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Exhibit 4.1
Execution Copy
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AP Holdings, Inc.
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11 1/4% SENIOR DISCOUNT NOTES DUE 2008
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INDENTURE
DATED AS OF MARCH 30, 1998
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State Street Bank and Trust Company
TRUSTEE
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture Section
Act Section
310(a)(l) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) 7.3; 7.10
311(a) N.A.
(b) 7.11
(c) 7.11
312(a) N.A.
(b) 2.5
(c) 10.3
313(a) 10.3
(b)(l) 7.6
(b)(2) 7.6
(c)(3) 7.6; 7.7
(d) 7.6; 10.2
(e) 7.6
314(a) 4.3; 10.5
(b) N.A.
(c)(1) 10.4
(c)(2) 10.4
(c)(3) N.A.
(d) N.A.
(e) 10.5
(f) N.A.
315(a) 7.1
(b) 7.5, 10.2
(c) 7.1
(d) 7.1
(e) 6.11
316(a) (last Sentence) 2.9
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) 2.13
(b) 6.7
(c) N.A.
317(a)(1) 6.8
(a)(2) 6.9
(b) 2.4
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318(a) 10.1
(b) N.A.
(c) 10.1
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions................................................ 1
Section 1.2. Other Definitions.......................................... 16
Section 1.3. Incorporation by Reference of Trust Indenture Act.......... 16
Section 1.4. Rules of Construction...................................... 17
ARTICLE 2.
THE NOTES
Section 2.1. Form and Dating............................................ 17
Section 2.2. Execution and Authentication............................... 19
Section 2.3. Registrar and Paying Agent................................. 20
Section 2.4. Paying Agent to Hold Money in Trust........................ 20
Section 2.5. Holder Lists............................................... 21
Section 2.6. Transfer and Exchange...................................... 21
Section 2.7. Replacement Notes.......................................... 31
Section 2.8. Outstanding Notes.......................................... 31
Section 2.9. Treasury Notes............................................. 31
Section 2.10. Temporary Notes............................................ 32
Section 2.11. Cancellation............................................... 32
Section 2.12. Defaulted Interest......................................... 32
Section 2.13. Record Date................................................ 33
Section 2.14. Computation of Interest.................................... 33
Section 2.15. CUSIP Number............................................... 33
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.1. Notices to Trustee......................................... 33
Section 3.2. Selection of Notes To Be Redeemed or Purchased............. 33
Section 3.3. Notice of Redemption....................................... 34
Section 3.4. Effect of Notice of Redemption............................. 35
Section 3.5. Deposit of Redemption or Purchase Price.................... 35
Section 3.6. Notes Redeemed in Part..................................... 36
Section 3.7. Optional Redemption........................................ 36
Section 3.8. Mandatory Redemption....................................... 36
Section 3.9. Repurchase Offers.......................................... 36
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ARTICLE 4.
COVENANTS
Section 4.1. Payment of Notes........................................... 38
Section 4.2. Maintenance of Office or Agency............................ 39
Section 4.3. Commission Reports......................................... 39
Section 4.4. Compliance Certificate..................................... 40
Section 4.5. Taxes...................................................... 41
Section 4.6. Stay, Extension and Usury Laws............................. 41
Section 4.7. Restricted Payments........................................ 41
Section 4.8. Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries................................... 44
Section 4.9. Incurrence of Indebtedness and Issuance of
Preferred Stock........................................... 45
Section 4.10. Assets Sales............................................... 47
Section 4.11. Transactions with Affiliates............................... 48
Section 4.12. Liens...................................................... 49
Section 4.13. Sale and Leaseback Transactions............................ 49
Section 4.14. Offer to Purchase Upon Change of Control................... 50
Section 4.15. Corporate Existence........................................ 51
Section 4.16. Limitation on Issuances of Capital Stock of Wholly
Owned Restricted Subsidiaries............................. 51
Section 4.17. Business Activities........................................ 51
Section 4.18. Payment for Consents....................................... 51
ARTICLE 5.
SUCCESSORS
Section 5.1. Merger, Consolidation of Sale of Assets.................... 52
Section 5.2. Successor Corporation Substituted.......................... 52
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.......................................... 53
Section 6.2. Acceleration............................................... 54
Section 6.3. Other Remedies............................................. 55
Section 6.4. Waiver of Past Defaults.................................... 56
Section 6.5. Control By Majority........................................ 56
Section 6.6. Limitation on Suits........................................ 56
Section 6.7. Rights of Holders of Notes to Receive Payment.............. 57
Section 6.8. Collection Suit by Trustee................................. 57
Section 6.9. Trustee May File Proofs of Claim........................... 57
Section 6.10. Priorities................................................. 58
Section 6.11. Undertaking for Costs...................................... 58
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ARTICLE 7.
TRUSTEE
Section 7.1. Duties of Trustee.......................................... 58
Section 7.2. Rights of Trustee.......................................... 60
Section 7.3. Individual Rights of Trustee............................... 60
Section 7.4. Trustee's Disclaimer....................................... 61
Section 7.5. Notice of Defaults......................................... 61
Section 7.6. Reports by Trustee to Holders of the Notes................. 61
Section 7.7. Compensation and Indemnity................................. 61
Section 7.8. Replacement of Trustee..................................... 62
Section 7.9. Successor Trustee By Merger, Etc........................... 63
Section 7.10. Eligibility; Disqualification.............................. 63
Section 7.11. Preferential Collection of Claims Against Holdings......... 64
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance................................................ 64
Section 8.2. Legal Defeasance and Discharge............................. 64
Section 8.3. Covenant Defeasance........................................ 64
Section 8.4. Conditions to Legal or Covenant Defeasance................. 65
Section 8.5. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions............. 66
Section 8.6. Repayment to Holdings...................................... 67
Section 8.7. Reinstatement.............................................. 67
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of the Notes.................... 68
Section 9.2. With Consent of Holders of Notes........................... 68
Section 9.3. Compliance with Trust Indenture Act........................ 70
Section 9.4. Relocation and Effect of Consents.......................... 70
Section 9.5. Notation on or Exchange of Notes........................... 70
Section 9.6. Trustee to Sign Amendments, Etc............................ 70
ARTICLE 10.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls............................... 71
Section 10.2. Notices.................................................... 71
Section 10.3. Communication by Holders of Notes with Other
Holders of Notes.......................................... 72
Section 10.4. Certificate and Opinion as to Conditions Precedent......... 72
Section 10.5. Statements Required in Certificate or Opinion.............. 72
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Section 10.6. Rules by Trustee and Agents................................ 73
Section 10.7. No Personal Liability of Directors, Officers,
Employees and Stockholders................................ 73
Section 10.8. Governing Law.............................................. 73
Section 10.9. No Adverse Interpretation of Other Agreements.............. 73
Section 10.10. Successors................................................ 73
Section 10.11. Severability.............................................. 74
Section 10.12. Counterpart Originals..................................... 74
Section 10.13. Table of Contents, Headings, Etc.......................... 74
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EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFEROR
Exhibit C FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
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Indenture, dated as of March 30, 1998, between AP Holdings, Inc., a
Delaware corporation ("Holdings") and State Street Bank and Trust Company, as
trustee (the "Trustee").
Holdings and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the holders of Holdings' 11 1/4%
Senior Discount Notes due 2008 (the "Senior Discount Notes") and the new 11 1/4%
Senior Discount Notes due 2008 (the "New Senior Discount Notes" and, together
with the Senior Discount Notes, the "Notes"). Of the $120,000,000 maximum
principal amount that can be outstanding hereunder at maturity of the Notes
covered hereby, $70,000,000 in principal amount at maturity are being issued in
the Offering on the date hereof:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Accreted Value" means, for each $1,000 face amount of Notes, as of
any date of determination prior to March 15, 2003, the sum of (i) the initial
offering price of each Note and (ii) that portion of the excess of the principal
amount of each Note over such initial offering price which shall have been
accreted thereon through such date, such amount to be so accreted on a daily
basis and compounded semi-annually on each and at the rate of 11 1/4% per annum
from the date of issuance of the Notes through the date of determination.
"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.
"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.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and procedures of
the Depositary that apply to such transfer and exchange.
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"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) other than sales of inventory 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
Holdings and its Restricted Subsidiaries taken as a whole will be governed by
the provisions of the Indenture described above under the caption "--Change of
Control" and/or the provisions described above under the caption "--Merger,
Consolidation or Sale of Assets" and not by the provisions of the Asset Sale
covenant), and (ii) the issue or sale by Holdings or any of its Restricted
Subsidiaries of Equity Interests of any of Holdings' Restricted 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
$3.0 million or (b) for net proceeds in excess of $3.0 million. Notwithstanding
the foregoing: (i) a transfer of assets by Holdings to the Company's a Wholly
Owned Restricted Subsidiary of Holdings or the Company or by a Wholly Owned
Restricted Subsidiary of Holdings or the Company to the Company or to another
Wholly Owned Restricted Subsidiary of Holdings or the Company, (ii) an issuance
of Equity Interests by the Company or a Wholly Owned Restricted Subsidiary of
Holdings or the Company to Holdings or the Company's to another Wholly Owned
Restricted Subsidiary of Holdings or the Company, and (iii) a Restricted Payment
that is permitted by the covenant described above under the caption
"--Restricted Payments" will 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.
"Board of Directors" means the board of directors of Holdings or any
authorized committee of such board of directors.
"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 or limited
liability company, partnership or membership 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.
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"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 six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any lender party to the New
Credit Facility or with any domestic commercial bank having capital and surplus
in excess of $500 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
entered into with any financial institution meeting the qualifications specified
in clause (iii) above, and (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.
"Cedel" means Cedel Bank, societe anonyme.
"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 Holdings 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 Holdings, (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, except that a person shall be deemed to
have "beneficial ownership" of all securities that such person has the right to
acquire, whether such right is currently exercisable or is exercisable only upon
the occurrence of a subsequent condition), directly or indirectly, of more than
50% of the Voting Stock of Holdings (measured by voting power rather than number
of shares), (iv) the first day on which a majority of the members of the Board
of Directors of Holdings are not Continuing Directors or (v) Holdings
consolidates with, or merges with or into, any Person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any Person, or any Person consolidates with, or merges with or
into, Holdings, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of Holdings is converted into or exchanged for cash,
securities or other property, other than any such transaction where the Voting
Stock of Holdings outstanding immediately prior to such transaction is converted
into or exchanged for Voting Stock (other than Disqualified Stock) of the
surviving or transferee Person constituting a majority of the outstanding shares
of such Voting Stock of such surviving or transferee Person (immediately after
giving effect to such issuance).
"Commission" means the Securities and Exchange Commission.
"Company" means APCOA, Inc., a Delaware corporation.
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"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 (to the extent such losses were deducted in computing such
Consolidated 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 debt issuance costs and 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, 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 but excluding
amortization of prepaid cash expenses that were paid in a prior period) and
other non-cash expenses (excluding any such non-cash expense to the extent that
it represents an accrual of or reserve for cash expenses 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 expenses were deducted in
computing such Consolidated Net Income, plus (v) one-time charges related to the
Combination, to the extent that such charges were deducted in computing
Consolidated Net Income, plus (vi) in connection with any acquisition by
Holdings or a Restricted Subsidiary, projected quantifiable improvements in
operating results (on an annualized basis) due to cost reductions calculated in
good faith by Holdings or one of its Restricted Subsidiaries, as evidenced by
(A) in the case of cost reductions of less than $10.0 million, an Officers'
Certificate delivered to the Trustee and (B) in the case of cost reductions of
$10.0 million or more, a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee, minus (vii) non-cash items
increasing such Consolidated Net Income for such period. 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 that a corresponding amount would be
permitted at the date of determination to be dividended to Holdings 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
governmental 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 Restricted
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 Restricted 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 Restricted
Subsidiary thereof, (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that
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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 date of such
acquisition shall be excluded, (iv) the cumulative effect of a change in
accounting principles shall be excluded and (v) the Net Income of any
Unrestricted Subsidiary shall be excluded, whether or not distributed to
Holdings or one of its Restricted Subsidiaries for purposes of Section 4.9
hereof."
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of Holdings who (i) was a member of such Board
of Directors on the date of the 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 at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 10.2 hereof or such other address as to which
the Trustee may give notice to the Company.
"Credit Agent" means The First National Bank of Chicago, in its
capacity as Agent for the lenders party to the New Credit Facility or any
successor thereto or any person otherwise appointed.
"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.
"Definitive Notes" means Notes that are in the form of EXHIBIT A-1
attached hereto (but without including the text referred to in footnotes 1 and 3
thereto).
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 hereof as
the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to Section 2.6 of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"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, 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; provided, however,
that any Capital Stock that would not qualify as Disqualified Stock but for
change of control provisions shall not constitute Disqualified Stock if the
provisions are not more favorable to the holders of such Capital Stock than the
provisions described under "-- Change of Control" applicable to the Holders of
the Notes.
"DLJ" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
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"Euroclear" means Xxxxxx Guaranty Trust Company of New York, the
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer by the Company to Holders to
exchange Senior Discount Notes for New Senior Discount Notes.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of Holdings and its
Subsidiaries (other than Indebtedness under the New Credit Facility) in
existence on the date of the Indenture, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for any period,
the sum, without duplication, of (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
(including, without limitation, 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, and net payments (if any) pursuant to Hedging
Obligations) and (ii) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period, and (iii) to
the extent paid by such Person, any interest expense on Indebtedness of another
Person that is Guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries (whether or not such Guarantee or Lien is called upon) and (iv) the
product of (a) all dividend payments, whether or not in cash, on any series of
preferred stock of such Person or any of its Restricted Subsidiaries, other than
dividend payments on Equity Interests payable solely in Equity Interests of
Holdings, 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 and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Restricted Subsidiaries for such period. In the event that Holdings or any
of its Restricted Subsidiaries incurs, assumes, 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 Holdings or
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any of its Restricted 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 will
not be obligations of the referent Person or any of its Restricted Subsidiaries
following the Calculation Date.
"Foreign Subsidiary" means any Subsidiary organized and existing
under the laws of a jurisdiction other than those of any state or commonwealth
in the Unites States of America.
"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 on the date of the Indenture.
"Global Notes" means the Rule 144A Global Note, the Regulation S
Temporary Global Notes and the Regulation S Permanent Global Notes.
"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 rates.
"Xxxxxxx" means Xxxxxxx Industries, Inc., a Delaware corporation,
the indirect parent of Holdings.
"Holder" means a Person in whose name a Note is registered.
"Holdings" means AP Holdings, Inc., a Delaware corporation and the
parent (but not 100% owner) of APCOA, Inc.
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"Indebtedness" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money 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 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 indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be (i) the
accreted value thereof, in the case of any Indebtedness that does not require
current payments of interest, and (ii) the principal amount thereof, together
with any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds an interest through
a Participant.
"Initial Purchaser" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation.
"Insolvency or Liquidation Proceedings" means (i) any insolvency or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding, relative to Holdings or to the creditors of
Holdings, as such, or to the assets of Holdings, or (ii) any liquidation,
dissolution, reorganization or winding up of Holdings, whether voluntary or
involuntary and involving insolvency or bankruptcy, or (iii) any assignment for
the benefit of creditors or any other marshalling of assets and liabilities of
Holdings.
"Institutional Accredited Investor" means an "accredited investor"
as defined in Rule 501(a)(1), (2), (3) or (7) 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.
If Holdings or any Restricted Subsidiary of Holdings sells or otherwise disposes
of any Equity Interests of any direct or indirect Restricted Subsidiary of
Holdings such that, after giving effect to any such sale or disposition, such
Person is no longer a Restricted Subsidiary of Holdings, Holdings 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
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Interests of such Restricted Subsidiary not sold or disposed of in an amount
determined as provided in the final paragraph of Section 4.7 hereof."
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal Corporate
Trust Office of the Trustee is located 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 shall 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).
"Liquidated Damages" means all liquidated damages then owing
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 Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted 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
Holdings or any of its Restricted 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
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"New Credit Facility" means that certain Credit Agreement, dated as
of the date of the Indenture, by and among APCOA, Inc., the lenders and other
parties thereto from time to time and The First National Bank of Chicago, as
agent, together with all related documents executed or delivered pursuant
thereto at any time (including, without limitation, all mortgages, guarantees,
security agreements and all other collateral and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof),
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supplemented or otherwise modified from time to time, including any agreement
extending the maturity of, refinancing, replacing or otherwise restructuring
(including increasing the amount of available borrowings thereunder provided
that such increase in borrowings is within the definition of Permitted
Indebtedness or is otherwise permitted under Section 4.7 hereof or adding
Subsidiaries as additional borrowers or guarantors thereunder) all or any
portion of the Indebtedness and other Obligations under such agreement or
agreements or any successor or replacement agreement or agreements, and whether
by the same or any other agent, lender or group of lenders.
"New Senior Discount Notes" means Holdings' 11 1/4% Senior Discount
Notes due 2008, which will be issued in exchange for Holdings' Senior Discount
Notes.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
Holdings nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) constitutes the lender; (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Notes being offered hereby) of Holdings or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity; and
(iii) as to which the lenders have been notified in writing that they will not
have any recourse to the stock or assets of Holdings or any of its Restricted
Subsidiaries.
"Note Custodian" means the Trustee when serving as custodian for the
Depositary 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, and in all cases whether now
outstanding or hereafter created, assumed or incurred and including, without
limitation, interest accruing subsequent to the filing of a petition in
bankruptcy at the rate provided in the relevant document, whether or not an
allowed claim, and any obligation to redeem or defease any of the foregoing.
"Offering" means the issuance and sale by Holdings to the Initial
Purchaser of the Senior Discount Notes.
"Offering Memorandum" means the Offering Memorandum, dated March 25,
1998, relating to Holdings' offering and placement of the Senior Discount Notes.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
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"Officers' Certificate" means a certificate signed on behalf of
Holdings by two officers of Holdings, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of Holdings, that meets the requirements of Section
10.4 and 10.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
10.4 and 10.5 hereof. The counsel may be an employee of or counsel to Holdings,
any Subsidiary of Holdings or the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel, a
Person who has an account with DTC, Euroclear or Cedel, respectively (and, with
respect to DTC, shall include Euroclear and Cedel).
"Permitted Business" means any of the businesses and any other
businesses related to the businesses engaged in by Holdings and its respective
Restricted Subsidiaries on the date of the Indenture.
"Permitted Investments" means (a) any Investment in the Company or
in a Wholly Owned Restricted Subsidiary of Holdings that is engaged in a
Permitted Business; (b) any Investment in Cash Equivalents; (c) any Investment
by Holdings or any Restricted Subsidiary of Holdings in a Person, if as a result
of such Investment (i) such Person becomes a Wholly Owned Restricted Subsidiary
of Holdings that is engaged in a Permitted Business 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, Holdings or a Wholly
Owned Restricted Subsidiary of Holdings that is engaged in a Permitted Business;
(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 Section 4.10 hereof; (e) any acquisition of assets solely in exchange for
the issuance of Equity Interests (other than Disqualified Stock) of Holdings;
(f) loans and advances made after the date of the Indenture to Xxxxxxx
Industries, Inc. not to exceed $10.0 million at any time outstanding; (g) make
and permit to remain outstanding travel and other like advances in the ordinary
course of business consistent with past practices to officers and employees of
Holdings or a Subsidiary of the Company or Holdings; (h) other Investments made
after the date of the Indenture in any Person 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; and (i) that are at the time
outstanding, not to exceed $10.0 million.
"Permitted Liens" means (i) Liens securing Obligations of Holdings
and its Restricted Subsidiaries under the New Credit Facility that were
permitted by the terms of the Indenture to be incurred; (ii) Liens in favor of
Holdings; (iii) Liens on property of a Person existing at the time such Person
is merged into or consolidated with Holdings or any Restricted Subsidiary of
Holdings; provided that such
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Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with Holdings; (iv) Liens on property existing at
the time of acquisition thereof by Holdings or any Restricted Subsidiary of
Holdings, provided that such Liens were in existence prior to the contemplation
of such acquisition; (v) Liens to secure the performance of bids, tenders,
contracts, statutory obligations, surety or appeal bonds, performance bonds or
other obligations of a like nature incurred in the ordinary course of business;
(vi) Liens existing on the date of the Indenture; (vii) 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 concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (viii) Liens incurred in the ordinary course of business of
Holdings or any Restricted Subsidiary of Holdings with respect to obligations
that do not exceed $7.0 million at any one time outstanding and that (a) are not
incurred in connection with the borrowing of money or the obtaining of advances
or credit (other than trade credit in the ordinary course of business) and (b)
do not in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by Holdings or
such Restricted Subsidiary; (ix) Liens on assets of Unrestricted Subsidiaries
that secure Non-Recourse Debt of Unrestricted Subsidiaries; (x) Liens on the
daily revenues in favor of Persons other than Holdings and its Restricted
Subsidiaries who are parties to parking facility agreements for the amounts due
to them pursuant thereto; (xi) Liens arising by applicable law in respect of
employees' wages, salaries or commissions not overdue; and (xii) Liens arising
out of judgments or awards not in excess of $5.0 million with respect to which
Holdings or such Subsidiaries are prosecuting an appeal or a proceeding or
review and the enforcement of such lien is stayed pending such appeal or review.
"Permitted Refinancing Indebtedness" means any Indebtedness of
Holdings or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of Holdings or any of its Restricted Subsidiaries;
provided that: (i) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount of
(or accreted value, if applicable), plus accrued interest on, the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded (plus the
amount of reasonable expenses incurred in connection therewith); (ii) such
Permitted Refinancing Indebtedness 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
Indebtedness 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 Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is incurred either by Holdings
or by the Restricted 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, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Principals" means Xxxxxxx Industries, Inc. and Xxxx X. Xxxxxx.
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"Private Placement Legend" means the legend initially set forth on
the Senior Discount Notes in the form set forth in Section 2.6(g) hereof.
"Public Equity Offering" means a public offering of Equity Interests
(other than Disqualified Stock) of Holdings that result in net proceeds to
Holdings of at least $25.0 million.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, between Holdings and the Initial
Purchaser.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Notes" means the Regulation S Temporary Global
Notes or the Regulation S Permanent Global Notes as applicable.
"Regulation S Permanent Global Notes" means the permanent global
notes that are deposited with and registered in the name of the Depositary or
its nominee, representing a series of Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Notes" means the temporary global
notes that are deposited with and registered in the name of the Depositary or
its nominee, representing a series of Notes sold in reliance on Regulation S.
"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) or 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).
"Responsible Officer" when used with respect to the Trustee, means
any officer within the Corporate Trust Administration 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 officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Beneficial Interest" means any beneficial interest of a
Participant or Indirect Participant in the Rule 144A Global Note or the
Regulation S Global Note.
"Restricted Broker Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Restricted Global Notes" means the Rule 144A Global Notes and the
Regulation S Global Notes, all of which shall bear the Private Placement Legend.
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"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Note" means a permanent global note that is
deposited with and registered in the name of the Depositary or its nominee,
representing a series of Notes sold in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Discount Notes" means Holdings' 11 1/4% Senior Discount
Notes due 2008.
"Senior Subordinated Notes" means the 9 1/4% Senior Subordinated
Notes due 2008 of APCOA, Inc.
"Senior Subordinated Note Guarantees" means the guarantees by
certain Restricted Subsidiaries of the Company of the Obligations under the
Senior Subordinated Notes.
"Senior Subordinated Note Indenture" means the Indenture relating to
APCOA's Senior Subordinated Notes.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"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 Securities Act, as such Regulation is in effect on
the date hereof.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"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).
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"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code xx.xx.
77aaa-77bbbb), as amended, as in effect on the date hereof.
"Transfer Restricted Securities" means Notes or beneficial interests
therein that bear or are required to bear the Private Placement Legend.
"Trustee" means State Street Bank and Trust Company until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter means the successor.
"Unrestricted Global Notes" means one or more Global Notes that do
not and are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means (i) any Subsidiary that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
Board Resolution; but only to the extent that such Subsidiary: (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 Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted 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 Restricted Subsidiaries has any direct or
indirect obligation (x) to subscribe for additional Equity Interests or (y) to
maintain or preserve such Person's financial condition or to cause such Person
to achieve any specified levels of operating results; and (d) has not guaranteed
or otherwise directly or indirectly provided credit support for any Indebtedness
of the Company or any of its Restricted Subsidiaries. Any such designation by
the Board of Directors shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by the covenant
described above under the caption "Certain Covenants--Restricted Payments." If,
at any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of the Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted 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 the caption
"Incurrence of Indebtedness and Issuance of Preferred Stock," the Company shall
be in default of such covenant). The Board of Directors of the Company may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 4.9 hereof and
(ii) no Default or Event of Default would be in existence following such
designation.
"Voting Stock" of any Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
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"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, provided that for purposes of
this Indenture, the Company and any Wholly Owned Subsidiary of the Company will
be deemed a Wholly Owned Subsidiary of Holdings.
SECTION 1.2. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"............................... 4.11
"Asset Sale Offer".................................... 4.10
"Change of Control Offer"............................. 4.14
"Change of Control Payment"........................... 4.14
"Change of Control Payment Date"...................... 4.14
"Covenant Defeasance"................................. 8.3
"Custodian"........................................... 6.1
"DTC"................................................. 2.3
"Event of Default".................................... 6.1
"Excess Proceeds"..................................... 4.10
"incur"............................................... 4.9
"Legal Defeasance".................................... 8.2
"Offer Amount"........................................ 3.9
"Offer Period"........................................ 3.9
"Paying Agent"........................................ 2.3
"Payment Default"..................................... 6.1
"Permitted Debt"...................................... 4.9
"Purchase Date"....................................... 3.9
"Registrar"........................................... 2.3
"Repurchase Offer".................................... 3.9
"Restricted Payments"................................. 4.7
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in, and made a part of, this Indenture.
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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;
"obligor" on the Notes means Holdings and any successor obligor 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 the Commission rule
under the TIA have the meanings so assigned to them therein.
SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein 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.
ARTICLE 2.
THE NOTES
SECTION 2.1. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of EXHIBIT A-1 or EXHIBIT A-2 attached hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes initially shall be issued in denominations of $l,000 and integral
multiples thereof.
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The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and Holdings and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
(a) Global Notes. Notes offered and sold to QIBs in reliance
on Rule 144A shall be issued initially in the form of Rule 144A Global Notes,
which shall be deposited on behalf of the purchasers of the Notes represented
thereby with a custodian of the Depositary, and registered in the name of the
Depositary or a nominee of the Depositary, duly executed by Holdings and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Rule 144A Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee as hereinafter provided.
Notes offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Note, which shall be
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, as custodian for the Depositary, and registered in the name of the
Depositary or the nominee of the Depositary for the accounts of designated
agents holding on behalf of Euroclear or Cedel, duly executed by Holdings and
authenticated by the Trustee as hereinafter provided. The "40-day restricted
period" (as defined in Regulation S) shall be terminated upon the receipt by the
Trustee of (i) a written certificate from the Depositary, together with copies
of certificates from Euroclear and Cedel certifying that they have received
certification of non-United States beneficial ownership of 100% of the aggregate
principal amount of the Regulation S Temporary Global Note (except to the extent
of any beneficial owners thereof who acquired an interest therein pursuant to
another exemption from registration under the Securities Act and who will take
delivery of a beneficial ownership interest in a Rule 144A Global Note, all as
contemplated by Section 2.6(a)(ii) hereof), and (ii) an Officers' Certificate
from Holdings certifying as to the same matters covered in clause (i) above.
Following the termination of the 40-day restricted period, beneficial interests
in the Regulation S Temporary Global Note shall be exchanged for beneficial
interests in Regulation S Permanent Global Note pursuant to the Applicable
Procedures. Simultaneously with the authentication of Regulation S Permanent
Global Note, the Trustee shall cancel the Regulation S Temporary Global Note.
The aggregate principal amount of the Regulation S Temporary Global Notes and
the Regulation S Permanent Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interest as
hereinafter provided.
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,
redemptions and transfers of interests. 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 2.6 hereof.
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The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations" and "Instructions to Participants" of Cedel shall be applicable to
interests in the Regulation S Temporary Global Notes and the Regulation S
Permanent Global Notes that are held by Participants through Euroclear or Cedel.
The Trustee shall have no obligation to notify Holders of any such procedures or
to monitor or enforce compliance with the same.
Except as set forth in Section 2.6 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply
only to Rule 144A Global Notes and Regulation S Permanent Global Notes deposited
with or on behalf of the Depositary.
Holdings shall execute and the Trustee shall, in accordance with
this Section 2.1(b), authenticate and deliver the Global Notes that (i) shall be
registered in the name of the Depositary or the nominee of the Depositary and
(ii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the Note
Custodian as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by Holdings, the Trustee and any agent of Holdings or
the Trustee as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
Holdings, the Trustee or any agent of Holdings or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(c) Definitive Notes. Notes issued in certificated form shall
be substantially in the form of EXHIBIT A-1 attached hereto (but without
including the text referred to in footnotes 1 and 3 thereto).
SECTION 2.2. EXECUTION AND AUTHENTICATION.
An Officer shall sign the Notes for Holdings by manual or facsimile
signature.
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 Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in EXHIBIT A-1 or EXHIBIT A-2 hereto.
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The Trustee shall, upon a written order of Holdings signed by an
Officer 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 Trustee shall, upon
written order of Holdings signed by an Officer, authenticate New Senior Discount
Notes for original issuance in exchange for a like principal amount of Senior
Discount Notes exchanged in the Exchange Offer or otherwise exchanged for New
Senior Discount Notes pursuant to the terms of the Registration Rights
Agreement. The aggregate principal amount of Notes outstanding at any time may
not exceed such amount except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to
Holdings to authenticate Notes. 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 Holdings or an
Affiliate of Holdings.
SECTION 2.3. REGISTRAR AND PAYING AGENT.
Holdings 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.
Holdings may appoint one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. Holdings may change any Paying
Agent or Registrar without notice to any Holder. Holdings shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If Holdings fails to appoint or maintain another entity as Registrar
or Paying Agent, the Trustee shall act as such. Holdings or any of its
Subsidiaries may act as Paying Agent or Registrar.
Holdings initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
Holdings initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes.
Holdings initially appoints the Trustee to act as the Registrar and Paying Agent
with respect to the Definitive Notes.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
Holdings shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
shall notify the Trustee of any default by Holdings 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. Holdings at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the
Trustee, the Paying Agent (if other than Holdings or a Subsidiary) shall have no
further liability for the money. If Holdings or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit
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of the Holders all money held by it as Paying Agent. Upon the occurrence of
events specified in Section 6.1 (viii) and (ix) hereof, the Trustee shall serve
as Paying Agent for the Notes.
SECTION 2.5. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, Holdings shall furnish to the Trustee at least seven (7)
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and Holdings shall otherwise comply with TIA ss. 3 12(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) 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.
Beneficial interests in a Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(f) of this Section 2.6. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) Rule 144A Global Note to Regulation S Global Note. It,
at any time, an owner of a beneficial interest in a Rule
144A Global Note deposited with the Depositary (or the
Trustee as custodian for the Depositary) wishes to
transfer its beneficial interest in such Rule 144A
Global Note to a Person who is required or permitted to
take delivery thereof in the form of an interest in a
Regulation S Global Note, such owner shall, subject to
the Applicable Procedures, exchange or cause the
exchange of such interest for an equivalent beneficial
interest in a Regulation S Global Note as provided in
this Section 2.6(a)(i). Upon receipt by the Trustee of
(1) instructions given in accordance with the Applicable
Procedures from a Participant directing the Trustee to
credit or cause to be credited a beneficial interest in
the Regulation S Global Note in an amount equal to the
beneficial interest in the Rule 144A Global Note to be
exchanged, (2) a written order given in accordance with
the Applicable Procedures containing information
regarding the Participant account of the Depositary and
the Euroclear or Cedel account to be credited with such
increase, and (3) a certificate in the form of Exhibit
B-1 hereto given by the owner of such beneficial
interest stating that the transfer of such interest has
been made in compliance with the transfer restrictions
applicable to the
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Global Notes and pursuant to and in accordance with Rule
903 or Rule 904 of Regulation S, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or
cause to be reduced the aggregate principal amount at
maturity of the applicable Rule 144A Global Note and to
increase or cause to be increased the aggregate
principal amount at maturity of the applicable
Regulation S Global Note by the principal amount at
maturity of the beneficial interest in the Rule 144A
Global Note to be exchanged or transferred, to credit or
cause to be credited to the account of the Person
specified in such instructions, a beneficial interest in
the Regulation S Global Note equal to the reduction in
the aggregate principal amount at maturity of the Rule
144A Global Note, and to debit, or cause to be debited,
from the account of the Person making such exchange or
transfer the beneficial interest in the Rule 144A Global
Note that is being exchanged or transferred.
(ii) Regulation S Global Note to Rule 144A Global Note. It,
at any time, after the expiration of the 40-day
restricted period, an owner of a beneficial interest in
a Regulation S Global Note deposited with the Depositary
or with the Trustee as custodian for the Depositary
wishes to transfer its beneficial interest in such
Regulation S Global Note to a Person who is required or
permitted to take delivery thereof in the form of an
interest in a Rule l44A Global Note, such owner shall,
subject to the Applicable Procedures, exchange or cause
the exchange of such interest for an equivalent
beneficial interest in a Rule 144A Global Note as
provided in this Section 2.6(a)(ii). Upon receipt by the
Trustee of (1) instructions from Euroclear or Cedel, if
applicable, and the Depositary, directing the Trustee,
as Registrar, to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note equal
to the beneficial interest in the Regulation S Global
Note to be exchanged, such instructions to contain
information regarding the Participant account with the
Depositary to be credited with such increase, (2) a
written order given in accordance with the Applicable
Procedures containing information regarding the
participant account of the Depositary and (3) a
certificate in the form of EXHIBIT B-2 attached hereto
given by the owner of such beneficial interest stating
(A) if the transfer is pursuant to Rule 144A, that the
Person transferring such interest in a Regulation S
Global Note reasonably believes that the Person
acquiring such interest in a Rule 144A Global Note is a
QIB and is obtaining such beneficial interest in a
transaction meeting the requirements of Rule 144A and
any applicable blue sky or securities laws of any state
of the United States, (B) that the transfer complies
with the requirements of Rule 144 under the Securities
Act, (C) if the
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transfer is to an Institutional Accredited Investor that
such transfer is in compliance with the Securities Act
and a certificate in the form of EXHIBIT C attached
hereto and, if such transfer is in respect of an
aggregate principal amount of less than $250,000, an
Opinion of Counsel acceptable to Holdings that such
transfer is in compliance with the Securities Act or (D)
if the transfer is pursuant to any other exemption from
the registration requirements of the Securities Act,
that the transfer of such interest has been made in
compliance with the transfer restrictions applicable to
the Global Notes and pursuant to and in accordance with
the requirements of the exemption claimed, such
statement to be supported by an Opinion of Counsel from
the transferee or the transferor in form reasonably
acceptable to Holdings and to the Registrar and in each
case, in accordance with any applicable securities laws
of any state of the United States or any other
applicable jurisdiction, then the Trustee, as Registrar,
shall instruct the Depositary to reduce or cause to be
reduced the aggregate principal amount at maturity of
such Regulation S Global Note and to increase or cause
to be increased the aggregate principal amount at
maturity of the applicable Rule 144A Global Note by the
principal amount at maturity of the beneficial interest
in the Regulation S Global Note to be exchanged or
transferred, and the Trustee, as Registrar, shall
instruct the Depositary, concurrently with such
reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a
beneficial interest in the applicable Rule 144A Global
Note equal to the reduction in the aggregate principal
amount at maturity of such Regulation S Global Note and
to debit or cause to be debited from the account of the
Person making such transfer the beneficial interest in
the Regulation S Global Note that is being exchanged or
transferred.
(b) Transfer and Exchange of Definitive Notes. When Definitive
Notes are presented by a Holder to the Registrar with a request to register the
transfer of the Definitive Notes or to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested only
if the Definitive Notes are presented or surrendered for registration of
transfer or exchange, are endorsed and contain a signature guarantee or
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney and contains a
signature guarantee, duly authorized in writing and the Registrar received the
following documentation (all of which may be submitted by facsimile):
(i) in the case of Definitive Notes that are Transfer
Restricted Securities, such request shall be accompanied
by the following additional information and documents,
as applicable:
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(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, or such Transfer Restricted Security is
being transferred to Holdings or any of its
Subsidiaries, a certification to that effect from
such Holder (in substantially the form of EXHIBIT
B-3 hereto); or
(B) if such Transfer Restricted Security is being
transferred to a QIB in accordance with Rule 144A
under the Securities Act or pursuant to an
exemption from registration in accordance with
Rule 144 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-3 hereto); or
(C) if such Transfer Restricted Security is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 904 under the
Securities Act, a certification to that effect
from such Holder (in substantially the form of
EXHIBIT B-3 hereto);
(D) if such Transfer Restricted Security is being
transferred to an Institutional Accredited
Investor in reliance on an exemption from the
registration requirements of the Securities Act
other than those listed in subparagraphs (B) and
(C) above, a certification to that effect from
such Holder (in substantially the form of EXHIBIT
B-3 hereto), a certification substantially in the
form of EXHIBIT C hereto, and, if such transfer is
in respect of an aggregate principal amount of
Notes of less than $250,000, an Opinion of Counsel
acceptable to Holdings that such transfer is in
compliance with the Securities Act; or
(E) if such Transfer Restricted Security is being
transferred in reliance on any other exemption
from the registration requirements of the
Securities Act, a certification to that effect
from such Holder (in substantially the form of
EXHIBIT B-3 hereto) and an Opinion of Counsel from
such Holder or the transferee reasonably
acceptable to Holdings and to the Registrar to the
effect that such transfer is in compliance with
the Securities Act.
(c) Transfer of a Beneficial Interest in a Rule 144A Global
Note or Regulation S Permanent Global Note for a Definitive Note.
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(i) Any Person having a beneficial interest in a Rule 144A
Global Note or Regulation S Permanent Global Note may
upon request, subject to the Applicable Procedures,
exchange such beneficial interest for a Definitive Note.
Upon receipt by the Trustee of written instructions or
such other form of instructions as is customary for the
Depositary (or Euroclear or Cedel, if applicable), from
the Depositary or its nominee on behalf of any Person
having a beneficial interest in a Rule 144A Global Note
or Regulation S Permanent 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 from such Person (in substantially the
form of EXHIBIT B-4 hereto);
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 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-4 hereto);
(C) if such beneficial interest is being transferred
to an Institutional Accredited Investor, pursuant
to a private placement exemption from the
registration requirements of the Securities Act
(and based on an opinion of counsel if Holdings so
requests), a certification to that effect from
such Holder (in substantially the form of EXHIBIT
B-4 hereto) and a certificate from the applicable
transferee (in substantially the form of EXHIBIT C
hereto); or
(D) if such beneficial interest is being transferred
in reliance on any other exemption from the
registration requirements of the Securities Act, a
certification to that effect from the transferor
(in substantially the form of Exhibit B-4 hereto)
and an Opinion of Counsel from the transferee or
the transferor reasonably acceptable to Holdings
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 Rule 144A Global
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Notes or Regulation S Permanent Global Notes, as
applicable, to be reduced accordingly and,
following such reduction, Holdings shall execute
and, the Trustee shall authenticate and deliver to
the transferee a Definitive Note in the
appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial
interest in a Rule 144A Global Note or Regulation S
Permanent Global Note, as applicable, pursuant to this
Section 2.6(c) 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 Definitive Notes to the
Persons in whose names such Notes are so registered.
Following any such issuance of Definitive Notes, the
Trustee, as Registrar, shall instruct the Depositary to
reduce or cause to be reduced the aggregate principal
amount at maturity of the applicable Global Note to
reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (g) of this Section 2.6), 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.
(e) Transfer and Exchange of a Definitive Note for Beneficial
Interests in a Global Note. A Definitive Note may not be transferred or
exchanged for a beneficial interest in a Global Note.
(f) Authentication of Definitive Notes in Absence of
Depositary. If at any time:
(i) the Depositary for the Notes notifies Holdings 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
Holdings within 90 days after delivery of such notice;
or
(ii) Holdings, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of
Definitive Notes under this Indenture,
then Holdings shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2 hereof, authenticate and
deliver, Definitive Notes in an aggregate
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principal amount equal to the principal amount of the Global Notes in exchange
for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Note certificate evidencing Global
Notes and Definitive Notes (and all Notes issued in
exchange therefor or substitution thereof) shall bear
the legend (the "Private Placement Legend") in
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
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 HOLDINGS THAT (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
INSIDE THE UNITED STATES TO A PERSON WHO 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, (b)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES
TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (d)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(l), (2), (3) OR (7) OF THE SECURITIES ACT
(AN "INSTITUTIONAL ACCREDITED INVESTOR"), THAT PRIOR TO
SUCH TRANSFER, FURNISHED THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SECURITIES LESS THAN $250,000,
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AN OPINION OF COUNSEL ACCEPTABLE TO HOLDINGS THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR
(e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND, IN
THE CASE OF CLAUSE (b), (c), (d) OR (e), BASED UPON AN
OPINION OF COUNSEL IF HOLDINGS SO REQUESTS), (2) TO
HOLDINGS OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(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 Definitive Note, the Registrar shall
permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Note
that does not bear the legend set forth in (i)
above and rescind any restriction on the transfer
of such Transfer Restricted Security upon receipt
of a certification from the transferring holder
substantially in the form of EXHIBIT B-4 hereto;
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 2.6(a) and (b) 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 Definitive Note
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-4 hereto).
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(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security
represented by a Global Note) in reliance on any
exemption from the registration requirements of the
Securities Act (other than exemptions pursuant to Rule
144A or Rule 144 under the Securities Act) in which the
Holder or the transferee provides an Opinion of Counsel
to Holdings and the Registrar in form and substance
reasonably acceptable to Holdings and the Registrar
(which Opinion of Counsel shall also state that the
transfer restrictions contained in the legend are no
longer applicable):
(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall
permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Note
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 2.6(a) and (b) hereof.
(iv) Notwithstanding the foregoing, upon the consummation of
the Exchange Offer in accordance with the Registration
Rights Agreement, Holdings shall issue and, upon receipt
of an authentication order in accordance with Section
2.2 hereof, the Trustee shall authenticate (i) one or
more Unrestricted Global Notes in aggregate principal
amount equal to the principal amount of the Restricted
Beneficial Interests tendered for acceptance by persons
that are not (x) broker-dealers, (y) Persons
participating in the distribution of the Notes or (z)
Persons who are affiliates (as defined in Rule 144) of
Holdings and accepted for exchange in the Exchange Offer
and (ii) Definitive Notes that do not bear the Private
Placement Legend in an aggregate principal amount equal
to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the
Trustee shall cause the aggregate principal amount of
the applicable Restricted Global Notes to be reduced
accordingly and Holdings shall execute and the Trustee
shall authenticate and deliver to the Persons designated
by the Holders of Definitive Notes so accepted
Definitive Notes in the appropriate principal amount.
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(h) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in Global Notes have been exchanged for
Definitive Notes, redeemed, repurchased or cancelled, all Global Notes shall be
returned to or retained and cancelled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for Definitive Notes, redeemed, repurchased or
cancelled, 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 Notes Custodian, at the direction of the Trustee, to reflect
such reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
Holdings shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes at the
Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but Holdings may
require payment of a sum sufficient to cover any stamp
or transfer tax or similar governmental charge payable
in connection therewith (other than any such stamp or
transfer taxes or similar governmental charge payable
upon exchange or transfer pursuant to Sections 2.10,
3.6, 4.10, 4.14 and 9.5 hereto).
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of
Holdings, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Global Notes
or Definitive Notes surrendered upon such registration
of transfer or exchange.
(iv) The Registrar shall not be required: (A) to issue, to
register the transfer of or to exchange Notes during a
period beginning at the opening of fifteen (15) Business
Days before the day of any selection of Notes for
redemption under Section 3.2 hereof and ending at the
close of business on the day of selection, (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.
(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and
Holdings 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 and
interest on such Notes and for all other purposes, and
neither
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the Trustee, any Agent nor Holdings shall be affected by
notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of
Section 2.2 hereof.
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or Holdings and
the Trustee receives evidence to their satisfaction of the destruction, loss or
theft of any Note, Holdings shall issue and the Trustee, upon the written order
of Holdings signed by an Officer of Holdings, shall authenticate a replacement
Note if the Trustee's requirements are met. If required by the Trustee or
Holdings, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and Holdings to protect Holdings, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Note is replaced. Holdings and the Trustee may charge for their expenses in
replacing a Note.
Every replacement Note is an additional obligation of Holdings and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.8. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled 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 2.8 as not outstanding. Except as set forth in Section 2.9 hereof, a
Note does not cease to be outstanding because Holdings or an Affiliate of
Holdings holds the Note.
If a Note is replaced pursuant to Section 2.7 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.
If the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than Holdings, a Subsidiary or an
Affiliate of any 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 2.9. 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
Holdings, or by any Affiliate of Holdings shall be considered as though not
outstanding, except that for the purposes of
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determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes shown on the Trustee's register as
being owned shall be so disregarded. Notwithstanding the foregoing, Notes that
are to be acquired by Holdings or an Affiliate of Holdings pursuant to an
exchange offer, tender offer or other agreement shall not be deemed to be owned
by such entity until legal title to such Notes passes to such entity.
SECTION 2.10. TEMPORARY NOTES.
Until Definitive Notes are ready for delivery, Holdings may prepare
and the Trustee shall authenticate temporary Notes upon a written order of
Holdings signed by an Officer of Holdings. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that
Holdings considers appropriate for temporary Notes. Without unreasonable delay,
Holdings shall prepare and the Trustee shall upon receipt of a written order of
Holdings signed by an Officer authenticate Definitive Notes in exchange for
temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
SECTION 2.11. CANCELLATION.
Holdings at any time may deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder or which Holdings may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. All Notes surrendered for registration of
transfer, exchange or payment, if surrendered to any Person other than the
Trustee, shall be delivered to the Trustee. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation. Subject to Section 2.7 hereof, Holdings may not
issue new Notes to replace Notes that it has redeemed or paid or that have been
delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
Holdings, unless by a written order, signed by an Officer of Holdings, Holdings
shall direct that cancelled Notes be returned to It.
SECTION 2.12. DEFAULTED INTEREST.
If Holdings 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 (5) Business Days prior to the payment
date, in each case at the rate provided in the Notes and in Section 4.1 hereof.
Holdings shall fix or cause to be fixed each such special record date and
payment date, and shall promptly thereafter, notify the Trustee of any such
date. At least fifteen (15) days before the special record date, Holdings (or
the Trustee, in the name and at the expense of Holdings) shall mail or cause to
be mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
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SECTION 2.13. 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
SECTION 2.14. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 2.15. CUSIP NUMBER.
Holdings in issuing the Notes may use a "CUSIP" number, and if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes. Holdings shall
promptly notify the Trustee of any change in the CUSIP number.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.1. NOTICES TO TRUSTEE.
If Holdings elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, it shall furnish to the Trustee, at
least 45 days but not more than 60 days before a redemption date (unless a
shorter period is acceptable to the Trustee) 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 Holdings is required to make an offer to purchase Notes pursuant
to Section 4.10 or 4.14 hereof, it shall furnish to the Trustee, at least 45
days before the scheduled purchase date, an Officers' Certificate setting forth
(i) the section of this Indenture pursuant to which the offer to purchase shall
occur, (ii) the terms of the offer, (iii) the principal amount of Notes to be
purchased, (iv) the purchase price, (v) the purchase date and (vi) and further
setting forth a statement to the effect that (a) Holdings or one its
Subsidiaries has affected an Asset Sale and there are Excess Proceeds
aggregating more than $15.0 million or (b) a Change of Control has occurred, as
applicable.
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED OR PURCHASED.
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption will be made by the Trustee in compliance with
the requirements of the principal national securities exchange, if any, on which
the Notes are listed, or, if the Notes are not so listed, on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and
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appropriate; provided that no Notes of $1,000 or less shall be redeemed in part.
Notices of redemption shall be mailed by first class mail at least 30 but not
more than 60 days before the redemption date to each Holder of Notes to be
redeemed at its registered address. Notices of redemption may not be
conditional. 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. A new Note in principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note. Notes called for redemption become due on the
date fixed for redemption. On and after the redemption date, interest ceases to
accrue on Notes or portions of them called for redemption.
SECTION 3.3. NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
Holdings shall mail or cause to be mailed by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Notes and accrued
interest, and Liquidated Damages, if any;
(3) if any Note is being redeemed in part, the portion
of the principal amount of such Notes to be
redeemed and 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 upon surrender of the original
Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be
surrendered to the Paying Agent to collect the
redemption price;
(6) that, unless Holdings defaults in making such
redemption payment, interest and Liquidated
Damages, if any, on Notes called for redemption
ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(8) 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.
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At Holdings' request, the Trustee shall give the notice of
redemption in Holdings' name and at Holdings' expense; provided, however, that
Holdings shall have delivered to the Trustee, at least 45 days prior to the
redemption date (or such shorter period as shall be acceptable to the Trustee),
an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in the notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note shall not affect the validity of the
proceeding for the redemption of any other Note.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price plus accrued and unpaid interest and
Liquidated Damages, if any, to such date. A notice of redemption may not be
conditional.
SECTION 3.5. DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or before 10:00 a.m. (New York City time) on each redemption date
or the date on which Notes must be accepted for purchase pursuant to Section
4.10 or 4.14, Holdings shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption price of and accrued and unpaid interest
and Liquidated Damages, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent shall promptly return to Holdings upon its
written request any money deposited with the Trustee or the Paying Agent by
Holdings in excess of the amounts necessary to pay the redemption price of
(including any applicable premium), accrued interest and Liquidated Damages, if
any, on all Notes to be redeemed or purchased.
If Notes called for redemption or tendered in an Asset Sale Offer or
Change of Control Offer are paid or if Holdings has deposited with the Trustee
or Paying Agent money sufficient to pay the redemption or purchase price of,
unpaid and accrued interest and Liquidated Damages, if any, on all Notes to be
redeemed or purchased, on and after the redemption or purchase date interest and
Liquidated Damages, if any, shall cease to accrue on the Notes or the portions
of Notes called for redemption or tendered and not withdrawn in an Asset Sale
Offer or Change of Control Offer (regardless of whether certificates for such
securities are actually surrendered). If a Note is redeemed or purchased on or
after an interest record date but on or prior to the related interest payment
date, then any accrued and unpaid interest and Liquidated Damages, if any, shall
be paid to the Person in 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 Holdings to comply
with the preceding paragraph, interest shall be paid on the unpaid principal and
Liquidated Damages, if any, from the redemption or purchase date until such
principal and Liquidated Damages, if any, 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 4.1 hereof.
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SECTION 3.6. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, Holdings shall
issue and, upon Holdings' written request, the Trustee shall authenticate for
the Holder at the expense of Holdings a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
SECTION 3.7. OPTIONAL REDEMPTION.
(a) Except as set forth in the next paragraph, the Notes will
not be redeemable at Holdings' option prior to March 15, 2003. Thereafter, the
Notes will be subject to redemption at any time at the option of Holdings, in
whole or in part, upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on March 15 of the years indicated below:
Year Percentage
2003 ........................................ 105.625%
2004 ........................................ 103.750%
2005 ........................................ 101.875%
2006 and thereafter ......................... 100.000%
(b) Notwithstanding the foregoing, at any time prior to March
15, 2003 Holdings may redeem the Notes, in whole but not in part, at the option
of Holdings, at a redemption price of 111.25% of the Accreted Value (determined
at the date of redemption), with the net cash proceeds of a Public Equity
Offering; provided that such redemption shall occur within 45 days of the date
of the closing of such Public Equity Offering.
SECTION 3.8. MANDATORY REDEMPTION.
Except as set forth under Sections 3.9, 4.10 and 4.14 hereof,
Holdings shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
SECTION 3.9. REPURCHASE OFFERS.
In the event that Holdings shall be required to commence an offer to
all Holders to repurchase Notes (a "Repurchase Offer") pursuant to Section 4.10
hereof, an "Excess Proceeds Offer," or pursuant to Section 4.14 hereof, a
"Change of Control Offer," Holdings shall follow the procedures specified below.
A Repurchase Offer shall commence no earlier than 30 days and no
later than 60 days after a Change of Control (unless Holdings is not required to
make such offer pursuant to Section 4.14(c) hereof) or an Excess Proceeds Offer
Triggering Event (as defined below), as the case may be, and remain open for a
period of twenty (20) Business Days following its commencement and no longer,
except to the extent that a longer period is required by applicable
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law (the "Offer Period"). No later than five (5) Business Days after the
termination of the Offer Period (the "Purchase Date"), Holdings shall purchase
the principal amount of Notes required to be purchased pursuant to Section 4.10
hereof, in the case of an Excess Proceeds Offer, or 4.14 hereof, in the case of
a Change of Control Offer (the "Offer Amount") or, if less than the Offer Amount
has been tendered, all Notes tendered in response to the Repurchase 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 and
Liquidated Damages, if any, 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 or Liquidated Damages, if any, shall be payable to Holders who tender
Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, Holdings shall send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to such Repurchase
Offer. The Repurchase Offer shall be made to all Holders. The notice, which
shall govern the terms of the Repurchase Offer, shall describe the transaction
or transactions that constitute the Change of Control or Excess Proceeds Offer
Triggering Event, as the case may be and shall state:
(a) that the Repurchase Offer is being made pursuant to this Section
3.9 and Section 4.10 or 4.14 hereof, as the case may be, and the
length of time the Repurchase 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 Holdings defaults in making such payment, any Note
accepted for payment pursuant to the Repurchase Offer shall cease to
accrue interest and Liquidated Damages, if any, after the Purchase
Date;
(e) that Holders electing to have a Note purchased pursuant to a
Repurchase Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note, duly completed, or transfer by book-entry transfer, to
Holdings, the Depositary, or the Paying Agent at the address
specified in the notice not later than the close of business on the
last day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if
Holdings, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
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delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes surrendered by
Holders exceeds the Offer Amount, Holdings shall select the Notes to
be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by Holdings so that only Notes in denominations
of $1,000, or integral multiples thereof, shall be purchased); and
(h) 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 10:00 a.m. (New York City time) on each Purchase Date,
Holdings shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount, together with accrued and
unpaid interest and Liquidated Damages, if any, thereon, to be held for payment
in accordance with the terms of this Section 3.9. On the Purchase Date, Holdings
shall, to the extent lawful, (i) accept for payment, on a pro rata basis to the
extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, (ii) deliver or cause the Paying Agent or
depository, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by Holdings in accordance with the
terms of this Section 3.9. Holdings, the Depositary or the Paying Agent, as the
case may be, shall promptly (but in any case not later than three (3) 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
Holdings for purchase, plus any accrued and unpaid interest and Liquidated
Damages, if any, thereon, and Holdings shall promptly issue a new Note, and the
Trustee, shall authenticate and mail or deliver such new Note, to such Holder,
equal in principal amount to any unpurchased portion of such Holder's Notes
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
Holdings to the Holder thereof. Holdings shall publicly announce in a newspaper
of general circulation or in a press release provided to a nationally recognized
financial wire service the results of the Repurchase Offer on the Purchase Date.
Other than as specifically provided in this Section 3.9, any
purchase pursuant to this Section 3.9 shall be made pursuant to the provisions
of Sections 3.1, 3.2, 3.5 and 3.6 hereof.
ARTICLE 4.
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
Holdings shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Holdings shall pay all Liquidated Damages, if any, in the same manner on
the dates and in the amounts set forth in
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the Registration Rights Agreement. Principal, premium and Liquidated Damages, if
any, and interest, shall be considered paid for all purposes hereunder on the
date the Paying Agent if other than Holdings or a Subsidiary thereof holds, as
of 10:00 a.m. (New York City time) money deposited by Holdings in immediately
available funds and designated for and sufficient to pay all such principal,
premium and Liquidated Damages, if any, and interest, then due.
Holdings 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; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
Holdings shall maintain in the Borough of Manhattan, the City of New
York an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee or Registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon Holdings in
respect of the Notes and this Indenture may be served. Holdings 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 Holdings 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.
Holdings 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
Holdings of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. Holdings 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.
Holdings hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of Holdings in accordance with Section 2.3 hereof.
SECTION 4.3. COMMISSION REPORTS.
From and after the earlier of the effective date of the Exchange
Offer Registration Statement or the effective date of the Shelf Registration
Statement, whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, Holdings 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 and
10-K if Holdings 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 Holdings'
certified independent accountants and (ii) all current reports that
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would be required to be filed with the Commission on Form 8-K if Holdings were
required to file such reports. In addition, whether or not required by the rules
and regulations of the Commission, Holdings 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) within the time periods that would
have been applicable had Holdings been subject to such rules and regulations and
make such information available to securities analysts and prospective investors
upon request. In addition, Holdings has agreed that, for so long as any Notes
remain outstanding, it shall furnish to the Holders, 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. Holdings shall
at all times comply with TIA ss. 314(a).
The financial information to be distributed to Holders of Notes
shall be filed with the Trustee and mailed to the Holders at their addresses
appearing in the register of Notes maintained by the Registrar, within 90 days
after the end of Holdings' fiscal years and within 45 days after the end of each
of the first three quarters of each such fiscal year.
Holdings shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information and, if requested by
Holdings, the Trustee will deliver such reports to the Holders under this
Section 4.3.
SECTION 4.4. COMPLIANCE CERTIFICATE.
Holdings shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of Holdings 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 (including, with respect to any Restricted
Payments made during such year, the basis upon which the calculations required
by Section 4.7 hereof were computed, which calculations may be based on
Holdings' latest available financial statements), and further stating, as to
each such Officer signing such certificate, that, to the best of his or her
knowledge, each entity 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 Holdings 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 or
Liquidated Damages, if any, or interest on the Notes is prohibited or if such
event has occurred, a description of the event and what action Holdings is
taking or proposes to take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, in connection with the
year-end financial statements delivered pursuant to Section 4.3 hereof, Holdings
shall use its best efforts to deliver a written statement of Holdings'
independent public accountants (who shall be a firm of established national
reputation) 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 Holdings has
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violated any provisions of Article Four or Section 5.1 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. In the event that such written statement of Holdings' independent
public accountants cannot be obtained, Holdings shall deliver an Officers'
Certificate certifying that it has used its best efforts to obtain such
statements and was unable to do so.
Holdings 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 Holdings is taking or proposes to take with respect
thereto.
SECTION 4.5. TAXES.
Holdings shall pay, 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 and
with respect to which appropriate reserves have been taken in accordance with
GAAP.
SECTION 4.6. STAY, EXTENSION AND USURY LAWS.
Holdings 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 Holdings (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 4.7. RESTRICTED PAYMENTS.
From and after the date hereof Holdings shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly: (i)
declare or pay any dividend or make any other payment or distribution on account
of Holdings' or any of its Restricted Subsidiaries' Equity Interests (including,
without limitation, any payment in connection with any merger or consolidation
involving Holdings) or to the direct or indirect holders of Holdings' or any of
its Restricted Subsidiaries' Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of Holdings); (ii) purchase, redeem or otherwise acquire or
retire for value (including without limitation, in connection with any merger or
consolidation involving Holdings) any Equity Interests of Holdings or any direct
or indirect parent of Holdings; (iii) make any payment on or with respect to, or
purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness of Holdings that is pari passu with or subordinated to the Notes
(other than Notes), except a payment of interest or principal at Stated
Maturity; or (iv) make any Restricted Investment (all
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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) Holdings 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
Section 4.9 hereof; and
(c) such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by Holdings and its Subsidiaries after
the date hereof (excluding Restricted Payments permitted by clause (ii)
and (iii) of the next succeeding paragraph), is less than the sum of (i)
50% of the Consolidated Net Income of Holdings for the period (taken as
one accounting period) from the beginning of the first fiscal quarter
commencing after the date of the Indenture to the end of Holdings' 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 Holdings from the
issue or sale since the date of the Indenture of Equity Interests of
Holdings (other than Disqualified Stock) or of Disqualified Stock or debt
securities of Holdings that have been converted into such Equity Interests
(other than Equity Interests (or Disqualified Stock or convertible debt
securities) sold to a Subsidiary of Holdings and other than Disqualified
Stock or convertible debt securities that have been converted into
Disqualified Stock), plus (iii) to the extent that any Restricted
Investment that was made after the date of the Indenture 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) if any Unrestricted Subsidiary (A) is redesignated as
a Restricted Subsidiary, the fair market value of such redesignated
Subsidiary (as determined in good faith by the Board of Directors) as of
the date of its redesignation or (B) pays any cash dividends or cash
distributions to Holdings or any of its Restricted Subsidiaries, 50% of
any such cash dividends or cash distributions made after the date hereof.
The foregoing provisions shall not prohibit (i) 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 hereof; (ii)
the redemption, repurchase, retirement, defeasance or other acquisition of any
pari passu or subordinated Indebtedness or Equity Interests of Holdings in
exchange for, or out of the net cash proceeds of the substantially concurrent
sale or issuance (other than to a Restricted Subsidiary of Holdings) of, other
Equity Interests of Holdings (other than any Disqualified Stock); provided that
the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition shall be
excluded from clause (c)(ii) of the preceding paragraph; (iii) the defeasance,
redemption,
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repurchase or other acquisition of pari passu or subordinated Indebtedness with
the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the payment of any dividend by a Restricted Subsidiary of Holdings to the
holders of its Equity Interests on a pro rata basis; (v) the declaration or
payment of dividends to Xxxxxxx for expenses incurred by Xxxxxxx in its capacity
as a holding company that are attributable to the operations of Holdings and its
Restricted Subsidiaries, including, without limitation, (a) customary salary,
bonus and other benefits payable to officers and employees of Xxxxxxx, (b) fees
and expenses paid to members of the Board of Directors of Xxxxxxx, (c) general
corporate overhead expenses of Xxxxxxx, (d) foreign, federal, state or local tax
liabilities paid by Xxxxxxx, (e) management, consulting or advisory fees paid to
Xxxxxxx not to exceed $2.0 million in any fiscal year, and (f) the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of Holdings or Xxxxxxx held by any member of Holdings' (or any of its Restricted
Subsidiaries') management pursuant to any management equity subscription
agreement or stock option agreement in effect as of the date of the Indenture;
provided, however, the aggregate amount paid pursuant to the foregoing clauses
(a) through (f) does not exceed $8.0 million in any fiscal year; (vi)
Investments in any Person (other than Holdings or a Wholly-Owned Restricted
Subsidiary) engaged in a Permitted Business in an amount taken together with all
other Investments made pursuant to this clause (vi) that are at the time
outstanding not to exceed $5.0 million; (vii) other Investments in Unrestricted
Subsidiaries having an aggregate fair market value, taken together with all
other Investments made pursuant to this clause (vii) that are at that time
outstanding, not to exceed $2.0 million; (viii) payments to Xxxxxxx pursuant to
the tax sharing agreement among Xxxxxxx and other members of the affiliated
corporations of which Xxxxxxx is the common parent; (ix) the designation of
certain of the Company's Subsidiaries as Unrestricted Subsidiaries immediately
prior to the date of the Indenture; (x) the redemption in connection with the
Transactions of the preferred stock of the Company held by Xxxxxxx; (xi) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of Holdings or the Company held by any member of Holdings' or
the Company's (or any of their Restricted Subsidiaries') management pursuant to
any management equity subscription agreement or stock option agreement or in
connection with the termination of employment of any employees or management of
Holdings or the Company or their Subsidiaries; provided that the aggregate price
paid for all such repurchased, redeemed, acquired or retired Equity Interests
shall not exceed $2.0 million in the aggregate plus the aggregate cash proceeds
received by Holdings or the Company after the date of the Indenture from any
reissuance of Equity Interests by Holdings or the Company to members of
management of Holdings or the Company and their Restricted Subsidiaries; and
(xii) other Restricted Payments in an aggregate amount not to exceed $10.0
million.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default;
provided that in no event shall the business currently operated by the Company
be transferred to or held by an Unrestricted Subsidiary. For purposes of making
such determination, all outstanding Investments by Holdings and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated will be deemed to be Restricted Payments at the time of such
designation and will reduce the amount available for Restricted Payments under
the first paragraph of this covenant. All such outstanding Investments will be
deemed to constitute Investments in an amount equal to
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the fair market value of such Investments at the time of such designation (as
determined in good faith by the Board of Directors). Such designation shall only
be permitted if such Restricted Payment would be permitted at such time and if
such Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by Holdings or such Subsidiary,
as the case may be, pursuant to the Restricted Payment. The fair market value of
any non-cash Restricted Payment shall be determined in good faith by the Board
of Directors whose resolution with respect thereto shall be delivered to the
Trustee such determination to be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if such
fair market value exceeds $10.0 million. Not later than the date of making any
Restricted Payment, Holdings 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, together with a copy of any fairness opinion or
appraisal required by the Indenture.
SECTION 4.8. DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES.
Holdings shall not, and shall not permit any of its Restricted
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
Restricted Subsidiary to (i)(a) pay dividends or make any other distributions to
Holdings or any of its Restricted 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 Holdings or any of its Restricted
Subsidiaries, (ii) make loans or advances to Holdings or any of its Restricted
Subsidiaries or (iii) transfer any of its properties or assets to Holdings or
any of its Restricted Subsidiaries, except for such encumbrances or restrictions
existing under or by reason of (a) Existing Indebtedness as in effect on the
date hereof, (b) the New Credit Facility as in effect as of the date hereof, and
any amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive in the aggregate (as
determined by the Credit Agent in good faith) with respect to such dividend and
other payment restrictions than those contained in the New Credit Facility as in
effect on the date hereof, (c) this Indenture and the Notes, (d) any applicable
law, rule, regulation or order, (e) any instrument governing Indebtedness or
Capital Stock of a Person acquired by Holdings or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms hereof 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
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Indebtedness, provided that the material restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are no more
restrictive than those contained in the agreements governing the Indebtedness
being refinanced (i) contracts for the sale of assets, including without
limitation customary restrictions with respect to a Subsidiary pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary, and (j)
restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business.
SECTION 4.9. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
Holdings shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and Holdings
will not issue any Disqualified Stock and will not permit any of its
Subsidiaries to issue any shares of preferred stock; provided, however, that
Holdings may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock if the Fixed Charge Coverage Ratio for Holdings' 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 2.0 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 provisions of the first paragraph of this covenant will not
apply to the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
(i) the incurrence by the Restricted Subsidiaries of Holdings of
revolving indebtedness and letters of credit pursuant to New Credit Facility;
provided that the aggregate principal amount of all revolving Indebtedness (with
letters of credit being deemed to have a principal amount equal to the maximum
potential liability of the Restricted Subsidiaries of Holdings thereunder)
outstanding under the New Credit Facility after giving effect to such incurrence
does not exceed $40.0 million less the aggregate amount of all Net Proceeds of
Asset Sales applied to permanently repay revolving credit Indebtedness under the
New Credit Facility (to the extent accompanied by a corresponding commitment
reduction) pursuant to Section 4.10 hereof;
(ii) the incurrence by Holdings and its Restricted Subsidiaries of
the Existing Indebtedness;
(iii) the incurrence by Holdings and its Restricted Subsidiaries of
Indebtedness represented by the Notes offered in the Offering, the Senior
Subordinated Notes and the Senior Subordinated Note Guarantees;
(iv) the incurrence by Holdings or any of its Restricted
Subsidiaries 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
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price or cost of construction or improvement of property, plant or equipment
used in the business of Holdings or such Restricted Subsidiary (whether through
the direct purchase of assets or the Capital Stock of any Person owning such
Assets), in an aggregate principal amount not to exceed $7.5 million;
(v) the incurrence by Holdings or any of its Restricted Subsidiaries
of Indebtedness in connection with the acquisition of assets or a new Restricted
Subsidiary; provided that such Indebtedness was incurred by the prior owner of
such assets or such Restricted Subsidiary prior to such acquisition by Holdings
or one of its Subsidiaries and was not incurred in connection with, or in
contemplation of, such acquisition by Holdings or one of it Subsidiaries;
provided further that 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 $5.0 million;
(vi) the incurrence by Holdings or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance or replace Indebtedness that was
permitted by this Indenture to be incurred under the first paragraph hereof and
clauses (i), (ii), (iii), (iv), (v) or (xv) of this Section 4.9;
(vii) the incurrence by Holdings or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among Holdings and any of
its Wholly Owned Restricted Subsidiaries of Holdings or the Company; provided,
however, that (i) if Holdings is the obligor, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Notes and (ii)(A) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person other
than Holdings or a Wholly Owned Restricted Subsidiary of Holdings and (B) any
sale or other transfer of any such Indebtedness to a Person that is not either
Holdings or a Wholly Owned Restricted Subsidiary of Holdings shall be deemed, in
each case, to constitute an incurrence of such Indebtedness by Holdings or such
Restricted Subsidiary, as the case may be;
(viii) the incurrence by Holdings or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing
or hedging currency risk or interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be outstanding;
(ix) the guarantee by Holdings or any of its Restricted Subsidiaries
of Indebtedness of Holdings or a Restricted Subsidiary of Holdings that was
permitted to be incurred by another provision of this covenant;
(x) the incurrence by Holdings' Unrestricted Subsidiaries of
Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to
constitute an incurrence of Indebtedness by a Restricted Subsidiary of Holdings
not permitted by this clause (x);
(xi) indebtedness incurred by Holdings or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters of
credit issued in the ordinary
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course of business, including without limitation to letters of credit in respect
to workers' compensation claims or self-insurance, or other Indebtedness with
respect to reimbursement type obligations regarding workers' compensation
claims; provided, however, that upon the drawing of such letters of credit or
the incurrence of such Indebtedness, such obligations are reimbursed within 30
days following such drawing or incurrence;
(xii) Indebtedness arising from agreements of Holdings or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, asset or a Subsidiary, other than
guarantees of Indebtedness incurred by any Person acquiring all or any portion
of such business, assets or a Subsidiary for the purpose of financing such
acquisition; provided that the maximum aggregate liability of all such
Indebtedness shall at no time exceed 50% of the gross proceeds actually received
by Holdings and its Restricted Subsidiaries in connection with such disposition;
(xiii) obligations in respect of performance and surety bonds and
completion guarantees provided by Holdings or any Restricted Subsidiary in the
ordinary course of business;
(xiv) guarantees incurred in the ordinary course of business in an
aggregate principal amount not to exceed $5.0 million; and
(xv) the incurrence by Holdings or any of its Restricted
Subsidiaries of additional Indebtedness, including Attributable Debt incurred
after the date of the Indenture, in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any other
Indebtedness incurred pursuant to this clause (xv), not to exceed $35.0 million.
For purposes of determining compliance with this covenant, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xv) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.9,
Holdings shall, in its sole discretion, classify such item of Indebtedness in
any manner that complies with this Section 4.9 and such item of Indebtedness
will be treated as having been incurred pursuant to only one of such clauses or
pursuant to the first paragraph hereof. Accrual of interest and the accretion of
accreted value will not be deemed to be an incurrence of Indebtedness for
purposes of this Section 4.9.
SECTION 4.10. ASSETS SALES
Holdings will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) Holdings (or the Restricted
Subsidiary, as the case may be) receives consideration at the time of such Asset
Sale at least equal to the fair market value (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 Holdings or
such Restricted Subsidiary is in the form of cash; provided that the amount of
(x) any liabilities (as shown on Holdings' or such Restricted Subsidiary's most
recent balance sheet), of Holdings or any Restricted Subsidiary
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(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 a customary novation agreement that
releases Holdings or such Restricted Subsidiary from further liability and (y)
any securities, notes or other obligations received by Holdings or any such
Restricted Subsidiary from such transferee that are converted by Holdings or
such Restricted Subsidiary into cash within 180 days (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, Holdings may apply such Net Proceeds, at its option, (a) to permanently
repay Senior Debt, (and to correspondingly reduce commitments with respect
thereto in the case of revolving borrowings), or (b) to the acquisition of a
controlling interest in another business, the making of a capital expenditure or
the acquisition of other long-term assets and parking facility agreements, in
each case, in a Permitted Business. Pending the final application of any such
Net Proceeds, Holdings may temporarily reduce the revolving Indebtedness under
the New Credit Facility or otherwise invest such Net Proceeds in any manner that
is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are
not applied or invested as provided in the first sentence of this paragraph will
be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess
Proceeds exceeds $15.0 million, Holdings will be required to make an offer to
all Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the Accreted Value thereof on the
date of purchase (if such date of purchase is prior to March 15, 2003) or 100%
of the principal amount thereof plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase (if such date of purchase is on
or after March 15, 2003), in each case, in accordance with Section 3.9 hereof.
To the extent that the aggregate amount of Notes tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, Holdings may use any remaining
Excess Proceeds for general corporate purposes. If the aggregate principal
amount of Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a pro rata
basis. Upon completion of such offer to purchase, the amount of Excess Proceeds
shall be reset at zero.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
Holdings shall not, and shall not permit any of its Restricted
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 transaction, 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 Holdings or
the relevant Restricted Subsidiary than those that would have been obtained in a
comparable transaction by Holdings or such Restricted Subsidiary with an
unrelated Person and (ii) Holdings delivers to the Trustee (a) with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5.0 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
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Transactions involving aggregate consideration in excess of $10.0 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 the following shall not be deemed
Affiliate Transactions: (n) the Company's lease on behalf of Xxxxxxx of a plane
under arrangements consistent with past practices, (o) the Company's payment of
the fees and expenses of the Offering, (p) on or about the Effective Date, the
Company's cancellation and forgiveness of approximately $4.5 million advance
previously made to Xxxxxxx; (q) any employment agreement entered into by
Holdings or any of its Restricted Subsidiaries in the ordinary course of
business and consistent with the past practice of Holdings or such Restricted
Subsidiaries, (r) transactions between or among Holdings and/or its Restricted
Subsidiaries, (s) Permitted Investments and Restricted Payments that are
permitted by the provisions of Section 4.7 hereof, (t) customary loans,
advances, fees and compensation paid to, and indemnity provided on behalf of,
officers, directors, employees or consultant of Holdings or any of its
Restricted Subsidiaries, (u) annual management fees paid to Xxxxxxx not to
exceed $5.0 million in any one year, (v) transactions pursuant to any contract
or agreement in effect on the date hereof as the same may be amended, modified
or replaced from time to time so long as any such amendment, modification or
replacement is no less favorable to Holdings and its Restricted Subsidiaries
than contract or agreement as in effect on the Issue Date or is approved by a
majority of the disinterested directors of Holdings, (w) transactions between
Holdings or its Restricted Subsidiaries on the one hand, and Xxxxxxx on the
other hand, involving the procuring or provision of financial or advisory
services by Xxxxxxx; provided that fees and expenses payable to Xxxxxxx do not
exceed the usual and customary fees and expenses for similar services, (x)
transactions between Holdings or its Restricted Subsidiaries on the one hand,
and DLJ or its Affiliates on the other hand, involving the provision of
financial, advisory, lending, placement or underwriting services by DLJ;
provided that fees payable to DLJ do not exceed the usual and customary fees of
DLJ for similar services, (y) the insurance arrangements between Holdings and
its Subsidiaries and an Affiliate of Xxxxxxx that are not less favorable to
Holdings or any of its Subsidiaries than those that are in effect on the date
hereof provided such arrangements are conducted in the ordinary course of
business consistent with past practices, and (z) payments under the tax sharing
agreement among Xxxxxxx and other members of the affiliated group of
corporations of which it is the common parent.
SECTION 4.12. LIENS.
Holdings shall not and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind securing trade payables or Indebtedness of
Holdings that is subordinate to or pari passu with the Notes (other than
Permitted Liens) upon any of their property or assets, now owned or hereafter
acquired.
SECTION 4.13. SALE AND LEASEBACK TRANSACTIONS.
Holdings shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
Holdings may, and may permit its Restricted Subsidiaries to, enter into a sale
and leaseback transaction if (i) Holdings could have (a) incurred Indebtedness
in an amount equal to the Attributable Debt relating to such sale and
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leaseback transaction pursuant to Section 4.9 hereof and (b) incurred a Lien to
secure such Indebtedness pursuant to Section 4.12 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 Holdings, to
the extent it receives the proceeds of such transaction, applies the proceeds of
such transaction in compliance with, Section 4.10 hereof.
SECTION 4.14. OFFER TO PURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require Holdings 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 Accreted Value thereof on the date of purchase (if such
date of purchase is prior to March 15, 2003) or 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the date of purchase (if such date of purchase is after March 15,
2003) (the "Change of Control Payment"). Within 30 days following any Change of
Control, Holdings will mail a notice to each Holder describing the transaction
or transactions that constitute the Change of Control and offering to repurchase
Notes on the date specified in such notice, which date shall be no earlier than
30 days and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"), pursuant to the procedures required by
Section 3.9 hereof and described in such notice. Holdings 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, Holdings shall, to the extent
lawful, (1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) 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 (3) 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
Holdings. The Paying Agent will promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee will
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 will be in a
principal amount of $1,000 or an integral multiple thereof.
The Change of Control provisions described above will 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 that Holdings
repurchase or redeem the Notes in the event of a takeover, recapitalization or
similar transaction.
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Holdings shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth herein applicable to a Change of Control Offer made by Holdings and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
SECTION 4.15. CORPORATE EXISTENCE.
Subject to Section 4.14 and Article 5 hereof, as the case may be,
Holdings shall do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence and the corporate, partnership
or other existence of each of its Subsidiaries in accordance with the respective
organizational documents (as the same may be amended from time to time) of
Holdings or any such Subsidiary and the rights (charter and statutory), licenses
and franchises of Holdings and its Subsidiaries; provided that Holdings 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 of Holdings shall determine that the preservation thereof is
no longer desirable in the conduct of the business of Holdings 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.
SECTION 4.16. LIMITATION ON ISSUANCES OF CAPITAL STOCK OF WHOLLY OWNED
RESTRICTED SUBSIDIARIES.
Holdings (i) shall not, and shall not permit any Wholly Owned
Restricted Subsidiary of Holdings to, transfer, convey, sell, lease or otherwise
dispose of any Capital Stock of any Wholly Owned Subsidiary of Holdings to any
Person (other than Holdings or a Wholly Owned Restricted Subsidiary of
Holdings), unless (a) such transfer, conveyance, sale, lease or other
disposition is of all the Capital Stock of such Wholly Owned Restricted
Subsidiary and (b) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with Section 4.10 hereof
and (ii) will not permit any Wholly Owned Restricted Subsidiary of Holdings 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 Holdings or a Wholly Owned Restricted Subsidiary of Holdings or
employees of the Company in connection with employee incentive plans or programs
by the Company's Board of Directors.
SECTION 4.17. BUSINESS ACTIVITIES.
Holdings shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than a Permitted Business, except to such
extent as would not be material to Holdings and its Restricted Subsidiaries
taken as a whole.
SECTION 4.18. PAYMENT FOR CONSENTS.
Neither Holdings 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
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provisions hereof 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 5.1. .MERGER, CONSOLIDATION OF SALE OF ASSETS.
Holdings shall not consolidate or merge with or into (whether or not
Holdings 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) Holdings is the surviving corporation or the entity or the Person
formed by or surviving any such consolidation or merger (if other than Holdings)
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 Holdings) 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 Holdings under the Notes and this Indenture;
(iii) immediately after such transaction no Default or Event of Default exists;
(iv) except in the case of a merger of Holdings with or into a Wholly Owned
Restricted Subsidiary of Holdings, Holdings or the entity or Person formed by or
surviving any such consolidation or merger (if other than Holdings), or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made will, 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 the Section 4.9 hereof
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of Holdings in accordance with Section 5.1 hereof, the successor corporation
formed by such consolidation or into or with which Holdings is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to Holdings), and shall exercise every right
and power of Holdings under this Indenture with the same effect as if such
successor Person had been named as Holdings herein; provided, that, (i) solely
for the purposes of computing Consolidated Net Income for purposes of clause (b)
of the first paragraph of Section 4.7 hereof, the Consolidated Net Income of any
person other than Holdings and its Subsidiaries shall be included only for
periods subsequent to the effective time of such merger, consolidation,
combination or transfer of assets; and (ii) in the case of any sale, assignment,
transfer, lease, conveyance, or other disposition of less than all of the assets
of the
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predecessor Company, the predecessor Company shall not be released or discharged
from the obligation to pay the principal of or interest and Liquidated Damages,
if any, on the Notes.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest on, or
Liquidated Damages with respect to, the Notes;
(ii) default in payment when due of principal of or premium, if
any, on the Notes;
(iii) failure by Holdings to comply with the provisions described
under Sections 4.10 or 4.14 or Article 5 hereof;
(iv) failure by Holdings for 30 days after notice from the Trustee
or at least 25% in principal amount of the Notes then
outstanding to comply with the provisions described under
Sections 4.7 or 4.9 hereof;
(v) failure by Holdings for 60 days after notice from the Trustee
or at least 25% in principal amount of the Notes then
outstanding to comply with any of its other agreement in this
Indenture or the Notes;
(vi) 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 Holdings or
any of its Subsidiaries (or the payment of which is guaranteed
by Holdings or any of its Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the
date hereof, 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 $15.0 million or
more;
(vii) failure by Holdings or any of its Subsidiaries to pay final
judgments aggregating in excess of $5.0 million, which
judgments are not paid, discharged or stayed for a period of
60 days;
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(viii) Holdings or any of its Significant Subsidiaries or any group
of Subsidiaries that, taken as a whole would constitute a
Significant Subsidiary, pursuant to or within the meaning of
any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case,
(c) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become
due; or
(ix) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against Holdings or any of its
Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an
involuntary case;
(b) appoints a Custodian of Holdings or any of its
Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary or for all or
substantially all of the property of the Company
or any of its Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary; or
(c) orders the liquidation of Holdings or any of its
Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
SECTION 6.2. 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 may
declare all the Notes to be due and payable immediately. Upon such declaration,
the principal of (or, if prior to March 15, 2003,
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the Accreted Value of), premium, if any, and accrued and unpaid interest on the
Notes shall be due and payable immediately. Notwithstanding the foregoing, in
the case of an Event of Default as described in clause (viii) or (ix) of Section
6.1 hereof, all outstanding Notes will 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.
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 Holdings
with the intention of avoiding payment of the premium that Holdings would have
had to pay if Holdings then had elected to redeem the Notes pursuant to the
optional redemption provisions of Section 3.7(a) hereof, 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 prior to
March 15, 2003 by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of Holdings with the intention of avoiding the
prohibition on redemption of the Notes prior to March 15, 2003, then the amount
payable in respect of such Notes for purposes of this paragraph for each of the
twelve-month periods beginning on March 15 of the years indicated below shall be
set forth below, expressed as percentages of the Accreted Value and Liquidated
Damages, if any, to the date of payment:
Year Percentage
---- ----------
1998 .......................... 111.250%
1999 .......................... 110.125%
2000 .......................... 109.000%
2001 .......................... 107.875%
2002 .......................... 106.750%
SECTION 6.3. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, 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 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.
Holdings is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and Holdings is required upon becoming
aware of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
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SECTION 6.4. 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
the Notes waive any existing Default or Event of Default and its consequences
under this Indenture (including any acceleration (other than an automatic
acceleration resulting from an Event of Default under clause (viii) or (ix) of
Section 6.1 hereof) except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes (other than as a result
of an acceleration), which shall require the consent of all of the Holders of
the Notes then outstanding.
SECTION 6.5. CONTROL BY MAJORITY.
The 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 power conferred on it. However, (i) 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, and (ii) the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction. In case an Event of Default shall occur (which shall not be cured),
the Trustee will be required, in the exercise of its power, to use the degree of
care of a prudent man in the conduct of his own affairs. Notwithstanding any
provision to the contrary in this Indenture, the Trustee is under no obligation
to exercise any of its rights or powers under this Indenture at the request of
any Holder of Notes, unless such Holder shall offer to the Trustee security and
indemnity satisfactory to it against any loss, liability or expense.
SECTION 6.6. 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 or the Trustee receives such
notice from Holdings;
(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.
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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.
SECTION 6.7. 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, 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 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(i) or (ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against Holdings for the whole
amount of principal of, premium and Liquidated Damages, if any, and interest
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 6.9. 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 Holdings
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
securities or property payable or deliverable upon the conversion or exchange of
the Notes or 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 7.7 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 7.7 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 Article 6, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.7 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, 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, if any, interest, and
Liquidated Damages, if any, respectively;
Third: without duplication, to the Holders for any other Obligations
owing to the Holders under this Indenture and the Notes; and
Fourth: to Holdings 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, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing of which
a Responsible Officer of the Trustee has knowledge, 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:
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(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture or the TIA and
the Trustee need perform only those duties that are
specifically set forth in this Indenture or the TIA 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, 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 7.1;
(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 6.5 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), (f) and Section 7.2
of this Section 7.1.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The
Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any
Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with
Holdings. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
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SECTION 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on the truth of the
statements and correctness of the opinions contained in, and
shall be protected from acting or refraining from acting upon,
any document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
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. Prior to taking, suffering
or admitting any action, the Trustee may consult with counsel
of the Trustee's own choosing and the written 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 Holdings shall be
sufficient if signed by an Officer of Holdings.
(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 reasonable security or
indemnity satisfactory to the Trustee against the costs,
expenses and liabilities that might be incurred by it in
compliance with such request or direction.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner of Notes and may otherwise deal with Holdings or any Affiliate of Holdings
with the same 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.
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SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for Holding's use of the proceeds from the Notes or any money paid
to Holdings or upon Holding's direction under any provision of this Indenture,
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
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it
is known to a Responsible Officer of the Trustee, the Trustee shall mail to
Holders of 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
on any Note pursuant to Section 6.1(i) or (ii) hereof, 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 7.6. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 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 ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b). The Trustee shall also transmit by mail all reports as required by TIA
ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to Holdings and filed with the Commission and each stock
exchange on which Holdings has informed the Trustee in writing the Notes are
listed in accordance with TIA ss. 313(d). Holdings shall promptly notify the
Trustee when the Notes are listed on any stock exchange and of any delisting
thereof.
SECTION 7.7. COMPENSATION AND INDEMNITY.
Holdings shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. To the
extent permitted by law, the Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. Holdings shall reimburse
the Trustee promptly upon request for all reasonable disbursements, advances 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.
Holdings shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture
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against Holdings (including this Section 7.7) and defending itself against any
claim (whether asserted by Holdings 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 Holdings
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify Holdings shall not relieve Holdings of its obligations hereunder.
Holdings shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and Holdings shall pay the reasonable fees
and expenses of such counsel. Holdings need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of Holdings under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture.
To secure Holdings' payment obligations in this Section 7.7, 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, interest
and Liquidated Damages, if any, on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.1 (viii) or (ix) 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 ss. 313(b)(2) to
the extent applicable.
SECTION 7.8. 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 7.8.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying Holdings. The Holders of a majority in
principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and Holdings in writing. Holdings 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.
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If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, Holdings 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 Holdings.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, Holdings, 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 of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10 hereof, such Holder of a Note 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 Holdings. Thereupon, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and the 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 7.7 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, Holdings' obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee or any Agent 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 or any Agent, as applicable.
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. The Trustee and its direct parent shall at all
times have a combined capital surplus of at least $50.0 million as set forth in
its most recent annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST HOLDINGS.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
Holdings may, at the option of their respective Boards of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon Holdings' exercise under Section 8.1 hereof of the option
applicable to this Section 8.2, Holdings shall, subject to the satisfaction of
the conditions set forth in Section 8.4 hereof, be deemed to have been
discharged from their respective 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 Holdings
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 8.5 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all their
respective other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of Holdings, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of outstanding Notes to receive payments in respect of the principal
of, premium, if any, and interest and Liquidated Damages, if any, on such Notes
when such payments are due from the trust referred to in Section 8.4(a); (b)
Holding's obligations with respect to such Notes under Sections 2.2, 2.3, 2.4,
2.5, 2.6, 2.7, 2.10 and 4.2 hereof; (c) the rights, powers, trusts, duties and
immunities of the Trustee including without limitation thereunder Section 7.7,
8.5 and 8.7 hereof and Holding's obligations in connection therewith and (d) the
provisions of this Article 8. Subject to compliance with this Article 8,
Holdings may exercise its option under this Section 8.2 notwithstanding the
prior exercise of its option under Section 8.3 hereof.
SECTION 8.3. COVENANT DEFEASANCE.
Upon Holdings' exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, Holdings shall, subject to the satisfaction of
the conditions set forth in Section 8.4 hereof, be released from its obligations
under the covenants contained in Sections 3.9, 4.5, 4.7, 4.8, 4.9, 4.10, 4.11,
4.12, 4.13, 4.14, 4.15, 4.16, 4.17 and 5.1 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter,
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"Covenant Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, Holdings or any of its Subsidiaries 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 6.1 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon Holdings' exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, subject to the satisfaction of the conditions
set forth in Section 8.4 hereof, Sections 6.1(iii) through (v) hereof shall not
constitute Events of Default.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) Holdings 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 firm of independent public
accountants, to pay the principal of, premium and Liquidated
Damages, if any, and interest on the outstanding Notes on the
stated maturity or on the applicable redemption date, as the
case may be, and Holdings must specify whether the Notes are
being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.2 hereof, Holdings
shall have delivered to the Trustee an opinion of counsel in
the United States reasonably acceptable to the Trustee
confirming that (A) Holdings 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;
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(c) in the case of an election under Section 8.3 hereof, Holdings
shall have delivered to the Trustee an opinion of counsel in
the United States reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes
as a result of such Covenant 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
Covenant Defeasance had not occurred;
(d) 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 Events of Default
from bankruptcy or insolvency events are concerned, at any
time in the period ending on the 91st day after the date of
deposit;
(e) 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 Holdings or any of its Subsidiaries is a party or by
which Holdings or any of its Subsidiaries is bound;
(f) Holdings shall have delivered to the Trustee an opinion of
counsel to the effect that after the 91st day following the
deposit, the trust funds shall not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally;
(g) Holdings shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by Holdings
with the intent of preferring the Holders of Notes over the
other creditors of Holdings with the intent of defeating,
hindering, delaying or defrauding creditors of Holdings or
others; and
(h) Holdings shall have delivered to the 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 8.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6 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 8.5, the
"Trustee") pursuant to Section 8.4 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 Holdings acting as Paying Agent) as the
Trustee may determine, to
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the Holders of such Notes of all sums due and to become due thereon in respect
of principal, 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.
Holdings 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 8.4 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 Holdings from time to time upon the written
request of Holdings and be relieved of all liability with respect to any money
or non-callable Government Securities held by it as provided in Section 8.4
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 8.4(a) 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 8.6. REPAYMENT TO HOLDINGS.
Any money deposited with the Trustee or any Paying Agent, or then
held by Holdings, in trust for the payment of the principal of, premium, if any,
interest or Liquidated Damages, if any, on any Note and remaining unclaimed for
one year after such principal, and premium, if any, or interest or Liquidated
Damages, if any, has become due and payable shall be paid to Holdings on its
written request or (if then held by Holdings) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to Holdings for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of Holdings 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 Holdings 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 Holdings.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.2 or
8.3 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 obligations of Holdings under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2 or 8.3 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof,
as the case may be; provided, however, that, if Holdings makes any payment of
principal of, premium, if any, interest or Liquidated
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Damages, if any, on any Note following the reinstatement of its obligations,
Holdings 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 9.1. WITHOUT CONSENT OF HOLDERS OF THE NOTES.
Notwithstanding Section 9.2 of this Indenture, without the consent
of any Holder of Notes Holdings and the Trustee may amend or supplement this
Indenture or the Notes:
(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 Holdings' obligations to the
Holders of the Notes in the case of a merger, or consolidation
pursuant to Article 5 hereof;
(d) 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 hereunder of any Holder of
the Notes;
(e) to issue additional Notes hereunder; provided that the
aggregate principal amount at maturity; or
(f) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under
the TIA.
Upon the written request of Holdings accompanied by a resolution of
its Board of Directors of Holdings authorizing the execution of any such amended
or supplemental indenture, and upon receipt by the Trustee of the documents
described in Section 9.6 hereof, the Trustee shall join with Holdings 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 9.2. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.2, this 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 Notes then outstanding (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer, for Notes), and any existing default or compliance with any
provision of this Indenture or the Notes may be waived with the
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consent of the Holders of a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with or a tender offer or
exchange offer for the Notes).
Upon the request of Holdings accompanied by a resolution of its
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 of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.6 hereof, the Trustee shall
join with Holdings 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, but shall not be obligated to, enter into such amended or
supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.2 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 9.2 becomes
effective, Holdings shall mail to the Holders of each Note affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
Holdings 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 6.2, 6.4 and 6.7 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may amend
or waive compliance in a particular instance by Holdings 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 Note 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 relating to Sections 3.9,
4.10 and 4.14 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 or premium, if any, or interest 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);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in Section 6.4 or 6.7 hereof;
(g) waive a redemption or repurchase payment with respect to any
Note (other than a payment required by Section 4.10 or 4.14
hereof); or
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(h) make any change in the amendment and waiver provisions of this
Article 9.
SECTION 9.3. 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 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note 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 of a Note 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. When an amendment, supplement or waiver becomes effective in
accordance with its terms, it thereafter binds every Holder.
Holdings may, but shall not be obligated to, fix a record date for
determining which Holders of the Notes must consent to such amendment,
supplement or waiver. If Holdings 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 of Notes furnished for
the Trustee prior to such solicitation pursuant to Section 2.5 hereof or (ii)
such other date as Holdings shall designate.
SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. Holdings in exchange
for all Notes may issue and the Trustee shall authenticate new Notes that
reflect the amendment, supplement or waiver.
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 9.6. 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.
Holdings may not sign an amendment or supplemental indenture until their
respective Boards of Directors approve it. In signing or refusing to sign any
amended or supplemental indenture the Trustee shall be entitled to receive and
(subject to Section 7.1 hereof) shall be fully protected in relying upon, in
addition to the documents required by Section 11.4 hereof, 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, that it
is not inconsistent herewith, and that it will be valid and binding upon
Holdings in accordance with its terms.
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ARTICLE 10.
MISCELLANEOUS
SECTION 10.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss. 318(c), the imposed duties shall control.
SECTION 10.2. NOTICES.
Any notice or communication by Holdings, the Subsidiary Guarantors
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:
If to Holdings:
AP Holdings, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Secretary
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
If to the Trustee:
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Department
Holdings 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 promising next Business Day delivery.
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Any notice or communication to a Holder shall be mailed by first
class mail or by overnight air courier promising next Business Day delivery to
its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA ss. 313(c),
to the extent required by the TIA. Failure to mail a notice or communication to
a Holder or any defect in it shall not affect 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.
If Holdings mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 10.3. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes.
Holdings, the Trustee, the Registrar and anyone else shall have the protection
of TIA ss. 312(c).
SECTION 10.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by Holdings to the Trustee to take
any action under this Indenture (other than the initial issuance of the Senior
Discount Notes), Holdings shall furnish to the Trustee upon request:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 10.5 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 10.5 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 10.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
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(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.
SECTION 10.6. 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 10.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of
Holdings, as such, shall have any liability for any obligations of Holdings or
any Subsidiary Guarantor under the Notes, 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.
SECTION 10.8. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE AND THE NOTES.
SECTION 10.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of Holdings or its Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 10.10. SUCCESSORS.
All agreements of Holdings in this Indenture and the Notes shall
bind their respective successors and assigns. All agreements of the Trustee in
this Indenture shall bind its successors and assigns.
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SECTION 10.11. 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 10.12. 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 10.13. 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 ON FOLLOWING PAGE]
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SIGNATURES
Dated as of March 30, 1998 HOLDINGS, INC.
By: /s/ G. Xxxxxx Xxxxxxx, Xx.
---------------------------
Name: G. Xxxxxx Xxxxxxx, Xx.
Title: President and Chief Executive Officer
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
84
EXHIBIT A
(Face of Senior Discount Note)
11 1/4% Senior Discount Notes due 2008
$000000XX0
No.____ CUSIP NO.
AP HOLDINGS, INC.
promises to pay to ____________________ or registered assigns, the
principal sum of _____________ Dollars on March 15, 2008.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
This is one of the
Senior Discount Notes referred to in the
within-mentioned Indenture:
Dated:
------------------------
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
------------------------
A-1-1
85
(Back of Senior Discount Note)
11 1/4% Senior Discount Notes due 2008
[Unless and until it is exchanged in whole or in part for Senior Discount
Notes in definitive form, this Senior Discount 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) ("XXX"), to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL in as much as the registered owner hereof, Cede & Co., has an
interest herein.](1)
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX 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 HOLDINGS THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE UNITED STATES TO A PERSON
WHO 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, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 904 OF THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES
ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR"), THAT PRIOR TO SUCH TRANSFER,
FURNISHED THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS
----------
(1) This paragraph should be included only if the Senior Discount Note is issued
in global form.
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THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO HOLDINGS THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (e) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND, IN THE CASE OF CLAUSE (b), (c), (d) or (e), BASED
UPON AN OPINION OF COUNSEL IF HOLDINGS SO REQUESTS), (2) TO HOLDINGS OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE.](2)
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Holdings, Inc., a Delaware corporation, or its successor
("Holdings"), promises to pay interest on the principal amount of
this Senior Discount Note at the rate of 11 1/4% per annum and shall
pay the Liquidated Damages, if any, payable pursuant to Section 5 of
the Registration Rights Agreement referred to below. Holdings will
pay interest and Liquidated Damages, if any, in United States
dollars (except as otherwise provided herein) semi-annually in
arrears on March 15 and September 15, commencing on September 15,
2003, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest
on the Senior Discount Notes shall accrue from the most recent date
to which interest has been paid or, if no interest has been paid,
from March 15, 2003; provided that if there is no existing Default
or Event of Default in the payment of interest, and if this Senior
Discount Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date (but
after March 15, 2003), interest shall accrue from such next
succeeding Interest Payment Date, except in the case of the original
issuance of Senior Discount Notes, in which case interest shall
accrue from the date of authentication. Holdings 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 Senior
Discount Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated
Damages (without regard to any applicable grace period) at the same
rate to the extent lawful. Interest shall be computed on the basis
of a 360-day year comprised of twelve 30-day months.
----------
(2) This paragraph should be removed upon the exchange of Senior
Discount Notes for New Senior Discount Notes in the Exchange Offer or upon the
registration of the Senior Discount Notes pursuant to the terms of the
Registration Rights Agreement.
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2. METHOD OF PAYMENT. Holdings will pay interest on the Senior Discount
Notes (except defaulted interest) and Liquidated Damages, if any, on
the applicable Interest Payment Date to the Persons who are
registered Holders of Senior Discount Notes at the close of business
on the July 1 or January 1 next preceding the Interest Payment Date,
even if such Senior Discount Notes are cancelled after such record
date and on or before such Interest Payment Date, except as provided
in Section 2.12 of the Indenture with respect to defaulted interest.
The Senior Discount Notes shall be payable as to principal, premium
and Liquidated Damages, if any, and interest at the office or agency
of Holdings maintained for such purpose within or without the City
and State of New York, or, at the option of Holdings, 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 shall be required with respect to principal of,
premium and Liquidated Damages, if any, and interest on, all Global
Notes and all other Senior Discount Notes the Holders of which shall
have provided written wire transfer instructions to Holdings and the
Paying Agent. 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, State Street Bank and Trust
Company, the Trustee under the Indenture, shall act as Paying Agent
and Registrar. Holdings may change any Paying Agent or Registrar
without notice to any Holder. Holdings or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. Holdings issued the Senior Discount Notes under an
Indenture dated as of March 30, 1998 ("Indenture") among Holdings
and the Trustee. The terms of the Senior Discount 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.
Xxxxxx.xx. 77aaa-77bbbb) (the "TIA"). The Senior Discount Notes are
subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Senior Discount
Notes issued in the Offering are general unsecured Obligations of
Holdings limited to $120,000 in aggregate principal amount at
maturity.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Senior Discount
Notes shall not be redeemable at Holdings' option prior to March 15,
2003. Thereafter, the Senior Discount Notes shall be subject to
redemption at the option of Holdings, in whole or in part, upon not
less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below
together with accrued and unpaid interest and any Liquidated
Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on July 15 of the
years indicated below:
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Year Percentage
---- ----------
2003 ........................... 105.625%
2004 ........................... 103.750%
2005 ........................... 101.875%
2006 and thereafter ............ 100.000%
Notwithstanding the foregoing, at any time Holdings may redeem
the Senior Discount Notes, in whole but not in part, at the option
of Holdings at a redemption price of 111.25% of the Accreted Value
(determined at the date of redemption), with the net proceeds of a
Public Equity Offering; provided that such redemption shall occur
within 45 days of the date of the closing of such Public Equity
Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, Holdings shall not
be required to make mandatory redemption or sinking fund payments
with respect to the Senior Discount Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of
Senior Discount Notes will have the right to require Holdings to
repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Senior Discount Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer
price in cash equal to 101% of the Accreted Value thereof on the
date of purchase (if such date of purchase is prior to March 15,
2003) or 101% of the aggregate principal amount thereof plus accrued
and unpaid interest and Liquidated Damages, if any, thereon, to the
date of purchase (if such date of purchase is on or after March 15,
2003). Within 30 days following any Change of Control, Holdings will
mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control setting forth the
procedures governing the Change of Control Offer required by the
Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $15.0
million, Holdings will be required to make an offer to all Holders
of Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the Accreted
Value thereof on the date of purchase (if such date of purchase is
prior to March 15, 2003) or 100% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages thereon, if
any, to the date of purchase (if such date of purchase is on or
after March 15, 2003), in each case in accordance with the
procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer
is less than the Excess Proceeds, Holdings may use any remaining
Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes
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surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a
pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
(c) Holders of the Senior Discount Notes that are the subject of an
offer to purchase will receive a Change of Control Offer or Asset
Sale Offer from Holdings prior to any related purchase date and may
elect to have such Senior Discount Notes purchased by completing the
form titled "Option of Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each
Holder whose Senior Discount Notes are to be redeemed at its
registered address. Senior Discount Notes in denominations larger
than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Senior Discount Notes held by a Holder are
to be redeemed. On and after the redemption date, interest and
Liquidated Damages, if any, ceases to accrue on the Senior Discount
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Discount Notes are in
registered form without coupons in initial denominations of $1,000
and integral multiples of $1,000. The transfer of the Senior
Discount Notes may be registered and the Senior Discount 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 Holdings may
require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. Holdings need not exchange or register
the transfer of any Senior Discount Note or portion of a Senior
Discount Note selected for redemption, except for the unredeemed
portion of any Senior Discount Note being redeemed in part. Also, it
need not exchange or register the transfer of any Senior Discount
Notes for a period of 15 days before a selection of Senior Discount
Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Senior Discount
Note may be treated as its owner for all purposes.
11. AMENDMENT SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture and the Senior Discount Notes may be
amended or supplemented with the consent of the Holders of at least
a majority in principal amount of the Senior Discount Notes then
outstanding (including, without limitation, consents obtained in
connection with a purchase of or, tender offer or exchange offer for
Senior Discount Notes), and any existing Default or Event of Default
or compliance with any provision of the Indenture or the Senior
Discount Notes may be waived with the consent of the Holders of a
majority in principal amount of the then
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outstanding Senior Discount Notes (including consents obtained in
connection with a tender offer or exchange offer for Senior Discount
Notes).
Without the consent of any Holder of Senior Discount Notes,
Holdings and the Trustee may amend or supplement the Indenture or
the Senior Discount Notes to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Senior Discount Notes
in addition to or in place of certificated Senior Discount Notes, to
provide for the assumption of Holdings' obligations to Holders of
Senior Discount 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 Senior Discount Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the Commission in order to effect or
maintain the qualification of the Indenture under the Trust
Indenture Act or to allow any Subsidiary to guarantee the Senior
Discount Notes.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest on or Liquidated Damages,
if any, with respect to the Senior Discount Notes; (ii) default in
payment when due of the principal of or premium, if any, on the
Senior Discount Notes; (iii) failure by Holdings or any Restricted
Subsidiary to comply with the provisions described in Sections 4.10,
4.14 or 5.1 of the Indenture; (iv) failure by Holdings or any
Restricted Subsidiary for 30 days after notice from the Trustee or
at least 25% in principal amount of the Senior Discount Notes to
comply with the provisions described in Sections 4.7 and 4.9, of the
Indenture; (v) failure by Holdings or any Subsidiary for 60 days
after notice from the Trustee or the Holders of at least 25% in
principal amount of the Senior Discount Notes then outstanding to
comply with its other agreements in the Indenture or the Senior
Discount Notes; (vi) 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 Holdings
or any of their its Subsidiaries (or the payment of which is
guaranteed by Holdings or any of its Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the date
of the Indenture, which default (A) (i) is caused by a failure to
pay when due at final stated maturity (giving effect to any grace
period related thereto) any principal of or premium, if any, or
interest on such Indebtedness (a "Payment Default") or (ii) results
in the acceleration of such Indebtedness prior to its express
maturity and (B) 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 $15.0 million
or more; (vii) failure by Holdings or any of its Subsidiaries to pay
final judgments aggregating in excess of $5.0 million, which
judgments are not paid discharged or stayed within 60 days after
their entry; and (viii) certain events of bankruptcy or insolvency
with respect to Holdings, any of its Significant Subsidiaries or any
group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary.
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91
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 Senior Discount Notes may declare all the Senior
Discount Notes to be due and payable immediately. In the case of an
Event of Default arising from certain events of bankruptcy or
insolvency, with respect to Holdings or any of its Significant
Subsidiaries all outstanding Senior Discount Notes will become due
and payable without further action or notice. Holders of the Senior
Discount Notes may not enforce the Indenture or the Senior Discount
Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then
outstanding Senior Discount Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders of the Senior Discount 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.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform
services for Holdings, or its respective Affiliates, and may
otherwise deal with Holdings or its respective Affiliates as if it
were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of Holdings, as such, shall have any
liability for any obligations of Holdings under the Senior Discount
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
Senior Discount Notes by accepting a Senior Discount Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Discount Notes.
15. AUTHENTICATION. This Senior Discount Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
16. 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).
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Senior Discount
Notes under the Indenture, Holders of Transferred Restricted
Securities (as defined in the Registration Rights Agreement) shall
have all the rights set forth in the Registration Rights Agreement,
dated as of the date hereof, among Holdings and the Initial
Purchaser (the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, Holdings
has caused CUSIP
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numbers to be printed on the Senior Discount 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 Senior Discount Notes or as
contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
Holdings 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:
AP Holdings, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telecopy: (000) 000-0000
Chief Financial Officer
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ASSIGNMENT FORM
To assign this Senior Discount Note, fill in the form below: (I) or (we)
assign and transfer this Senior Discount 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 Senior Discount Note on the books of Holdings. The agent may
substitute another to act for him.
________________________________________________________________________________
Date:______________ Your Signature:__________________________
(Sign exactly as your name appears on the
face of this Senior Discount Note)
Signature Guarantee:
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Discount Note purchased by
Holdings pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
|_| Section 4.10 |_| Section 4.14
If you want to elect to have only part of the Senior Discount Note
purchased by Holdings pursuant to Section 4.10 or Section 4.14 of the Indenture,
state the amount you elect to have purchased: $___________
Date:_______________ Your Signature:__________________________
(Sign exactly as your name appears on the
Senior Discount Note)
Tax Identification No.:__________________
Signature Guarantee.
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EXHIBIT A-2
(Face of Regulation S Temporary Global Note)
11 1/4% Senior Discount Notes due 2008
$_________
No.____ CUSIP NO.
AP HOLDINGS, INC.
promises to pay to ____________________ or registered assigns, the
principal sum of _____________ Dollars on March 15, 2008.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
AP HOLDINGS, INC.
By:__________________________
Name:
Title:
This is one of the
Senior Discount Notes referred to in the
within-mentioned Indenture:
Dated:_________________________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:____________________________
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(Back of Regulation S Temporary Global Note)
11 1/4% Senior Discount Note due 2008
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR
DISCOUNT NOTES IN DEFINITIVE FORM, THIS SENIOR DISCOUNT 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) ("XXX"), TO Holdings OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
[THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX 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 HOLDINGS THAT (A) SUCH SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE UNITED
STATES TO A PERSON WHO 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, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
OF THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR"), THAT PRIOR TO SUCH TRANSFER, FURNISHED THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF
WHICH CAN BE
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OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO HOLDINGS THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND, IN THE CASE OF CLAUSES (b), (c), (d) OR
(e), BASED UPON AN OPINION OF COUNSEL IF HOLDINGS SO REQUESTS), (2) TO HOLDINGS
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SENIOR
DISCOUNT NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON
PRIOR TO THE EXCHANGE OF THIS SENIOR DISCOUNT NOTE FOR A REGULATION S TEMPORARY
GLOBAL NOTE AS CONTEMPLATED BY THE INDENTURE.](3)
Until this Regulation S Temporary Global Note is exchanged for
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest or Liquidated Damages, if any, hereon although
interest and Liquidated Damages, if any, will continue to accrue; until so
exchanged in full, this Regulation S Temporary Global Note shall in all other
respects be entitled to the same benefits as other Senior Discount Notes under
the Indenture.
This Regulation S Temporary Global Note is exchangeable in whole or
in part for one or more Regulation S Permanent Global Notes or Rule 144A Global
Notes only (i) on or after the termination of the 40-day restricted period (as
defined in Regulation S) and (ii) upon presentation of certificates (accompanied
by an Opinion of Counsel, if applicable) required by Article 2 of the Indenture.
Upon exchange of this Regulation S Temporary Global Note for one or more
Regulation S Permanent Global Notes or Rule 144A Global Notes, the Trustee shall
cancel this Regulation S Temporary Global Note.
This Regulation S Temporary Global Note shall not become valid or
obligatory until the certificate of authentication hereon shall have been duly
manually signed by the Trustee in accordance with the Indenture. This Regulation
S Temporary Global Note shall be governed
----------
(3) These paragraphs should be removed upon the exchange of Regulation S
Temporary Global Notes for Regulation S Permanent Global Notes pursuant to the
terms of the Indenture.
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by and construed in accordance with the laws of the State of the New York. All
references to "$," "Dollars," "dollars" or "U.S. $" are to such coin or currency
of the United States of America as at the time shall be legal tender for the
payment of public and private debts therein.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Holdings, Inc., a Delaware corporation, or its successor
("Holdings"), promises to pay interest on the principal amount of
this Senior Discount Note at the rate of 11 1/4% per annum and shall
pay the Liquidated Damages, if any, payable pursuant to Section 5 of
the Registration Rights Agreement referred to below. Holdings will
pay interest and Liquidated Damages, if any, in United States
dollars (except as otherwise provided herein) semi-annually in
arrears on March 15 and September 15, commencing on September 15,
2003, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest
on the Senior Discount Notes shall accrue from the most recent date
to which interest has been paid or, if no interest has been paid,
from March 15, 2003; provided that if there is no existing Default
or Event of Default in the payment of interest, and if this Senior
Discount Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date (but
after March 15, 2003), interest shall accrue from such next
succeeding Interest Payment Date, except in the case of the original
issuance of Senior Discount Notes, in which case interest shall
accrue from the date of authentication. Holdings 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 Senior
Discount Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated
Damages (without regard to any applicable grace period) at the same
rate to the extent lawful. Interest shall be computed on the basis
of a 360-day year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. Holdings will pay interest on the Senior Discount
Notes (except defaulted interest) and Liquidated Damages, if any, on
the applicable Interest Payment Date to the Persons who are
registered Holders of Senior Discount Notes at the close of business
on the March 1 or September 1 next preceding the Interest Payment
Date, even if such Senior Discount Notes are cancelled after such
record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Senior Discount Notes shall be payable as to
principal, premium and Liquidated Damages, if any, and interest at
the office or agency of Holdings maintained for such purpose within
or without the City and State of New York, or, at the option of
Holdings, 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 shall be required with respect to
principal of, premium and
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Liquidated Damages, if any, and interest on, all Global Notes and
all other Senior Discount Notes the Holders of which shall have
provided written wire transfer instructions to Holdings and the
Paying Agent. 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, State Street Bank and Trust
Company, the Trustee under the Indenture, shall act as Paying Agent
and Registrar. Holdings may change any Paying Agent or Registrar
without notice to any Holder. Holdings or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. Holdings issued the Senior Discount Notes under an
Indenture dated as of March 30, 1997 ("Indenture") among Holdings
and the Trustee. The terms of the Senior Discount 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.
Xxxxxx.xx. 77aaa-77bbbb) (the "TIA"). The Senior Discount Notes are
subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Senior Discount
Notes are general unsecured Obligations of Holdings limited to
$120,000,000 in aggregate principal amount at maturity.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Senior Discount
Notes shall not be redeemable at Holdings' option prior to March 15,
2003. Thereafter, the Senior Discount Notes shall be subject to
redemption at the option of Holdings, in whole or in part, upon not
less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below
together with accrued and unpaid interest and any Liquidated
Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on March 15 of the
years indicated below:
Year Percentage
---- ----------
2003 ........................... 105.625%
2004 ........................... 103.750%
2005 ........................... 101.875%
2006 and thereafter ............ 100.000%
Notwithstanding the foregoing, at any time Holdings may redeem
the Senior Discount Notes, in whole but not in part, at the option
of Holdings at a redemption price of 111.25% of the Accreted Value
(determined at the date of redemption), with the net proceeds of a
Public Equity Offering; provided that such redemption shall occur
within 45 days of the date of the closing of such Public Equity
Offering.
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6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, Holdings shall not be
required to make mandatory redemption or sinking fund payments with
respect to the Senior Discount Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of
Senior Discount Notes will have the right to require Holdings to
repurchase all or any part (equal to $1,000 or an integral multiple
thereof) of such Holder's Senior Discount Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer
price in cash equal to 101% of the Accreted Value thereof on the
date of purchase (if such date of purchase is prior to March 15,
2003) or 101% of the aggregate principal amount thereof plus accrued
and unpaid interest and Liquidated Damages, if any, thereon, to the
date of purchase (if such date of purchase is on or after March 15,
2003). Within 30 days following any Change of Control, Holdings will
mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control setting forth the
procedures governing the Change of Control Offer required by the
Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $15.0
million, Holdings will be required to make an offer to all Holders
of Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of Notes that may be purchased out of the Excess Proceeds, at
an offer price in cash in an amount equal to 100% of the Accreted
Value thereof on the date of purchase (if such date of purchase is
prior to March 15, 2003) or 100% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages thereon, if
any, to the date of purchase (if such date of purchase is on or
after March 15, 2003), in each case in accordance with the
procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer
is less than the Excess Proceeds, Holdings may use any remaining
Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis. Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero.
(c) Holders of the Senior Discount Notes that are the subject of an
offer to purchase will receive a Change of Control Offer or Asset
Sale Offer from Holdings prior to any related purchase date and may
elect to have such Senior Discount Notes purchased by completing the
form titled "Option of Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the redemption date to each
Holder whose Senior
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Discount Notes are to be redeemed at its registered address. Senior
Discount Notes in denominations larger than $1,000 may be redeemed
in part but only in whole multiples of $1,000, unless all of the
Senior Discount Notes held by a Holder are to be redeemed. On and
after the redemption date, interest and Liquidated Damages, if any,
ceases to accrue on the Senior Discount Notes or portions thereof
called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Discount Notes are in
registered form without coupons in initial denominations of $1,000
and integral multiples of $1,000. The transfer of the Senior
Discount Notes may be registered and the Senior Discount 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 Holdings may
require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. Holdings need not exchange or register
the transfer of any Senior Discount Note or portion of a Senior
Discount Note selected for redemption, except for the unredeemed
portion of any Senior Discount Note being redeemed in part. Also, it
need not exchange or register the transfer of any Senior Discount
Notes for a period of 15 days before a selection of Senior Discount
Notes to be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Senior Discount
Note may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture and the Senior Discount Notes may be
amended or supplemented with the consent of the Holders of at least
a majority in principal amount of the Senior Discount Notes then
outstanding (including, without limitation, consents obtained in
connection with a purchase of or, tender offer or exchange offer for
Senior Discount Notes), and any existing Default or Event of Default
or compliance with any provision of the Indenture or the Senior
Discount Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Senior Discount
Notes (including consents obtained in connection with a tender offer
or exchange offer for Senior Discount Notes).
Without the consent of any Holder of Senior Discount Notes, Holdings
and the Trustee may amend or supplement the Indenture or the Senior
Discount Notes to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Senior Discount Notes in addition to or
in place of certificated Senior Discount Notes, to provide for the
assumption of Holdings' obligations to Holders of Senior Discount
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 Senior Discount Notes or that does not adversely affect the legal
rights under the Indenture of any such Holder, to comply with the
requirements of the Commission in order to effect or
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maintain the qualification of the Indenture under the Trust
Indenture Act or to allow any Subsidiary to guarantee the Senior
Discount Notes.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest on or Liquidated Damages,
if any, with respect to the Senior Discount Notes; (ii) default in
payment when due of the principal of or premium, if any, on the
Senior Discount Notes; (iii) failure by Holdings or any Restricted
Subsidiary to comply with the provisions described in Sections 4.10,
4.14 or 5.1 of the Indenture; (iv) failure by Holdings or any
Restricted Subsidiary for 30 days after notice from the Trustee or
at least 25% in principal amount of the Senior Discount Notes to
comply with the provisions described in Sections 4.7 and 4.9, of the
Indenture; (v) failure by Holdings or any Subsidiary for 60 days
after notice from the Trustee or the Holders of at least 25% in
principal amount of the Senior Discount Notes then outstanding to
comply with its other agreements in the Indenture or the Senior
Discount Notes; (vi) 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 Holdings
or any of their its Subsidiaries (or the payment of which is
guaranteed by Holdings or any of its Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the date
of the Indenture, which default (A) (i) is caused by a failure to
pay when due at final stated maturity (giving effect to any grace
period related thereto) any principal of or premium, if any, or
interest on such Indebtedness (a "Payment Default") or (ii) results
in the acceleration of such Indebtedness prior to its express
maturity and (B) 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 $15.0 million
or more; (vii) failure by Holdings or any of its Subsidiaries to pay
final judgments aggregating in excess of $5.0 million, which
judgments are not paid discharged or stayed within 60 days after
their entry; and (viii) certain events of bankruptcy or insolvency
with respect to Holdings, any of its Significant Subsidiaries or any
group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary.
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
Senior Discount Notes may declare all the Senior Discount Notes to
be due and payable immediately. In the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with
respect to Holdings or any of its Significant Subsidiaries all
outstanding Senior Discount Notes will become due and payable
without further action or notice. Holders of the Senior Discount
Notes may not enforce the Indenture or the Senior Discount Notes
except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding
Senior Discount Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Senior
Discount Notes notice of any continuing Default or Event of Default
(except a
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Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their
interest.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform
services for Holdings, the Subsidiary Guarantors or their respective
Affiliates, and may otherwise deal with Holdings, the Subsidiary
Guarantors or their respective Affiliates, as if it were not the
Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of Holdings or any Subsidiary
Guarantor, as such, shall have any liability for any obligations of
Holdings or any Subsidiary Guarantor under the Senior Discount 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 Senior
Discount Notes by accepting a Senior Discount Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Senior Discount Notes.
15. AUTHENTICATION. This Senior Discount Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
16. 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).
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the Senior Discount
Notes under the Indenture, Holders of Transferred Restricted
Securities (as defined in the Registration Rights Agreement) shall
have all the rights set forth in the Registration Rights Agreement,
dated as of the date hereof, among Holdings, the Subsidiary
Guarantors and the Initial Purchaser (the "Registration Rights
Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, Holdings
has caused CUSIP numbers to be printed on the Senior Discount 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 Senior Discount
Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
Holdings 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:
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AP Holdings, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telecopy: (000) 000-0000
Chief Financial Officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Discount Note purchased by
Holdings pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
|_| Section 4.10 |_| Section 4.14
If you want to elect to have only part of the Senior Discount Note
purchased by Holdings pursuant to Section 4.10 or Section 4.14 of the Indenture,
state the amount you elect to have purchased: $___________
Date:_______________ Your Signature:__________________________
(Sign exactly as your name appears on the
Senior Discount Note)
Tax Identification No.:__________________
Signature Guarantee.
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SCHEDULE OF EXCHANGES FOR GLOBAL NOTES
The following exchanges of a part of this Regulation S Temporary Global
Note for other Global Notes have been made:
--------------------------------------------------------------------------------
Signature of
Amount of Principal authorized
Amount of increase in Amount of this officer of
decrease in Principal Global Note Trustee or
Principal Amount of following such Senior
Amount of this this Global decrease (or Discount Note
Date of Exchange Global Note Note increase) Custodian
--------------------------------------------------------------------------------
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Exhibit B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.6(a)(1) of the Indenture)
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: 11 1/4% Senior Discount Notes due 2008 of AP Holdings, Inc.
Reference is hereby made to the Indenture, dated as of March 30,
1998 (the "Indenture"), between AP Holdings, Inc., a Delaware corporation (the
"Holdings") and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $ _________________ principal amount of
Senior Discount Notes which are evidenced by one or more Rule 144A Global Notes
and held with the Depositary in the name of ___________________ (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Senior Discount Notes to a Person who will take delivery thereof
in the form of an equal principal amount of Senior Discount Notes evidenced by
one or more Regulation S Global Notes, which amount, immediately after such
transfer, is to be held with the Depositary through Euroclear or Cedel or both.
In connection with such request and in respect of such Senior
Discount Notes, the Transferor hereby certifies that such transfer has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with Rule 903 or Rule 904 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor hereby further certifies that:
(1) The offer of the Senior Discount Notes was not made to a person
in the United States;
(2) either:
(a) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any
person acting on its behalf reasonably believed and
believes that the transferee was outside the United
States; or
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market
and neither the Transferor nor any person acting on its
behalf knows that the transaction was prearranged with a
buyer in the United States;
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(3) no directed selling efforts have been made in contravention of
the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration provisions of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above is to be held with the Depositary through
Euroclear or Cedel or both.
Upon giving effect to this request to exchange a beneficial interest
in a Rule 144A Global Note for a beneficial interest in a Regulation S Global
Note, the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Senior Discount Notes,
the additional restrictions applicable to transfers of interest in the
Regulation S Temporary Global Note.
This certificate and the statements contained herein are made for
your benefit and the benefit of Holdings and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, the initial purchaser of such Senior Discount Notes
being transferred. Terms used in this certificate and not otherwise defined in
the Indenture have the meanings set forth in Regulation S under the Securities
Act.
[Insert Name of Transferor]
By:________________________________
Name:
Title:
Dated:
cc: AP Holdings, Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
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Exhibit B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.6(a)(ii) of the Indenture)
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: 11 1/4% Senior Discount Notes due 2008 of AP Holdings, Inc.
Reference is hereby made to the Indenture, dated as of March 30,
1998 (the "Indenture"), between AP Holdings, Inc., a Delaware corporation (the
"Holdings") and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $__________ principal amount of Senior
Discount Notes which are evidenced by one or more Regulation S Global Notes and
held with the Depositary through Euroclear or Cedel in the name of
_________________ (the "Transferor"). The Transferor has requested a transfer of
such beneficial interest in the Senior Discount Notes to a Person who will take
delivery thereof in the form of an equal principal amount of Senior Discount
Notes evidenced by one or more Rule 144A Global Notes, to be held with the
Depositary.
In connection with such request and in respect of such Senior
Discount Notes, the Transferor hereby certifies that:
[CHECK ONE]
|_| such transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Senior Discount Notes are being transferred to a Person
that the Transferor reasonably believes is purchasing the Senior Discount
Notes for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person
and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule
144A;
or
|_| such transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
or
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|_| such transfer is being effected pursuant to an exemption under the
Securities Act other than Rule 144A, Rule 144 or Rule 904 and the
Transferor further certifies that the Transfer complies with the transfer
restrictions applicable to beneficial interests in Global Notes and
Definitive Senior Discount Notes bearing the Private Placement Legend and
the requirements of the exemption claimed, which certification is
supported by (x) if such transfer is in respect of a principal amount of
Senior Discount Notes at the time of Transfer of $250,000 or more, a
certificate executed by the Transferee in the form of EXHIBIT C to the
Indenture, or (y) if such Transfer is in respect of a principal amount of
Senior Discount Notes at the time of transfer of less than $250,000, (1) a
certificate executed in the form of EXHIBIT C to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect
that (1) such Transfer is in compliance with the Securities Act and (2)
such Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
|_| such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Discount Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a
copy of which the Transferor has attached to this certification) in form
reasonably acceptable to Holdings and to the Registrar, to the effect that
such transfer is in compliance with the Securities Act;
and such Senior Discount Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest
in Regulation S Global Notes for a beneficial interest in 144A Global Senior
Discount Notes, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Rule 144A Global Notes pursuant to the
Indenture and the Securities Act.
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This certificate and the statements contained herein are made for
your benefit and the benefit of Holdings and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, the initial purchaser of such Senior Discount Notes
being transferred. Terms used in this certificate and not otherwise defined in
the Indenture have the meanings set forth in Regulation S under the Securities
Act.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
cc: AP Holdings, Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
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Exhibit B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE SENIOR SUBORDINATED NOTES
(Pursuant to Section 2.6(b) of the Indenture)
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: 11 1/4% Senior Discount Notes due 2008 AP Holdings, Inc.
Reference is hereby made to the Indenture, dated as of March 30,
1998 (the "Indenture"), between AP Holdings, Inc., a Delaware corporation (the
"Holdings") and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This relates to $ _______ principal amount of Senior Discount Notes
which are evidenced by one or more Definitive Senior Discount Notes in the name
of _____________ (the "Transferor"). The Transferor has requested an exchange or
transfer of such Definitive Senior Discount Note(s) in the form of an equal
principal amount of Senior Discount Notes evidenced by one or more Definitive
Senior Discount Notes, to be delivered to the Transferor or, in the case of a
transfer of such Senior Discount Notes, to such Person as the Transferor
instructs the Trustee.
In connection with such request and in respect of the Senior
Discount Notes surrendered to the Trustee herewith for exchange (the
"Surrendered Senior Discount Notes"), the Holder of such Surrendered Senior
Discount Notes hereby certifies that:
[CHECK ONE]
|_| the Surrendered Senior Discount Notes are being acquired for the
Transferor's own account, without transfer;
or
|_| the Surrendered Senior Discount Notes are being transferred to Holdings;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Senior Discount Notes are
being transferred to a Person that the Transferor reasonably believes is
purchasing the Surrendered Senior Discount Notes for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
"qualified institutional
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113
buyer" within the meaning of Rule 144A, in each case in a transaction
meeting the requirements of Rule 144A;
or
|_| the Surrendered Senior Discount Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to an
exemption under the Securities Act other than Rule 144A, Rule 144 or Rule
904 and the Transferor further certifies that the Transfer complies with
the transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Discount Notes bearing the Private Placement
Legend and the requirements of the exemption claimed, which certification
is supported by (x) if such transfer is in respect of a principal amount
of Senior Discount Notes at the time of Transfer of $250,000 or more, a
certificate executed by the Transferee in the form of EXHIBIT C to the
Indenture, or (y) if such Transfer is in respect of a principal amount of
Senior Discount Notes at the time of transfer of less than $250,000, (1) a
certificate executed in the form of EXHIBIT C to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect
that (1) such Transfer is in compliance with the Securities Act and (2)
such Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Discount Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a
copy of which the Transferor has attached to this certification) in form
reasonably acceptable to Holdings and to the Registrar, to the effect that
such transfer is in compliance with the Securities Act;
and the Surrendered Senior Discount Notes are being transferred in compliance
with any applicable blue sky securities laws of any state of the United States.
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This certificate and the statements contained herein are made for
your benefit and the benefit of Holdings and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, the initial purchaser of such Senior Discount Notes
being transferred. Terms used in this certificate and not otherwise defined in
the Indenture have the meanings set forth in Regulation S under the Securities
Act.
[Insert Name of Transferor]
By:_______________________________
Name:
Title:
Dated:
cc: AP Holdings, Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
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Exhibit B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE OR REGULATION S
PERMANENT GLOBAL NOTE
TO DEFINITIVE SENIOR SUBORDINATED NOTE
(Pursuant to Section 2.6(c) of the Indenture)
State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: 11 1/4% Senior Discount Notes due 2008 AP Holdings, Inc.
Reference is hereby made to the Indenture, dated as of March 30,
1998 (the "Indenture"), between AP Holdings, Inc., a Delaware corporation (the
"Holdings") and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
This letter relates to $___________ principal amount of Senior
Discount Notes which are evidenced by a beneficial interest in one or more Rule
144A Global Notes or Regulation S Permanent Global Notes in the name of
________________ (the "Transferor"). The Transferor has requested an exchange or
transfer of such beneficial interest in the form of an equal principal amount of
Senior Discount Notes evidenced by one or more Definitive Senior Discount Notes,
to be delivered to the Transferor or, in the case of a transfer of such Senior
Discount Notes, to such Person as the Transferor instructs the Trustee.
In connection with such request and in respect of the Senior
Discount Notes surrendered to the Trustee herewith for exchange (the
"Surrendered Senior Discount Notes"), the Holder of such Surrendered Senior
Discount Notes hereby certifies that:
[CHECK ONE]
|_| the Surrendered Senior Discount Notes are being transferred to the
beneficial owner of such Senior Discount Notes;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor
hereby further certifies that the Surrendered Senior Discount Notes are
being transferred to a Person that the Transferor reasonably believes is
purchasing the Surrendered Senior Discount Notes for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each
case in a transaction meeting the requirements of Rule 144A;
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or
|_| the Surrendered Senior Discount Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to an
effective registration statement under the Securities Act;
or
|_| the Surrendered Senior Discount Notes are being transferred pursuant to an
exemption under the Securities Act other than Rule 144A, Rule 144 or Rule
904 and the Transferor further certifies that the Transfer complies with
the transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Discount Notes bearing the Private Placement
Legend and the requirements of the exemption claimed, which certification
is supported by (x) if such transfer is in respect of a principal amount
of Senior Discount Notes at the time of Transfer of $250,000 or more, a
certificate executed by the Transferee in the form of EXHIBIT C to the
Indenture, or (y) if such Transfer is in respect of a principal amount of
Senior Discount Notes at the time of transfer of less than $250,000, (1) a
certificate executed in the form of EXHIBIT C to the Indenture and (2) an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect
that (1) such Transfer is in compliance with the Securities Act and (2)
such Transfer complies with any applicable blue sky securities laws of any
state of the United States;
or
|_| such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Discount Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported by
an Opinion of Counsel, provided by the transferor or the transferee (a
copy of which the Transferor has attached to this certification) in form
reasonably acceptable to Holdings and to the Registrar, to the effect that
such transfer is in compliance with the Securities Act;
and the Surrendered Senior Discount Notes are being transferred in compliance
with any applicable blue sky securities laws of any state of the United States.
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This certificate and the statements contained herein are made for
your benefit and the benefit of Holdings and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, the initial purchaser of such Senior Discount Notes
being transferred. Terms used in this certificate and not otherwise defined in
the Indenture have the meanings set forth in Regulation S under the Securities
Act.
[Insert Name of Transferor]
By:_____________________________
Name:
Title:
Dated:
cc: AP Holdings, Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
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Exhibit C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Re: 11 1/4% Senior Discount Notes due 2008 AP Holdings, Inc.
Reference is hereby made to the Indenture, dated as of March 30,
1998 (the "Indenture"), between AP Holdings, Inc., a Delaware corporation (the
"Holdings") and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
In connection with our proposed purchase of $__________ aggregate
principal amount of:
(a) |_| Beneficial interests, or
(b) |_| Definitive Senior Discount Notes,
we confirm that:
1. We understand that any subsequent transfer of the Senior Discount
Notes of any interest therein is subject to certain restrictions and conditions
set forth in the Indenture and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Senior Discount Notes or any interest
therein except in compliance with, such restrictions and conditions and the
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Senior Discount
Notes have not been registered under the Securities Act, and that the Senior
Discount Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf
of any accounts for which we are acting as hereinafter stated, that if we should
sell the Senior Discount Notes or any interest therein, (A) we will do so only
(1)(a) to a person who 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 144A, (b) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (c) outside the United States
to a foreign person in a transaction meeting the requirements of Rule 904 of 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), (2) to Holdings or any of its subsidiaries or (3) pursuant to an
effective registration statement and, in each case, in accordance with any
applicable securities laws of any State of the United States or any other
applicable jurisdiction and (B) we will, and each subsequent holder will be
required to, notify any purchaser from it of the security evidenced hereby of
the resale restrictions set forth in (A) above."
X-0
000
0. We understand that, on any proposed resale of the Senior Discount
Notes or beneficial interests, we will be required to furnish to you and
Holdings such certifications, legal opinions and other information as you and
Holdings may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Senior Discount Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Senior Discount
Notes, and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Senior Discount Notes or beneficial
interests therein purchased by us for our own account or for one or more
accounts (each of which is an institutional "accredited investor") as to each of
which we exercise sole investment discretion.
6. We are not acquiring the Senior Discount Notes with a view to any
distribution thereof that would violate the Securities Act or the securities
laws of any State of the United States.
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You and Holdings are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_____________________________
[Insert Name of Accredited
Investor]
By:__________________________
Name:
Title:
Dated: _______________, ____
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