, if any, on, any Note and remaining unclaimed for two
years after such principal, premium, interest or Liquidated Damages has become
due and payable shall be paid to the Company on their request or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Note shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02
or 8.03 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, or premium,
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interest or Liquidated Damages, if any, on any Note following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section 9.02 hereof, the Company and the Trustee may amend
or supplement this Indenture or the Notes, as applicable, without the consent
of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Notes in the case of a merger or consolidation pursuant to
Section 5.01 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect the legal
rights under this Indenture of any such Holder; or
(e) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
Upon the request of the Company accompanied by a resolution of the Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Company in the execution
of any amended or supplemental Indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture or the Notes, as applicable, with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes),
and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, or premium, interest or
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Liquidated Damages, if any, on, the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with any provision
of this Indenture or the Notes may be waived with the consent of the Holders of
a majority in principal amount of the then outstanding Notes (including consents
obtained in connection with a tender offer or exchange offer for Notes).
Upon the request of the Company accompanied by a resolution of the Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.06 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental
Indenture unless such amended or supplemental Indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of each Note 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 amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of
a majority in aggregate principal amount of the Notes then outstanding may
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Notes. However, without the consent of each Holder
affected, an amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter the provisions with respect to the redemption of the Notes
(other than provisions described in Sections 4.10 and 4.16 hereof);
(c) reduce the rate of or change the time for payment of interest
on any Note;
(d) waive a Default or Event of Default in the payment of principal
of, premium, if any, interest or Liquidated Damages, if any, on the
Notes (except a rescission of acceleration of the Notes by the Holders
of at least a majority in aggregate principal amount of the Notes and a
waiver of the payment default that resulted from such acceleration);
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(e) make any Note payable in money other than that stated in the
Notes,
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium, if any, or interest or Liquidated
Damages, if any, on the Notes,
(g) waive a redemption payment with respect to any Note (other than
a payment required by any of the provisions of Section 4.16 hereof) or
(h) make any change in the foregoing amendment and waiver
provisions.
In addition, any amendment to the provisions of Sections 4.10 and 4.16
hereof, including the related definitions, shall require the consent of the
Holders of at least 75% in aggregate principal amount of the Notes issued
hereunder that are then outstanding if such amendment would adversely affect
the rights of Holders of any of the Notes.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in an amended or supplemental Indenture that complies with the TIA as
then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver 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. However, any such Holder or subsequent Holder may revoke the consent as
to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
The Company may fix a record date for determining which Holders must
consent to such amendment or waiver. If the Company fixes a record date, the
record date shall be fixed at (i) the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 2.05 or
(ii) such other date as the Company shall lawfully designate.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
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Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Company may not sign an amendment or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder of Notes by accepting a Note agrees,
that the Indebtedness evidenced by the Notes, all Obligations of the Company
under this Indenture, the Purchase Agreement and the Registration Rights
Agreement (including, without limitation, Liquidated Damages, if any) and the
payment of any Claims are subordinated in right of payment, to the extent and
in the manner provided in this Article, to the prior payment in full of all
Senior Debt, including, without limitation, the Senior Notes and borrowings
under the New Credit Agreement (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed), and that the subordination
is for the benefit of the holders of Senior Debt. Each Holder of Notes by the
Holder's acceptance thereof acknowledges and agrees that each holder of any
Senior Debt, whether such Senior Debt was created or acquired before or after
the issuance of the Notes, shall be deemed conclusively to have relied on the
provisions of this Article 10 in acquiring and continuing to hold, or in
continuing to hold, such Senior Debt.
SECTION 10.02. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshalling of the Company's
assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive payment in full
of all Obligations due or to become due in respect of such Senior Debt
(including interest after the commencement of any such proceeding at the
rates specified in the applicable Senior Debt, whether or not an allowable
claim) and to have all Obligations due in respect of letters of
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credit issued pursuant to the New Credit Agreement fully collateralized
before the Holders of Notes shall be entitled to receive any payment or
distribution with respect to the Notes or on account of any Claim; and
(2) until all Obligations with respect to Senior Debt (as provided in
subsection (1) above) are paid in full, any payment or distribution
(including, without limitation, any payment or distribution that may be
payable or deliverable by reason of the payment of any other Indebtedness of
the Company being subordinated to the payment of the Notes) to which the
Holders of Notes would be entitled but for this Article shall be made to
holders of Senior Debt, including the Senior Notes, (except that, in either
case, Holders of Notes may receive (i) Permitted Junior Securities and (ii)
payments and other distributions made from the trust described in Article 8
hereof), as their interests may appear.
SECTION 10.03. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company may not make any payment or distribution (including, without
limitation, any payment or distribution that may be payable or deliverable by
reason of the payment of any other Indebtedness of the Company being
subordinated to the payment of the Notes) to the Trustee or any Holder of Notes
in respect of Obligations or Claims with respect to the Notes and may not
acquire from the Trustee or any Holder of Notes any Notes for cash or property
(except that Holders of Notes may receive (i) Permitted Junior Securities and
(ii) payments and other distributions made from the trust described in Article
8 hereof) until all principal and other Obligations with respect to the Senior
Debt have been paid in full if:
(i) a default in the payment when due of the principal of, premium, if
any, or interest on Designated Senior Debt or any commitment or letter of
credit fee, letter of credit reimbursement obligation or Hedging Obligation,
in each case, constituting Designated Senior Debt occurs and is continuing;
or
(ii) a default, other than a payment default, occurs and is continuing
with respect to Designated Senior Debt that permits, or would permit, with
the passage of time or the giving of notice or both, holders of Designated
Senior Debt as to which such default relates to accelerate its maturity and
the Trustee receives a notice of such default (a "Payment Blockage Notice")
from the Company or the holders of any Designated Senior Debt. If the
Trustee receives any such Payment Blockage Notice, no new payment blockage
shall be commenced for purposes of this Section 10.04 unless and until (i)
360 days shall have elapsed since the effectiveness of the immediately prior
Payment Blockage Notice and (ii) all scheduled payments of principal of,
premium, if any, and interest on the Notes that have come due have been paid
in full. No nonpayment default that existed or was continuing on the date
of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice.
The Company may and shall resume payments on and distributions in respect
of the Notes and may acquire them upon:
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(1) in the case of a default referred to in Section 10.04(i) hereof, the
date on which such default is cured or waived in accordance with the terms of
such Designated Senior Debt, or
(2) in the case of a default referred to in Section 10.04(ii) hereof,
the earlier of the date on which such default is cured or waived in
accordance with the terms of such Designated Senior Debt or 179 days after
the date on which the applicable Payment Blockage Notice is received, unless
the maturity of any Designated Senior Debt has been accelerated,
if this Article otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
SECTION 10.04. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of Default, the
Company shall promptly notify the holders of Senior Debt, including the holders
of Senior Notes and the Representative under the New Credit Agreement, of the
acceleration; provided, however, that so long as any Designated Senior Debt is
outstanding, any such acceleration shall not become effective until the earlier
of (i) the day which is five Business Days after the receipt by Representatives
of Designated Senior Debt of written notice of acceleration or (ii) the date of
acceleration of any Designated Senior Debt.
SECTION 10.05. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder of Notes receives any payment
or distribution with respect to the Notes at a time when the Trustee or such
Holder, as applicable, has actual knowledge that such payment or distribution
is prohibited by Section 10.04 hereof, such payment or distribution shall be
held by the Trustee or such Holder, in trust for the benefit of, and shall be
segregated from other funds and property of the Trustee or such Holder of Notes
and be paid forthwith over and delivered in the same form as received (with any
necessary endorsement), upon written request, to, the holders of Senior Debt as
their interests may appear or their Representative under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms, after
giving effect to any concurrent payment or distribution to or for the holders
of Senior Debt.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically
set forth in this Article 10, 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, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of Holders of Notes or
the Company or any other Person money or
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assets to which any holders of Senior Debt shall be entitled by virtue of this
Article 10, except if such payment is made as a result of the willful
misconduct or gross negligence of the Trustee.
SECTION 10.06. NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying Agent of any
facts known to the President, the Chief Executive Officer or the Vice
President, Finance and Administration of the Company that would cause a payment
of any Obligations with respect to the Notes or of any Claim to violate this
Article, but failure to give such notice shall not affect the subordination of
the Notes and all Claims to the Senior Debt as provided in this Article.
SECTION 10.07. SUBROGATION.
After all Senior Debt is paid in full and until the Notes are paid in
full, Holders of Notes shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders of Notes have been applied to
the payment of Senior Debt. A distribution made under this Article to holders
of Senior Debt that otherwise would have been made to Holders of Notes is not,
as between the Company and Holders of Notes, a payment by the Company on the
Notes.
SECTION 10.08. RELATIVE RIGHTS.
This Article defines the relative rights of Holders of Senior Subordinated
Notes and holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of Notes, the obligation
of the Company, which is absolute and unconditional, to pay principal of and
premium, interest and Liquidated Damages, if any, on the Notes in accordance
with their terms;
(2) affect the relative rights of Holders of Notes and creditors of the
Company other than their rights in relation to holders of Senior Debt; or
(3) prevent the Note Trustee or any Holder of Notes from exercising its
available remedies upon a Default or Event of Default, subject to the rights
of holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Holders of Notes.
If the Company fails because of this Article to pay principal of or
premium, interest or Liquidated Damages, if any, on a Note on the due date, the
failure is still a Default or Event of Default.
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SECTION 10.09. SUBORDINATION MAY NOT BE IMPAIRED.
No right of any holder of Senior Debt to enforce the subordination of the
Indebtedness evidenced by the Notes shall be impaired by any act or failure to
act by the Company, Notes or any Holder of Senior Debt or by the failure of the
Company or any Holder of Senior Subordinated Notes to comply with this
Indenture.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to in
this Article 10, the Trustee and the Holders of Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon
any certificate of such Representative or of the liquidating trustee or agent
or other Person making any distribution to the Trustee or to the Holders of
Notes for the purpose of ascertaining the Persons entitled to participate in
such 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
10.
SECTION 10.11. RIGHTS OF NOTE TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other provision
of this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least two Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
or any Claim with respect to the Notes to violate this Article. Only the
Company or a Representative may give the notice. Nothing in this Article 10
shall impair the claims of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior Debt
with the same rights it would have if it were not the Trustee. Any Agent may
do the same with like rights.
SECTION 10.12. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Notes by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 6.09 hereof at least 30 days before the expiration of the time to file
such claim, the Representative under the New Credit Agreement is hereby
authorized to file an appropriate claim for and on behalf of the Holders of the
Notes.
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SECTION 10.13. AMENDMENTS.
The provisions of this Article 10 shall not be amended or modified without
the written consent of the holders of all Senior Debt.
SECTION 10.14. MISCELLANEOUS.
(a) The Agreement contained in this Article 10 shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any Senior Debt is avoided, rescinded or must otherwise be returned by any
holder of Senior Debt upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, all as though such payment had not been made.
(b) The Trustee shall notify the Representative under the New Credit
Agreement of the existence of any Event of Default under Section 6.01 and of
any event which, with the giving of notice or the passage of time or both,
would constitute such an Event of Default, if and to the extent that any such
notice is sent to the Company.
(c) Unless and until written notice shall be given by the Company and the
Representative under the New Credit Agreement to the Trustee at its Corporate
Trust Office notifying the Trustee that Indebtedness is no longer outstanding
under the New Credit Agreement, the Trustee shall assume that such Indebtedness
is outstanding. The Company agrees to give, and to cause the Representative
under the New Credit Agreement to give, such notice to the Trustee promptly
after the first date on which no Indebtedness shall be outstanding under the
New Credit Agreement.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 11.02. NOTICES.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight
air courier guaranteeing next day delivery, to the others' address:
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If to the Company:
Printpack, Inc.
0000 Xxxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: R. Xxxxxxx Xxxxxxx
With a copy to:
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. XxxXxxxxx III, Esq.
If to the Trustee:
Fleet National Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Corporate Trust Department
The Company or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, or by overnight air courier guaranteeing next day delivery to its address
shown on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives
it.
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If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
SECTION 11.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company,
the Trustee, the Registrar and anyone else shall have the protection of TIA
Section 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:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section
10.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
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 a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
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SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07. NO PERSONAL LIABILITY OF PARTNERS, DIRECTORS, OFFICERS,
EMPLOYEES, AND STOCKHOLDERS AND STOCKHOLDERS.
No direct or indirect director, officer, employee, incorporator or
stockholder of the Company, as such, shall 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 of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance
of the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
SECTION 11.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE NOTES.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall bind
their successors. All agreements of the Trustee in this Indenture shall bind
its successors.
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SECTION 11.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
SIGNATURES
Dated as of August 22, 1996 PRINTPACK, INC.
By: /s/
------------------
Name:
Title:
Dated as of August 22, 1996 FLEET NATIONAL BANK
Trustee
By: /s/
-------------------
Name:
Title:
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EXHIBIT A
(Face of Senior Subordinated Note)
10-5/8% Senior Subordinated Notes due 2006
CUSIP NO.: _________
No. _-_
PRINTPACK, INC.
promises to pay to CEDE & CO.
or registered assigns,
the principal sum of Two Hundred Million
Dollars ($200,000,000) on August 15, 2006.
Interest Payment Dates: February 15 and August 15.
Record Dates: February 1 and August 1.
Dated: August 22, 1996
PRINTPACK, INC.
By: /s/
---------------------------
Name: Xxxxxx X. Love
(SEAL) Title: President and Chief
Executive Officer
By: /s/
----------------------------
Name: R. Xxxxxxx Xxxxxxx
Title: Vice President - Finance and
Administration
This is one of the
Notes referred to in the
within-mentioned Indenture:
Fleet National Bank, (SEAL)
as Trustee
By: /s/
-------------------------
Authorized Signatory
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10-5/8% Senior Subordinated Notes due 2006
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) ("DTC") to the Company (as defined below) or their agent for registration
of transfer, exchange or payment, and any certificate issued is registered in
the name of Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.(3)
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE U.S. SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE U.S. (i) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER
THE SECURITIES ACT or (ii) TO AN ACCREDITED INVESTOR (AS DEFINED
IN RULE 506(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) IN
ACCORDANCE WITH REGULATION D UNDER THE SECURITIES ACT, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON MEETING THE REQUIREMENTS OF RULE
904 UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE
------------------
(3)To be included only if the Note is to be issued in Global form.
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REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON
AN OPINION OF COUNSEL IF THE COMPANY OR ITS TRANSFER AGENT OR
REGISTRAR SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE U.S. OR
ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM
IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE.(4)
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
(Back of Senior Subordinated Note)
1. INTEREST. The Notes will be limited in aggregate principal amount to
$200,000,000 and will mature on August 15, 2006. Printpack. Inc., a Georgia
corporation (the "Company"), promises to pay interest on the principal amount
of this Note at the rate of 10-5/8% per annum from August 22, 1996 until
maturity (including any Liquidated Damages required to be paid pursuant to the
provisions of the Registration Rights Agreement). The Company will pay
interest semi-annually in arrears on February 15 and August 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day
(each an "Interest Payment Date"). Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance; provided that if there is no existing
Default in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date, and; provided, further, that the first Interest Payment Date shall be
February 15, 1997. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per annum in
excess of the rate then in effect to the extent lawful. The Company shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the February 1 or August 1 immediately preceding the
Interest Payment Date, even if such Notes are
---------------
(4)This legend should be included on the Series A Notes and omitted from the
Series B Notes.
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canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.13 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, interest and
Liquidated Damages, if any, at the office or agency of the Company maintained
for such purpose or, at the option of the Company, payment of interest and
Liquidated Damages, if any, may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment by wire
transfer of immediately available funds will be required with respect to
principal of, and premium, interest and Liquidated Damages (if any) on, all
Global Notes and all other Notes the Holders of which shall have provided
appropriate wire transfer instructions to the Company or the Paying Agent.
Until otherwise designated by the Company, the Company's office or agency will
be the office of the Trustee maintained for such purpose. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Fleet National Bank, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of August 22, 1996 (the "Indenture") among the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made a part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended
(15 U.S. Code Section Section 77aaa-77bbbb) (the "TIA"). The Notes are
subject to all such terms and Holders are referred to the Indenture and the TIA
for a statement of such terms. The Notes are general unsecured obligations of
the Company limited to $200,000,000 in aggregate principal amount.
5. SUBORDINATION. The payment of principal of, premium, if any, interest
and Liquidated Damages, if any, on the Notes shall be subordinated in right of
payment as set forth in the Indenture, to the prior payment in full of all
Senior Debt, whether outstanding on the date of the Indenture of thereafter
incurred.
6. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) below of this Paragraph 6, the
Company shall not have the option to redeem the Notes prior to August 15, 2001.
Thereafter, the Company shall have the option to redeem the Notes at any time,
in whole or in part, upon not less than 30 nor more than 60 days' prior written
notice at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on August 15 of each of the years indicated
below:
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YEAR PERCENTAGE
2001 ................. 105.313%
2002 ................. 103.542%
2003 ................. 101.771%
2004 and thereafter .. 100.000%
(b) Notwithstanding the provisions of clause (a) of this Paragraph 6, on
or prior to August 22, 1999, the Company may redeem up to 35% in aggregate
principal amount of the Notes originally issued under this Indenture at a
redemption price of 109-5/8% of the principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the redemption date,
with the net proceeds of an Initial Public Offering; provided that at least
$100.0 million in aggregate principal amount of the Notes remain outstanding
following such redemption; and provided further, that such redemption shall
have occurred within 60 days of the closing of any such Initial Public
Offering.
7. MANDATORY REDEMPTION.
Subject to Section 4.10 and Section 4.16 of the Indenture, the Company
shall not be required to make mandatory redemption or sinking fund payments
with respect to the Notes.
8. REPURCHASE AT THE OPTION OF HOLDERS.
(a) If there is a Change of Control, each Holder of Notes will have the
right to require the Company to repurchase all or any part (equal to $1,000 or
an integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of purchase (the
"Change of Control Payment"). Within ten days following any Change of Control,
the Company will mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and offering to repurchase
Notes pursuant to the procedures required by the Indenture and described in
such notice. 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 the Notes as a result of a Change of Control.
(b) Prior to complying with the provisions in the foregoing paragraph (b)
of this Section 8, but in any event within 90 days following a Change of
Control, the Company shall either repay all outstanding Senior Debt or obtain
the requisite consents, if any, under all agreements governing outstanding
Senior Debt to permit the repurchase of Notes required by paragraph (a) of this
Section 8. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
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(c) If the Company or a Subsidiary consummates any Asset Sales, as soon as
practical, but in no event later than 10 business days in the case of clause
(i) below, and 45 business days, in the case of clause (ii) below, after any
date that the aggregate amount of Excess Proceeds exceeds $10.0 million, the
Company shall (i) commence an Asset Sale Offer to purchase the maximum
principal amount of Senior Notes and other Indebtedness of the Company that
ranks pari passu in right of payment with the Senior Notes (to the extent
required by the instrument governing such other Indebtedness), that may be
purchased out of the Excess Proceeds and (ii) to the extent that more than
$10.0 million of Excess Proceeds remain following the offer to purchase Senior
Notes contemplated by the preceding clause (i), commence an Asset Sale Offer to
purchase the maximum principal amount of Notes and other Indebtedness of the
Company that ranks pari passu in right of payment with the Notes (to the extent
required by the instrument governing such other Indebtedness), that may be
purchased out of the Excess Proceeds. Any Notes or Senior Notes, as
applicable, and other Pari Passu Debt to be purchased pursuant to an Asset Sale
Offer shall be purchased pro rata based on the aggregate principal amount of
Notes, Senior Notes and such other applicable Pari Passu Debt outstanding and
all Notes and Senior Notes shall be purchased at an offer price in cash equal
to 100% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase (or if such Asset Sale
Offer is with respect to any discount or zero coupon securities prior to the
date of their full accretion, 100% of the accreted value thereof on the date of
purchase). To the extent that any Excess Proceeds remain after completion of
an Asset Sale Offer, the Company may use the remaining amount for general
corporate purposes and the amount of Excess Proceeds shall be reset at zero.
Holders of Notes that are the subject of an offer to purchase will receive an
Asset Sale Offer from the Company prior to any related Asset Sale Offer
Purchase Date and may elect to have such Notes purchased by completing the form
titled "Option of Holder to Elect Purchase" on the reverse of the Notes.
9. NOTICE OF REDEMPTION.
Notice of redemption shall be mailed by first class mail at least 30 days
but not more than 60 days before the redemption date to each Holder of Notes to
be redeemed at its registered address. If any Note is to be redeemed in part
only, the notice of redemption that relates to such Note shall state the
portion of the principal amount thereof to be redeemed. Notes may be redeemed
in part but only in whole multiples of $1,000, unless all of the Notes held by
a Holder are to be redeemed. On and after the redemption date, interest ceases
to accrue on Notes or portions thereof called for redemption.
10. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the
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Indenture. The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of
any Note being redeemed in part. Also, the Company need not exchange or
register the transfer of any Notes for a period of 15 days before the date on
which a notice of redemption is mailed or during the period between a record
date and the corresponding Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes), and any existing
Default or Event of Default (other than a Default or Event of Default in the
payment of the principal of, premium, if any, interest or Liquidated Damages,
if any, on the Notes, except a payment default resulting for an acceleration
that has been rescinded) or compliance with any provision of the Indenture or
the Notes may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including consent obtained in
connection with a purchase of or tender offer or exchange for Notes). Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of Certificated Notes, to
provide for the assumption of the Company's obligations to the Holders of the
Notes in the case of a merger or consolidation, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights under the Indenture of any such
Holder, or to comply with the requirements of the Commission in order to effect
or maintain the qualification of the Indenture under the Trust Indenture Act.
13. SUBORDINATION. Each Holder by accepting a Note agrees that the
payment of principal of and premium, if any, interest and Liquidated Damages,
if any, on the Note is subordinated in right of payment, to the extent and in
the manner provided in the Indenture, to the prior payment in full of all
Senior Debt of the Company (whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of such Senior Debt.
14. DEFAULTS AND REMEDIES. Events of Default include: (i) default which
continues for 30 days in the payment when due of interest on, or Liquidated
Damages with respect to, the Notes (whether or not such payment is prohibited
by the provisions of Article 10 of the Indenture); (ii) default in payment when
due of the principal of or premium, if any, on the Notes (whether or not such
payment is prohibited by the provisions of Article 10 of the Indenture); (iii)
failure by the Company to comply with the provisions of Section 4.10 or 4.16 of
the Indenture; (iv) failure by the Company for 60 days after notice to comply
with any of its other agreements in the Indenture or the Notes; (v) default
under any mortgage, indenture or instrument
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under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Subsidiaries
(or the payment of which is guaranteed by the Company or any of its
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the date of this Indenture, which default (A) is caused by a failure to
pay principal of or premium, if any, or interest on such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness on the date of
such default (a "Payment Default") or (B) results in the acceleration of such
Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $10.0 million or more; (vi) failure
by the Company or any of its Subsidiaries to pay final judgments not covered by
insurance aggregating in excess of $10.0 million, which judgments are not paid,
discharged, bonded or stayed for a period of 60 days; (vii) except as permitted
by the Indenture, any Subsidiary Guarantee shall be held invalid or shall cease
to be in full force and effect, or any Person acting on behalf of any Guarantor
shall deny or disaffirm its obligations under its Subsidiary Guarantee; and
(viii) certain events of bankruptcy or insolvency with respect to the Company,
any Significant Subsidiary or group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary. The Trustee must, within 90 days after the
occurrence of a Default or Event of Default, give to the Holders notice of all
uncured Defaults or Events of Default known to it; provided that, except in the
case of a Default or Event of Default in payment of any Note, the Trustee may
withhold such notice if a committee of its Responsible Officers in good faith
determines that the withholding of such notice is in the interest of the
Holders. The Company is required to furnish annually to the Trustee a
certificate as to their compliance with the terms of the Indenture.
15. TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal
with the Company or any Affiliate of the Company, with the same rights it would
have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS. No direct or indirect director, officer,
employee, incorporator or stockholder of the Company, as such, shall have any
liability for any obligations of the Company under the Notes or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that
such a waiver is against public policy.
17. AUTHENTICATION. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
18. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
X-0
00
00. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Notes under the Indenture,
Holders of Transfer Restricted Securities (as defined in the Registration
Rights Agreement (as defined below)) shall have all the rights set forth in the
Registration Rights Agreement dated as of August 22, 1996 among the Company and
the parties named on the signature pages thereof (the "Registration Rights
Agreement").
20. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company have
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
21. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES.
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The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Printpack, Inc.
0000 Xxxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: R. Xxxxxxx Xxxxxxx
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
----------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:_____________
Your Signature:__________________________
(Sign exactly as your name appears on the face of this Note)
Signature
Guarantee*:______________________
__________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.16 of the Indenture, check the box below:
/ / Section 4.10 / / Section 4.16
Subject to Section 3.02 of the Indenture, if you want to elect to have
only part of the Note purchased by the Company pursuant to Section 4.10 or
Section 4.16 of the Indenture, state the amount you elect to have purchased:
$___________
Date:
Your Signature:________________________________
(Sign exactly as your name appears on the Note)
Tax Identification No.:_______________________
Signature Guarantee*: ________________________
__________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF CERTIFICATED SECURITIES
The following exchanges of a part of this Global Note for Certificated
Securities have been made:(1)
Principal Amount of Signature of
this Global Note authorized
Amount of decrease Amount of increase following such signatory of
in Principal Amount in Principal Amount decrease Trustee or Note
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
----------------- ------------------- ------------------- ------------------- ---------------
-------------------
(1)To be included only if the Note is to be issued in Global form.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF NOTES
Re: 10-5/8% Senior Subordinated Notes due 2006 of Printpack, Inc.
This Certificate relates to $200,000,000 principal amount of Notes held in
* ________ book-entry or *_______ definitive form by ________________ (the
"Transferor").
The Transferor*:
/ / has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Note held by the Depositary a Note or Notes
in definitive, registered form of authorized denominations in an aggregate
principal amount equal to its beneficial interest in such Global Note (or the
portion thereof indicated above); or
/ / has requested the Trustee by written order to exchange or register the
transfer of a Note or Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that Transferor is familiar with the Indenture
relating to the above captioned Notes and as provided in Section 2.06 of such
Indenture, the transfer of this Note does not require registration under the
Securities Act (as defined below) because:*
/ / Such Note is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 2.06(a)(ii)(A) or Section 2.06(d)(i)(A) of
the Indenture).
/ / Such Note is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933, as amended (the
"Securities Act")) in reliance on Rule 144A or to an "Accredited Investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) in
accordance with Regulation D under the Securities Act (in satisfaction, to the
extent applicable, of Section 2.06(a)(ii)(B), Section 2.06(b)(i)(x) or Section
2.06(d)(i)(B) of the Indenture).
---------------
*Check applicable box.
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/ / Such Note is being transferred in accordance with Rule 144 or Rule 904
under the Securities Act, or pursuant to an effective registration statement
under the Securities Act (in satisfaction of Section 2.06(a)(ii)(B) or Section
2.06(d)(i)(B) of the Indenture).
/ / Such Note is being transferred in reliance on and in compliance with an
exemption from the registration requirements of the Securities Act, other than
Rule 144A, 144 or Rule 904 under the Securities Act. An Opinion of Counsel to
the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate (in satisfaction of Section
2.06(a)(ii)(C), Section 2.06(b)(i)(y) or Section 2.06(d)(i)(C) of the
Indenture).
--------------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-----------------------------------------
Date:
--------------------------
-------------------
*Check applicable box.
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EXHIBIT C
Form of Subsidiary Guarantee
THIS GUARANTEE (as the same may be amended, modified or supplemented from
time to time, this "Guarantee"), dated as of ____________, is made by
____________________________ (hereinafter referred to as the "Guarantor") in
favor of _____________________, as trustee under the Indenture hereinafter
described (the "Trustee") for the ratable benefit of the holders from time to
time (the "Holders") of the Senior Subordinated Notes (as hereinafter defined).
All terms not otherwise defined herein shall have for the purposes hereof
the meanings set forth in the Indenture (as hereinafter defined) unless the
context otherwise requires.
Recitals
A. Printpack, Inc. (the "Company") is a party to that certain Indenture
dated August 22, 1996 (as amended, supplemented or otherwise modified from time
to time, the "Indenture") among the Company and the Trustee, pursuant to which
the Company issued $200.0 million principal amount of its 10-5/8% Senior
Subordinated Notes due 2006 (including all Series A and Series B Senior
Subordinated Notes issued from time to time pursuant to the Indenture,
collectively, the "Senior Subordinated Notes"); and
B. The Guarantor is a direct or indirect Subsidiary of the Company, and
will derive both direct and indirect economic benefit from the proceeds of the
Senior Subordinated Notes and other financial accommodations made to the
Company under the Indenture.
C. The Indenture requires that the Guarantor execute and deliver this
Guaranty to guarantee the payment and performance by the Company of all of its
Obligations under the Indenture and the Senior Subordinated Notes, including,
in each case, all reasonable costs of collection and enforcement thereof and
interest thereon which would be owing by the Company or such Guarantor but for
the effect of the Bankruptcy Code, 11 U.S.C.Section 101 et seq. (collectively,
the "Guaranteed Obligations").
NOW, THEREFORE, for and in consideration of the foregoing and of any
financial accommodations or extensions of credit (including, without
limitation, any loan or advance by renewal, refinancing or extension of the
Indenture or otherwise) heretofore, now or hereafter made to or for the benefit
of the Company pursuant to the Indenture or any other agreement, instrument or
document executed pursuant to or in connection therewith, and for other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the Guarantor and the Trustee agree as follows:
1. The Guarantee. The Guarantor hereby absolutely, unconditionally and
irrevocably guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the Guaranteed Obligations. This
Guarantee shall be unsecured, but otherwise shall be senior to or pari passu
with all of the Guarantor's guarantees or pledges to secure other
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Indebtedness of the Company; provided, however, that this Guarantee is
subordinated to any Guarantee of Senior Debt to the same extent that the Senior
Subordinated Notes are subordinated to such Senior Debt. This Guarantee is a
guarantee of payment and not of collection. All payments made by the Guarantor
under this Guarantee shall be paid at the place and in the manner specified in
the Indenture and the Senior Subordinated Notes.
2. Amendments, etc. with respect to the Guaranteed Obligations; Waiver of
Rights. The Guarantor shall remain obligated hereunder notwithstanding that
without any reservation of rights against the Guarantor and without notice to
or further assent by the Guarantor any demand for payment of any of the
Guaranteed Obligations made by the Trustee or the Holders may be rescinded by
them and any of the Guaranteed Obligations continued, and the Guaranteed
Obligations, or the liability of any other party upon or for any part thereof,
or guarantee therefor or right of offset with respect thereto, may, from time
to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Trustee or the
Holders, and the Indenture and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Trustee or the Holders may deem advisable from time to
time or as provided in the Indenture, and any guarantee or right of offset at
any time held by the Trustee for the payment of the Guaranteed Obligations may
be sold, exchanged, waived, surrendered or released.
3. Guarantee Absolute and Unconditional. The Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Trustee or the
Holders upon this Guarantee, the Guaranteed Obligations, and any of them shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee; and all
dealings between the Company and the Guarantor, on the one hand, and the
Trustee and the Holders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guarantee. The
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Company or the Guarantor with respect
to the Guaranteed Obligations. The Guarantor understands and agrees that this
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of the Indenture or any of the Senior Subordinated Notes, any of
the Guaranteed Obligations or guarantee or right of offset with respect thereto
at any time or from time to time held by the Trustee or the Holders, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Company against the Trustee or the Holders, or (c) any other circumstances
whatsoever (with or without notice to or knowledge of the Company or such
Guarantor) which constitute, or might be construed to constitute, an equitable
or legal discharge of the Company for the Guaranteed Obligations, or of the
Guarantor under this Guarantee, in bankruptcy or in any other instance. When
pursuing its rights and remedies hereunder against the Guarantor, the Trustee
and/or the Holders may, but shall be under no obligation to, pursue such rights
and remedies as it or they may have against the Company or any other Person or
against any guarantee for the Guaranteed Obligations or any right of offset
with respect thereto, and any failure by the Trustee or the Holders to pursue
such other rights or remedies or to collect any payments from the Company or
any such other Person or to realize upon any such guarantee or to
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exercise any such right of offset, or any release of the Company or any such
other Person or any such guarantee or right of offset, shall not relieve the
Guarantor of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Trustee and/or the Holders against the Guarantor. This Guarantee shall remain
in full force and effect and be binding in accordance with and to the extent of
its terms upon the Guarantor and its successors and assigns thereof, and shall
inure to the benefit of the Trustee, and its successors, indorsees, transferees
and assigns, and the Holders from time to time of the Senior Subordinated Notes
until all the Guaranteed Obligations and the obligations of the Guarantor under
this Guarantee shall have been satisfied by payment in full, notwithstanding
that from time to time during the term of the Indenture the Company may be free
from any Guaranteed Obligations.
4. Discharge Only Upon Payment In Full; Reinstatement In Certain
Circumstances. The Guarantor's obligations hereunder shall remain in full
force and effect until the Guaranteed Obligations shall have been paid in full.
If at any time any payment of any of the Guaranteed Obligations is rescinded
or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, the Guarantor's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had been due but not made at such time.
5. Waiver by the Guarantor. The Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against the Company or any other Person.
6. Subrogation. Notwithstanding any payments made by the Guarantor under
this Guarantee, the Guarantor shall not be entitled to be subrogated to any of
the rights of any other Guarantor, the Trustee or any Holder against the
Company until all amounts of principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Senior Subordinated Notes and all other
amounts payable by the Company under the Indenture and the Senior Subordinated
Notes and by the Guarantor under its Guarantee have been paid in full. If any
amount shall be paid to the Guarantor on account of such subrogation rights at
any time when all of the Guaranteed Obligations shall not have been paid in
full, such amount shall be held by the Guarantor in trust for the Trustee
segregated from other funds of the Guarantor, and shall, forthwith upon receipt
by the Guarantor, be turned over to the Trustee in the exact form received by
the Guarantor (duly indorsed by the Guarantor to the Trustee, if required), to
be applied against the Guaranteed Obligations, whether matured or unmatured, at
such time and in such order as the Trustee may determine.
7. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Guaranteed Obligations is stayed upon insolvency,
bankruptcy or reorganization of the Company, all such amounts otherwise subject
to acceleration under the terms of the Indenture and the Senior Subordinated
Notes shall nonetheless be payable by the Guarantor forthwith on demand by the
Trustee.
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8. Merger, Consolidation or Sale of Assets.
a. The Guarantor may not consolidate with or merge with or into (whether
or not the Guarantor is the surviving Person) another corporation, Person or
entity, whether or not affiliated with the Guarantor, unless (i) subject to the
provisions of Section 8(b), the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor) assumes all the
obligations of the Guarantor, pursuant to a supplemental Guarantee in form and
substance reasonably satisfactory to the Trustee, under the Guarantee; (ii)
immediately after giving effect to such transaction, no Default or Event of
Default exists; and (iii) the Company would be permitted by virtue of the
Company's pro forma Fixed Charge Coverage Ratio, immediately after giving
effect to such transaction, to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09 of
the Indenture; provided, however, that the foregoing will not apply to the
consolidation or merger of the Guarantor with and into the Company or another
Guarantor.
b. In the event of a sale or other disposition of all of the assets of the
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of the Guarantor, then the Guarantor
(in the event of a sale or other disposition, by way of such a merger,
consolidation or otherwise, of all of the capital stock of the Guarantor) or
the corporation acquiring the property (in the event of a sale or other
disposition of all of the assets of the Guarantor) will be automatically and
unconditionally released and relieved of any obligations under this Guarantee;
provided that the Net Proceeds of such sale or other disposition are applied in
accordance with Section 4.10 of the Indenture.
9. Miscellaneous.
a. Benefits of Guarantee; Successors and Assigns. Nothing in this
Guarantee, expressed or implied, shall give to any person, other than Trustee,
the Holders and their respective successors, transferees and assigns hereunder,
any benefit or any legal or equitable rights, remedy or claim under this
Guarantee. This Guarantee shall be binding upon the Guarantor, its successors
and assigns, and inure, together with the rights and remedies of Trustee
hereunder, to the benefit of Trustee, the Holders and their respective
successors, transferees and assigns. The Guarantor shall not, without the
prior written consent of Trustee, assign any rights, duties or obligations
under this Guarantee.
b. Notices. All notices, demands and other communications hereunder
shall be given and shall be effective in accordance with the Indenture, except
that notices to the Guarantor shall be given to its address set forth on the
signature page hereof, or to such other address as the Guarantor may specify in
writing from time to time to the Trustee.
c. Amendments. Neither this Guarantee nor any provision hereof may be
amended, modified, waived, discharged or terminated other than pursuant to the
provisions of the Indenture.
d. No Personal Liability of Directors, Officers, Employees, Partners and
Stockholders. No past, present or future director, officer, employee,
incorporator, partner or stockholder of the Guarantor, as such, shall have any
liability for any obligations of the Guarantor under this
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Guarantee or for any claim based on, in respect of, or by reason of, this
Guarantee. Each Holder by accepting a Note has waived and released all such
liability. The waiver and release are part of the consideration for
issuance of this Guarantee.
e. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS GUARANTEE.
f. No Adverse Interpretation of Other Agreements. This Guarantee may not
be used to interpret any other guarantee, indenture, loan or debt agreement of
the Company, the Guarantor or their respective Subsidiaries or of any other
Person. Any such guarantee, indenture, loan or debt agreement may not be used
to interpret this Guarantee.
g. Successors. All agreements of the Guarantor in this Guarantee shall
bind its successors. All agreements of the Trustee in this Guarantee shall
bind its successors.
h. Severability. In case any provision in this Guarantee shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
i. Counterpart Originals. The parties may sign any number of copies of
this Guarantee. Each signed copy shall be an original, but all of them
together represent the same agreement.
j. Headings, etc.
The headings of the sections of this Guarantee have been inserted for
convenience of reference only, are not to be considered a part of this
Guarantee and shall in no way modify or restrict any of the terms or provisions
hereof.
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IN WITNESS WHEREOF, the undersigned Guarantor has caused this instrument
to be duly executed and delivered to the Trustee as of the date first above
written.
[GUARANTOR]
[Address]
By:
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Name:
Title:
Trustee
By:
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Name:
Title:
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