1
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XXXXXXXX'X, INC., as Issuer
THE SUBSIDIARY GUARANTORS named herein, as Guarantors
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
-----------------------
INDENTURE
Dated as of May 21, 1997
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$125,000,000
8 1/8% Senior Notes due 2004, Series A
8 1/8% Senior Notes due 2004, Series B
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Reconciliation and tie between Trust Indenture Act of 1939, as
amended, and Indenture, dated as of May 21, 1997
Trust Indenture Indenture
Act Section Section
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Section 310 (a)(1) . . . . . . .. . . . . . . . . . . . . 6.09
(a)(2) . . . . . . . . . . . . . . . . . . . 6.09
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . 6.08, 6.10
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . 6.07
(b) . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . 3.05, 7.01
(b) . . . . . . . . . . . . . . . . . . . . . 7.02
(c) . . . . . . . . . . . . . . . . . . . . . 7.02
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . 7.03
(b) . . . . . . . . . . . . . . . . . . . . . 7.03
(c) . . . . . . . . . . . . . . . . . . . . . 7.03
(d) . . . . . . . . . . . . . . . . . . . . . 7.03
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . 7.04
(a)(4) . . . . . . . . . . . . . . . . . . . 10.10
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 1.04, 4.04, 12.01(c)
(c)(2) . . . . . . . . . . . . . . . . . . . 1.04, 4.04, 12.01(c)
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . 1.04
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . 6.01(a)
(b) . . . . . . . . . . . . . . . . . . . . . 6.02
(c) . . . . . . . . . . . . . . . . . . . . . 6.01(b)
(d) . . . . . . . . . . . . . . . . . . . . . 6.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316 (a) (last sentence) . . . . . . . . . . . . . 3.14
(a)(1)(A) . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . 5.08
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . 5.03
(a)(2) . . . . . . . . . . . . . . . . . . . 5.04
(b) . . . . . . . . . . . . . . . . . . . . . 10.03
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . 1.08
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TABLE OF CONTENTS
Page
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions. . . . . . . . . . . . . . . . . . 20
Section 1.03. Rules of Construction. . . . . . . . . . . . . . . . 20
Section 1.04. Form of Documents Delivered to Trustee. . . . . . . . 21
Section 1.05. Acts of Holders. . . . . . . . . . . . . . . . . . . 21
Section 1.06. Notices, etc., to the Trustee, the Company
and the Guarantors. . . . . . . . . . . . . . . . . . 22
Section 1.07. Notice to Holders; Waiver. . . . . . . . . . . . . . 22
Section 1.08. Conflict with Trust Indenture Act. . . . . . . . . . 23
Section 1.09. Effect of Headings and Table of Contents. . . . . . . 23
Section 1.10. Successors and Assigns. . . . . . . . . . . . . . . . 23
Section 1.11. Separability Clause. . . . . . . . . . . . . . . . . 23
Section 1.12. Benefits of Indenture. . . . . . . . . . . . . . . . 23
Section 1.13. Governing Law. . . . . . . . . . . . . . . . . . . . 24
Section 1.14. No Recourse Against Others. . . . . . . . . . . . . . 24
Section 1.15. Independence of Covenants. . . . . . . . . . . . . . 24
Section 1.16. Exhibits. . . . . . . . . . . . . . . . . . . . . . . 24
Section 1.17. Counterparts. . . . . . . . . . . . . . . . . . . . . 24
Section 1.18. Duplicate Originals. . . . . . . . . . . . . . . . . 24
ARTICLE TWO NOTE AND GUARANTEE FORMS24
Section 2.01. Form and Dating. . . . . . . . . . . . . . . . . . . 24
ARTICLE THREE THE NOTES
Section 3.01. Title and Terms. . . . . . . . . . . . . . . . . . . 25
Section 3.02. Registrar and Paying Agent. . . . . . . . . . . . . . 26
Section 3.03. Execution and Authentication. . . . . . . . . . . . . 26
Section 3.04. Temporary Notes. . . . . . . . . . . . . . . . . . . 28
Section 3.05. Transfer and Exchange.. . . . . . . . . . . . . . . . 28
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes . . . . . 29
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Section 3.07. Payment of Interest; Interest Rights Preserved. . . .30
Section 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . .31
Section 3.09. Cancellation. . . . . . . . . . . . . . . . . . . . .31
Section 3.10. Computation of Interest. . . . . . . . . . . . . . .31
Section 3.11. Legal Holidays. . . . . . . . . . . . . . . . . . . .31
Section 3.12. CUSIP and CINS Numbers. . . . . . . . . . . . . . . .32
Section 3.13. Paying Agent To Hold Money in Trust. . . . . . . . .32
Section 3.14. Treasury Notes. . . . . . . . . . . . . . . . . . . .32
Section 3.15. Deposits of Monies. . . . . . . . . . . . . . . . . .32
Section 3.16. Book-Entry Provisions for Global Notes. . . . . . . .33
Section 3.17. Special Transfer Provisions . . . . . . . . . . . . .34
ARTICLE FOUR DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . . .37
Section 4.02. Defeasance and Discharge. . . . . . . . . . . . . . .37
Section 4.03. Covenant Defeasance . . . . . . . . . . . . . . . . .38
Section 4.04. Conditions to Defeasance or Covenant Defeasance . . .38
Section 4.05. Deposited Money and U.S. Government Obligations
To Be Held in Trust; Other Miscellaneous
Provisions. . . . . . . . . . . . . . . . . . . . . .40
Section 4.06. Reinstatement . . . . . . . . . . . . . . . . . . . .40
ARTICLE FIVE REMEDIES
Section 5.01. Events of Default . . . . . . . . . . . . . . . . . .41
Section 5.02. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . .43
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . .44
Section 5.04. Trustee May File Proofs of Claims . . . . . . . . . .45
Section 5.05. Trustee May Enforce Claims Without Possession
of Notes. . . . . . . . . . . . . . . . . . . . . . .45
Section 5.06. Application of Money Collected. . . . . . . . . . . .45
Section 5.07. Limitation on Suits . . . . . . . . . . . . . . . . .46
Section 5.08. Unconditional Right of Holders To Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . .47
Section 5.09. Restoration of Rights and Remedies. . . . . . . . . .47
Section 5.10. Rights and Remedies Cumulative. . . . . . . . . . . .47
Section 5.11. Delay or Omission Not Waiver. . . . . . . . . . . . .47
Section 5.12. Control by Majority . . . . . . . . . . . . . . . . .47
Section 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . .48
Section 5.14. Undertaking for Costs . . . . . . . . . . . . . . . .48
Section 5.15. Waiver of Stay, Extension or Usury Laws. . . . . . .48
Section 5.16. Unconditional Right of Holders To Receive Payment . .49
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ARTICLE SIX THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities. . . . . . . . . 49
Section 6.02. Notice of Defaults . . . . . . . . . . . . . . . . . 50
Section 6.03. Certain Rights of Trustee . . . . . . . . . . . . . 50
Section 6.04. Trustee Not Responsible for Recitals,
Dispositions of Notes or Application of
Proceeds Thereof . . . . . . . . . . . . . . . . . . 51
Section 6.05. Trustee and Agents May Hold Notes;
Collections; Etc.. . . . . . . . . . . . . . . . . . 51
Section 6.06. Money Held in Trust . . . . . . . . . . . . . . . . 52
Section 6.07. Compensation and Indemnification of Trustee
and Its Prior Claim. . . . . . . . . . . . . . . . . 52
Section 6.08. Conflicting Interests. . . . . . . . . . . . . . . . 52
Section 6.09. Corporate Trustee Required; Eligibility. . . . . . . 52
Section 6.10. Resignation and Removal; Appointment of
Successor Trustee. . . . . . . . . . . . . . . . . . 53
Section 6.11. Acceptance of Appointment by Successor . . . . . . . 54
Section 6.12. Merger, Conversion, Amalgamation,
Consolidation or Succession to Business. . . . . . . 55
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY55
Section 7.01. Preservation of Information; Company To Furnish
Trustee Names and Addresses of Holders. . . . . . . 55
Section 7.02. Communications of Holders. . . . . . . . . . . . . . 56
Section 7.03. Reports by Trustee. . .. . . . . . . . . . . . . . . 56
Section 7.04. Reports by Company and Each Guarantor. . . . . . . . 56
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. Company May Consolidate, etc., Only on
Certain Terms. . . . . . . . . . . . . . . . . . . . 57
Section 8.02. Successor Substituted. . . . . . . . . . . . . . . . 58
ARTICLE NINE SUPPLEMENTAL INDENTURES AND WAIVERS 59
Section 9.01. Supplemental Indentures, Agreements and Waivers
Without Consent of Holders. . . . . . . . . . . . . 59
Section 9.02. Supplemental Indentures, Agreements and Waivers
with Consent of Holders. . . . . . . . . . . . . . . 60
Section 9.03. Execution of Supplemental Indentures, Agreements
and Waivers. . . . . . . . . . . . . . . . . . . . . 61
Section 9.04. Effect of Supplemental Indentures. . . . . . . . . . 62
Section 9.05. Conformity with Trust Indenture Act. . . . . . . . . 62
Section 9.06. Reference in Notes to Supplemental Indentures. . . . 62
Section 9.07. Record Date. . . . . . . . . . . . . . . . . . . . . 62
Section 9.08. Revocation and Effect of Consents. . . . . . . . . . 62
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ARTICLE TEN COVENANTS
Section 10.01. Payment of Principal, Premium and Interest . . . . . 63
Section 10.02. Maintenance of Officeor Agency. . . . . . . . . . . 63
Section 10.03. Money for Note Payments To Be Held in Trust. . . . . 63
Section 10.04. Corporate Existence. . . . . . . . . . . . . . . . . 65
Section 10.05. Payment of Taxes and Other Claims. . . . . . . . . . 65
Section 10.06. Maintenance of Properties. . . . . . . . . . . . . . 65
Section 10.07. Insurance. . . . . . . . . . . . . . . . . . . . . . 65
Section 10.08. Books and Records. . .. . . . . . . . . . . . . . . 66
Section 10.09. Note Guarantees. . . . . . . . . . . . . . . . . . . 66
Section 10.10. Provision of Financial Statements. . . . . . . . . . 66
Section 10.11. Change of Control Triggering Event . . . . . . . . . 66
Section 10.12. Limitation on Indebtedness . . . . . . . . . . . . . 68
Section 10.13. Statement by Officers as to Default. . . . . . . . . 70
Section 10.14. Limitation on Restricted Payments. . . . . . . . . . 71
Section 10.15. Limitation on Transactions with Affiliates . . . . . 74
Section 10.16. Disposition of Proceeds of Asset Sales . . . . . . . 75
Section 10.17. Limitation on Liens. . . . . . . . . . . . . . . . . 78
Section 10.18. Limitation on Guarantees by Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . 78
Section 10.19. Restrictions on Preferred Stock of Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . 79
Section 10.20. Limitation on Dividends and
Other Payment Restrictions Affecting Restricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . 79
Section 10.21. Limitation on Designations of Unrestricted
Subsidiaries . . . . . . . . . . . . . . . . . . . . 80
Section 10.22. Compliance Certificates and Opinions . . . . . . . . 81
Section 10.23. Application of Fall Away Covenants . . . . . . . . . 82
ARTICLE ELEVEN SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of Indenture . . . . . . 82
Section 11.02. Application of Trust Money . . . . . . . . . . . . . 83
ARTICLE TWELVE GUARANTEE OF NOTES
Section 12.01. Unconditional Guarantee. . . . . . . . . . . . . . . 83
Section 12.02. Execution and Delivery of Note Guarantee . . . . . . 84
Section 12.03. Additional Guarantors. . . . . . . . . . . . . . . . 85
Section 12.04. Release of a Guarantor . . . . . . . . . . . . . . . 85
Section 12.05. Waiver of Subrogation . . . . . . . . . . . . . . . 85
Section 12.06. Reliance on Judicial Order or Certificate of
Liquidating Agent Regarding Dissolution, etc.
of Guarantors . . . . . . . . . . . . . . . . . . . 86
Section 12.07. Article Twelve Applicable to Paying Agents . . . . . 86
Section 12.08. No Suspension of Remedies. . . . . . . . . . . . . . 87
Section 12.09. Limitation of Subsidiary Guarantor's Liability . . . 87
Section 12.10. Contribution from Other Guarantors . . . . . . . . . 87
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Section 12.11. Obligations Reinstated. . . . . . . . . . . . . . . .87
Section 12.12. No Obligation To Take Action Against the Company. . .87
Section 12.13. Dealing with the Company and Others . . . . . . . . .88
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Exhibit A-1 - Form of Series A Note
Exhibit A-2 - Form of Series B Note
Exhibit B - Form of Legend for Book-Entry Securities
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit E - Form of Note Xxxxxxxxx
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XXXXXXXXX, dated as of May 21, 1997, among Xxxxxxxx'x, Inc., a
corporation incorporated under the laws of the State of Tennessee (the
"Company"), as issuer, the Subsidiary Guarantors named herein ("Guarantors"), as
guarantors, and THE FIRST NATIONAL BANK OF CHICAGO, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of (i)
8 1/8% Senior Notes due 2004, Series A, and (ii) 8 1/8% Senior Notes due 2004,
Series B, to be issued in exchange for the 8 1/8% Senior Notes due 2004, Series
A, pursuant to the Registration Rights Agreement (the "Notes", such term to
include the Initial Notes, the Private Exchange Notes, if any, and the
Unrestricted Notes, if any, treated as a single class of securities under this
Indenture), of substantially the tenor and amount hereinafter set forth, and to
provide therefor the Company has duly authorized the execution and delivery of
this Indenture.
The Guarantors have duly authorized their senior guarantee of
the Notes and to provide therefor, the Guarantors have duly authorized the
execution and delivery of this Indenture and their Note Guarantees (as
hereinafter defined) under the terms set forth herein.
All things necessary have been done to make the Notes and the
Note Guarantees, when executed by the Company and the Guarantors, respectively,
and authenticated and delivered hereunder and duly issued by the Company and the
Guarantors, respectively, the valid obligations of the Company and the
Guarantors and to make this Indenture a valid agreement of each of the Company,
the Guarantors and the Trustee in accordance with the terms hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders (as hereinafter defined) of the
Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
"Accounts Receivable Subsidiary" means Younkers Credit
Corporation and Xxxxxxxx'x Credit Corporation and any other present or future
Subsidiary (including any credit card bank) of the Company that is, directly or
indirectly, wholly owned by the Company (other than director qualifying shares)
and organized for the purpose of and engaged in (i) purchasing, financing, and
collecting accounts receivable obligations of customers of the Company or its
Subsidiaries, (ii) issuing credit cards and financing accounts receivable
obligations of customers of
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the Company and its Subsidiaries, (iii) the sale or financing of such accounts
receivable or interests therein and (iv) other activities incident thereto.
"Acquired Indebtedness" means, with respect to any specified
Person Indebtedness of any other Person (i) assumed in connection with an Asset
Acquisition from such Person or (ii) existing at the time such Person becomes a
Restricted Subsidiary of any other Person (other than any Indebtedness incurred
in connection with, or in contemplation of, such Asset Acquisition or such
Person becoming such a Restricted Subsidiary).
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person (other than the X.X.
Xxxxxxxxx'x 401(k) Employee Stock Purchase Plan and Employment Stock Ownership
Plan). For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of Voting
Stock, by contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Asset Acquisition" means (i) an Investment by the Company or
any Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary or will be merged or consolidated with or into
the Company or any Restricted Subsidiary or (ii) the acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of the assets of such Person, or any division or line of
business of such Person, or which is otherwise outside of the ordinary course of
business.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance or transfer or other disposition (including, without limitation, any
merger, consolidation or sale-leaseback transaction) to any Person other than
the Company or a Restricted Subsidiary, in one or a series of related
transactions, of (i) any Capital Stock of any Restricted Subsidiary; (ii) all or
substantially all of the assets of any division or line of business of the
Company or any Restricted Subsidiary; or (iii) any other properties or assets of
the Company or any Restricted Subsidiary other than in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" will not
include (a) any sale, issuance, conveyance, transfer, lease or other disposition
of properties or assets that is governed by the first paragraph of Section 8.01;
(b) sales of surplus and other property or equipment that has become worn out,
obsolete or damaged or otherwise unsuitable for use in connection with the
business of the Company or any Restricted Subsidiary, as the case may be; or (c)
any transaction consummated in compliance with Section 10.14. For purposes of
Section 10.16, the term "Asset Sale" shall not include any sale, conveyance,
transfer, lease or other disposition of (x) any property or asset, whether in
one transaction or a series of related transactions (1) constituting a
Capitalized Lease Obligation or a transfer consisting solely of a grant of a
security interest permitted by the Indenture or (2) involving assets with a Fair
Market Value not in excess of $1.0 million, (y) accounts receivable to an
Accounts Receivable Subsidiary or to third parties that are not Affiliates of
the Company or any Subsidiary of the Company in the ordinary course of business
or (z) the sale, transfer or other disposition of shares of Capital Stock or
Indebtedness of an Unrestricted Subsidiary or Permitted Investments (other
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than Permitted Investments of the type described under clause (f) of the
definition thereof) to a third party that is not an Affiliate of the Company or
any Subsidiary of the Company.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years from such date to the
date or dates of each successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such Indebtedness multiplied by
(b) the amount of each such principal payment by (ii) the sum of all such
principal payments.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar federal or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or the law of any
other jurisdiction relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law.
"Bankruptcy Order" means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation,
receivership, winding-up, dissolution, "concordate" or reorganization, or
appointing a Custodian of a debtor or of all or any substantial part of a
debtor's property, or providing for the staying, arrangement, adjustment or
composition of indebtedness or other relief of a debtor.
"Board of Directors" means the board of directors of the
Company or any Guarantor, as the case may be, or any duly authorized committee
of such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or any Guarantor, as the
case may be, to have been duly adopted by its respective Board of Directors and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York, State of New York or Charlotte, North Carolina are authorized or obligated
by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents (however
designated) of such Person's capital stock, 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 and any rights (other than
debt securities convertible into capital stock), warrants or options
exchangeable for or convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation under a
lease of (or other agreement conveying the right to use) any property (whether
real, personal or mixed ) that is required to be classified and accounted for as
a capital lease obligation under GAAP, and, for the
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purpose of the Indenture, the amount of such obligation at any date shall be the
capitalized amount thereof at such date, determined in accordance with GAAP
consistently applied.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of not more than one year issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit,
Eurodollar time deposits or bankers' acceptances with a maturity of not more
than one year of any financial institution that is a member of the Federal
Reserve System having combined capital and surplus and undivided profits of not
less than $500.0 million; (iii) commercial paper with a maturity of not more
than one year issued by a corporation that is not an Affiliate of the Company
organized under the laws of any state of the United States or the District of
Columbia and rated at least A-1 by Standard & Poor's Ratings Group, at least P-1
by Xxxxx'x Investors Service, Inc. the equivalent of any such category of
Standard & Poor's Ratings Group or Xxxxx'x Investor Services, Inc. used by
another nationally recognized Rating Agency; (iv) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clauses (i) and (ii) above; and (v) transaction deposit accounts
with domestic commercial banks.
"Cedel" means Cedel Bank, Societe anonyme.
"Change of Control" means the occurrence of any of the
following events (whether or not approved by the Board of Directors of the
Company): (i) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be
deemed to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 35% of the total
voting power of the then outstanding Voting Stock of the Company; (ii) the
Company consolidates with, or merges with or into, another Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, other than any such transaction
where the holders of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority of the total
voting power of the then outstanding Voting Stock of the surviving or transferee
corporation immediately after such transaction and the preceding clause (i) is
not applicable; (iii) during any consecutive two-year period, individuals who at
the beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by such board or whose
nomination for election by the stockholders of the Company was approved by a
vote of 66 2/3% of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office; or (iv) any order, judgment or
decree shall be entered against the Company decreeing the dissolution or
liquidation of the Company and such order shall remain undischarged or unstayed
for a period in excess of sixty days.
"Change of Control Triggering Event" means the occurrence of
both a Change of Control and a Rating Decline.
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13
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, or if at any time after the execution of this
Indenture such Commission is not existing and performing the applicable duties
now assigned to it, then the body or bodies performing such duties at such time.
"Company" means the person named as the "Company" in the first
paragraph of this Indenture, until a successor person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by any one of its Chairman of the Board,
its Vice-Chairman, its Chief Executive Officer, its President or a Vice
President, and by its Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and delivered to the Trustee.
"Consolidated Cash Flow Available for Fixed Charges" means, for
any period, (i) the sum of, without duplication, the amounts for such period,
taken as a single accounting period, of (a) Consolidated Net Income, (b) to the
extent reducing Consolidated Net Income, Consolidated Non-cash Charges, (c) to
the extent reducing Consolidated Net Income, Consolidated Interest Expense, and
(d) to the extent reducing Consolidated Net Income, Consolidated Income Tax
Expense less (ii)(A) all non-cash items increasing Consolidated Net Income for
such period and (B) all cash payments during such period relating to non-cash
charges that were added back in determining Consolidated Cash Flow Available for
Fixed Charges in any prior period.
"Consolidated Fixed Charge Coverage Ratio" means the ratio of
the aggregate amount of Consolidated Cash Flow Available for Fixed Charges of
the Company for the four full fiscal quarters immediately preceding the date of
the transaction for which consolidated financial information of the Company is
available (the "Transaction Date") giving rise to the need to calculate the
Consolidated Fixed Charge Coverage Ratio (such four full fiscal quarter period
being referred to herein as the "Four Quarter Period") to the aggregate amount
of Consolidated Fixed Charges of the Company for such Four Quarter Period. For
purposes of this definition, "Consolidated Cash Flow Available for Fixed
Charges" and "Consolidated Fixed Charges" will be calculated, without
duplication, after giving effect on a pro forma basis for the period of such
calculation to (i) the incurrence of any Indebtedness of the Company or any of
the Restricted Subsidiaries during the period commencing on the first day of the
Four Quarter Period to and including the Transaction Date (the "Reference
Period"), including, without limitation, the incurrence of the Indebtedness
giving rise to the need to make such calculation, as if such incurrence occurred
on the first day of the Reference Period, (ii) an adjustment to eliminate or
include, as applicable, the Consolidated Cash Flow Available for Fixed Charges
and Consolidated Fixed Charges of the Company directly attributable to assets
which are the subject of any Asset Sale or Asset Acquisition (including, without
limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of the Company or one of the Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a result of the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness) occurring during the Reference Period, as if such Asset Sale or
Asset Acquisition occurred on the first day of the Reference Period, (iii) the
retirement of Indebtedness during the Reference Period which cannot
-5-
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thereafter be reborrowed occurring as if retired on the first day of the
Reference Period and (iv) an adjustment to eliminate the Restructuring Charges.
For purposes of calculating "Consolidated Fixed Charges" for this "Consolidated
Fixed Charge Coverage Ratio," interest on Indebtedness incurred during the
Reference Period under any revolving credit facility which may be borrowed and
repaid without reducing the commitments thereunder shall be the actual interest
during the Reference Period. Furthermore, in calculating "Consolidated Fixed
Charges" for purposes of determining the denominator (but not the numerator) of
this "Consolidated Fixed Charge Coverage Ratio," (1) interest on Indebtedness
determined on a fluctuating basis as of the Transaction Date and which will
continue to be so determined thereafter will be deemed to accrue at a fixed rate
per annum equal to the rate of interest on such Indebtedness in effect on the
Transaction Date; (2) if interest on any Indebtedness actually incurred on the
Transaction Date may optionally be determined on a fluctuating basis like prime
or a similar rate or a factor thereof, a eurocurrency interbank offered rate, or
other rates, then the interest rate in effect on the Transaction Date shall be
deemed to have been in effect during the Reference Period; and (3)
notwithstanding clause (1) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating
to Interest Rate Protection Obligations, will be deemed to accrue at the rate
per annum resulting after giving effect to the operation of such agreements. If
the Company or any Restricted Subsidiary directly or indirectly guarantees
Indebtedness of a third Person, the above definition will give effect to the
incurrence of such guaranteed Indebtedness as if the Company or any Restricted
Subsidiary had directly incurred or otherwise assumed such guaranteed
Indebtedness.
"Consolidated Fixed Charges" means, for any period, the sum of,
without duplication, the amounts for such period of (i) Consolidated Interest
Expense; and (ii) the product of (x) the aggregate amount of cash dividends and
other distributions paid, accrued or scheduled to be paid or accrued during such
period in respect of Redeemable Capital Stock times (y) a fraction, the
numerator of which is one and the denominator of which is one minus the
then-current effective consolidated federal, state and local tax rate of such
Person expressed as a decimal.
"Consolidated Income Tax Expense" means, for any period, the
provision for federal, state, local and foreign income taxes payable by the
Company and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the interest expense of the Company and the
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including, without limitation, (i) any amortization of
debt discount attributable to such period, (ii) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts), (iii) the
interest portion of any deferred payment obligation, (iv) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and (v) all capitalized interest and all accrued
interest, and (b) the interest component of Capitalized Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by the Company and the Restricted
Subsidiaries during such period and as determined on a consolidated basis in
accordance with GAAP.
-6-
15
"Consolidated Net Income" means, for any period, the
consolidated net income (or net loss) of the Company and the Restricted
Subsidiaries for such period as determined in accordance with GAAP, adjusted, to
the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses (net of fees and expenses
relating to the transaction giving rise thereto), (ii) income of the Company and
the Restricted Subsidiaries derived from or in respect of Investments in
Unrestricted Subsidiaries, except to the extent that cash dividends or
distributions are actually received by the Company or a Restricted Subsidiary,
(iii) the portion of net income (or net loss) of the Company and the Restricted
Subsidiaries allocable to minority interests in unconsolidated Persons, except
to the extent that cash dividends or distributions are actually received by the
Company or one of the Restricted Subsidiaries, (iv) net income (or net loss) of
any Person combined with the Company or one of the Restricted Subsidiaries on a
"pooling of interests" basis attributable to any period prior to the date of
combination, (v) gains or losses in respect of any Asset Sales by the Company or
any of the Restricted Subsidiaries (on an after-tax basis and net of fees and
expenses relating to the transaction giving rise thereto), and (vi) the net
income of any Restricted Subsidiary to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income
is not at the time permitted, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulations applicable to that Restricted Subsidiary or its
stockholders.
"Consolidated Non-cash Charges" means, for any period, the
aggregate depreciation, amortization and other noncash expenses of the Company
and the Restricted Subsidiaries reducing Consolidated Net Income for such period
(other than any non-cash item requiring an accrual or reserve for cash
disbursements in any future period), determined on a consolidated basis in
accordance with GAAP.
"control" means, with respect to any specified person, the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of Voting Stock, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration except for purposes of Section 3.02
and 10.02. For purposes of such sections, such office is located at 00 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Credit Facility" means the Credit Agreement dated as of
October 11, 1996, among the Company, NationsBank of Texas, National Association,
as Agent, and the other financial institutions signatory thereto, as in effect
on the Issue Date, and as such agreement may be amended, renewed, extended,
substituted, refinanced, replaced, supplemented or otherwise modified from time
to time, and includes related notes, guarantees and other agreements executed in
connection therewith.
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16
"Currency Agreement" means the obligations of any Person
pursuant to any foreign exchange contract, currency swap agreement or other
similar agreement or arrangement designed to protect the Company or any
Restricted Subsidiary against fluctuations in currency values.
"Custodian" means any receiver, interim receiver, receiver
and manager, receiver-manager, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law or any other law respecting secured
creditors and the enforcement of their security or any other person with like
powers whether appointed judicially or out of court and whether pursuant to an
interim or final appointment.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees and successors.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the Commission thereunder.
"Exchange Notes" means the 8 1/8% Senior Notes due 2004, Series
B, to be issued in exchange for the Initial Notes pursuant to the Registration
Rights Agreement.
"Exchange Offer" shall have the meaning specified in the
Registration Rights Agreement.
"Fair Market Value" means, with respect to any asset, the price
which could be negotiated in an arm's- length free market transaction, for cash,
between a willing seller and a willing buyer, neither of which is under pressure
or compulsion to complete the transaction. Fair Market Value shall be determined
by the Board of Directors of the Company acting in good faith conclusively
evidenced by a board resolution thereof delivered to the Trustee or, with
respect to any asset valued at up to $1.0 million, such determination may be
made by a duly authorized officer of the Company evidenced by an officer's
certificate delivered to the Trustee.
"Foreign Subsidiary" means a Restricted Subsidiary not
organized or existing under the laws of the United States, any state thereof,
the District of Columbia or any territory thereof.
"Four Quarter Period" has the meaning set forth in the
definition of "Consolidated Fixed Charge Coverage Ratio."
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States which are applicable at the
date of determination and which are consistently applied for all applicable
periods.
-8-
17
"Global Notes" means one or more Regulation S Global Notes and
144A Global Notes.
"guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (ii) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. A guarantee shall include,
without limitation, any agreement to maintain or preserve any other Person's
financial condition or to cause any other Person to achieve certain levels of
operating results.
"Guarantor" means (i) each of X.X. Xxxxxxxxx'x, Inc., Parisian,
Inc., XxXxx'x, Inc., XxXxx'x Stores Partnership, XxXxx'x of Alabama, Inc., and
their respective successors and (ii) each other Subsidiary formed, created or
acquired before or after the Issue Date required to become a Guarantor after the
Issue Date pursuant to Section 10.18.
"Holder" or "Noteholder" means a Person in whose name a Note is
registered in the Note Register.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payable
and other accrued current liabilities incurred in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit (but
excluding obligations with respect to trade letters of credit to the extent
such trade letters of credit are not drawn upon or, if drawn upon, to the
extent such drawing is reimbursed not later than the third Business Day
following receipt by such Person of a demand for reimbursement), bankers'
acceptances or other similar credit transaction and in connection with any
agreement obligating such Person to purchase, redeem, exchange, convert or
otherwise acquire for value any Capital Stock of such Person, or any warrants,
rights or options to acquire such Capital Stock, now or hereafter outstanding,
(ii) all obligations of such Person evidenced by bonds, notes, debentures or
other similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), but excluding trade accounts payable arising in the
ordinary course of business, (iv) all Capitalized Lease Obligations of such
Person, (v) all Indebtedness referred to in the preceding clauses of other
Persons and all dividends of other Persons, the payment of which is secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
Indebtedness (the amount of such obligation being deemed to be the lesser of
the value of such property or asset or the amount of the obligation so
secured), (vi) all guarantees by such Person of Indebtedness of another Person
(other than guarantees of operating leases of a Restricted Subsidiary of such
Person), (vii) all
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Redeemable Capital Stock valued at its involuntary maximum fixed repurchase
price plus accrued and unpaid dividends, (viii) all net payment obligations
under or in respect of Currency Agreements and Interest Rate Protection
Obligations of such Person, and (ix) any amendment, supplement, modification,
deferral, renewal, extension or refunding of any liability of the types referred
to in clauses (i) through (viii) above. For purposes hereof, the "maximum fixed
repurchase price" of any Redeemable Capital Stock which does not have a fixed
repurchase price will be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were purchased on
any date on which Indebtedness will be required to be determined pursuant to the
Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Redeemable Capital Stock, such Fair Market Value to be determined
in good faith by the Board of Directors of the issuer of such Redeemable Capital
Stock. Sales (on a "true-sale" non-recourse basis) and the servicing of
receivables transferred from the Company or a Restricted Subsidiary, or
transfers of cash, to an Accounts Receivable Subsidiary as a capital
contribution or in exchange for Indebtedness of such Accounts Receivable
Subsidiary or cash shall not be deemed Indebtedness hereunder.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company
and any other obligor under this Indenture or under the Notes, to pay principal
of, premium, if any, and interest on the Notes when due and payable, whether at
maturity, by acceleration, call for redemption or repurchase or otherwise, and
all other amounts due or to become due under or in connection with this
Indenture, the Notes or the Note Guarantees and the performance of all other
obligations to the Trustee (including, but not limited to, payment of all
amounts due the Trustee under Section 6.07 hereof) and the Holders of the Notes
under this Indenture, the Notes and the Note Guarantees, according to the terms
thereof.
"Initial Notes" means the 8 1/8% Senior Notes due 2004, Series
A, of the Company.
"Initial Purchasers" means Xxxxxxx Xxxxx, Xxxxxxx Xxxxx & Co.
and Xxxxx Xxxxxx Inc.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"interest," when used with respect to any Note, means the
amount of all interest accruing on such Note, including all additional interest
payable on the Notes pursuant to the Registration Rights Agreement and all
interest accruing subsequent to the occurrence of any events specified in
Sections 5.01(h), (i) and (j) or which would have accrued but for any such
event, whether or not such claims are allowable under applicable law.
"Interest Payment Date" means, when used with respect to any
Note, the Stated Maturity of an installment of interest on such Note, as set
forth in such Note.
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19
"Interest Rate Protection Obligations" means the obligations of
any Person pursuant to any arrangement with any other Person whereby, directly
or indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount or any other arrangement involving payments by or to such Person
based upon fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct or
indirect advance, loan or other extension of credit (including by means of a
guarantee) or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others or otherwise), or any purchase or acquisition by such Person of
any Capital Stock, bonds, notes, debentures or other securities or evidences of
Indebtedness issued by any other Person. Investments shall exclude extensions of
trade credit in accordance with normal trade practices. In addition to the
foregoing, any foreign exchange contract, Currency Agreement, Interest Rate
Protection Obligation or similar agreement shall constitute an Investment.
"Investment Grade Rating" means a rating of BBB-- and Baa3 or
higher, in each case by the applicable Rating Agency, or the equivalents
thereof.
"Issue Date" means the original issue date of the Notes
hereunder.
"Leveraged Subsidiary" means any Restricted Subsidiary that has
incurred Indebtedness (other than Acquired Indebtedness pursuant to the first
paragraph of Section 10.12 and Indebtedness described in clauses (iv), (v),
(vii), (viii), (ix) and (xi) of the second paragraph of Section 10.12 and any
permitted refinancings or replacements thereof incurred under clause (x))
pursuant to such covenant for so long as such Indebtedness, or any refinancing
thereof, is outstanding.
"Lien" means any mortgage, charge, pledge, lien (statutory or
other), privilege, security interest, hypothecation, cessation and transfer,
assignment for security, claim, deposit arrangement or other encumbrance upon or
with respect to any property of any kind, whether real, personal or mixed,
movable or immovable, now owned or hereafter acquired. A Person will be deemed
to own subject to a Lien any property which it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
Capitalized Lease Obligation or other title retention agreement.
"Material Subsidiary" means each Restricted Subsidiary of the
Company that is a "significant subsidiary" as defined in Rule 1-02 of Regulation
S-X under the Securities Act and the Exchange Act (as such regulation is in
effect on the Issue Date).
"Maturity Date" means, with respect to any Note, the date on
which any principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
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"Xxxxxxx Xxxxx" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of cash or
Cash Equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary) net of (i)
brokerage commissions and other reasonable fees and expenses (including fees and
expenses of legal counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
amounts required to be paid to any Person (other than the Company or any
Restricted Subsidiary) owning a beneficial interest in the assets subject to the
Asset Sale and (iv) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve required in accordance
with GAAP consistently applied against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as the case
may be, after such Asset Sale, including, without limitation, pension and other
postemployment benefit liabilities, liabilities related to environmental matters
and liabilities under any indemnification obligations associated with such Asset
Sale (provided that the amount of any such reserves shall be deemed to
constitute Net Cash Proceeds at the time such reserves shall have been released
or are not otherwise required to be retained as a reserve).
"Non-U.S. Person" has the meaning assigned to such term in
Regulation S.
"Note Guarantee" means the guarantee by each of the Guarantors
of the Notes and the Company's obligations under this Indenture.
"Notes" shall have the meaning specified in the recitals of this Indenture.
"Offering Memorandum" means the Offering Memorandum dated May
15, 1997 pursuant to which the Notes and the Note Guarantees were offered, and
any supplement thereto.
"Officer" means, with respect to the Company or any Guarantor,
the Chairman of the Board, a Vice Chairman, the President, a Vice President, the
Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
by the Secretary, an Assistant Secretary, the Treasurer or an Assistant
Treasurer, of the Company or any Guarantor, as the case may be, and delivered to
the Trustee.
"144A Global Note" means a permanent global note in registered
form representing the aggregate principal amount of Notes sold in reliance on
Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion of counsel who may
be counsel for the Company, a Guarantor, or the Trustee, and who shall be
reasonably acceptable to the Trustee.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture, except:
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(I) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(II) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company
or any Guarantor or any Affiliate thereof) in trust or set aside and
segregated in trust by the Company or any Guarantor or any Affiliate
thereof (if the Company or such Guarantor or Affiliate shall act as
Paying Agent) for the Holders of such Notes; provided, however, that
if such Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(III) Notes with respect to which the Company has effected
defeasance or covenant defeasance as provided in Article Four, to the
extent provided in Sections 4.02 and 4.03; and
(IV) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture,
other than any such Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Notes are
held by a bona fide purchaser in whose hands the Notes are valid
obligations of the Company; provided, however, that in determining
whether the Holders of the requisite principal amount of Outstanding
Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Notes owned by the Company, any
Guarantor or any other obligor upon the Notes or any Affiliate of the
Company, any Guarantor or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. The Company shall notify the Trustee, in writing, when it
repurchases or otherwise acquires Notes, of the aggregate principal
amount of such Notes so repurchased or otherwise acquired. Notes so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Company, any Guarantor or any other
obligor upon the Notes or any Affiliate of the Company, any Guarantor
or such other obligor. If the Paying Agent holds, in its capacity as
such, on any Maturity Date or on any optional redemption date money
sufficient to pay all accrued interest and principal with respect to
such Notes payable on that date and is not prohibited from paying such
money to the Holders thereof pursuant to the terms of this Indenture,
then on and after that date such Notes cease to be Outstanding and
interest on them ceases to accrue. Notes may also cease to be
outstanding to the extent expressly provided in Article Four.
"Parisian Notes" means the 9 7/8% Senior Subordinated Notes
due 2003 of Parisian.
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"Permitted Investment" means (a) Cash Equivalents; (b)
Investments in prepaid expenses, negotiable instruments held for collection and
lease, utility and workers' compensation, performance and other similar
deposits; (c) loans, extensions of credit and advances to officers, directors
and employees which are outstanding on the Issue Date or which do not exceed
$7.5 million in the aggregate at any one time outstanding and payroll, travel
and similar advances to cover matters that are expected at the time of such
advances ultimately to be treated as expenses in accordance with GAAP; (d)
Interest Rate Protection Obligations permitted under clause (vii) of the second
paragraph of Section 10.12 and Currency Agreements; (e) Investments by any
Restricted Subsidiary in the Company; (f) Investments by the Company or any
Restricted Subsidiary in a Restricted Subsidiary that is a Guarantor or another
Person, if as a result of or in connection with such Investment such other
Person becomes a Restricted Subsidiary; (g) Investments represented by accounts
receivable created or acquired in the ordinary course of business; (h)
Investments in the form of the sale (on a "true-sale" non-recourse basis) or the
servicing of receivables transferred from the Company or any Restricted
Subsidiary, or transfers of cash, to an Accounts Receivable Subsidiary as a
capital contribution or in exchange for Indebtedness of such Accounts Receivable
Subsidiary or cash in the ordinary course of business; (i) Investments
representing capital stock or obligations issued to the Company or any
Restricted Subsidiary in settlement of claims against any other Person by reason
of a composition or readjustment of debt or a reorganization of any debtor of
the Company or such Restricted Subsidiary; (j) loans or other advances to
vendors in connection with in-store merchandising to be repaid either on a
lump-sum basis or over a period of time by delivery of merchandise; (k)
Investments in credit card receivables arising from any proprietary credit card
issued by or for the benefit of the Company or an Affiliate of the Company; and
(l) Investments acquired by the Company or any Restricted Subsidiary in
connection with an Asset Sale permitted under Section 10.16 (other than pursuant
to the second sentence of the first paragraph thereof).
"Permitted Liens" means (a) Liens on property of (or on shares
of Capital Stock or debt securities of) a Person existing at the time such
Person (i) is merged into or consolidated with the Company or any Restricted
Subsidiary or (ii) becomes a Restricted Subsidiary; provided, however, that such
Liens were in existence prior to the contemplation of such merger, consolidation
or acquisition and do not secure any property or assets of the Company or any
Restricted Subsidiary other than the property or assets subject to the Liens
prior to such merger, consolidation or acquisition; (b) Liens imposed by law
such as landlords', carriers', warehousemen's and mechanics' Liens and other
similar Liens arising in the ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being contested in good
faith and by appropriate proceedings; (c) Liens existing on the Issue Date; (d)
Liens securing only the Notes; (e) Liens in favor of the Company or Liens on any
property or assets of a Subsidiary (or on shares of Capital Stock or debt
securities of a Subsidiary) in favor of the Company or any Restricted
Subsidiary; (f) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent for more than 90 days or that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
concluded; provided, however, that any reserve or other appropriate provision as
shall be required in conformity with GAAP shall have been made therefor; (g)
easements, reservation of rights of way, restrictions and other similar
easements, licenses, restrictions on the use of properties, or imperfections of
title that in the aggregate are not material in amount and do not in any case
materially detract from the
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properties subject thereto or interfere with the ordinary conduct of the
business of the Company and the Restricted Subsidiaries; (h) Liens resulting
from the deposit of cash or notes in connection with contracts, tenders or
expropriation proceedings, or to secure workers' compensation, surety or appeal
bonds, costs of litigation when required by law, public and statutory
obligations, obligations under franchise arrangements entered into in the
ordinary course of business and other obligations of a similar nature arising in
the ordinary course of business; (i) Liens securing any revolving credit
facility under the Credit Facility; (j) Liens securing Indebtedness consisting
of Capitalized Lease Obligations, Purchase Money Indebtedness (other than
Indebtedness incurred to finance an Asset Acquisition), mortgage financings,
industrial revenue bonds or other monetary obligations, in each case incurred
solely for the purpose of financing all or any part of the purchase price or
cost of construction or installation of assets used in the business of the
Company or the Restricted Subsidiaries, or repairs, additions or improvements to
such assets; provided, however, that (I) such Liens secure Indebtedness in an
amount not in excess of the original purchase price or the original cost of any
such assets or repair, addition or improvement thereto (plus an amount equal to
the reasonable fees and expenses in connection with the incurrence of such
Indebtedness), (II) such Liens do not extend to any other assets of the Company
or the Restricted Subsidiaries (and, in the case of repair, addition or
improvements to any such assets, such Lien extends only to the assets (and
improvements thereto or thereon) repaired, added to or improved), (III) the
incurrence of such Indebtedness is permitted by Section 10.12 and (IV) such
Liens attach prior to 90 days after such purchase, construction, installation,
repair, addition or improvement; (k) Liens to secure any Refinancings (or
successive Refinancings), in whole or in part, of any Indebtedness secured by
Liens referred to in the clauses above so long as such Lien does not extend to
any other property (other than improvements thereto); (l) Liens securing letters
of credit entered into in the ordinary course of business and consistent with
past business practice; (m) Liens on and pledges of the capital stock of (A) any
Unrestricted Subsidiary securing any Indebtedness of such Unrestricted
Subsidiary and (B) an Accounts Receivable Subsidiary; (n) leases or subleases
granted to others that do not materially interfere with the ordinary course of
business of the Company and the Restricted Subsidiaries, taken as a whole; (o)
any interest or title of a lessor in any property that is (i) subject to any
lease or (ii) located on the real property subject to any lease; (p) Liens
arising from the rendering of a final judgment or order against the Company or
any Restricted Subsidiary that does not give rise to an Event of Default; (q)
Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Company or any Restricted
Subsidiary in the ordinary course of business and (r) Liens on the property or
assets or Capital Stock of Accounts Receivable Subsidiaries and Liens arising
out of any sale of accounts receivable in the ordinary course to or by an
Accounts Receivable Subsidiary.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any
Note authenticated and delivered under Section 3.06 hereof in exchange for a
mutilated Note or in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
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"Preferred Stock" means, with respect to any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Capital Stock of any other class of such Person.
"Private Exchange Securities" shall have the meaning specified
in the Registration Rights Agreement.
"Private Placement Legend" shall mean the first paragraph of
the legend initially set forth in the Securities in the form set forth on
Exhibit A-1.
"Purchase Money Indebtedness" means Indebtedness of the Company
or any Restricted Subsidiary incurred for the purpose of financing all or any
part of the purchase price or the cost of construction or improvement of any
real or personal property; provided, however, that the aggregate principal
amount of such Indebtedness does not exceed the lesser of the Fair Market Value
of such property or the original purchase price or the original cost of any such
assets or repair, addition or improvement thereto (plus an amount equal to the
reasonable fees and expenses in connection with the incurrence of such
Indebtedness).
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Rating Agencies" means (i) Standard & Poor's Ratings Group and
(ii) Xxxxx'x Investors Service, Inc. or (iii) if Standard & Poor's Ratings Group
or Xxxxx'x Investors Service, Inc. or both shall not make a rating of the Notes
publicly available, a nationally recognized securities rating agency or
agencies, as the case may be, selected by the Company, which shall be
substituted for Standard & Poor's Ratings Group, Xxxxx'x Investors Service, Inc.
or both, as the case may be.
"Rating Category" means (i) with respect to Standard & Poor's
Ratings Group, any of the following categories: BB, B, CCC, CC, C and D (or
equivalent successor categories); (ii) with respect to Xxxxx'x Investors
Service, Inc., any of the following categories: Ba, B, Caa, Ca, C and D (or
equivalent successor categories); and (iii) the equivalent of any such category
of Standard & Poor's Ratings Group or Xxxxx'x Investors Service, Inc. used by
another Rating Agency. In determining whether the rating of the Notes has
decreased by one or more gradations, gradations within Rating Categories (+ and
-- for Standard & Poor's Ratings Group; 1, 2 and 3 for Xxxxx'x Investors
Service, Inc.; or the equivalent gradations for another Rating Agency) shall be
taken into account (e.g., with respect to Standard & Poor's Ratings Group, a
decline in a rating from BB+ to BB, as well as from BB-- to B+, will constitute
a decrease of one gradation).
"Rating Date" means the date which is 90 days prior to the
earlier of (i) a Change of Control and (ii) public notice of the occurrence of a
Change of Control or of the intention by the Company to effect a Change of
Control.
"Rating Decline" means the occurrence of the following on, or
within 90 days after, the earlier of (i) the occurrence of a Change of Control
and (ii) the date of public notice of
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the occurrence of a Change of Control or of the public notice of the intention
of the Company to effect a Change of Control (which period shall be extended so
long as the rating of the Notes is under publicly announced consideration for
possible downgrading by any of the Rating Agencies): (a) in the event that the
Notes have an Investment Grade Rating, the rating of the Notes by both such
Rating Agencies shall be reduced below Investment Grade, or (b) in the event the
Notes are rated below Investment Grade by both such Rating Agencies on the
Rating Date, the rating of the Notes by either Rating Agency shall be decreased
by one or more gradations (including gradations within Rating Categories as well
as between Rating Categories).
"Redeemable Capital Stock" means any class or series of Capital
Stock to the extent that, either by its terms, by the terms of any security into
which it is convertible or exchangeable, or by contract or otherwise, is or upon
the happening of an event or passage of time would be, required to be redeemed
prior to the final stated maturity of the Notes or is redeemable at the option
of the holder thereof at any time prior to such maturity, or is convertible into
or exchangeable for debt securities at any time prior to such maturity.
"Reference Period" has the meaning set forth in the definition
of "Consolidated Fixed Charge Coverage Ratio."
"Refinance" means, with respect to any Indebtedness, any
refinancing, redemption, retirement, renewal, replacement, extension or
refunding of such Indebtedness.
"Registrable Securities" shall have the meaning specified in
the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of May 21, 1997 by and among the Company, the Subsidiary
Guarantors named therein and the Initial Purchasers, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"Regular Record Date" means the Regular Record Date specified
in the Notes.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global note in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"Responsible Officer" means, with respect to the Trustee, the
chairman or vice chairman of the board of directors, the chairman or vice
chairman of the executive committee of the board of directors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller 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 of the Trustee to whom
any corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
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"Restricted Note" means a Note that constitutes a "restricted
security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Note.
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated by the Board of Directors of the Company, by a
Board Resolution delivered to the Trustee, as an Unrestricted Subsidiary
pursuant to and in compliance with Section 10.21 hereof. Any such designation
may be revoked by a Board Resolution of the Company delivered to the Trustee,
subject to the provisions of Section 10.21 hereof.
"Restructuring Charges" means all nonrecurring charges related
to Asset Acquisitions and Asset Sales, including merger, restructuring and
integration charges incurred or accrued during the last full fiscal year of the
Company ending prior to the Issue Date.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Special Record Date" means, with respect to the payment of any
Defaulted Interest, a date fixed by the Trustee pursuant to Section 3.07 hereof.
"Stated Maturity" means, with respect to any Note or any
installment of interest thereon, the dates specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable and, when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest, is
due and payable.
"Subordinated Indebtedness" means, with respect to the Company,
Indebtedness of the Company which is expressly subordinated in right of payment
to the Notes or, with respect to any Guarantor, Indebtedness of such Guarantor
which is expressly subordinated in right of payment to the Note Guarantee of
such Guarantor.
"Subsidiary" means, with respect to any Person, (a) any
corporation of which the outstanding shares of Voting Stock having at least a
majority of the votes entitled to be cast in the election of directors shall at
the time be owned, directly or indirectly, by such Person, or (b) any other
Person of which at least a majority of the shares of Voting Stock are at the
time, directly or indirectly, owned by such first named Person.
"Surviving Entity" has the meaning set forth under
"Consolidations, Mergers, Sale of Assets, Etc."
"Transaction Date" has the meaning set forth in the definition
of "Consolidated Fixed Charge Coverage Ratio."
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"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Notes" means one or more Notes that do not and
are not required to bear the Private Placement Legend in the form set forth in
Exhibit A, including, without limitation, the Exchange Notes.
"Unrestricted Subsidiary" means each Accounts Receivable
Subsidiary and each Subsidiary of the Company (other than a Guarantor)
designated as such pursuant to and in compliance with the covenant described in
Section 10.21. Any such Designation may be revoked by a Board Resolution of the
Company delivered to the Trustee, subject to the provisions of such covenant.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof at any time prior to the Stated Maturity of the Notes, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the Board of Directors,
managers or trustees of any Person (irrespective of whether or not, at the time,
stock of any other class or classes shall have, or might have, voting power by
reason of the happening of any contingency).
"Wholly-Owned Restricted Subsidiary" means any Restricted
Subsidiary of which 100% of the outstanding Capital Stock is owned by the
Company and/or another Wholly-Owned Restricted Subsidiary. For purposes of this
definition, any directors' qualifying shares or investments by foreign nationals
mandated by applicable law shall be disregarded in determining the ownership of
a Restricted Subsidiary.
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Section 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Act" 1.05
"Affiliate Transaction" 10.15
"Agent Member" 3.16
"Asset Sale Offer" 10.16
"Asset Sale Offer Purchase Date" 10.16
"Change of Control Date" 10.11
"Change of Control Offer" 10.11
"Change of Control Purchase Date" 10.11
"covenant defeasance" 4.03
"Defaulted Interest" 3.07
"defeasance" 4.02
"Defeased Notes" 4.01
"Designation" 10.21
"Designation Amount" 10.21
"Event of Default" 5.01
"incur" 10.12
"insolvent person" 4.04
"Note Register" 3.05
"Registrar" 3.02
"Other Indebtedness" 10.18
"Paying Agent" or "Agent" 3.02
"Permitted Indebtedness" 10.12
"Physical Notes" 2.01
"Restricted Payment" 10.14
"Restricted Period" 3.17
"Revocation" 10.21
"Surviving Entity" 8.01
"Unutilized Net Cash Proceeds" 10.16
Section 1.03. Rules of Construction.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(A) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(B) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(C) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(D) the words "herein" "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(E) all references to "$" or "dollars" refer to the lawful
currency of the United States of America; and
(F) the words "include," "included" and "including" as used
herein are deemed in each case to be followed by the phrase "without
limitation."
Section 1.04. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
person, or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and one
or more other persons as to other matters, and any such person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or any
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or any
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or any Guarantor, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated,
with proper identification of each matter covered therein, and form one
instrument.
Section 1.05. Acts of Holders.
(A) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and
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evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution (as
provided below in subsection (b) of this Section 1.05) of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section
6.01 hereof) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(B) The fact and date of the execution by any person of any
such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient.
(C) The ownership of Notes shall be proved by the Note
Register.
(D) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind
every future Holder of the same Note or the Holder of every Note issued
upon the transfer thereof or in exchange therefor or in lieu thereof to
the same extent as the original Holder, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the
Company or any Guarantor in reliance thereon, whether or not notation
of such action is made upon such Note.
Section 1.06. Notices, etc., to the Trustee, the
Company and the Guarantors. .
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(A) the Trustee by any Holder or by the Company or any
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed, in writing, to or with the Trustee at Xxx
Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration or at any other address
previously furnished in writing to the Holders, the Company and the
Guarantors by the Trustee; or
(B) the Company or a Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose (except as otherwise expressly
provided herein) hereunder if in writing and mailed, first-class
postage prepaid, to the Company or such Guarantor addressed to it at
Xxxxxxxx'x, Inc., 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Chief Executive Officer, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.07. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise expressly
provided herein) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at the address of such Holder as it appears in
the Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any
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particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.08. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or 2
excluded, as the case may be.
Section 1.09. Effect of Headings and Table of
Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and the Guarantors, shall bind their respective successors and assigns, whether
so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Notes or any
Note Guarantee issued pursuant hereto 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 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Notes or in any Note
Guarantee issued pursuant hereto, express or implied, shall give to any person
(other than the parties hereto and their successors hereunder, any Paying Agent
and the Holders) any benefit or any legal or equitable right, remedy or claim
under this Indenture.
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Section 1.13. Governing Law.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 1.14. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company or of a Guarantor shall not have any liability for any obligations of
the Company or a Guarantor under the Notes, the Note Guarantee or this Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation.
Section 1.15. Independence of Covenants.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default if such action is taken or condition exists.
Section 1.16. Exhibits.
All exhibits attached hereto are by this reference made a part
hereof with the same effect as if herein set forth in full.
Section 1.17. Counterparts.
This Indenture may be executed in any number of counterparts
and by telecopier, each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
Section 1.18. Duplicate 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.
ARTICLE TWO
NOTE AND GUARANTEE FORMS
Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication with
respect thereto and the Note Guarantees shall be in substantially the forms set
forth, or referenced, in Exhibit X-0, Xxxxxxx X-0 and Exhibit E, respectively,
annexed hereto, with such appropriate insertions,
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omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any applicable law or with the rules of the Depository,
any clearing agency or any securities exchange or as may, consistently herewith,
be determined by the officers executing such Notes and Note Guarantees, as
evidenced by their execution thereof.
The definitive Notes and Note Guarantees shall be printed,
typewritten, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner permitted by the rules of any
securities exchange on which the Notes and such Note Guarantees may be listed,
all as determined by the officers executing such Notes and Note Guarantees, as
evidenced by their execution of such Notes and Note Guarantees.
Each Note shall be dated the date of its issuance and shall
show the date of its authentication. The terms and provisions contained in the
Notes shall constitute, and are expressly made, a part of this Indenture.
ARTICLE THREE
THE NOTES
Section 3.01. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $125,000,000 in
aggregate principal amount of Notes, except for Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Section 3.03, 3.04, 3.05, 3.06, 9.06, 10.11 or 10.16.
The final Stated Maturity of the Notes shall be May 15, 2004,
and the Notes shall bear interest at the rate of 8 1/8% per annum from the Issue
Date or from the most recent Interest Payment Date to which interest has been
paid, as the case may be, payable semi-annually thereafter on May 15 and
November 15, in each year, commencing on November 15, 1997, to the Holders of
record at the close of business on the May 1 and November 1, respectively,
immediately preceding such Interest Payment Dates, until the principal thereof
is paid or duly provided for. Interest on any overdue principal, interest (to
the extent lawful) or premium, if any, shall be payable on demand.
The Notes shall be not be redeemable at the option of the
Company at any time.
At the election of the Company, the entire Indebtedness on the
Notes or certain of the Company's obligations and covenants and certain Events
of Default thereunder may be defeased as provided in Article Four.
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Section 3.02. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency (which shall be located in the Borough of
Manhattan in The City of New York, State of New York) where Notes may be
presented for payment (the "Paying Agent" or "Agent") and an office or agency
where notices and demands to or upon the Company in respect of the Notes, the
Note Guarantees and this Indenture may be served. The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents. The term
"Paying Agent" or "Agent" includes any additional paying agent. The Company may
act as its own Paying Agent, except for the purposes of payments on account of
principal on the Notes pursuant to Sections 10.11 and 10.16 hereof.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the Trust Indenture Act. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the
Trustee shall act as such and shall be entitled to appropriate compensation in
accordance with Section 6.07 hereof.
The Company initially appoints the Trustee as the Registrar and
Paying Agent and agent for service of notices and demands in connection with the
Notes.
Section 3.03. Execution and Authentication.
The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 hereto. The
Exchange Notes and the Trustee's certificate of authentication relating thereto
shall be substantially in the form of Exhibit A-2 hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Notes and any notation, legend
or endorsement thereon. Each Note shall be dated the date of issuance and shall
show the date of its authentication. Each Note shall have an executed Note
Guarantee from each of the Guarantors endorsed thereon substantially in the form
of Exhibit E hereto.
The terms and provisions contained in the Notes annexed hereto
as Exhibits A-1 and A-2 shall constitute, and are hereby expressly made, a part
of this Indenture and, to the extent applicable, the Company, the Guarantors and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A and Notes
offered and sold in reliance on Regulation S shall be issued initially in the
form of one or more Global Notes, substantially in the form set forth in Exhibit
A-1, deposited with the Trustee, as custodian for the Depository, duly executed
by the Company (and having an executed Note Guarantee from each of the
Guarantors endorsed thereon) and authenticated by the Trustee as hereinafter
provided and
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shall bear the legend set forth in Exhibit B. The aggregate principal amount of
the Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depository, as 2
hereinafter provided.
Notes (i) offered and sold to institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) and (ii) issued in exchange for interests in a Global Note pursuant to
Section 3.17 may be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A-1 (the
"Physical Notes").
All Notes offered and sold in reliance on Regulation S shall
remain in the form of a Global Note until the consummation of the Exchange Offer
pursuant to the Registration Rights Agreement; provided, however, that all of
the time periods specified in the Registration Rights Agreement to be complied
with by the Company and the Guarantors have been so complied with.
Two Officers, or an Officer and an Assistant Secretary, shall
sign, or one Officer shall sign, and one Officer or an Assistant Secretary (each
of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Notes for the Company, and the Note
Guarantees for the Guarantors, by manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a
Note or a Note Guarantee, as the case may be, was an Officer or Assistant
Secretary at the time of such execution but no longer holds that office or
position at the time the Trustee authenticates the Note, the Note shall
nevertheless be valid.
The Trustee shall authenticate (i) Initial Notes for original
issue in an aggregate principal amount not to exceed $125,000,000, (ii) Private
Exchange Notes from time to time only in exchange for a like principal amount of
Initial Notes and (iii) Unrestricted Notes from time to time only in exchange
for (A) a like principal amount of Initial Notes or (B) a like principal amount
of Private Exchange Notes, in each case upon a written order of the Company in
the form of an Officers' Certificate of the Company. Each such written order
shall specify the amount of Notes to be authenticated and the date on which the
Notes are to be authenticated, whether the Notes are to be Initial Notes,
Private Exchange Notes or Unrestricted Notes and whether (subject to this
Section 3.03) the Notes are to be issued as Physical Notes or Global Notes and
such other information as the Trustee may reasonably request. The aggregate
principal amount of Notes outstanding at any time may not exceed $125,000,000,
except as provided in Section 3.06.
Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Notes may vote or consent) as one class and no series of Notes will have
the right to vote or consent as a separate class on any matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. Unless otherwise provided in
the appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
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The Notes shall be issuable in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
Section 3.04. Temporary Notes.
Until definitive Notes are prepared and ready for delivery,
the Company may execute and upon a Company Order the Trustee shall authenticate
and deliver temporary Notes. Temporary Notes shall be substantially in the form
of definitive Notes, in any authorized denominations, but may have variations
that the Company reasonably considers appropriate for temporary Notes as
conclusively evidenced by the Company's execution of such temporary Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay but in no event later
than the date that the Exchange Offer is consummated. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 10.02, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of like tenor and of
authorized denominations. Until so exchanged the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
Section 3.05. Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 10.02 being sometimes
referred to herein as the "Note Register") in which, subject to such reasonable
regulations as the Registrar may prescribe, the Company shall provide for the
registration of Notes and of transfers and exchanges of Notes. The Trustee is
hereby initially appointed Registrar for the purpose of registering Notes and
transfers of Notes as herein provided.
When Notes are presented to the Registrar or a co-Registrar
with a request from the Holder of such Notes to register the transfer or
exchange for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested; provided, however, that every Note presented or surrendered for
registration of transfer or exchange shall be duly endorsed or be accompanied by
a written instrument of transfer or exchange in form satisfactory to the Company
and the Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. Whenever any Notes are so presented for exchange, the
Company and any Guarantor shall execute, and the Trustee shall authenticate and
deliver, the Notes and Note Guarantees which the Holder making the exchange is
entitled to receive. No service charge shall be made to the Noteholder for any
registration of transfer or exchange. The Company may require from the
Noteholder payment of a sum sufficient to cover any transfer taxes or other
governmental charge that may be imposed in relation to a transfer or exchange,
but this provision shall not apply to any exchange pursuant to Section 10.11,
10.16 or 9.06 hereof (in which events the Company will be responsible for the
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payment of all such taxes which arise solely as a result of the transfer or
exchange and do not depend on the tax status of the Holder). The Trustee shall
not be required to exchange or register the transfer of any Note for a period of
15 days immediately preceding the first mailing of notice of redemption of Notes
to be redeemed or of any Note selected, called or being called for redemption
except, in the case of any Note where public notice has been given that such
Note is to be redeemed in part, the portion thereof not to be redeemed.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests in
such Global Notes may be effected only through a book-entry system maintained by
the Holder of such Global Note (or its agent), and that ownership of a
beneficial interest in the Note shall be required to be reflected in a
book-entry system.
Section 3.06. Mutilated, Destroyed, Lost and
Stolen Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note of any series claims that the Note has been lost, destroyed or
wrongfully taken, the Company shall execute and upon a Company Order, the
Trustee shall authenticate and deliver a replacement Note of like tenor and
principal amount, bearing a number not contemporaneously outstanding, and the
Guarantors shall execute a replacement Note Guarantee, if the Holder of such
Note furnishes to the Company and to the Trustee evidence reasonably acceptable
to them of the ownership and the destruction, loss or theft of such Note and an
indemnity bond shall be posted by such Holder, sufficient in the judgment of the
Company or the Trustee, as the case may be, to protect the Company, the Trustee
or any Agent from any loss that any of them may suffer if such Note is replaced.
The Company may charge such Holder for the Company's and any Guarantor's
expenses in replacing such Note (including (i) expenses of the Trustee charged
to the Company and (ii) any tax or other governmental charge that may be
imposed) and the Trustee may charge the Company for the Trustee's expenses in
replacing such Note.
Every replacement Note and Note Guarantee issued pursuant to
this Section in lieu of any destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Company and each Guarantor,
whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
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carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
Section 3.08. Persons Deemed Owners.
Prior to and at the time of due presentment for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name any Note is registered in the Note
Register as the owner of such Note for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.07) interest on such
Note and for all other purposes whatsoever, whether or not such Note shall be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 3.09. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall be delivered to the Trustee and, if not already
canceled, shall be promptly canceled by it. The Company and any Guarantor may at
any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company or such Guarantor may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Trustee. The Registrar and the Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer or exchange, redemption or payment. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation. No Notes shall be authenticated in lieu of or in
exchange for any Notes canceled as provided in this Section 3.09, except as
expressly permitted by this Indenture. All canceled Notes held by the Trustee
shall be destroyed and certification of their destruction delivered to the
Company unless by a Company Order the Company shall direct that the canceled
Notes be returned to it. The Trustee shall provide the Company a list of all
Notes that have been canceled from time to time as requested by the Company.
Section 3.10. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed.
Section 3.11. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
date established for the payment of Defaulted Interest or Stated Maturity of any
Note shall not be a Business Day, then (notwithstanding any other provision of
this Indenture or of the Notes) payment of principal, premium, if any, or
interest need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date, date established for the payment of Defaulted Interest or
at the Stated Maturity, as the case may be. In such event, no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date, Redemption Date, date established for
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Section 3.07. Payment of Interest; Interest Rights
Preserved.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and interest
on such defaulted interest at the then applicable interest rate borne by the
Notes, to the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the Regular Record Date; and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in subsection (a) or
(b) below:
(A) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as provided in this subsection (a).
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company in
writing of such Special Record Date. In the name and at the expense of
the Company, the Trustee shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at its address as
it appears in the Note Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the persons in whose names the
Notes (or their respective Predecessor Notes) are registered on such
Special Record Date and shall no longer be payable pursuant to the
following subsection (b).
(B) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after written notice
given by the Company to the Trustee of the proposed payment pursuant to
this subsection (b), such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall
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the payment of Defaulted Interest or Stated Maturity, as the case may be, to the
next succeeding Business Day and, with respect to any Interest Payment Date,
interest for the period from and after such Interest Payment Date shall accrue
with respect to the next succeeding Interest Payment Date.
Section 3.12. CUSIP and CINS Numbers.
The Company in issuing the Notes may use "CUSIP" and "CINS"
numbers (if then generally in use), and if so, the Trustee shall use the CUSIP
or CINS numbers, as the case may be, in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP or CINS
number, as the case may be, printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee in writing of any change in
the CUSIP or CINS number of any type of Notes.
Section 3.13. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, or interest on the Notes, and shall notify the
Trustee of any default by the Company in making any such payment. Money held in
trust by the Paying Agent need not be segregated except as required by law and
in no event shall the Paying Agent be liable for any interest on any money
received by it hereunder. The Company at any time may require the Paying Agent
to pay all money held by it to the Trustee and account for any funds disbursed
and the Trustee may at any time during the continuance of any Event of Default,
upon a Company Order to the Paying Agent, require such Paying Agent to pay
forthwith all money so held by it to the Trustee and to account for any funds
disbursed. Upon making such payment, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
Section 3.14. Treasury Notes.
In determining whether the Holders of the required aggregate
principal amount of Notes have concurred in any direction, waiver, consent or
notice, Notes owned by the Company or an Affiliate of the Company shall be
considered as though they are not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which the Trustee actually knows are so
owned shall be so considered. The Company shall notify the Trustee, in writing,
when it or any of its Affiliates repurchases or otherwise acquires Notes, of the
aggregate principal amount of such Notes so repurchased or otherwise acquired.
Section 3.15. Deposits of Monies.
Prior to 12:00 p.m. noon New York City time on each Interest
Payment Date, maturity date, Change of Control Purchase Date and Asset Sale
Offer Purchase Date, the Company shall have deposited with the Paying Agent in
immediately available funds money
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sufficient to make cash payments, if any, due on such Interest Payment Date,
maturity date, Change of Control Purchase Date and Asset Sale Offer Purchase
Date, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such Interest Payment Date, maturity date,
Change of Control Purchase Date and Asset Sale Offer Purchase Date, as the case
may be.
Section 3.16. Book-Entry Provisions for Global
Notes.
(A) The Global Notes initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be
delivered to the Trustee as custodian for such Depository and (iii)
bear legends as set forth in Exhibit B.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Note, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the
Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(B) Transfers of Global Notes shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Notes
may be transferred or exchanged for Physical Notes in accordance with
the rules and procedures of the Depository and the provisions of
Sections 3.03 and 3.17. In addition, Physical Notes shall be
transferred to all beneficial owners in exchange for their beneficial
interests in Global Notes if (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository for any Global
Note, or that it will cease to be a "Clearing Agency" under the
Exchange Act, and in either case a successor Depository is not
appointed by the Company within 90 days of such notice or (ii) an Event
of Default has occurred and is continuing and the Registrar has
received a written request from the Depository to issue Physical Notes.
(C) In connection with any transfer or exchange of a portion of
the beneficial interest in any Global Note to beneficial owners
pursuant to paragraph (b), the Registrar shall (if one or more Physical
Notes are to be issued) reflect on its books and records the date and a
decrease in the principal amount of the Global Note in an amount equal
to the principal amount of the beneficial interest in the Global Note
to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and
principal amount of authorized denominations.
(D) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global
Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depository in exchange
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for its beneficial interest in the Global Notes, an equal aggregate
principal amount at maturity of Physical Notes of like tenor of
authorized denominations.
(E) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to subparagraph
(b), (c) or (d) of this Section 3.16 shall, except as otherwise
provided by Section 3.17, bear the Private Placement Legend.
(F) The Holder of any Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which
a Holder is entitled to take under this Indenture or the Notes.
Section 3.17. Special Transfer Provisions.
(A) Transfers to Non-QIB Institutional Accredited Investors.
The following additional provisions shall apply with respect to the
registration of any proposed transfer of an Initial Note to any
Institutional Accredited Investor which is not a QIB:
(I) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement Legend, if
(x) the requested transfer is after the second anniversary of the Issue
Date; provided, however, that neither the Company nor any Affiliate of
the Company has held any beneficial interest in such Note, or portion
thereof, at any time on or prior to the second anniversary of the Issue
Date and such transfer can otherwise be lawfully made under the
Securities Act without registering such Initial Notes thereunder or (y)
the proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto and any legal opinions
and certifications required thereby;
(II) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and
the Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, together with any
required legal opinions and certifications, the Registrar shall
register the transfer and reflect on its books and records the date and
a decrease in the principal amount of the Global Note from which such
interests are to be transferred in an amount equal to the principal
amount of the Notes to be transferred and the Company shall execute and
upon a Company Order, the Trustee shall authenticate Physical Notes in
a principal amount equal to the principal amount of the Global Note to
be transferred.
(B) Transfers to Non-U.S. Persons. The following
additional provisions shall apply with respect to the registration of
any proposed transfer of an Initial Note to any Non-U.S. Person:
(I) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement Legend, if
(x) the requested transfer is after the second anniversary of the Issue
Date; provided, however, that neither the Company nor
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any Affiliate of the Company has held any beneficial interest in such
Note, or portion thereof, at any time on or prior to the second
anniversary of the Issue Date and such transfer can otherwise be
lawfully made under the Securities Act without registering such Initial
Notes thereunder or (y) the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit D hereto;
(II) if the proposed transferee is an Agent Member and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Regulation S Global Note upon
receipt by the Registrar of (x) written instructions given in
accordance with the Depository's and the Registrar's procedures and (y)
the appropriate certificate, if any, required by clause (y) of
paragraph (i) above, together with any required legal opinions and
certifications, the Registrar shall register the transfer and reflect
on its books and records the date and an increase in the principal
amount of the Regulation S Global Note in an amount equal to the
principal amount of Physical Notes to be transferred, and the Trustee
shall cancel the Physical Notes so transferred;
(III) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
(x) written instructions given in accordance with the Depository's and
the Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, together with any
required legal opinions and certifications, the Registrar shall
register the transfer and reflect on its books and records the date and
(A) a decrease in the principal amount of the Global Note from which
such interests are to be transferred in an amount equal to the
principal amount of the Notes to be transferred and (B) an increase in
the principal amount of the Regulation S Global Note in an amount equal
to the principal amount of the Global Note to be transferred; and
(IV) until the 41st day after the Issue Date (the "Restricted
Period"), an owner of a beneficial interest in the Regulation S Global
Note may not transfer such interest to a transferee that is a U.S.
person or for the account or benefit of a U.S. person within the
meaning of Rule 902(o) of the Securities Act. During the Restricted
Period, all beneficial interests in the Regulation S Global Note shall
be transferred only through Cedel or Euroclear, either directly if the
transferor and transferee are participants in such systems, or
indirectly through organizations that are participants.
(C) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of an
Initial Note to a QIB (excluding Non-U.S. Persons):
(I) the Registrar shall register the transfer of any Initial
Note, whether or not such Note bears the Private Placement Legend, if
(x) the requested transfer is after the second anniversary of the Issue
Date; provided, however, that neither the Company nor any Affiliate of
the Company has held any beneficial interest in such Note, or portion
thereof, at any time on or prior to the second anniversary of the Issue
Date and such transfer can otherwise be lawfully made under the
Securities Act without registering such Initial Note thereunder or (y)
such transfer is being made by a proposed transferor who
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has checked the box provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that the
sale has been made in compliance with the provisions of Rule 144A to a
transferee who has signed the certification provided for on the form of
Note stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Note for its own account or an
account with respect to which it exercises sole investment discretion
and that it and any such account is a QIB within the meaning of Rule
144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A;
(II) if the proposed transferee is an Agent Member and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the 144A Global Note, upon
receipt by the Registrar of written instructions given in accordance
with the Depository's and the Registrar's procedures, the Registrar
shall register the transfer and reflect on its book and records the
date and an increase in the principal amount of the 144A Global Note in
an amount equal to the principal amount of Physical Notes to be
transferred, and the Trustee shall cancel the Physical Note so
transferred; and
(III) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Note, upon receipt by the Registrar of
written instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the
principal amount of the Global Note from which interests are to be
transferred in an amount equal to the principal amount of the Notes to
be transferred and (B) an increase in the principal amount of the 144A
Global Note in an amount equal to the principal amount of the Global
Note to be transferred.
(D) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private
Placement Legend, the Registrar shall deliver Notes that do not bear
the Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement
Legend unless (i) the circumstances contemplated by paragraph (a)(i)(x)
of this Section 3.17 exist, (ii) there is delivered to the Registrar an
Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act or (iii) such Note has been
sold pursuant to an effective registration statement under the
Securities Act.
(E) Other Transfers. If a Holder proposes to transfer a Note
constituting a Restricted Note pursuant to any exemption from the
registration requirements of the Securities Act other than as provided
for by Section 3.17(a), (b) and (c), the Registrar shall only register
such transfer or exchange if such transferor delivers an Opinion of
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Counsel satisfactory to the Company and the Registrar that such
transfer is in compliance with the Securities Act and the terms of this
Indenture; provided, however, that the Company may, based upon the
opinion of its counsel, instruct the Registrar by a Company Order not
to register such transfer in any case where the proposed transferee is
not a QIB Non-U.S. person or Institutional Accredited Investor.
(F) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and
in the Private Placement Legend and agrees that it will transfer such
Note only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.16 or this
Section 3.17. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable prior written notice
to the Registrar.
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect
Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any
any time, with respect to the Notes, elect to have either Section 4.02 or
Section 4.03 be applied to all of the Outstanding Notes (the "Defeased
Notes"), upon compliance with the conditions set forth below in this Article
Four.
Section 4.02. Defeasance and Discharge.
Upon the Company's exercise under Section 4.01 of the option
applicable to this Section 4.02, the Company and each Guarantor shall be deemed
to have been discharged from their obligations with respect to the Defeased
Notes and the related Note Guarantees on the date the conditions set forth below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Defeased Notes, which shall thereafter be deemed
to be "Outstanding" only for the purposes of Section 4.05 and the other Sections
of this Indenture referred to in (a) and (b) below, and to have satisfied all
its other obligations under such Notes and this Indenture insofar as such Notes
are concerned (and the Trustee, at the expense of the Company, and, upon Company
Request, shall execute proper instruments acknowledging the same), except for
the following, which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Notes to receive, solely from
the trust fund described in Section 4.04 and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due, (b) the Company's obligations with
respect to such Defeased Notes under Sections 3.04, 3.05, 3.06,
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10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, including, without limitation, the Trustee's rights under
Section 6.07, and (d) this Article Four. Subject to compliance with this Article
Four, the Company may exercise its option under this Section 4.02
notwithstanding the prior exercise of its option under Section 4.03 with respect
to the Notes.
Section 4.03. Covenant Defeasance.
Upon the Company's exercise under Section 4.01 of the option
applicable to this Section 4.03, the Company and each Guarantor shall be
released from their obligations under any covenant or provision contained in
Sections 10.06 through 10.22 and the provisions of Articles Eight shall not
apply, with respect to the Defeased Notes, on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance"), and the
Defeased Notes shall thereafter be deemed not to be "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. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Notes, the Company and each Guarantor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Article, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or Article or by reason of any reference in
any such Section or Article 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 5.01(c) or (d), but, except as specified above, the
remainder of this Indenture and such Defeased Notes shall be unaffected thereby.
Section 4.04. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of either
Section 4.02 or Section 4.03 to the Defeased Notes:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the
provisions of this Article Four applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Notes, (a) cash in an amount, or (b) U.S. Government
Obligations which through the scheduled payment of principal, premium,
if any, and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any
payment, money in an amount, or (c) a combination thereof, in any such
case, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and interest on the
Defeased Notes at the Stated Maturity of such principal or installment
of principal, premium, if any, or interest; provided, however, that the
Trustee shall have been irrevocably instructed to apply such cash or
the proceeds of such U.S. Government Obligations to said payments with
respect to the Notes;
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(2) No Default shall have occurred and be continuing on the
date of such deposit or, insofar as Sections 5.01(h), (i) or (j) are
concerned, at any time during the period ending on the ninety-first day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(3) Neither the Company nor any Subsidiary of the Company is an
"insolvent person" within the meaning of any applicable Bankruptcy Law
on the date of such deposit or at any time during the period ending on
the ninety-first day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(4) Such defeasance or covenant defeasance shall not cause the
Trustee for the Notes to have a conflicting interest in violation of
Section 6.08 and for purposes of the Trust Indenture Act with respect
to any securities of the Company or any Guarantor;
(5) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Company or
any Guarantor is a party or by which it is bound;
(6) In the case of an election under Section 4.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) 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 shall confirm
that, the Holders of the Outstanding Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(7) In the case of an election under Section 4.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred;
(8) The Company shall have delivered to the Trustee, an Opinion
of Counsel to the effect that, immediately following the ninety-first
day after the deposit, the trust funds established pursuant to this
Article will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally under any applicable U.S. Federal or state law;
(9) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Company
pursuant to its election under Section 4.02 or 4.03 was not made by the
Company with the intent of preferring the Holders or any
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Guarantor over the other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or others;
and
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (i)
all conditions precedent (other than conditions requiring the passage
of time) provided for relating to either the defeasance under Section
4.02 or the covenant defeasance under Section 4.03 (as the case may be)
have been complied with as contemplated by this Section 4.04 and (ii)
if any other Indebtedness of the Company or any Guarantor shall then be
outstanding or committed, such defeasance or covenant defeasance will
not violate the provisions of the agreements or instruments evidencing
such Indebtedness.
Opinions required to be delivered under this Section may have
such qualifications as are customary for opinions of the type required and
reasonably acceptable to the Trustee.
Section 4.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust;
Other Miscellaneous Provisions.
Subject to the proviso of the last paragraph of Section 10.03,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 4.05, the "Trustee") pursuant to Section 4.04 in
respect of the Defeased 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 (other than the Company) as
the Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee and hold it
harmless against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 4.04 or the principal,
premium, if any, 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
Defeased Notes.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 4.04 which, in the opinion of an internationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 4.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 4.02 or 4.03, as the case
may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting
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such application, then the obligations of the Company and of any Guarantor under
this Indenture, the Notes and the Note Guarantees shall be revived and
reinstated as though no deposit had occurred pursuant to Section 4.02 or 4.03,
as the case may be, until such time as the Trustee or Paying Agent is permitted
to apply all such money and U.S. Government Obligations in accordance with
Section 4.02 or 4.03, as the case may be; provided, however, that if the Company
makes any payment of principal, premium, if any, or interest on any Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money and U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(A) default in the payment of the principal of or premium, if
any, when due and payable, on any of the Notes (at its Stated Maturity,
upon optional redemption, required purchase, scheduled principal
payment or otherwise); or
(B) default in the payment of an installment of interest on any
of the Notes, when due and payable, continued for 30 days or more; or
(C) the Company or any Guarantor fails to comply with any of
its obligations described under Article Eight or Sections 10.11 or
10.16 hereof; or
(D) the Company or any Guarantor fails to perform or observe
any other term, covenant or agreement contained in the Notes, any Note
Guarantee or this Indenture (other than a default specified in (a), (b)
or (c) above) for a period of 45 days after written notice of such
failure requiring the Company to remedy the same and stating that such
notice is a "Notice of Default" hereunder shall have been given (x) to
the Company by the Trustee or (y) to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Notes then
Outstanding; or
(E) default or defaults under one or more agreements,
indentures or instruments under which the Company or any Restricted
Subsidiary then has outstanding Indebtedness in excess of $25,000,000
individually or in the aggregate and either (i) such Indebtedness is
already due and payable in full or (ii) such default or defaults
results in the acceleration of the maturity of such Indebtedness; or
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(F) any Note Guarantee ceases to be in full force and effect or
is declared null and void or any Guarantor denies that it has any
further liability under any Note Guarantee, or gives notice to such
effect (other than by reason of the termination of this Indenture or
the release of any such Note Guarantee in accordance with Section 12.04
hereof) and such condition shall have continued for a period of 30 days
after written notice of such condition requiring the same to be
remedied and stating that such notice is a "Notice of Default"
hereunder shall have been given (x) to the Company by the Trustee or
(y) to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Notes then Outstanding; or
(G) one or more judgments, orders or decrees of any court or
regulatory or administrative agency for the payment of money in excess
of $25,000,000 either individually or in the aggregate shall have been
rendered against the Company or any Restricted Subsidiary or any of
their respective properties and shall not have been discharged and
either (a) any creditor shall have commenced an enforcement proceeding
upon such judgment, order or decree or (b) there shall have been a
period of 60 consecutive days during which a stay of enforcement of
such judgment, order or decree, by reason of a pending appeal or
otherwise, will not be in effect; or
(H) the Company or any Material Subsidiary of the Company
pursuant to or under or within the meaning of any Bankruptcy Law:
(I) commences a voluntary case or proceeding;
(II) consents to the making of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any case against
it;
(III) consents to the appointment of a Custodian of it or
for any substantial part of its property;
(IV) makes a general assignment for the benefit of its
creditors;
(V) files an answer or consent seeking reorganization or
relief;
(VI) shall admit in writing its inability to pay its debts
generally; or
(VII) consents to the filing of a petition in bankruptcy;
or
(I) a court of competent jurisdiction in any involuntary
case or proceeding enters a Bankruptcy Order against the Company or
any Material Subsidiary, and such Bankruptcy Order remains unstayed
and in effect for 60 consecutive days; or
(J) a Custodian shall be appointed out of court with respect to
the Company or any Material Subsidiary or with respect to all or any
substantial part of the assets or properties of the Company or any
Material Subsidiary.
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Section 5.02. Acceleration of Maturity; Rescission
and Annulment.
If (x) an Event of Default (other than an Event of Default specified in
Section 5.01(h), (i) or (j) with respect to the Company) occurs and is
continuing then and in every such case the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding may, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the Notes then Outstanding shall, declare all principal of
all the Notes to be due and payable immediately in an amount equal to the
principal amount of the Notes, premium, if any, thereon plus accrued and unpaid
interest, if any, to the date the Notes become due and payable by a notice in
writing to the Company (and to the Trustee, if given by the Holders) and upon
any such declaration such principal, premium, if any, and interest, shall become
immediately due and payable. If an Event of Default specified in Section
5.01(h), (i) or (j) with respect to the Company occurs and is continuing, then
the principal of, premium, if any, and accrued and unpaid interest, if any, on
all the Notes then outstanding shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder of Notes.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in aggregate principal amount of the Notes then Outstanding, by written notice
to the Company and the Trustee, may rescind and annul such declaration of
acceleration and its consequences if:
(A) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(I) all amounts due the Trustee under Section 6.07, including the
reasonable compensation, fees, expenses, disbursements and advances of the
Trustee, its agents and counsel,
(II) all overdue interest on all Notes,
(III) the principal of and premium, if any, on any Notes which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate then borne by the Notes, and
(IV) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate then borne by the Notes; and
(B) all Events of Default, other than the non-payment of principal of,
premium, if any, and any accrued and unpaid interest on, the Notes that have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
Notwithstanding the foregoing, in the event of a declaration of
acceleration in respect of the Notes because an Event of Default specified in
Section 5.01(e) shall have occurred
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and be continuing, such declaration of acceleration shall be automatically
annulled if the Indebtedness that is the subject of such Event of Default has
been discharged or paid or the requisite holders thereof have rescinded their
declaration of acceleration in respect of such Indebtedness and written notice
of such discharge or rescission, as the case may be, shall have been given to
the Trustee by the Company and by the requisite holders of such Indebtedness or
a trustee, fiduciary or agent for such holders, within 60 days after such
declaration of acceleration in respect of the Notes and no other Event of
Default has occurred which has not been cured or waived during such 60-day
period.
Section 5.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company and each Guarantor covenant that if an Event of
Default specified in Section 5.01(i) or 5.01(ii) shall have occurred and be
continuing, the Company and each Guarantor will, jointly and severally, upon
demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Notes, the whole amount then due and payable on such Notes for principal,
premium, if any, and interest, with interest upon the overdue principal,
premium, if any, and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest, at the rate then
borne by the Notes; and, in addition thereto, 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.
If the Company and each Guarantor, fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may, but is not obligated under this paragraph to, institute a
judicial proceeding for the collection of the sums so due and unpaid and may,
but is not obligated under this paragraph to, prosecute such proceeding to
judgment or final decree, and may, but is not obligated under this paragraph to,
enforce the same against the Company, any Guarantor or any other obligor upon
the Notes and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any Guarantor or any other
obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion, but is not obligated under this paragraph to, (i) proceed
to protect and enforce its rights and the rights of the Holders under this
Indenture or any Note Guarantee by such appropriate private or judicial
proceedings as the Trustee shall deem most effectual to protect and enforce such
rights, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted
herein, including, without limitation, seeking recourse against any Guarantor or
(ii) proceed to protect and enforce any other proper remedy, including, without
limitation, seeking recourse against any Guarantor. No recovery of any such
judgment upon any property of the Company or any Guarantor shall affect or
impair any rights, powers or remedies of the Trustee or the Holders.
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Section 5.04. Trustee May File Proofs of Claims.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes, including each Guarantor or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(A) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
the Notes and to file such 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, fees, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(B) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
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 the
Trustee any amount due 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 6.07 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without
Possession of Notes.
All rights of action and claims under this Indenture, the
Notes or any Note Guarantee may be prosecuted and enforced by the Trustee
without the possession of any of the Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, fees, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Notes in
respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such
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money on account of principal, premium, if any, or interest, upon presentation
of the Notes and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.07;
Second: to Holders for interest accrued on the Notes,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for interest;
Third: to Holders for principal and premium, if any, amounts
owing under the Notes, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for
principal and premium, if any; and
Fourth: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Noteholders pursuant to this
Section 5.06.
Section 5.07. Limitation on Suits.
No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(A) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in principal amount of
the Outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(D) the Trustee for 15 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(E) no direction inconsistent with such written request has
been given to the Trustee during such 15- day period by the Holders of
a majority in aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture, any Note or any Note Guarantee to affect, disturb or prejudice
the rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
any Note or any Note Guarantee, except in the manner provided in this Indenture
and for the equal and ratable benefit of all the Holders.
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Section 5.08. Unconditional Right of Holders To
Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive cash payment of the principal of, premium, if any, and (subject to
Section 3.07 hereof) interest on such Note on the respective Stated Maturities
expressed in such Note (or, in the case of redemption, on the respective
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture, any Note or any Note Guarantee
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case the Company, each of the Guarantor, the Trustee and the Holders shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as provided in Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
Five or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 5.12. Control by Majority.
The Holders of a majority in aggregate principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, provided, however, that:
(A) such direction shall not be in conflict with any rule of
law or with this Indenture, any Note or any Note Guarantee or expose
the Trustee to personal liability; and
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(B) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes may on behalf of the Holders of all the Notes
waive any past Default hereunder and its consequences, except a Default
(A) in the payment of the principal of, premium, if any, or
interest on any Note or
(B) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected thereby.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.14 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Notes, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of, premium, if any, or interest on any Note on or after the
respective Stated Maturities expressed in such Note (or, in the case of
redemption, on or after the respective Redemption Dates).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantors covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company or any Guarantor
from paying all or any portion of the principal of, premium, if any, or interest
on the Notes contemplated herein or in the Notes or which may affect the
covenants or the performance of this Indenture; and each of the Company and the
Guarantors (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
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Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 5.16. Unconditional Right of Holders To Receive
Payment.
Notwithstanding any other provision in this Indenture and any
other provision of any Note, the right of any Holder of any Note to receive
payment of the principal of, premium, if any, and interest on such Note on or
after the respective Stated Maturities (or the respective Redemption Dates, in
the case of redemption) expressed in such Note, or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(A) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(B) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(C) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
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(D) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section 6.01.
Section 6.02. Notice of Defaults.
Within 60 days after the occurrence of any Default, the Trustee
shall transmit by mail to all Holders, as their names and addresses appear in
the Note Register, notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in
the case of a Default in the payment of the principal of, premium, if any, or
interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as a trust committee of Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest of
the Holders.
Section 6.03. Certain Rights of Trustee.
Subject to Section 6.01 hereof and the provisions of Section
315 of the Trust Indenture Act:
(A) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(B) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors of the Company or any
Guarantor may be sufficiently evidenced by a Board Resolution thereof;
(C) the Trustee may consult with counsel and any written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(D) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by the Trustee in compliance with such request or direction;
(E) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of its own negligence;
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(F) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, other evidence of indebtedness or other paper or document
unless requested in writing so to do by the Holders of not less than
a majority in aggregate principal amount of the Notes then
Outstanding; provided, however, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Company or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Company
upon demand; provided, further, the Trustee in its discretion may make
such further inquiry or investigation into such facts or matters as it
may deem fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney; and
(G) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 6.04. Trustee Not Responsible for
Recitals, Dispositions of Notes or
Application of Proceeds Thereof.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Guarantors, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes or of any Note Guarantee except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Notes and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility and Qualification
on Form T-1, if any, to be supplied to the Company are true and accurate subject
to the qualifications set forth therein. The Trustee shall not be accountable
for the use or application by the Company of Notes or the proceeds thereof.
Section 6.05. Trustee and Agents May Hold Notes;
Collections; Etc.
The Trustee, any Paying Agent, Registrar or any other agent
of the Company, in its individual or any other capacity, may become the owner
or pledgee of Notes, with the same rights it would have if it were not the
Trustee, Paying Agent, Registrar or such other agent and, subject to Sections
6.08 and 6.13 hereof and Sections 310 and 311 of the Trust Indenture Act, may
otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee, Paying Agent, Registrar or such other agent.
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Section 6.06. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required herein or by law. The Trustee shall not be under any liability for
interest on any moneys received by it hereunder.
Section 6.07. Compensation and Indemnification of
Trustee and Its Prior Claim.
The Company and each Guarantor covenant and agree: (a) to pay to
the Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust); (b) to reimburse the Trustee and each predecessor Trustee upon
its request for all reasonable expenses, fees, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation, fees, and the expenses
and disbursements of its counsel and of all agents and other persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith; and (c) to indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including
enforcement of this Section 6.07. The obligations of the Company and each
Guarantor under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, fees, disbursements and advances shall constitute an
additional obligation hereunder and shall survive the satisfaction and discharge
of this Indenture. To secure the obligations of the Company and of each
Guarantor to the Trustee under this Section 6.07, the Trustee shall have a prior
Lien upon all property and funds held or collected by the Trustee as such,
except funds and property paid by the Company or any Guarantor and held in trust
for the benefit of the Holders of particular Notes.
Section 6.08. Conflicting Interests.
The Trustee shall be subject to and comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 6.09. Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Act Sections 310(a)(1) and (2)
and which shall have a combined capital and surplus of at least $100,000,000,
and have a Corporate Trust Office in the Borough of Manhattan in The City of New
York, State of New York. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of any Federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any
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time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
Section 6.10. Resignation and Removal; Appointment
of Successor Trustee.
(A) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 6.11.
(B) The Trustee, or any trustee or trustees hereinafter
appointed, may at any time resign by giving written notice thereof to
the Company at least 20 Business Days prior to the date of such
proposed resignation. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written
instrument executed by authority of the Board of Directors of the
Company, a copy of which shall be delivered to the resigning Trustee
and a copy to the successor Trustee. If an instrument of acceptance by
a successor Trustee shall not have been delivered to the Trustee within
20 Business Days after the giving of such notice of resignation, the
resigning Trustee may, or (if an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within
30 Business Days after the giving of such notice of resignation) any
Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any,
as it may deem proper, appoint a successor Trustee.
(C) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding Notes,
delivered to the Trustee and to the Company.
(D) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act in accordance with Section
6.08 hereof after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 6.09
hereof and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Note for
at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
or rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 5.14, the Holder of any Note who has been a bona fide
Holder of a Note for at least six
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months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor Trustee.
(E) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company, by a Board Resolution of its Board of Directors,
shall promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Notes delivered to
the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders of the Notes and accepted
appointment in the manner hereinafter provided, the Holder of any Note
who has been a bona fide Holder for at least six months may, subject to
Section 5.14, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(F) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Notes as their names and addresses appear in
the Note Register. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by
Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor Trustee, upon payment of amounts due it pursuant to Section 6.07,
such retiring Trustee shall duly assign, transfer and deliver to the successor
Trustee all moneys and property at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers, duties and obligations of the retiring Trustee. Upon request of
any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee
all such rights and powers. Any Trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or collected by such
Trustee to secure any amounts then due it pursuant to the provisions of Section
6.07.
No successor Trustee with respect to the Notes shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under this
Article.
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Upon acceptance of appointment by any successor Trustee as
provided in this Section 6.11, the successor shall give notice thereof to the
Holders of the Notes, by mailing such notice to such Holders at their addresses
as they shall appear on the Note Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Company fails to give such notice within 10 days after acceptance
of appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
Section 6.12. Merger, Conversion, Amalgamation,
Consolidation or Succession to
Business
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated or amalgamated, or any
corporation resulting from any merger, conversion, amalgamation or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing of any paper
or any further act on the part of any of the parties hereto, provided such
corporation shall be eligible under this Article Six to serve as Trustee
hereunder.
In case at the time such successor to the Trustee under this
Section 6.12 shall succeed to the trusts created by this Indenture any of the
Notes shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Notes so authenticated; and, in case at that time any of the
Notes shall not have been authenticated, any successor to the Trustee under this
Section 6.12 may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Notes or in
this Indenture provided that the certificate of the Trustee shall have been
authenticated.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company
To Furnish Trustee Names and
Addresses of Holders.
(A) The Trustee shall preserve the names and addresses of the
Noteholders and otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish or cause the
Registrar to furnish to the Trustee 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 Noteholders. Neither the Company nor
the Trustee shall be under any responsibility with regard to the
accuracy of such list.
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(B) The Company will furnish or cause to be furnished to the Trustee
(I) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date; and
(II) at such other times as the Trustee may reasonably request
in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Registrar, no
such list need be furnished pursuant to this Subsection 7.01(b).
Section 7.02. Communications of Holders.
Holders may communicate with other Holders with respect to
their rights under this Indenture or under the Notes pursuant to Section 312(b)
of the Trust Indenture Act. The Company and the Trustee and any and all other
persons benefited by this Indenture shall have the protection afforded by
Section 312(c) of the Trust Indenture Act.
Section 7.03. Reports by Trustee.
Within 60 days after May 1 of each year commencing with the
first May 1 following the date of this Indenture, the Trustee shall mail to all
Holders, as their names and addresses appear in the Note Register, a brief
report dated as of such May 1, in accordance with, and to the extent required
under Section 313 of the Trust Indenture Act. At the time of its mailing to
Holders, a copy of each such report shall be filed by the Trustee with the
Company, the Commission and with each stock exchange on which the Notes are
listed. The Company shall notify the Trustee when the Notes are listed on any
stock exchange.
Section 7.04. Reports by Company and Each
Guarantor.
The Company and each Guarantor shall:
(A) file with the Commission, the copies of annual reports and
of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) required to be filed with
Commission pursuant to Section 13 or Section 15 of the Exchange Act,
whether or not the Company or any Guarantor has a class of securities
registered under the Exchange Act;
(B) file with the Trustee within 15 days after it files or
would be required to file the information specified in subsection (a)
of this Section 7.04 reports and documents with the Commission copies
of such information;
(C) file with the Trustee and the Commission in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information,
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documents and reports with respect to compliance by the Company and
each Guarantor with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations;
and
(D) transmit by mail to all Holders, as their names and
addresses appear in the Note Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company and each Guarantor
pursuant to subsections (a) and (c) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS, ETC.
Section 8.01. Company May Consolidate, etc., Only
on Certain Terms.
The Company will not, in a single transaction or through a
series of related transactions, merge or consolidate with or into or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets as an entirety to, any Person or Persons, and the
Company will not permit any of the estricted Subsidiaries to enter into any such
transaction or series of related transactions if such transaction or series of
related transactions, in the aggregate, would result in the sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company and the Restricted Subsidiaries
(determined on a consolidated basis for the Company and the Restricted
Subsidiary), to any other Person or Persons, unless at the time and after giving
effect thereto:
(I) either (A)(1) if the transaction or transactions is a
merger or consolidation involving the Company, the Company shall be the
surviving Person of such merger or consolidation or (2) if the
transaction or transactions is a merger or consolidation involving a
Restricted Subsidiary, such Restricted Subsidiary shall be the
surviving Person of such merger or consolidation, or (B)(1) the Person
formed by such consolidation or into which the Company or such
Restricted Subsidiary is merged or to which the properties and assets
of the Company or such Restricted Subsidiary, as the case may be,
substantially as an entirety, are transferred (any such surviving
Person or transferee Person being the "Surviving Entity") shall be a
corporation organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia, and (2)(x)
in the case of a transaction involving the Company, the Surviving
Entity shall expressly assume, by a supplemental indenture executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Notes and this Indenture and the
Registration Rights Agreement and, in each case, the Notes, this
Indenture and the Registration Rights Agreement shall remain in full
force and effect, or (y) in the case of a transaction involving a
Restricted Subsidiary that is a Guarantor, the Surviving Entity shall
expressly assume by a supplemental indenture executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations
of such
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Restricted Subsidiary under its Note Guarantee and this Indenture and
the Registration Rights Agreement and, in each case, such Note
Guarantee and this Indenture and the Registration Rights Agreement
shall remain in full force and effect;
(II) immediately after giving effect to such transaction or
series of transactions on a pro forma basis, no Default shall have
occurred and be continuing;
(III) if the Company is then subject to Section 10.12, the
Company, or the Surviving Entity, as the case may be, immediately after
giving effect to such transaction or series of transactions on a pro
forma basis (including, without limitation, any Indebtedness incurred
or anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), could incur $1.00 of additional
Indebtedness under Section 10.12 hereof;
(IV) each Guarantor, unless it is the other party to the
transaction or transactions described above or in connection therewith
its Guarantee will be released and discharged in accordance with the
terms of this Indenture, shall have by supplemental indenture confirmed
that its Note Guarantee shall apply to the obligations of the Company
or the Surviving Entity, as the case may be, under this Indenture and
the Notes; and
(V) the Company or the Surviving Entity, as the case may be,
shall have delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel each stating that such transaction or series of related
transactions and, if a supplemental indenture is required in connection
with such transaction or series of related transactions to effectuate
such assumption, such supplemental indenture complies with this
Indenture.
No Guarantor (other than a Guarantor whose Note Guarantee is to
be released in accordance with the terms of its Note Guarantee and this
Indenture as provided in the second sentence of Section 10.18 shall, in any
transaction or series of related transactions, consolidate with or merge with or
into another Person, whether or not such Person is affiliated with such
Guarantor and whether or not such Guarantor is the Surviving Entity, unless (i)
the Surviving Entity (if other than such Guarantor) is a corporation organized
and validly existing under the laws of the United States, any State thereof or
the District of Columbia; (ii) the Surviving Entity (if other than such
Guarantor) expressly assumes by a supplemental indenture all the obligations of
such Guarantor under its Note Guarantee and the performance and observance of
every covenant of this Indenture and the Registration Rights Agreement to be
performed or observed by such Guarantor; and (iii) immediately after giving
effect to such transaction or series of related transactions on a pro forma
basis, no Default shall have occurred and be continuing.
Section 8.02. Successor Substituted.
Upon any consolidation, combination or merger, or any sale,
assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the properties and assets of the Company or any Guarantor
in accordance with Section 8.01 hereof in which the Company or a Guarantor is
not the Surviving Entity, such Surviving Entity shall succeed to, and
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be substituted for, and may exercise every right and power of, the Company
or such Guarantor, as the case may be, under this Indenture, the Notes, the Note
Guarantee of such Guarantor and the Registration Rights Agreement with the same
effect as if such successor had been named as the Company or such Guarantor, as
the case may be, herein, and in the Notes and, thereafter, except in the case of
(a) a lease or (b) any sale, assignment, conveyance, transfer, lease or other
disposition to a Restricted Subsidiary of the Company or such Guarantor, the
Company or such Guarantor, as the case may be, shall be discharged from all
obligations and covenants under this Indenture, the Notes, the Note Guarantees
and the Registration Rights Agreement, as applicable.
For all purposes of this Indenture and the Notes (including
this Article Eight and Sections 10.12, 10.14 and 10.17 hereof), Subsidiaries of
any Surviving Entity will, upon such transaction or series of related
transactions described in this Article Eight, become Restricted Subsidiaries or
Unrestricted Subsidiaries as provided pursuant to Section 10.21 and all
Indebtedness, and all Liens on property or assets, of the Company and the
Restricted Subsidiaries in existence immediately prior to such transaction or
series of related transactions will be deemed to have been incurred upon such
transaction or series of related transactions.
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements
and Waivers Without Consent of
Holders.
Without the consent of any Holders, the Company and the
Guarantors, when authorized by a Board Resolution of the Board of Directors of
the Company and each Guarantor, and the Trustee, at any time and from time to
time, may amend, waive, modify or supplement this Indenture or the Notes or the
Note Guarantees for any of the following purposes:
(A) to evidence the succession of another person to the Company
or a Guarantor, and the assumption by any such successor of the
covenants of the Company or such Guarantor herein and in the Notes
and/or in any Note Guarantee, as the case may be;
(B) to add to the covenants of the Company or any Guarantor for
the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or any Guarantor, as applicable, herein, in
the Notes or in any Note Guarantee, as the case may be;
(C) to cure any ambiguity, to correct or supplement any
provision herein, in the Notes or in any Note Guarantee which may be
defective or inconsistent with any other provision herein or to make
any other provisions with respect to matters or questions arising under
this Indenture, the Notes or any Note Guarantee; provided, however,
that, in each case, such provisions shall not materially adversely
affect the legal rights of the Holders;
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(D) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by Section 9.05 hereof or
otherwise;
(E) to add a Guarantor pursuant to the requirements of
Section 10.18 hereof or otherwise;
(F) to evidence and provide the acceptance of the appointment
of a successor Trustee hereunder;
(G) to mortgage, pledge, hypothecate or grant a security
interest in any property or assets in favorof the Trustee for the
benefit of the Holders as security for the payment and performance of
the Indenture Obligations; or
(H) to make any other change that does not materially adversely
affect the legal rights of any Holder;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such change, agreement or waiver does not materially
adversely affect the legal rights of any Holder.
Section 9.02. Supplemental Indentures, Agreements
and Waivers with Consent of Holders.
With the written consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Notes delivered to the
Company, each Guarantor and the Trustee, the Company and each Guarantor (if a
party thereto) when authorized by a Board Resolution, together with the Trustee,
may amend, waive, modify or supplement any other provision of this Indenture or
the Notes or the Note Guarantees; provided, however, that no such amendment,
waiver, modification or supplement may, without the written consent of the
Holder of each Outstanding Note affected thereby:
(I) reduce the principal of or change the Stated Maturity of
any Note, or alter the provisions with respect to the redemption or
repurchase of the Notes in any manner adverse to the Holders of the
Notes;
(II) reduce the rate of or change the time for payment of
interest on any such Note;
(III) change the place or currency of payment of principal of
(or premium) or interest on any such Note;
(IV) modify any provisions of this Indenture relating to the
waiver of past defaults (other than to add sections of this Indenture
or the Notes subject thereto) or the right of the Holders of Notes to
institute suit for the enforcement of any payment on or with respect to
any such Note or any Note Guarantee in respect thereof or the
modification and amendment provisions of this Indenture and the Notes
(other than to add
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sections of this Indenture or the Notes which may not be amended,
supplemented or waived without the consent of each Holder therein
affected);
(V) modify any of the provisions of clauses (i) through (ix)
of this Section 9.02 or reduce the percentage of the principal amount
of outstanding Notes necessary for amendment to or waiver of compliance
with any provision of this Indenture or the Notes or for waiver of any
Default in respect thereof;
(VI) waive a default in the payment of principal of, interest
on, or redemption payment with respect to, the Notes (except a
rescission of acceleration of the Notes by the Holders thereof as
provided in this Indenture and a waiver of the payment default that
resulted from such acceleration);
(VII) modify the ranking or priority of any Note or the Note
Guarantee in respect thereof of any Guarantor in any manner adverse to
the Holders of the Notes;
(VIII) modify the provisions of Section 10.11 or 10.16 or modify
any of the provisions or definitions with respect thereto in a manner
materially adverse to the Holders of Notes affected thereby otherwise
than in accordance with this Indenture; or
(IX) release any Guarantor from any of its obligations under
its Note Guarantee or this Indenture otherwise than in accordance with
this Indenture.
Upon the written request of the Company and each Guarantor
accompanied by a copy of a Board Resolution of the Board of Directors of each of
them authorizing the execution of any such supplemental indenture or other
agreement, instrument or waiver, and upon the filing with the Trustee of
evidence of the consent of Holders as aforesaid, the Trustee shall join with the
Company and each Guarantor in the execution of such supplemental indenture or
other agreement, instrument or waiver.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture or
other agreement, instrument or waiver, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 9.03. Execution of Supplemental
Indentures, Agreements and Waivers.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01 hereof) shall be fully protected in relying upon, an Opinion of Counsel
and an Officers' Certificate from each obligor under the Notes entering into
such supplemental indenture, agreement, instrument or waiver, each stating that
the execution of such supplemental indenture, agreement, instrument or waiver
(a) is authorized or permitted by this Indenture and (b) does not violate the
provisions of any agreement or instrument evidencing any other Indebtedness of
the Company, any Guarantor or any other Subsidiary of the Company. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture,
agreement, instrument or waiver
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which affects the Trustee's own rights, duties or immunities under this
Indenture, the Notes, any Note Guarantee or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article Nine, this Indenture, the Notes, if applicable, and/or the applicable
Note Guarantee shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture, the Notes, if applicable, and/or
the applicable Note Guarantee, as the case may be, for all purposes; and every
Holder of Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 9.06. Reference in Notes to Supplemental
Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the Board
of Directors of the Company, to any such supplemental indenture may be prepared
and executed by the Company and each Guarantor and authenticated and delivered
by the Trustee upon a Company Order in exchange for Outstanding Notes.
Section 9.07. Record Date.
The Company may, but shall not be obligated to, fix, a record
date for the purpose of determining the Holders entitled to consent to any
supplemental indenture, agreement or instrument or any waiver, and shall
promptly notify the Trustee of any such record date. If a record date is fixed
those persons who were Holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such
supplemental indenture, agreement or instrument or waiver or to revoke any
consent previously given, whether or not such persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
Section 9.08. Revocation and Effect of Consents.
Until an amendment 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 a notation of the consent is not made on any
Note. However, any such Holder, or subsequent Holder, may revoke the consent as
to his Note or portion of a Note if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver shall become effective in accordance with its terms and
thereafter bind every Holder.
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ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and
Interest.
The Company will duly and punctually pay the principal of,
premium, if any, and interest on the Notes in accordance with the terms of the
Notes and this Indenture.
Section 10.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan in The
City of New York, State of New York, an office or agency where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The office
of the Trustee at its Corporate Trust Office will be such office or agency of
the Company, unless the Company shall designate and maintain some other office
or agency for one or more of such purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York, State of New
York) where the Notes may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designation; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in The City of New York, State
of New York for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and any change in the location
of any such other office or agency.
Section 10.03. Money for Note Payments To Be Held
in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of, premium, if any, or
interest on any of the Notes, segregate and hold in trust for the benefit of the
Holders entitled thereto a sum sufficient to pay the principal, premium, if any,
or interest so becoming due until such sums shall be paid to such persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company will,
on or before each due date of the principal of, premium, if any, or interest on,
any Notes, deposit with a Paying Agent a sum in same day funds sufficient to pay
the principal, premium, if any, or interest so becoming due, such sum to be held
in trust for the benefit of the Holders entitled to such
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principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of such action or any failure so to
act.
If the Company is not acting as Paying Agent, the Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent will agree with the Trustee,
subject to the provisions of this Section 10.03, that such Paying Agent will:
(A) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Notes in trust for the benefit of
the Holders entitled thereto until such sums shall be paid to such
Holders or otherwise disposed of as herein provided;
(B) give the Trustee notice of any Default by the Company or
any Guarantor (or any other obligor upon the Notes) in the making of
any payment of principal of, premium, if any, or interest on the Notes;
(C) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(D) acknowledge, accept and agree to comply in all aspects with
the provisions of this Indenture relating to the duties, rights and
liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent will be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company upon receipt of a Company Request therefor, or (if then held by
the Company) will be discharged from such trust; and the Holder of such Note
will thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, will thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, at the option of the Company
in the New York Times or 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 publication, any unclaimed
balance of such money then remaining shall be repaid to the Company.
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Section 10.04. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory), licenses and franchises of
the Company and each of the Restricted Subsidiaries; provided, however, that
the Company will not be required to preserve any such right, license or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and the Restricted Subsidiaries as a whole and that the loss
thereof is not adverse in any material respect to the Holders; provided,
further, that the foregoing will not prohibit a sale, transfer or conveyance of
a Subsidiary of the Company or any of its assets in compliance with the
terms of this Indenture.
Section 10.05. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed (i) upon the Company or
any of its Restricted Subsidiaries or (ii) upon the income, profits or property
of the Company or any of the Restricted Subsidiaries and (b) all material lawful
claims for labor, materials and supplies, which, if unpaid, could reasonably be
expected to become a Lien upon the property of the Company or any of the
Restricted Subsidiaries; provided, however, that the Company will not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim (x) whose amount, applicability or validity is being
contested in good faith by appropriate proceedings properly instituted and
diligently conducted or (y) if the failure to so pay, discharge or cause to be
paid or discharged could not reasonably be expected to have a Material Adverse
Effect (as defined in the Purchase Agreement).
Section 10.06. Maintenance of Properties.
The Company will cause all material properties owned by the
Company or any of the Restricted Subsidiaries or used or held for use in the
conduct of their respective businesses to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 10.06 will prevent the Company from discontinuing the
maintenance of any of such properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business or the business of any
of the Restricted Subsidiaries and is not disadvantageous in any material
respect to the Holders.
Section 10.07. Insurance.
The Company will at all times keep all of its and the
Restricted Subsidiaries' properties which are of an insurable nature insured
with insurers, believed by the Company in good faith to be financially sound and
responsible, against loss or damage to the extent that property of similar
character is usually and customarily so insured by corporations similarly
situated and owning like properties.
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Section 10.08. Books and Records.
The Company will keep proper books of record and account, in
which full and correct entries will be made of all financial transactions and
the assets and business of the Company and each Restricted Subsidiary of the
Company in material compliance with GAAP.
Section 10.09. Note Guarantees.
Each of the Guarantors and the Company will, and the Company
will cause each of the Guarantors to, ensure at all times that, unless otherwise
permitted by this Indenture, each Note Guarantee will remain in full force and
effect and shall not be subordinated by written agreement in right of payment to
any Indebtedness or other obligations of the Guarantors, unless required by
applicable law.
Section 10.10. Provision of Financial Statements.
The Company will file with the Commission (so long as the
Commission will accept any such filings) the Trustee and the Initial Purchasers
the annual reports, quarterly reports and other documents required to be filed
with the Commission pursuant to Sections 13 and 15 of the Exchange Act, whether
or not the Company has a class of securities registered under the Exchange Act.
The Company will also comply with the other provisions of Section 314(a) of the
Trust Indenture Act.
Section 10.11. Change of Control Triggering Event.
In the event of a Change of Control Triggering Event (the date
of such occurrence, the "Change of Control Date"), the Company will notify the
Holders of Notes in writing of such occurrence and will make an offer to
purchase (the "Change of Control Offer") on a Business Day (the "Change of
Control Purchase Date") not more than 30 nor less than 20 Business Days
following the Change of Control Date all Notes then Outstanding at a purchase
price in cash equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the Change of Control Purchase Date. Failure to mail
the notice of a Change of Control Offer on the date specified below or to have
satisfied the foregoing condition precedent by the date that such notice is
required to be mailed will constitute a covenant Default under Section 5.01(c).
Notice of a Change of Control Offer shall be mailed by the
Company not more than 20 Business Days after the Change of Control Date to the
Holders of Notes at their last registered addresses with a copy to the Trustee
and the Paying Agent. The Change of Control Offer shall remain open from the
time of mailing for at least 20 Business Days and until 5:00 p.m., New York City
time, on the Change of Control Purchase Date. The notice, which shall govern the
terms of the Change of Control Offer, shall include such disclosures as are
required by law and shall state:
(A) that the Change of Control Offer is being made pursuant to
this Section 10.11 and that all Notes tendered into the Change of
Control Offer will be accepted for payment;
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(B) the purchase price (including the amount of accrued
interest, if any) for each Note, the Change of Control Purchase Date
and the date on which the Change of Control Offer expires;
(C) that any Note not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(D) that, unless the Company shall default in the payment of
the purchase price, any Note accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date;
(E) that Holders electing to have Notes purchased pursuant to a
Change of Control Offer will be required to surrender their Notes to
the Paying Agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the Change of Control Purchase Date and
must complete any form letter of transmittal proposed by the Company
and acceptable to the Trustee and the Paying Agent;
(F) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New
York City time, on the Change of Control Purchase Date, a facsimile
transmission or letter setting forth the name of the Holders, the
principal amount of Notes the Holders delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is
withdrawing his election to have such Notes purchased;
(G) that Holders whose Notes are purchased only in part will be
issued Notes of like tenor equal in principal amount to the unpurchased
portion of the Notes surrendered;
(H) the instructions that Holders must follow in order to
tender their Notes; and
(I) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with the
Commission pursuant to the Exchange Act (or, if the Company is not
required to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 10.10), a description of material
developments in the Company's business, information with respect to pro
forma historical financial information after giving effect to such
Change of Control and such other information concerning the
circumstances and relevant facts regarding such Change of Control and
Change of Control Offer as would, in the good faith judgment of the
Company, be material to a Holder of Notes in connection with the
decision of such Holder as to whether or not it should tender Notes
pursuant to the Change of Control Offer.
On the Change of Control Purchase Date, the Company will (i)
accept for payment Notes or portions thereof tendered pursuant to the Change of
Control Offer, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Notes or portions
thereof so tendered and accepted and (iii) deliver to the Trustee the Notes so
accepted together with an Officers' Certificate setting forth the Notes or
portions thereof tendered to and accepted for payment by the Company. The Paying
Agent will promptly mail or deliver to
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the Holders of Notes so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Note of like tenor equal in principal amount to any unpurchased
portion of the Note surrendered. Any Notes not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company will
publicly announce the results of the Change of Control Offer not later than the
first Business Day following the Change of Control Purchase Date.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to a Change
of Control Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 10.11, the Company will
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 10.11 by virtue
thereof.
Section 10.12. Limitation on Indebtedness.
The Company will not, and will not cause or permit any of the
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
issue, guarantee or in any manner become liable for or with respect to,
contingently or otherwise (in each case, to "incur"), the payment of any
Indebtedness (including any Acquired Indebtedness); provided, however, that (i)
the Company and any Guarantor may incur Indebtedness (including Acquired
Indebtedness) and (ii) any Restricted Subsidiary may incur Acquired
Indebtedness, if, in either case, immediately after giving pro forma effect
thereto, the Consolidated Fixed Charge Coverage Ratio of the Company is at least
equal to 2.00:1.
Notwithstanding the foregoing, the Company and, to the extent
specifically set forth below, the Restricted Subsidiaries may incur each and all
of the following (collectively, "Permitted Indebtedness"):
(I) Indebtedness of the Company and the Guarantors under the
Credit Facility in an aggregate principal amount at any one time
outstanding not to exceed the greater of (i) $350 million and (ii) 65%
of Eligible Inventory (as defined under the Credit Facility) of the
Company and the Restricted Subsidiaries (determined on a consolidated
basis);
(II) Indebtedness of the Company or any Guarantor under
the Indenture, the Notes and the Note Guarantees;
(III) Indebtedness of the Company or any Restricted Subsidiary
not otherwise referred to in this paragraph that is outstanding on the
Issue Date, except Indebtedness to be repaid as described under "Use of
Proceeds" in the Offering Memorandum (other than Indebtedness repaid
that is permitted to be reborrowed under clause (i) above);
(IV) Indebtedness of the Company or any Restricted Subsidiary
in respect of performance bonds, bankers' acceptances, trade letters of
credit of the Company or any Restricted Subsidiary and surety bonds
provided by the Company or any Restricted Subsidiary in the ordinary
course of business;
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(V) Indebtedness of any Restricted Subsidiary owed to and
held by the Company or any Subsidiary that is a Guarantor, and
Indebtedness of the Company owed to and held by any Subsidiary that is
a Guarantor which is unsecured and subordinated in right of payment to
the payment and performance of the Company's obligations under the
Indenture and the Notes; provided, however, that an incurrence of
Indebtedness that is not permitted by this clause (v) shall be deemed
to have occurred upon (a) any sale or other disposition of any
Indebtedness of the Company or any Restricted Subsidiary referred to in
this clause (v) to a Person (other than the Company or any Subsidiary
that is a Guarantor), (b) any sale or other disposition of Capital
Stock of any Restricted Subsidiary which holds Indebtedness of the
Company or another Restricted Subsidiary such that such Restricted
Subsidiary ceases to be a Restricted Subsidiary and (c) the designation
of a Restricted Subsidiary which holds Indebtedness of the Company or
any other Restricted Subsidiary as an Unrestricted Subsidiary;
(VI) any guarantees of Indebtedness by a Restricted
Subsidiary incurred in compliance with Section 10.18 hereof;
(VII) Interest Rate Protection Obligations of the Company or
any Restricted Subsidiary covering Indebtedness of the Company or any
Restricted Subsidiary (which Indebtedness is otherwise permitted to be
incurred under this covenant) to the extent the notional principal
amount of such Interest Rate Protection Obligations does not exceed the
principal amount of the Indebtedness to which such Interest Rate
Protection Obligations relate;
(VIII) Indebtedness of the Company or any Restricted Subsidiary
under Currency Agreements relating to (a) Indebtedness of the Company
or any Restricted Subsidiary and/or (b) obligations to purchase or sell
assets or properties, in each case, incurred in the ordinary course of
business of the Company or any Restricted Subsidiary; provided,
however, that such Currency Agreements do not increase the Indebtedness
or other obligations of the Company or any Restricted Subsidiary
outstanding other than as a result of fluctuations in foreign currency
exchange rates or by reason of fees, indemnities and compensation
payable thereunder;
(IX) Purchase Money Indebtedness (other than Indebtedness
incurred in connection with an Asset Acquisition) and Capitalized Lease
Obligations of the Company or any Restricted Subsidiary in an aggregate
amount not exceeding (i) $25.0 million incurred in any one year and
(ii) $50.0 million outstanding at any time;
(X) (a) Indebtedness of the Company or any Guarantor to the
extent the proceeds thereof are used to Refinance Indebtedness
of the Company or any Guarantor or any Restricted Subsidiary incurred
under the first paragraph of this covenant or Indebtedness referred to
under clause (ii) or (iii) above and (b) Indebtedness of any
Restricted Subsidiary that is not a Guarantor to the extent the
proceeds thereof are used to Refinance Indebtedness of any Restricted
Subsidiary that is not a Guarantor incurred under the first paragraph
of this covenant or Indebtedness referred to under clause (iii) above;
provided, however, that, in the case of either clause (a) or (b), the
principal amount
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of Indebtedness incurred pursuant to this clause (x) (or, if such
Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of
the maturity thereof, the original issue price of such Indebtedness)
shall not exceed the sum of the principal amount of Indebtedness so
refinanced (or, if such Indebtedness provides for an amount less than
the principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof, the original issue price of
such Indebtedness, plus any accreted value attributable thereto since
the original issuance of such Indebtedness), plus the amount of any
premium required to be paid in connection with such Refinancing
pursuant to the terms of such Indebtedness or the amount of any
premium reasonably determined by the Company or a Restricted
Subsidiary, as applicable, as necessary to accomplish such Refinancing
by means of a tender offer or privately negotiated purchase, plus
the amount of expenses in connection therewith; and
(XI) in addition to the items referred to in clauses (i)
through (x) above, additional Indebtedness of the Company and the
Restricted Subsidiaries not to exceed an aggregate principal amount at
any time outstanding of $50.0 million.
For purposes of determining compliance with this Section 10.12,
in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness permitted by this covenant, the Company in its sole
discretion shall classify such item of Indebtedness and only be required to
include the amount of such Indebtedness as one of such types.
After the Notes have been assigned an Investment Grade Rating
by both Rating Agencies, and notwithstanding that the Notes may later cease to
have an Investment Grade Rating, the Company and the Restricted Subsidiaries
will not be subject to the provisions of this Section; provided, that no Default
has occurred and is continuing at the time the Notes have been assigned such
rating.
Section 10.13. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, a
written statement signed by the chairman or a chief executive officer, the
principal financial officer or principal accounting officer of the Company,
stating (i) that a review of the activities of the Company during the preceding
fiscal year has been made under the supervision of the signing officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and (ii) that, to the knowledge
of each officer signing such certificate, the Company has kept, observed,
performed and fulfilled each and every covenant and condition contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions, conditions and covenants hereof (or, if a Default shall have
occurred, describing all such Defaults of which such officers may have
knowledge, their status and what action the Company is taking or proposes to
take with respect thereto). When any Default has occurred and is continuing, or
if the Trustee or any Holder or the trustee for or the holder of any other
evidence of Indebtedness of the Company or any Restricted Subsidiary gives any
notice or takes any other action with respect to a claimed default (other than
with respect to Indebtedness (other than
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Indebtedness evidenced by the Notes) in the principal amount of less than
$10,000,000), the Company will promptly notify the Trustee of such Default,
notice or action and will deliver to the Trustee by registered or certified mail
or by telegram, or facsimile transmission followed by hard copy by registered or
certified mail an Officers' Certificate specifying such event, notice or other
action within five Business Days after the Company becomes aware of such
occurrence and what action the Company is taking or proposes to take with
respect thereto.
Section 10.14. Limitation on Restricted Payments.
(A) The Company will not, and will not cause or permit any of
the Restricted Subsidiaries to, directly or indirectly:
(I) declare or pay any dividend or make any other
distribution or payment on or in respect of Capital Stock of the
Company or any Restricted Subsidiary or any payment made to the
direct or indirect holders (in their capacities as such) of Capital
Stock of the Company or any Restricted Subsidiary (other than
dividends or distributions made to the Company or a Restricted
Subsidiary and dividends and distributions payable solely in Capital
Stock of the Company (other than Redeemable Capital Stock) or in
rights to purchase Capital Stock of the Company (other than Redeemable
Capital Stock) or dividends and distributions made by a Restricted
Subsidiary on a pro rata basis to all shareholders of such Restricted
Subsidiary); or
(II) purchase, redeem, defease or otherwise acquire or retire
for value any Capital Stock of the Company (other than any such Capital
Stock owned by the Company or a Restricted Subsidiary that is a
Guarantor); or
(III) make any principal payment on, or purchase, defease,
repurchase, redeem or otherwise acquire or retire for value, prior to
any scheduled maturity, scheduled repayment, scheduled sinking fund
payment or other Stated Maturity, any Subordinated Indebtedness (other
than any Subordinated Indebtedness owed to and held by the Company or a
Restricted Subsidiary that is a Guarantor); or
(IV) make any Investment (other than a Permitted Investment)
(such payments or Investments (other than an exception thereto)
described in the preceding clauses (i), (ii), (iii) and (iv) are
collectively referred to as "Restricted Payments"), unless, at the time
of and after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than in cash, shall be
the Fair Market Value of the asset(s) proposed to be transferred by the
Company or such Restricted Subsidiary, as the case may be, pursuant to
such Restricted Payment):
(A) no Default shall have occurred and be continuing;
(B) the aggregate amount of all Restricted Payments
declared or made from and after the Issue Date and all
Designation Amounts would not exceed the sum of (1) 50% of
cumulative Consolidated Net Income of the Company during
the period (treated as one accounting period) beginning on
the Issue Date and
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ending on the last day of the fiscal quarter of the Company
immediately preceding the date of such proposed Restricted
Payment for which consolidated financial information of the
Company is available (or, if such cumulative Consolidated Net
Income of the Company for such period shall be a deficit,
minus 100% of such deficit), plus (2) the aggregate net cash
proceeds received by the Company either (x) as capital
contributions to the Company increasing its common equity
after the Issue Date or (y) from the issuance or sale of
Capital Stock (excluding Redeemable Capital Stock but
including Capital Stock issued upon the conversion of
convertible Indebtedness, in exchange for outstanding
Indebtedness or from the exercise of options, warrants or
rights to purchase Capital Stock (other than Redeemable
Capital Stock)) of the Company to any Person (other than to a
Restricted Subsidiary of the Company) after the Issue Date
(excluding the net cash proceeds from any issuance and sale of
Capital Stock financed, directly or indirectly, using funds
borrowed from the Company or any Restricted Subsidiary until
and to the extent such borrowing is repaid), plus (3) without
duplication of any amounts included in clause (1) above, in
the case of the disposition or repayment of any Investment
constituting a Restricted Payment made after the Issue Date,
an amount (to the extent not included in Consolidated Net
Income) equal to the lesser of the return of capital with
respect to such Investment and the initial amount of such
Investment which was treated as a Restricted Payment, in
either case, less the cost of the disposition of such
Investment and net of taxes, plus (4) without duplication of
any amounts included in clause (1) above so long as the
Designation thereof was treated as a Restricted Payment made
after the Issue Date, with respect to any Unrestricted
Subsidiary that has been redesignated as a Restricted
Subsidiary after the Issue Date in accordance with Section
10.21, the Fair Market Value of the Company's interest in such
Subsidiary; provided, however, that such amount shall not in
any case exceed the Designation Amount with respect to such
Restricted Subsidiary at the time of its Designation, plus (5)
$25.0 million, minus (6) the Designation Amount (measured as
of the date of Designation) with respect to any Subsidiary of
the Company which has been designated as an Unrestricted
Subsidiary after the Issue Date in accordance with Section
10.21; and
(C) the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness)
under Section 10.12 above.
For purposes of the preceding clause (B)(2), upon the issuance
of Capital Stock either from the conversion of convertible Indebtedness or
exchange for outstanding Indebtedness or upon the exercise of options, warrants
or rights, the amount counted as net cash proceeds received will be the cash
amount received by the Company at the original issuance of the Indebtedness that
is so converted or exchanged or from the issuance of options, warrants or
rights, as the case may be, plus the incremental amount of cash received by the
Company, if any, upon the conversion, exchange or exercise thereof.
None of the foregoing provisions of this Section 10.14 will
prohibit or restrict (i) the payment of any dividend within 60 days after the
date of its declaration, if at the date of
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declaration such payment would be permitted by the provisions of the Indenture;
(ii) so long as no Default shall have occurred and be continuing or would arise
therefrom, the redemption, repurchase or other acquisition or retirement of any
shares of any class of Capital Stock of the Company in exchange for, or out of
the net cash proceeds of, a substantially concurrent issue and sale of other
shares of Capital Stock (other than Redeemable Capital Stock) of the Company to
any Person (other than to a Restricted Subsidiary); provided, however, that any
such net proceeds and the value of any Capital Stock issued in exchange for such
retired Capital Stock are excluded from clause (B)(2) of the preceding
paragraph; (iii) so long as no Default shall have occurred and be continuing or
would arise therefrom, any redemption, repurchase or other acquisition or
retirement of Subordinated Indebtedness made by exchange for, or out of the net
cash proceeds of, a substantially concurrent issue and sale of (A) Capital Stock
(other than Redeemable Capital Stock) of the Company to any Person (other than
to a Restricted Subsidiary); provided, however, that any such net cash proceeds
and the value of any Capital Stock issued in exchange for Subordinated
Indebtedness are excluded from clause (B)(2) of the preceding paragraph or (B)
Indebtedness of the Company or any Guarantor so long as such Indebtedness (1) is
subordinated to the Notes or the Note Guarantees of such Guarantor, as the case
may be, at least to the same extent as the Subordinated Indebtedness so
purchased, exchanged, redeemed, repurchased, acquired or retired and (2) does
not have a Stated Maturity earlier than the Stated Maturity for the Subordinated
Indebtedness being redeemed, repurchased or otherwise acquired or retired; (iv)
Investments constituting Restricted Payments made as a result of the receipt of
noncash consideration from any Asset Sale made pursuant to and in compliance
with Section 10.16; (v) so long as no Default shall have occurred and be
continuing, the Refinancing of the Parisian Notes; (vi) so long as no Default
shall have occurred and be continuing, any purchase, redemption or other
acquisition or retirement for value of any Capital Stock (including any option,
warrant or right to purchase Capital Stock) (other than Redeemable Capital
Stock) of the Company for purposes of making contributions of such Capital Stock
of the Company to employees of the Company or its Subsidiaries pursuant to any
qualified employee benefit or similar plan; (vii) a Restricted Payment to pay
for the repurchase, retirement or other acquisition or retirement for value of
Capital Stock (or warrants or options convertible into or exchangeable for such
Capital Stock) of the Company held by any future, present or former employee,
director or consultant of the Company or any Subsidiary pursuant to any
management equity plan or stock option plan or any other management or employee
benefit plan or agreement; provided, however, that the aggregate amount of
Restricted Payments made pursuant to this clause (vii) does not exceed in any
calendar year $2.5 million (with the unused amount in any calendar year being
carried over to succeeding calendar years subject to a maximum of $5.0 million
in any calendar year); (viii) payments or distributions to dissenting
stockholders pursuant to applicable law, pursuant to or in connection with an
Asset Sale or Asset Acquisition that complies with the provisions of the
Indenture; (ix) repurchases of Capital Stock (or warrants or options convertible
into or exchangeable for such Capital Stock) deemed to occur upon exercise of
stock options to the extent that shares of such Capital Stock (or warrants or
options convertible into or exchangeable for such Capital Stock) represents a
portion of the exercise price of such options; and (x) the repurchase or
retirement of Capital Stock of the Company in exchange for the cancellation of
Indebtedness owed to the Company or any Restricted Subsidiary; provided,
however, that the Fair Market Value of such Capital Stock is not less than the
outstanding principal balance of and accrued and unpaid interest on, the
Indebtedness so canceled. In computing the amount of
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Restricted Payments previously made for purposes of clause (B) of the preceding
paragraph, Restricted Payments under the immediately preceding clauses (i),
(iv), (vi), (vii) and (viii) shall be included.
After the Notes have been assigned an Investment Grade Rating
by both Rating Agencies, and notwithstanding that the Notes may later cease to
have an Investment Grade Rating, the Company and the Restricted Subsidiaries
will not be subject to the provisions of this Section; provided that no Default
has occurred and is continuing at the time the Notes have been assigned such
rating.
Section 10.15. Limitation on Transactions with
Affiliates.
Company will not, and will not cause or permit any of the
Restricted Subsidiaries to, directly or indirectly, conduct any business or
enter into or suffer to exist any transaction or series of related transactions
with, or for the benefit of, any of their respective Affiliates or any
beneficial holder of 10% or more of any class of Voting Stock of the Company or
any officer or director of the Company or any Restricted Subsidiary (each, an
"Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms that
are no less favorable to the Company or the Restricted Subsidiary, as the case
may be, than those which could have been obtained in a comparable transaction at
such time from Persons who do not have such a relationship and (ii) with respect
to any Affiliate Transaction or series of Affiliate Transactions involving
aggregate payments or value equal to or greater than $5.0 million, the Company
shall have delivered an Officers' Certificate to the Trustee certifying that
such Affiliate Transaction or series of related Affiliate Transactions complies
with the preceding clause (i) and, with respect to any Affiliate Transaction or
series of Affiliate Transactions involving aggregate payments or value equal to
or greater than $10.0 million, further certifying that such Affiliate
Transaction or series of Affiliate Transactions has been approved by a majority
of the Board of Directors of the Company, including a majority of the
disinterested directors of the Board of Directors of the Company.
Notwithstanding the foregoing, the restrictions set forth in
this covenant shall not apply to (i) transactions with or among the Company and
the Restricted Subsidiaries who are Guarantors; (ii) customary directors' fees,
indemnification and similar arrangements, consulting fees, employee salaries,
bonuses or employment agreements, compensation or employee benefit arrangements
and incentive arrangements with any officer, director or employee of the Company
or any Restricted Subsidiary entered into in the ordinary course of business
(including customary benefits thereunder) and payments under any indemnification
arrangements permitted by applicable law; (iii) the issue and sale by the
Company to its stockholders of Capital Stock (other than Redeemable Capital
Stock); (iv) any dividends made in compliance with Section 10.14 above; (v)
loans and advances to officers, directors, employees and consultants of the
Company or any Restricted Subsidiary for travel, entertainment, moving and other
relocation expenses, in each case made in the ordinary course of business; (vi)
transactions with or by any Accounts Receivable Subsidiary made in the ordinary
course of business and transactions related to any proprietary credit card
issued by or for the benefit of the Company or an Affiliate of the Company in
the ordinary course of business; (vii) any agreement or Affiliate Transactions
as in effect on the Issue Date and any transaction contemplated thereby; and
(viii) tax sharing agreements between the Company and any of its Subsidiaries
providing for the payment by such Subsidiary of an
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amount equal to the hypothetical United States tax liability of the Subsidiary
as if such Subsidiary had filed its own U.S. federal tax return for any given
taxable year.
After the Notes have been assigned an Investment Grade Rating
by both Rating Agencies, and notwithstanding that the Notes may later cease to
have an Investment Grade Rating, the Company and the Restricted Subsidiaries
will not be subject to the provisions of this Section; provided that no Default
has occurred and is continuing at the time the Notes have been assigned such
rating.
Section 10.16. Disposition of Proceeds of Asset
Sales.
The Company will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly, make any Asset Sale, unless
(i) the Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets sold or otherwise disposed of and (ii) at least 75% of such
consideration consists of (A) cash or Cash Equivalents, (B) properties and
capital assets to be used in the same line of business being conducted by the
Company or any Restricted Subsidiary at such time or (C) Capital Stock in any
Person which thereby becomes a Wholly Owned Restricted Subsidiary whose assets
consist primarily of properties and capital assets used in the same line of
business being conducted by the Company or any Restricted Subsidiary at such
time. In lieu of the consideration described in clause (ii) above, the Company
or any Restricted Subsidiary may receive consideration from an Asset Sale or
Asset Sales consisting of obligations payable to the sellers of such asset or
assets in an aggregate amount not to exceed $25.0 million at any time
outstanding; provided, however, that all consideration received from an Asset
Sale or Asset Sales in excess of such $25.0 million shall be subject to the next
preceding sentence. The amount of any (i) Indebtedness of a Restricted
Subsidiary that is not a Guarantor that is actually assumed by the transferee in
such Asset Sale and from which the Company and the Restricted Subsidiaries are
fully released shall be deemed to be cash for purposes of determining the
percentage of cash consideration received by the Company or the Restricted
Subsidiaries (and excluding any liabilities that are incurred in connection with
or in anticipation of such Asset Sale) and (ii) notes or other similar
obligations received by the Company or any Restricted Subsidiary from such
transferee that are immediately converted, sold or exchanged (or are converted,
sold or exchanged within thirty days of the related Asset Sale) by the Company
or the Restricted Subsidiaries into cash shall be deemed to be cash, in an
amount equal to the net cash proceeds realized upon such conversion, sale or
exchange for purposes of determining the percentage of cash consideration
received by the Company or the Restricted Subsidiaries.
The Company or such Restricted Subsidiary, as the case may be,
may apply the Net Cash Proceeds of any Asset Sale within 365 days of receipt
thereof to (i) repay Indebtedness of the Company or any Guarantor which is
secured by a Lien on the assets or property of the Company or any Guarantor
which was the subject of such Asset Sale and permanently reduce any related
commitment, (ii) repay Indebtedness (other than Subordinated Indebtedness) of
any Restricted Subsidiary that is not a Guarantor in respect of which neither
the Company nor any Guarantor is liable and permanently reduce any related
commitment, (iii) repay any Indebtedness (other than Subordinated Indebtedness)
of the Company or any Guarantor not repaid pursuant to the preceding clause (i)
or (ii), or (iv) make Asset Acquisitions or acquire, construct or improve
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properties or capital assets, in each case, to be used in the same line of
business being conducted by the Company or any Restricted Subsidiary at such
time.
To the extent all or part of the Net Cash Proceeds of any Asset
Sale are not applied within 365 days of such Asset Sale as described in clause
(i), (ii), (iii) or (iv) of the immediately preceding paragraph (such Net Cash
Proceeds, the "Unutilized Net Cash Proceeds"), the Company shall, within 20 days
after such 365th day, make an offer to purchase (the "Asset Sale Offer") all
outstanding Notes up to a maximum principal amount (expressed as a multiple of
$1,000) of Notes equal to such Unutilized Net Cash Proceeds, at a purchase price
in cash equal to 100% of the principal amount thereof, plus accrued and unpaid
interest thereon, if any, to the Purchase Date; provided, however, that the
Asset Sale Offer may be deferred until there are aggregate Unutilized Net Cash
Proceeds equal to or in excess of $10.0 million, at which time the entire amount
of such Unutilized Net Cash Proceeds, and not just the amount in excess of $10.0
million, shall be applied as required pursuant to this paragraph.
Notwithstanding the foregoing, the Company may retain up to $20.0 million of Net
Cash Proceeds of Asset Sales without applying it as required by the foregoing.
With respect to any Asset Sale Offer effected pursuant to this
Section 10.16, among the Notes, to the extent the aggregate principal amount of
Notes tendered pursuant to such Asset Sale Offer exceeds the Unutilized Net Cash
Proceeds to be applied to the repurchase thereof, such Notes shall be purchased
pro rata based on the aggregate principal amount of such Notes tendered by each
Holder. To the extent the Unutilized Net Cash Proceeds exceed the aggregate
amount of Notes tendered by the Holders of the Notes pursuant to such Asset Sale
Offer, the Company may retain and utilize any portion of the Unutilized Net Cash
Proceeds not applied to repurchase the Notes for any purpose consistent with the
other terms of the Indenture.
Notice of an Asset Sale Offer shall be mailed by the Company
not more than 20 Business Days after the obligation to make such Asset Sale
Offer arises to the Holders of Notes at their last registered addresses with a
copy to the Trustee and the Paying Agent. The Asset Sale Offer shall remain open
from the time of mailing for at least 20 Business Days and until 5:00 p.m., New
York City time, on the date fixed for Purchase of Notes validly tendered and not
withdrawn, which date shall be not later than the 30th Business Day following
the mailing of such Asset Sale Offer (the "Asset Sale Offer Purchase Date"). The
notice, which shall govern the terms of the Asset Sale Offer, shall include such
disclosures as are required by law and shall state:
(A) that the Asset Sale Offer is being made pursuant to this
Section 10.16 and that all Notes tendered into the Asset Sale Offer
will be accepted for payment; provided, however, that if the aggregate
principal amount of Notes tendered in an Asset Sale Offer plus accrued
interest at the expiration of such offer exceeds the aggregate amount
of the Unutilized Net Cash Proceeds, the Company shall select the Notes
to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations
of $1,000 or multiples thereof shall be purchased) and that the Asset
Sale Offer shall remain open for a period of 20 Business Days or such
longer period as may be required by law;
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(B) the purchase price (including the amount of accrued
interest, if any) for each Note, the Asset Sale Offer Purchase Date and
the date on which the Asset Sale Offer expires;
(C) that any Note not tendered for payment will continue to
accrue interest in accordance with the terms thereof;
(D) that, unless the Company shall default in the payment of
the purchase price, any Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Asset Sale Offer
Purchase Date;
(E) that Holders electing to have Notes purchased pursuant to
an Asset Sale Offer will be required to surrender their Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m.,
New York City time, on the Asset Sale Offer Purchase Date and must
complete any form letter of transmittal proposed by the Company and
acceptable to the Trustee and the Paying Agent;
(F) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New
York City time, on the Asset Sale Offer Purchase Date, a facsimile
transmission or letter setting forth the name of the Holders, the
principal amount of Notes the Holders delivered for purchase, the Note
certificate number (if any) and a statement that such Holder is
withdrawing his election to have such Notes purchased;
(G) that Holders whose Notes are purchased only in part will be
issued Notes of like tenor equal in principal amount to the unpurchased
portion of the Notes surrendered;
(H) the instructions that Holders must follow in order to
tender their Notes; and
(I) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with the
Commission pursuant to the Exchange Act (or, if the Company is not
required to file any such reports with the Commission, the comparable
reports prepared pursuant to Section 10.10), a description of material
developments in the Company's business, information with respect to pro
forma historical financial information after giving effect to such
Asset Sale and such other information concerning the circumstances and
relevant facts regarding such Asset Sale and Asset Sale Offer as would,
in the good faith judgment of the Company, be material to a Holder of
Notes in connection with the decision of such Holder as to whether or
not it should tender Notes pursuant to the Asset Sale Offer.
On the Asset Sale Offer Purchase Date, the Company will (i)
accept for payment Notes or portions thereof tendered pursuant to the Asset Sale
Offer, (ii) deposit with the Paying Agent money, in immediately available funds,
sufficient to pay the purchase price of all Notes or portions thereof so
tendered and accepted and (iii) deliver to the Trustee the Notes so accepted
together with an Officers' Certificate setting forth the Notes or portions
thereof tendered to and accepted for payment by the Company. The Paying Agent
will promptly mail or deliver to the
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Holders of Notes so accepted payment in an amount equal to the purchase price,
and the Trustee shall promptly authenticate and mail or deliver to such Holders
a new Note of like tenor equal in principal amount to any unpurchased portion of
the Note surrendered. Any Notes not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Asset Sale Offer not later than the first Business
Day following the Asset Sale Offer Purchase Date.
In the event that the Company makes an Asset Sale Offer, the
Company shall comply, to the extent applicable, with the requirements of Section
14(e) of the Exchange Act, and any other applicable securities laws or
regulations and any applicable requirements of any securities exchange on which
the Notes are listed, and any violation of the provisions of the Indenture
relating to such Asset Sale Offer occurring as a result of such compliance shall
not be deemed a Default or an Event of Default.
After the Notes have been assigned an Investment Grade Rating
by both Rating Agencies, and notwithstanding that the Notes may later cease to
have an Investment Grade Rating, the Company and the Restricted Subsidiaries
will not be subject to the provisions of this Section; provided, that no Default
has occurred and is continuing at the time the Notes have been assigned such
rating.
Section 10.17. Limitation on Liens.
The Company will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume or
suffer to exist any Lien of any kind (other than Permitted Liens), upon any of
its property or assets, whether now owned or acquired after the Issue Date, or
any proceeds therefrom, or assign or convey any right to receive income
therefrom to secure either (i) Subordinated Indebtedness, unless the Notes, in
the case of the Company, and the Note Guarantees, in the case of a Restricted
Subsidiary that is a Guarantor, are secured by a Lien on such property, assets
or proceeds that is senior in priority to the Liens securing such Subordinated
Indebtedness or (ii) any other Indebtedness, unless the Notes and the Note
Guarantees, in the case of a Restricted Subsidiary that is a Guarantor, are
equally and ratably secured thereby.
Section 10.18. Limitation on Guarantees by
Restricted Subsidiaries.
The Indenture will provide that the Company will not cause or
permit any of the Restricted Subsidiaries, directly or indirectly, to guarantee
the payment of any Indebtedness of the Company or any Restricted Subsidiary
("Other Indebtedness"), except for guarantees to suppliers, lessors, licensees,
contractors, franchises or customers incurred in the ordinary course of
business, unless such Subsidiary (A) is a Guarantor or (B) simultaneously
executes and delivers a supplemental indenture to the Indenture pursuant to
which it will become a Guarantor under the Indenture; provided, however, that if
such Other Indebtedness is (i) Indebtedness that is ranked pari passu in right
of payment with the Notes or the Note Guarantee of such Restricted Subsidiary,
as the case may be, the Note Guarantee of such Subsidiary shall be pari passu in
right of payment with the guarantee of the Other Indebtedness; or (ii)
Subordinated Indebtedness, the Note Guarantee of such Subsidiary shall be senior
in right of payment to the guarantee of the
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Other Indebtedness (which guarantee of such Subordinated Indebtedness shall
provide that such guarantee is subordinated to the Note Guarantees of such
Subsidiary to the same extent and in the same manner as the other Indebtedness
is subordinated to the Notes or the Note Guarantee of such Restricted
Subsidiary, as the case may be).
Section 10.19. Restrictions on Preferred Stock of
Restricted Subsidiaries.
The Company will not sell, and will not cause or permit any of
the Restricted Subsidiaries to issue, any Preferred Stock of any Restricted
Subsidiary (other than to the Company or to a Wholly-Owned Restricted
Subsidiary) or permit any Person (other than the Company or a Wholly-Owned
Restricted Subsidiary) to own any Preferred Stock of any Restricted Subsidiary.
After the Notes have been assigned an Investment Grade Rating
by both Rating Agencies, and notwithstanding that the Notes may later cease to
have an Investment Grade Rating, the Company and the Restricted Subsidiaries
will not be subject to the provisions of this Section; provided, that no Default
has occurred and is continuing at the time the Notes have been assigned such
rating.
Section 10.20. Limitation on Dividends and Other
Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist, or enter into any agreement with any Person that would cause to
become effective, any consensual encumbrance or restriction of any kind, on the
ability of any Restricted Subsidiary to (a) pay dividends, in cash or otherwise,
or make any other distribution on or in respect of its Capital Stock or any
other interest or participation in, or measured by, its profits, to the Company
or any other Restricted Subsidiary, (b) pay any Indebtedness owed to the Company
or any other Restricted Subsidiary, (c) make loans or advances to, or guarantee
any Indebtedness or other obligations of, the Company or any other Restricted
Subsidiary or (d) transfer any of its property or assets to the Company or any
other Restricted Subsidiary, except any encumbrance or restriction (i) with
respect to a Restricted Subsidiary that is not a Restricted Subsidiary on the
Issue Date, in existence at the time such Person becomes a Restricted Subsidiary
(but not created in contemplation thereof); provided, however, that such
encumbrances and restrictions are not applicable to the Company or any
Restricted Subsidiary, or the properties or assets of the Company or any
Restricted Subsidiary, other than such Person; (ii) arising as a result of
customary non- assignment provisions in leases entered into in the ordinary
course of business; (iii) existing under any agreement governing the terms of or
otherwise arising as a result of Purchase Money Indebtedness (other than
Indebtedness incurred to finance an Asset Acquisition) for property acquired in
the ordinary course of business that only imposes encumbrances and restrictions
on the property so acquired; (iv) contained in any agreement for the sale or
disposition of the Capital Stock or assets of any Restricted Subsidiary;
provided, however, that such encumbrances and restrictions described in this
clause (iv) are only applicable to such Restricted Subsidiary or assets, as
applicable, and any such sale or disposition is made in compliance with Section
10.16 to the extent applicable thereto; or (v) existing under any agreement that
refinances or replaces the agreements containing the
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encumbrance or restrictions in the foregoing clause (i); provided, however, that
the terms and conditions of any such restrictions permitted under this clause
(v) are not materially less favorable to the holders of the Notes than those
under or pursuant to the agreement evidencing the Indebtedness refinanced.
After the Notes have been assigned an Investment Grade Rating
by both Rating Agencies, and notwithstanding that the Notes may later cease to
have an Investment Grade Rating, the Company and the Restricted Subsidiaries
will not be subject to the provisions of this Section; provided, that no Default
has occurred and is continuing at the time the Notes have been assigned such
rating.
Section 10.21. Limitation on Designations of
Unrestricted Subsidiaries.
The Company may designate after the Issue Date any Subsidiary
(other than a Guarantor) as an "Unrestricted Subsidiary" under the Indenture (a
"Designation") only if:
(A) no Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(B) the Company would be permitted under this Indenture to
make an Investment (other than a Permitted Investment) at the time of
Designation (assuming the effectiveness of such Designation) pursuant
to the first paragraph of Section 10.14 in an amount (the "Designation
Amount") equal to the Fair Market Value of the Company's interest in
such Subsidiary on such date calculated in accordance with GAAP;
(C) if the Company is then subject to Section 10.12, the
Company would be permitted under this Indenture to incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to
the proviso of the first paragraph of Section 10.12 hereof at the time
of such Designation (assuming the effectiveness of such Designation).
In the event of any such Designation, the Company shall be
deemed to have made an Investment constituting a Restricted Payment pursuant to
the covenant described in Section 10.14 hereof for all purposes of the Indenture
in the Designation Amount.
The Company shall not and shall not cause or permit any
Restricted Subsidiary to at any time (x) provide credit support for, or subject
any of its property or assets (other than the Capital Stock of any Unrestricted
Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness) (other than Permitted Investments in Unrestricted Subsidiaries) or
(y) be directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary and (ii) no Unrestricted Subsidiary shall at any time guarantee or
otherwise provide credit support for any obligation of the Company or any
Restricted Subsidiary. For purposes of the foregoing, the Designation of a
Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed to be
the Designation of all of the Subsidiaries of such Subsidiary.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
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(D) no Default shall have occurred and be continuing at the
time of and after giving effect to such Revocation;
(E) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of the
Indenture;
(F) if the Company is then subject to Section 10.12, unless
such redesignated Subsidiary shall not have any Indebtedness
outstanding (other than Indebtedness that would be Permitted
Indebtedness), immediately after giving effect to such proposed
Revocation, and the incurrence of any such additional Indebtedness, the
Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the covenant described in Section
10.12; and
(G) any transaction (or series of related transactions) between
such Subsidiary and any of its Affiliates that occurred while such
Subsidiary was an Unrestricted Subsidiary would be permitted by Section
10.15 as if such transaction (or series of related transactions) had
occurred at the time of such Revocation.
All Designations and Revocations must be evidenced by Board
Resolutions of the Company delivered to the Trustee certifying compliance with
the foregoing provisions.
Section 10.22. Compliance Certificates and
Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company, the
Guarantors and any other obligor on the Notes will furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with,
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents,
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture will include:
(I) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(II) 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;
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(III) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether such covenant or
condition has been complied with; and
(IV) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 10.23. Application of Fall Away Covenants.
After the Notes have been assigned an Investment Grade Rating
by both Rating Agencies and the Company and the Guarantors shall no longer be
subject to the agreements and covenants contained in clause (iii) of the first
paragraph of Section 8.01, Sections 10.12, 10.14, 10.15, 10.16, 10.19, 10.20 and
clause (c) of the first and fourth paragraphs of 10.21 as therein provided, such
provisions shall no longer have application for any purpose of this Indenture
(including, without limitation, for purposes of Article Five, Article Eight,
Article Nine and Article Twelve hereof).
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge of
Indenture.
This Indenture shall cease to be of further effect (except as
to surviving rights or registration of transfer or exchange of Notes herein
expressly provided for) and the Trustee, on written demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when either
(A) all Notes theretofore authenticated and delivered (other
than (A) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06 hereof and (B) Notes
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
10.03) have been delivered to the Trustee for cancellation; or
(B) (I) all such Notes not theretofore delivered to the Trustee
for cancellation have become due and payable and the Company or any
Guarantor has irrevocably deposited or caused to be deposited with the
Trustee in trust an amount of money in dollars sufficient to pay and
discharge the entire Indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for the principal of,
premium, if any, and interest to the date of such deposit;
(II) the Company or any Guarantor has paid or caused to be
paid all other sums payable hereunder by the Company and the Guarantor;
and
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(III) the Company and each of the Guarantors have delivered to
the Trustee (i) irrevocable instructions to apply the deposited money
toward payment of the Notes at the Stated Maturities and the Redemption
Dates thereof, and (ii) an Officers' Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been
complied with; provided, that such Opinion of Counsel may rely, as to
matters of fact, upon an Officers' Certificate.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (a)(ii) of this
Section 11.01, the obligations of the Trustee under Section 11.02 and the last
paragraph of Section 10.03 shall survive.
Section 11.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 11.01 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal of, premium, if
any, and interest on the Notes for whose payment such money has been deposited
with the Trustee.
ARTICLE TWELVE
GUARANTEE OF NOTES
Section 12.01. Unconditional Guarantee.
Each Guarantor hereby jointly and severally fully and
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company or any other Note Guarantor to the Holders or the
Trustee hereunder or thereunder, that: (a) the principal of, premium, if any,
and interest on the Notes will be duly and punctually paid in full when due,
whether at maturity, upon redemption, by acceleration or otherwise, and interest
on the overdue principal and (to the extent permitted by law) interest, if any,
on the Notes and all other obligations of the Company or the Guarantor to the
Holders or the Trustee hereunder or thereunder (including fees, expenses or
other) and all other Indenture Obligations will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
Indenture Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed, or failing performance of any other obligation of the
Company to the Holders, for whatever reason, each Guarantor shall be obligated
to pay, or to perform or cause the performance of, the
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same immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under this Guarantee, and shall entitle the
Holders of Notes to accelerate the obligations of the Guarantor hereunder in the
same manner and to the same extent as the obligations of the Company.
Each Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Note Guarantee is affixed to any particular Note, or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
Each Guarantor hereby waives the benefit of diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that its Note Guarantee shall not be discharged except by complete performance
of the obligations contained in the Notes, this Indenture and this Note
Guarantee. This Note Guarantee is a guarantee of payment and not of collection.
If any Holder or the Trustee is required by any court or otherwise to return to
the Company or to any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or such Guarantor, any amount
paid by the Company or such Guarantor to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor further agrees that, as between it, on the one
hand, and the Holders of Notes and the Trustee, on the other hand, (a) subject
to this Article Twelve, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five hereof for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Article Five
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Note Guarantor for the purpose of this Guarantee.
Section 12.02. Execution and Delivery of Note
Guarantee.
To further evidence the Note Guarantee set forth in Section
12.01, each Guarantor hereby agrees that a notation of such Note Guarantee shall
be endorsed on each Note authenticated and delivered by the Trustee and executed
by either manual or facsimile signature of an Officer of each Guarantor.
Each of the Guarantors hereby agrees that its Note Guarantee
set forth in Section 12.01 shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Note Guarantee.
If an Officer of a Guarantor whose signature is on this
Indenture or a Note Guarantee no longer holds that office at the time the
Trustee authenticates such Note or at any time thereafter, such Guarantor's Note
Guarantee of such Note shall be valid nevertheless.
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The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any Note
Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 12.03. Additional Guarantors.
Any person that was not a Guarantor on the date of this
Indenture may become a Guarantor by executing and delivering to the Trustee (a)
a supplemental indenture in form and substance satisfactory to the Trustee,
which subjects such person to the provisions (including the representations and
warranties) of this Indenture as a Guarantor, (b) in the event that as of the
date of such supplemental indenture any Registrable Securities are outstanding,
an instrument in form and substance satisfactory to the Trustee which subjects
such person to the provisions of the Registration Rights Agreement with respect
to such outstanding Registrable Securities, and (c) an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized and executed by
such person and constitutes the legal, valid and binding obligation of such
person (subject to such customary assumptions and exceptions as may be
acceptable to the Trustee in its reasonable discretion).
Section 12.04. Release of a Guarantor.
(i) Upon the sale, exchange, transfer or other disposition (by
merger or otherwise), other than a lease, of a Subsidiary of the Company that is
a Guarantor of all of the Capital Stock of such Subsidiary or all, or
substantially all, the assets of such Subsidiary, to any person that is not an
Affiliate of the Company, and which sale or other disposition is otherwise in
compliance with the terms of this Indenture or (ii) at the request of the
Company, in the event that the lenders under the Credit Facility (or any other
revolving credit or term loan facility entitled to a guarantee from such
Guarantor) unconditionally release such Guarantor from its guarantee obligations
under such facility, if such Guarantor is not a Leveraged Subsidiary; provided,
however, that a release of a Guarantor that is a Leveraged Subsidiary may only
be obtained under the circumstances described in this clause (ii) if, after
giving effect to the release, either (x) such Guarantor would have been
permitted to incur all of its then outstanding Indebtedness under Section 10.12
or (y) Section 10.12 has been terminated pursuant to its terms. Such Guarantor
shall be deemed automatically and unconditionally released and discharged from
all obligations under this Article Twelve without any further action required on
the part of the Trustee or any Holder. The Trustee shall deliver an appropriate
instrument evidencing such release upon receipt of a request of the Company
accompanied by an Officers' Certificate certifying as to the compliance with
this Section and the Company's rights of redemption in accordance with the terms
of the Notes in this Section 12.04. Any Guarantor not so released will remain
liable for the full amount of principal of, premium, if any, and interest on the
Notes as provided in this Article Twelve.
Section 12.05. Waiver of Subrogation.
Until this Indenture is discharged and all of the Notes are
discharged and paid in full, each Guarantor hereby irrevocably waives and agrees
not to exercise any claim or other rights which it may now or hereafter acquire
against the Company that arise from the existence, payment, performance or
enforcement of the Company's obligations under the Notes or this
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Indenture and such Guarantor's obligations under this Note Guarantee and this
Indenture, in any such instance including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, and any
right to participate in any claim or remedy against the Company, whether or not
such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Company, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any Guarantor in violation of the preceding
sentence and any amounts owing to the Trustee or the Holders of Notes under the
Notes, this Indenture, or any other document or instrument delivered under or in
connection with such agreements or instruments, shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor for
the benefit of, and held in trust for the benefit of, the Holders of the Notes,
and shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied to the Notes, whether matured or unmatured, in accordance
with the terms of this Indenture. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waiver set forth in this Section
12.05 is knowingly made in contemplation of such benefits.
Section 12.06. Reliance on Judicial Order or
Certificate of Liquidating Agent
Regarding Dissolution, etc. of
Guarantors.
Upon any payment or distribution of assets of any Guarantor
referred to in this Article Twelve, the Trustee, subject to the provisions of
Section 6.01, and the Holders, shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article Twelve; provided,
however, that the foregoing shall apply only if such court has been fully
apprised of the provisions of this Article Twelve.
Section 12.07. Article Twelve Applicable to Paying
Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Twelve shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Twelve in addition to or in place of the Trustee.
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Section 12.08. No Suspension of Remedies.
Nothing contained in this Article Twelve shall limit the right
of the Trustee or the Holders of Notes to take any action to accelerate the
maturity of the Notes pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
Section 12.09. Limitation of Subsidiary Guarantor's
Liability.
Each Guarantor that is a Subsidiary of the Company, and by its
acceptance hereof each Holder, hereby confirms that it is the intention of all
such parties that the Note Guarantee by such Guarantor pursuant to its Note
Guarantee not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar Federal or state law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under this Note Guarantee shall be limited to the
maximum amount which, after giving effect to all other contingent and fixed
liabilities of such Guarantor, and after giving effect to any collections from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Note Guarantee or pursuant to its
contribution obligations under this Article Twelve, will result in the
obligations of such Guarantor under its Note Guarantee not constituting such
fraudulent transfer or conveyance.
Section 12.10. Contribution from Other Guarantors.
Each Guarantor that makes a payment or distribution under its
Note Guarantee shall be entitled to a contribution from each other Guarantor in
a pro rata amount based on the net assets of each Guarantor, determined in
accordance with GAAP.
Section 12.11. Obligations Reinstated.
The obligations of each Guarantor hereunder shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
payment which would otherwise have reduced the obligations of any Guarantor
hereunder (whether such payment shall have been made by or on behalf of the
Company or by or on behalf of a Guarantor) is rescinded or reclaimed from any of
the Holders upon the insolvency, bankruptcy, liquidation or reorganization of
the Company or any Guarantor or otherwise, all as though such payment had not
been made. If demand for, or acceleration of the time for, payment by the
Company is stayed upon the insolvency, bankruptcy, liquidation or reorganization
of the Company, all such Indebtedness otherwise subject to demand for payment or
acceleration shall nonetheless be payable by each Guarantor as provided herein.
Section 12.12. No Obligation To Take Action Against
the Company.
Neither the Trustee nor any other Person shall have any
obligation to enforce or exhaust any rights or remedies or to take any other
steps under any security for the Indenture Obligations or against the Company or
any other Person or any property of the Company or any other Person before the
Trustee is entitled to demand payment and performance by any or all Guarantors
of their liabilities and obligations under their Note Guarantees or under this
Indenture.
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Section 12.13. Dealing with the Company and Others.
The Holders, without releasing, discharging, limiting or
otherwise affecting in whole or in part the obligations and liabilities of any
Guarantor hereunder and without the consent of or notice to any Guarantor, may
(A) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Company or
any other Person;
(B) take or abstain from taking security or collateral from the
Company or from perfecting security or collateral of the Company;
(C) release, discharge, compromise, realize, enforce or
otherwise deal with or do any act or thing in respect of (with or
without consideration) any and all collateral, mortgages or other
security given by the Company or any third party with respect to the
obligations or matters contemplated by this Indenture or the Notes;
(D) accept compromises or arrangements from the Company;
(E) apply all monies at any time received from the Company or
from any security upon such part of the Indenture Obligations as the
Holders may see fit or change any such application in whole or in part
from time to time as the Holders may see fit; and
(F) otherwise deal with, or waive or modify their right to deal
with, the Company and all other Persons and any security as the Holders
or the Trustee may see fit.
[signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
XXXXXXXX'X, INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
X.X. XXXXXXXXX'X, INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
PARISIAN, INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
XXXXX'X, INC.
By:
------------------------------
Name:
Title:
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By:
------------------------------
Name:
Title:
XXXXX'X STORES PARTNERSHIP
By: XxXxx'x, Inc., as managing
general partner By:
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
XXXXX'X OF ALABAMA, INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By:
------------------------------
Name:
Title:
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EXHIBIT A-1
[FORM OF NOTE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904 OF
REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO
YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST
DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY OR ANY PREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"),
OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN
ACCREDITED INVESTOR THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT (AND IF ACQUIRING THE SECURITIES FROM SUCH AN
ACCREDITED INVESTOR, IS ACQUIRING SECURITIES HAVING AN AGGREGATE PRINCIPAL
AMOUNT OF NOT LESS THAN $250,000), OR (F) PURSUANT
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100
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY, THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR
SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE
RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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XXXXXXXX'X, INC.
8 1/8% SENIOR NOTES DUE 2004
CUSIP No. __________
No. ___________ $
XXXXXXXX'X, INC., a corporation incorporated under the laws of
the State of Tennessee (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on May 15, 2004, at the office or
agency of the Company referred to below, and to pay interest thereon on May 15
and November 15 (each an "Interest Payment Date"), of each year, commencing on
November 15, 1997, accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 8 1/8% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred to
on the reverse hereof, be paid to the person in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on the May 1 and
November 1 (each a "Regular Record Date"), whether or not a Business Day, as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the then applicable interest rate borne by the Notes, to the extent lawful,
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and may be paid to the person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee,
notice of which shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained for
such purpose, 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;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the person entitled thereto as such
address shall appear on the Note Register.
A-1-3
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Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-1-4
103
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: XXXXXXXX'X, INC.
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 1/8% Senior Notes due 2004, Series A,
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
By:
------------------------------
Authorized Officer
A-1-5
104
[REVERSE OF NOTE]
1. Indenture. This Note is one of a duly authorized issue
of Notes of the Company designated as its 8 1/8% Senior Notes due 2004, Series A
(herein called the "Initial Notes"). The Notes are limited (except as otherwise
provided in the Indenture referred to below) in aggregate principal amount to
$125,000,000, which may be issued under an indenture (herein called the
"Indenture") dated as of May 21, 1997, by and among the Company, each of the
Guarantors named in the Indenture (the "Guarantors") and The First National Bank
of Chicago, as trustee (herein called the "Trustee," which term includes any
successor Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Trustee, the Guarantors and the Holders of the Notes, and of
the terms upon which the Notes are, and are to be, authenticated and delivered.
The Notes include the Initial Notes, the Private Exchange Securities and the
Unrestricted Notes (including the Exchange Notes referred to below), issued in
exchange for the Initial Notes pursuant to the Registration Rights Agreement.
The Initial Notes and the Unrestricted Notes are treated as a single class of
securities under the Indenture.
All capitalized terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. Section Section 77aaa-77bbbb) (the "TIA"), as in effect on the
date of the Indenture. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this
Note or of the Indenture shall alter or impair the obligation of the Company or
any Guarantor, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the times, place, and rate, and in
the coin or currency, herein prescribed.
2. Note Guarantees. This Note is initially entitled to the
benefits of the certain senior Note Guarantees of the Guarantors and may
thereafter be entitled to certain other senior Note Guarantees made for the
benefit of the Holders. Reference is hereby made to Article Twelve of the
Indenture and to the Note Guarantees endorsed on this Note for a statement of
the respective rights, limitations of rights, duties and obligations thereunder
of the Guarantors, the Trustee and the Holders.
3. Registration Rights. Pursuant to the Registration
Rights Agreement by and among the Company, the Guarantors and the Initial
Purchasers, the Company and the Guarantors will be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right to
exchange this Note together with the Note Guarantees hereof endorsed hereon for
8 1/8% Senior Notes due 2004, Series B, of the Company (herein called the
"Exchange Notes") and the Note Guarantees endorsed thereon, which have been
registered under the
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105
Securities Act, in like principal amount and having identical terms as the Notes
(other than as set forth in this paragraph) and the Note Guarantees endorsed
hereon, respectively. The Holders of Notes shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.
4. Redemption. The Notes will not be subject to
redemption at the option of the Company at any time.
5. Offers to Purchase. Sections 10.11 and 10.16 of the
Indenture provide that upon the occurrence of a Change of Control Triggering
Event and following certain Asset Sales, and subject to certain conditions and
limitations contained therein, the Company shall make an offer to purchase all
or a portion of the Notes in accordance with the procedures set forth in the
Indenture.
6. Defaults and Remedies. If an Event of Default occurs
and is continuing, the principal of all of the Outstanding Notes, plus all
accrued and unpaid interest, if any, to and including the date the Notes are
paid, may be declared due and payable in the manner and with the effect
provided in the Indenture.
7. Defeasance. The Indenture contains provisions (which
provisions apply to this Note) for defeasance at any time of (a) the entire
indebtedness of the Company and the Guarantors on this Note and (b) certain
restrictive covenants and related Defaults and Events of Default, in each case
upon compliance by the Company with certain conditions set forth therein.
8. Amendments and Waivers. The Indenture permits, with
certain exceptions as provided therein, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and
certain past Defaults under the Indenture and this Note and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
9. Denominations, Transfer and Exchange. The Notes are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Note Register
of the Company, upon surrender of this
A-1-7
106
Note for registration of transfer at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan in The City of New York,
State of New York, or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
10. Persons Deemed Owners. Prior to and at the time of due
presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note shall be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
11. Termination of Certain Covenants. After the Notes have
been assigned an Investment Grade Rating by both Rating Agencies, and
notwithstanding that the Notes may later cease to have an Investment Grade
Rating, the Company and the Restricted Subsidiaries will no longer be subject to
the provisions of Sections 10.12, 10.14, 10.15, 10.16, 10.19 and 10.20, clause
(c) of the first and fourth paragraphs of Section 10.21 and clause (iii) of
Section 8.01(a) of the Indenture; provided, that no Default has occurred and is
continuing at the time the Notes have been assigned such rating.
12. GOVERNING LAW. THE INDENTURE, THIS NOTE AND EACH
NOTE GUARANTEE SET FORTH BELOW SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
Xxxxxxxx'x, Inc., 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
A-1-8
107
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to
_______________________________________________________________________________
(Insert assignee's social security or tax ID number)___________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
_______________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
In connection with any transfer of this Note occurring prior to
the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), covering resales of this Note
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) the date two years (or such shorter period of time as
permitted by Rule 144 under the Securities Act or any successor provision
thereunder) after the later of the original issuance date appearing on the face
of this Note (or any Predecessor Note) or the last date on which the Company or
any Affiliate of the Company or any Guarantor was the owner of this Note (or any
Predecessor Note), the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance
with (a) above and documents, including (i) a transferee
certificate substantially in the form of Exhibit C to the
Indenture in the case of a transfer to non-QIB Accredited
Investors or (ii) a transferor certificate substantially in
the form of Exhibit D to the Indenture
A-1-9
108
in the case of a transfer pursuant to Regulation S, are being
furnished which comply with the conditions of transfer set
forth in this Note and the Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if the
appropriate document is not attached or otherwise furnished to the Trustee, the
Trustee or Registrar shall not be obligated to register this Note in the name of
any person other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in Section 3.17 of the
Indenture shall have been satisfied.
_______________________________________________________________________________
Date: Your signature:
-------------- ----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
By:
------------------------------------
NOTICE: To be executed by
an executive officer
Signature Guarantee:
--------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated:
---------------------------- --------------------------
NOTICE: To be executed by
an executive officer
A-1-10
109
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 10.11 or 10.16 of the Indenture, check the appropriate box:
Section 10.11 [ ] Section 10.16 [ ]
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 10.11 or 10.16 of the Indenture, state the amount:
$
============
Date: Your signature:
-------------- ----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
By:
------------------------------------
NOTICE: To be executed by
an executive officer
Signature Guarantee:
--------------------
A-1-11
110
EXHIBIT A-2
XXXXXXXX'X, INC.
----------------
8 1/8% SENIOR NOTES DUE 2004
CUSIP No. __________
No. ___________
$
XXXXXXXX'X, INC., a corporation incorporated under the laws of
the State of Tennessee (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum of _______________ Dollars on May 15, 2004, at the office or
agency of the Company referred to below, and to pay interest thereon on May 15
and November 15 (each an "Interest Payment Date"), of each year, commencing on
November 15, 1997, accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of [ ]% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred to
on the reverse hereof, be paid to the person in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on the May 1 and
November 1 (each a "Regular Record Date"), whether or not a Business Day, as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the then applicable interest rate borne by the Notes, to the extent lawful,
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and may be paid to the person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee,
notice of which shall be given to Holders of Notes not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained for
such purpose, 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;
provided,
A-2-1
111
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the person entitled thereto as such address shall
appear on the Note Register.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
A-2-2
112
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: XXXXXXXX'X, INC.
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 1/8% Senior Notes due 2004, Series B,
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:
----------------------------
Authorized Officer
A-2-3
113
[REVERSE OF NOTE]
1. Indenture. This Note is one of a duly authorized issue
of Notes of the Company designated as its 8 1/8% Senior Notes due 2004, Series B
(herein called the "Unrestricted Notes"). The Notes are limited (except as
otherwise provided in the Indenture referred to below) in aggregate principal
amount to $125,000,000, which may be issued under an indenture (herein called
the "Indenture") dated as of May 21, 1997, by and among the Company, each of the
Guarantors named in the Indenture (the "Guarantors") and The First National Bank
of Chicago, as trustee (herein called the "Trustee," which term includes any
successor Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
the Company, the Trustee, the Guarantors and the Holders of the Notes, and of
the terms upon which the Notes are, and are to be, authenticated and delivered.
The Notes include the Initial Notes, the Private Exchange Securities and the
Unrestricted Notes (including the Exchange Notes), issued in exchange for the
Initial Notes pursuant to the Registration Rights Agreement. The Initial Notes
and the Unrestricted Notes are treated as a single class of securities under the
Indenture.
All capitalized terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. Section Section 77aaa-77bbb) (the "TIA"), as in effect on the
date of the Indenture. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this
Note or of the Indenture shall alter or impair the obligation of the Company or
any Guarantor, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the times, place, and rate, and in
the coin or currency, herein prescribed.
2. Note Guarantees. This Note is initially entitled to the
benefits of the certain senior Note Guarantees of the Guarantors and may
thereafter be entitled to certain other senior Note Guarantees made for the
benefit of the Holders. Reference is hereby made to Article Twelve of the
Indenture and to the Note Guarantees endorsed on this Note for a statement of
the respective rights, limitations of rights, duties and obligations thereunder
of the Guarantors, the Trustee and the Holders.
3. Redemption. The Notes will not be subject to
redemption at the option of the Company at any time.
4. Offers to Purchase. Sections 10.11 and 10.16 of the
Indenture provide that upon the occurrence of a Change of Control Triggering
Event and following certain Asset Sales, and subject to certain conditions and
limitations contained therein, the Company shall make an
A-2-4
114
offer to purchase all or a portion of the Notes in accordance with the
procedures set forth in the Indenture.
5. Defaults and Remedies. If an Event of Default occurs
and is continuing, the principal of all of the Outstanding Notes, plus all
accrued and unpaid interest, if any, to and including the date the Notes are
paid, may be declared due and payable in the manner and with the effect provided
in the Indenture.
6. Defeasance. The Indenture contains provisions (which
provisions apply to this Note) for defeasance at any time of (a) the entire
indebtedness of the Company and the Guarantors on this Note and (b) certain
restrictive covenants and related Defaults and Events of Default, in each case
upon compliance by the Company with certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with
certain exceptions as provided therein, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and
certain past Defaults under the Indenture and this Note and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
8. Denominations, Transfer and Exchange. The Notes are
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Note Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company maintained for such purpose in the Borough of
Manhattan in The City of New York, State of New York, or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
A-2-5
115
9. Persons Deemed Owners. Prior to and at the time of due
presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the person in whose name
this Note is registered as the owner hereof for all purposes, whether or not
this Note shall be overdue, and neither the Company, the Trustee nor any agent
shall be affected by notice to the contrary.
10. Termination of Certain Covenants. After the Notes have
been assigned an Investment Grade Rating by both Rating Agencies, and
notwithstanding that the Notes may later cease to have an Investment Grade
Rating, the Company and the Restricted Subsidiaries will no longer be subject to
the provisions of Sections 10.12, 10.14, 10.15, 10.16, 10.19 and 10.20, clause
(c) of the first and fourth paragraphs of Section 10.21 and clause (iii) of
Section 8.01(a) of the Indenture; provided, that no Default has occurred and is
continuing at the time the Notes have been assigned such rating.
11. GOVERNING LAW. THE INDENTURE, THIS NOTE AND EACH
NOTE GUARANTEE SET FORTH BELOW SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture. Requests may be made to:
Xxxxxxxx'x, Inc., 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
A-2-6
116
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to
_______________________________________________________________________________
(Insert assignee's social security or tax ID number)___________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
_______________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for such agent.
Date: Your signature:
-------------- ----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
By:
------------------------------------
NOTICE: To be executed by
an executive officer
Signature Guarantee:
--------------------
A-2-7
117
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant
to Section 10.11 or 10.16 of the Indenture, check the appropriate box:
Section 10.11 [ ] Section 10.16 [ ]
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 10.11 or 10.16 of the Indenture, state the amount:
$
============
Date: Your signature:
-------------- ----------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
By:
-------------------------------------
NOTICE: To be executed by
an executive officer
Signature Guarantee:
--------------------
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EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS
NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Xxxxxxxx'x, Inc.
000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $ aggregate
principal amount of the 8 1/8 % Senior Notes due 2004 (the "Notes" of Xxxxxxxx'x
Inc. (the "Company"), we confirm that:
1. We understand that the Notes have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on
behalf of any investor account for which we are purchasing Notes to
offer, sell or otherwise transfer such Notes prior to (x) the date
which is two years (or such shorter period of time as permitted by Rule
144 under the Securities Act) after the later of the date of original
issue of the Notes and (y) such later date, if any, as may be required
by any subsequent change in applicable law (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) so long as the Notes are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "qualified institutional buyer" under Rule 144A
(a "QIB") that purchases for its own account or for the account of a
QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and sales that occur
outside the United States to "foreign purchasers" (as defined below) in
offshore transactions meeting the requirements of Rule 904 of
Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2),
(3) or (7) of Rule 501 under the Securities Act (an "Accredited
Investor") that is purchasing for its own account or for the account of
such an institutional "accredited investor," or (f) pursuant to any
other available exemption from the registration requirements of the
Securities Act, subject, in each of the foregoing cases, to any
requirement of law that the disposition of our property or the property
of such investor account or accounts be at all times within our or
their control and to compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply subsequent to
the Resale Restriction Termination Date. If any resale or other
transfer of the Notes is proposed to be made pursuant to clause (c)
above prior to the Resale Restriction Termination Date, the transferor
shall deliver a letter from the transferee substantially in the form of
this letter to
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the Trustee, which shall provide, among other things, that the
transferee is an Accredited Investor within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act and that
it is acquiring such Notes for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser
acknowledges that the Company, the Trustee and the Transfer Agent and
Registrar reserve the right prior to any offer, sale or other transfer
prior to the Resale Restriction Termination Date of the Notes pursuant
to clause (d), (e) or (f) above to require the delivery of an opinion
of counsel, certification and/or other information satisfactory to the
Company and the Trustee.
2. We are an Accredited Investor or a QIB purchasing Notes
for our own account or for the account of one or more Accredited
Investors, and we are acquiring the Notes for investment purposes and
not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or the securities laws
of any state of the United States and we have such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we
and any accounts for which we are acting are each able to bear the
economic risk of our or its investment in the Notes for an indefinite
period.
3. We are acquiring the Notes purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion and we and any such account are (a) a QIB,
aware that the sale is being made in reliance on Rule 144A under the
Securities Act, (b) an Accredited Investor, or (c) a person other than
a U.S. person ("foreign purchasers"), which term shall include dealers
or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate
or trust) in offshore transactions meeting the requirements of Rules
903 and 904 of Regulation S under the Securities Act.
4. We have received a copy of the Offering Memorandum and
acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers
thereto, as we deem necessary in order to verify the information
contained in the Offering Memorandum.
5. We are not purchasing the Notes for or on behalf of,
and will not transfer the Notes to, any pension or welfare plan (as
defined in Section 3 of ERISA, except as may be permitted under ERISA
and as described under "Notice to Investors" in the Offering
Memorandum.
6. In the event that we purchase any Notes, we will
acquire Notes having an outstanding principal amount of at least
$250,000 for our own account and $250,000 for each account for which we
are acting.
We understand that the Trustee and the Transfer Agent will not be
required to accept for registration of transfer any Notes acquired by us, except
upon presentation of evidence satisfactory to the Company and the Trustee that
the foregoing restrictions on transfer have been complied with. We further
understand that the Notes purchased by us will be in the form of
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definitive physical certificates and that such certificates will bear a legend
reflecting the substance of this paragraph. We further agree to provide to any
person acquiring any of the Notes from us a notice advising such person that
transfers of such Notes are restricted as stated herein and that certificates
representing such Notes will bear a legend to that effect.
We represent that you, the Company, the Trustee and others are
entitled to rely upon the truth and accuracy of our acknowledgements,
representations and agreements set forth herein, and we agree to notify you
promptly in writing if any of our acknowledgements, representations or
agreements herein cease to be accurate and complete. You are also irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
We represent to you that we have full power to make the foregoing
acknowledgements, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as fiduciary agent.
As used herein, the terms "offshore transaction," "United States"
and "U.S. person" have the respective meanings given to them in Regulation S
under the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
---------------------------------
Date:
-------------------------------
Upon transfer, the Notes would be registered in the name of the
new beneficial owner as follows:
Name:
-------------------------------
Address:
----------------------------
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EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
______________, ____
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trustee Administration
Re: Xxxxxxxx'x, Inc.
(the "Company") 8 1/8% Senior Notes due 2004 (the
"Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person
in the United States;
(2) either (a) at the time the buy offer was originated,
the transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction was executed in, on
or through the facilities of a designated off-shore securities market
and neither we nor any person acting on our behalf knows that the
transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
Rule 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities;
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(6) if the circumstances set forth in Rule 904(c) under the
Securities Act are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Securities may be offered and sold during
the restricted period specified in Rule 903(c)(2) or (3), as
applicable, in accordance with the provisions of Regulation S; pursuant
to registration of the Securities under the Securities Act; or pursuant
to an available exemption from the registration requirements under the
Securities Act; and
(7) if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) are applicable thereto, we confirm that
such sale has been made in accordance with such provisions.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------
Authorized Signature
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EXHIBIT E
FORM OF NOTE GUARANTEE
For value received, the undersigned hereby fully and
unconditionally guarantees to the Holder of this Note the cash payments in
United States dollars of principal of, premium, if any, and interest on this
Note in the amounts and at the time when due and interest on the overdue
principal, premium, if any, and interest, if any, on this Note, if lawful, and
the payment or performance of all other obligations of the Company under the
Indenture or the Notes, to the Holder of this Note and the Trustee, all in
accordance with and subject to the terms and limitations of this Note, Article
Twelve of the Indenture and this Note Guarantee. This Note Guarantee will become
effective in accordance with Article Twelve of the Indenture and its terms shall
be evidenced therein. The validity and enforceability of any Note Guarantee
shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Indenture dated as of May 21, 1997, by and among Xxxxxxxx'x,
Inc., the undersigned and The First National Bank of Chicago, as Trustee, as
amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Notes and
to the Trustee pursuant to the Note Guarantee and the Indenture are expressly
set forth in Article Twelve of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Note Guarantee and all of the other
provisions of the Indenture to which this Note Guarantee relates.
THIS NOTE GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. THE SUBSIDIARY GUARANTOR HEREUNDER AGREES TO SUBMIT TO THE
NON- EXCLUSIVE JURISDICTION OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES OR THIS NOTE GUARANTEE.
This Note Guarantee is subject to release upon the terms set
forth in the Indenture.
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IN WITNESS WHEREOF, the undersigned Guarantor has caused this
Note Guarantee to be duly executed.
Dated:
[NAME OF GUARANTOR]
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
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